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Some Questions of International Law in the European War1
The Sale and Exportation of Arms and Munitions of War to Belligerents
Published online by Cambridge University Press: 04 May 2017
Extract
The policy of the United States Government in permitting the exportation of arms, munitions, and other war supplies for the use of belligerents during the present war has been the subject of much discussion in Congress and in the press and has provoked diplomatic remonstrances from the Governments of Germany and Austria-Hungary. As a general proposition, it has been admitted by those who complain of the extensive traffic which has gone on between American manufacturers and certain of the belligerents, that neutral governments are not by the existing rules of international law bound to prevent their nationals from engaging in such traffic; but it has been argued that special circumstances to which the present war has given rise give a “new conception to the aspect of neutrality” and that an abnormal and unprecedented situation has been created which makes the continued furnishing of arms and munitions to the belligerents on one side, when their adversaries are unable to avail themselves of the American markets, a violation of the spirit of strict neutrality.
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Footnotes
1
Continued from previous numbers of the Journal.
References
2 The Remington Arms Company is reported to have added eleven new buildings at a cost of approximately $3,000,000 to its plant during the early months of the war.
3 It is impossible to give even approximately correct figures of the volume of this trade. The daily press frequently contained reports of contracts with agents of the British, French, and Russian Governments for fifty-million and hundred-million dollar orders. According to statistics compiled by the Department of Commerce (published in the Congressional Record of January 13, 1916, pp. 1071–1072) the value of exports of munitions alone during the first nine months of the year 1915exceeded the value of those for the corresponding months of 1913 by $160,000,000.It was estimated that the value of the exports of explosives and fire arms to belligerent countries during the month of October, 1915, exceeded that of October, 1913,by $18,000,000. The increased exports of such articles as horses, woolen goods, automobiles, etc., during the same month amounted to $21,000,000. The increase in food stuffs, a very large proportion of which was doubtless used for feeding armies, amounted to $26,000,000. According to information given out by the Department of Commerce on May 31, 1916, the total purchases of arms and munitions in the United States during the first twenty months of the war amounted to $388,000,000.By July 16 the amount had gone up to $446,000,000. During the month of March more than $50,000,000 worth of munitions were exported from the United States. Shipments of high explosive shells and shrapnel, it was said, amounted to $1,000,000per day, while $500,000 worth of powder was being exported daily to Europe.
4 This is expressly affirmed by Article 7 of the Hague Conventions Nos. V and XIII of 1907. The latter convention has been ratified by twenty five and adhered to by three non-signatory Powers, including Germany and Austria-Hungary, and none of them reserved their ratification to Article 7. It can hardly be maintained that because several of the belligerents in the present war have not ratified the conventions, Article 7 of either convention is not binding. This, because the rule laid down by Article 7 is declaratory, not amendatory, of the existing law of nations. Compare editorials in this Journal for July, 1915, p. 688, and October 15, 1915, p. 932.Furthermore, the provisions of Article 20 of Convention V and of 28 of Convention XIII, that they shall apply only as between the contracting parties, have no force except in so far as the convention imposes restrictions on the sovereignty of neutralstates; they do not, therefore, apply to provisions which merely affirm existing rights.Compare De Lapradelle, “Le marché des amies aux Etats Unis et le Devoir des Neutres” (Revue Politique et Parlementaire, Oct., 1915, p. 9). The discussions of the subject at the Second Hague Conference show very clearly that Article 7 of the two conventions was not intended to impose on neutral governments an obligation to forbid such trade. See especially the remarks of Herr Kriege, Actes et Documents,Vol. III, p. 859; of M. Renault (ibid., p. 867) and the report of Colonel Borel (ibid.,Vol. I, p. 141). See also the review and comment of the editor of this Journal for July, 1915, pp. 689–691.
5 When England complained in the sixteenth century of the sale by neutral merchants of munitions to Spain, says Gentilis, the complaint was probably well founded in equity but not in law. Quoted by Nys, Le Droit International, Vol. III, p. 637.
6 Letter to the Minister of Great Britain, May 15, 1793, quoted by Moore, International Law Digest, Vol. VII, p. 955. The views of a large number of text-writers are given by Calvo in his Le Droit International, Vol. IV, Sec. 2625. Many pages in Moore’s Digest (Vol. VII, pp. 955–975) are devoted to setting forth the views of American writers, Presidents, Secretaries of State, and judges on the subject.
7 Outlines of an International Code, Sec. 964.
8 Referring to the opinion of Story in the case of the Santissima Trinidad (7 Wheaton, 340) that “there is nothing in our laws or in the law of nations that forbids our citizens from sending armed vessels as well as munitions of war to foreign ports for sale; that it is a commercial venture which no nation is bound to prohibit,” Woolsey (International Law, p. 320, note 1) expresses regret that Judge Story should have said this, if it be true. Such trade, Woolsey says, is “immoral and tends to produce lasting animosities.” “A juster and more humane policy,” he says, “would make all innocent trade with the enemy valid and require a neutral to pass stringent and effectual laws against contraband trade.” Burgess (The European War, Ch. VIII) seems to be the only native-born American scholar of note who since the outbreak of the present war has attacked the American policy in regard to the right of neutrals to sell arms and munitions to belligerents. Professor Burgess is an ardent, almost violent, sympathizer with Germany, and his views can hardly be accepted as those of an impartial jurist. Lieber, in an article in the Revue de Droit International, Vol. IV (1872), p. 469, adverting to the sale of arms to the French in1870 expressed the opinion that “no neutral government has the right to sell arms or other articles of contraband to one of the belligerents, nor can it permit individuals to sell directly those same articles.” Apparently, however, he had reference only to the sale of arms from the government arsenals by individuals who had purchased them from the government.
9 Lord Stowell in the case of the Immanuel (2 Rob., p. 198), thus early expressed the view generally adopted by English writers and jurists: “Upon the breaking out of a war it is the right of neutrals to carry on their accustomed trade with the exception of the particular cases of a trade to blockaded ports or in contraband articles (in both of which cases their property is liable to be condemned).”
10 “If,” says Phillimore (Int. Law, Vol. Ill, Sec. 230), “the foundations of international justice have been correctly pointed out in a former volume of this work (Vol. I, pt. I, ch. 3), and if it be the true character of a neutral to abstain from every act which may better or worsen the condition of a belligerent, the unlawfulness of any such sale is a necessary conclusion from these premises.” Phillimore (Sec. 229, note) quotes Lord Grenville (Letters of Sulpicius, p. 26) as saying, “ If I have wrested my enemy’s sword from his hands, the bystander who furnishes him with a fresh weapon can have no pretense to be considered as a neutral in the contest.” Referring to the view of Bynkershoek (Quesliones Juris Pub., Bk. I, C. 22), who holds that while war materials may not be carried by neutrals, they may sell them in their own country, Phillimore (Sec. 231) remarks that there is no difference in principle between the two permissions: “both are, on one and the same principle inconsistent with the duties of neutrality.”
11 Droits et Devoirs des Nations Neutres en Temps de Guerre, Vol. II, p. 424.
12 Traité des Prises Maritimes, Vol. I, p. 394.
13 “Every neutral state,” says Kleen (Lois et usages de la neutralité, Vol. I, sec. 93), “must not only itself abstain from furnishing to either belligerent contraband articles, but must watch over (surveiller) its subjects and other individuals who find themselves within its territory, to see that they do not furnish belligerents with such articles; it must prohibit by law such traffic and must prevent it as far as possible and punish such acts wherever it exercises sovereign authority.” See also his Contrebande de Guerre, pp. 52, 67.
14 Revue de Droit Int., Vol. XXVI (1894), p. 404.
15 Manuel de Droit Maritime International (French trans, by Arendt), p. 270.
16 Droit des Gens moderne de l’Europe (French trans, by Ott), Sec. 287.
17 Handel mil waffen und Kriegsmaterial, in Holtzendorff, Handbuch des Völkerrechts, Bd. IV, Sec. 152.
18 In an article entitled, Observations sur la contrebande de guerre, in the Revue de Droit Int., Vol. XXVI (1894), pp. 401 ff.
19 In an article entitled, Observations sur la contrebande de guerre, in the Rente de Droit Int., Vol. XXVI (1894), p. 404.
20 Ibid., p. 407.
21 Ibid., p. 410.
22 Ibid., p. 408. This suggestion, he said, had already been advocated by Kluber and Lorimer.
23 In an article entitled, Observations sur la contrebande de guerre, in the Revue de Droit Int., Vol. XXVI (1894), p. 408.
24 Das Völkerrecht, 4th ed., p. 362.
25 Précis de Droit des Gens, Vol. II, Sec. 315.
26 Die Zufuhr von Kriegskonterbanden Waren, p. 53.
27 Das Europaische Volkerrecht, pp. 286–7.
28 Der Frent. Fall, p. 37. “If a neutral sells arms or munitions within his own landto agents of a belligerent, the doctrine of contraband does not apply. A neutralstate may forbid such traffic through anxiety or the fear of a powerful belligerent,but there is no legal obligation (vorschrift) to do it.”
29 Das Prisenrecht in Seiner neusten Gestalt, Sec. 10.
30 Recht und Pflichten der neutralen Mächte in Seekriege, p. 99.
31 Die Kriegskonterbande. See p. 155 for the text of a proposed projet concerning the rights and duties of neutral states regarding trade in contraband, Art. I, Sec. 2 of which declares that “neutrals are not bound to prohibit their citizens from trading in these articles,” i. e., articles of a contraband character.
32 Handbuch des Positiven Völkerrechts, Sec. 133.
33 Actes el Documents, Vol. Ill, p. 859.
34 For example by Gessner, he Droit des neutres (French trans.), p. 124.
35 In a note to Sec. 148 (p. 351), of Heffter.
36 Droit Int. de l’Europe, Sec. 148.
37 Le Droit des neutres, p. 126.
38 See Geffcken’s note on Heffter, p. 351.
39 Droit Int. Codifié (ed. by Lardy), Sec. 766. A neutral state, says Bluntschli, is not required to prohibit the exportation era délail of arms and munitions, because such trade is of little importance in the relations between belligerents and neutrals, and the responsibility of preventing it would be very difficult if not impossible and would subject the citizens to innumerable vexations. But it is otherwise, he says, in regard to expéditions en gros, since they give one of the belligerents a real advantage and often amount to a veritable subsidy. Referring to the policy of the British Government in 1870 of permitting the sale of arms to the French, Bluntschli expresses the view that while the government was not guilty of any “direct violation” of international law, it did not observe scrupulously the prohibition of international law in regard to giving aid to one of the belligerents. It should have prevented entirely the exportation of arms, or at least should have subjected it to restrictions, and in doing so it would not have amounted to “benevolent” neutrality but rather a “strict” neutrality.
40 Pt. III, Sec. 3, Par. b.
41 Holtzendorff, Handbuch, Bd. IV, p. 690. See also his note on page 351 of Hefftei Numerous other writers have criticised as impracticable if not impossible the attempt to draw a distinction between large and small commercial transactions in respect to the sale of contraband goods. See, for example, Lawrence, Principles, p. 699; Oppenheim, Vol. II, p. 377; and Snow, Int. Law, p. 134.
42 Richardson, Messages and Papers of the Presidents, Vol. V, p. 331.
43 Richardson, Messages and Papers of the Presidents, Vol. VII, p. 88.
44 The text, of the proclamation is printed in this Journal, Supp., Jan. 1915, pp. 110–114.
45 Text of the circular, this Journal, Supp., Jan. 1915, pp. 124–126.
46 Text, ibid., pp. 122–124.
47 In a note of the Austro-Hungarian Government of June 29, 1915, it was complained that the policy of the American Government in preventing the delivery of supplies to German and Austro–Hungarian war vessels on the high seas while Great Britain and France were free to buy in the United States without restriction, was a departure from the spirit of true neutrality. To this charge of inconsistency Secretary Lansing replied in a note of August 12, 1915, that the prohibition of supplies to ships of war rested on the principle that a neutral Power must not permit its territory to become a base for either belligerent. “To permit merchant vessels acting as tenders,” said Mr. Lansing, “to carry supplies more often than every three months and in unlimited amount would defeat the purpose of the rule and might constitute the neutral territory a naval base.” Furthermore, he stated that he was not aware that any Austro-Hungarian ship of war had sought to obtain supplies from a port in the United States either directly or indirectly.
48 Upon reports that hydro-aeroplanes were being built in the United States for the use of the Entente Powers, the German Ambassador in a communication dated January 19, 1915, took the position that they were to be regarded as war vessels the sale of which to belligerents was contrary to Article 8 of the 13th Convention of the Second Hague Conference. They were not mentioned by name in the convention, he said, because there were none in existence at the time. Secretary Bryan in a note of January 29, 1915, dissented from the view that hydro-aeroplanes were vessels merely because they rise from and alight upon the sea. They were, he said, essentially air craft, and could only be used for military purposes in the air. Mr. Bryan also took occasion to call the attention of the ambassador to the fact that aircraft had been placed by the German Government on the list of conditional contrab and “for which no special treatment involving neutral duty * * * had been provided by treaty to which the United States was a signatory or adhering Power.” See the correspondence in this Journal, Special Supplement, July, 1915, pp. 366–368.
In February, 1916, however, the Treasury Department made a ruling that hydro-aeroplanes (but not aeroplanes) were “vessels” within the meaning of section 4 of the Tariff Act of 1912. There was no necessary inconsistency between the two rulings, because such craft when imported from abroad might very well be brought within the category of “vessels” for purposes of taxation and yet not be treated as war vessels in the sense of the neutrality laws. It does not appear that the German Government took any official notice of the ruling by the Treasury Department.
49 The facts relating to these transactions are fully narrated in the British and American cases submitted to the Geneva Tribunal. See also a summary in Moore, History and Digest of International Arbitrations, Vol. I, p. 620. Montague Bernard in his Historical Account of the Neutrality of Great Britain during the American Civil War (pp. 330–332) states that the export of arms and military stores from Great Britain to both Northern and Southern ports “went on freely without intermission as long as the contest lasted.” Of the amount of the shipments, he says, there is probably no accurate account. He publishes a table of statistics of exportations of arms and munitions to the United States and to the West Indies covering the years1860–1866. According to this table, the value of exports to the United States rose from £45,076 in 1860 to £999,197 in 1862, after which it declined to £82,345 in 1866.The value of those to the West Indies increased from £6,050 in 1860 to £367,578 in1862, after which there was a falling off until the value in 1866 amounted to £4,795.The British case before the Geneva Arbitration Tribunal states that “extra supplies of small arms, percussion caps, cannon and other ordnance, saltpeter, lead, clothing, and other war like stores, representing a value of not less than £2,000,000 of which £500,000 were for muskets and rifles alone, were exported from England to the Northern parts of the United States during the Civil War.” Moore, I, 620.
50 Alabama Claims, Case of the U. S., Part V, p. 125.
51 It should also be remarked that as regards the second rule of the Treaty of Washington (which declares that a neutral is bound not to permit or suffer either belligerent to make use of ports or waters as the base of naval operations against the other or for the purpose of the renewal or acquisition of military supplies or arms) the American case stated that it was not understood “to apply to the sale of military supplies or arms in the ordinary course of commerce, but to the use of a neutral port for the renewal or augmentation of such military supplies for the naval operations referred to in the rule.” (Case of the U. S., p. 71.) It was the use of ports or waters as the base of naval operations to which exception was taken. The British case and the British public, however, interpreted the American contention differently, and the British case affirmed that “a neutral government is not bound by force of the above mentioned obligation or otherwise to prevent or restrain the sale within its territory, to a belligerent of articles contraband of war or the manufacture within its territory of such articles to the order of a belligerent purchaser, or the exportation of such articles from its territory for sale to, or for the use of a belligerent.” Quoted by Moore, History and Digest of International Arbitrations, I, 599. This was an absolutely correct statement of the view which had always been held by the American Government, and if the case of the United States intended to lay down a different rule this is only an illustration of the fact that states are usually guided by their interests rather than their past practice, that is, they adopt one rule when they are belligerents and a contrary rule when they are neutrals. Cobden in a letter to Senator Sumner of April 2, 1863 (quoted by Moore, op. cit., p. 620), said, “We are bound to do our best to prevent any ship of war being built for the Confederate Government * * * but with munitions of war the case is different. They are bought and sold by private merchants for the whole world, and it is not in the power of the government to prevent it. Besides, your own government have laid down repeatedly the doctrine that it is not part of the duty of governments to interfere with such transactions for which they are in no way responsible.” In another letter of May 22, he deplored “the bungling mismanagement on your side which allowed the two distinct questions of selling munitions of war and the equipping of privateers to be mixed up together.” No direct claim was preferred by the case of the United States for injuries sustained by the sale of arms, but “indirect claims” were advanced for losses occasioned by this and other acts which prolonged the war. The arbitrators, however, as is well known, declared them to be inadmissible “upon the principles of international law applicable to such cases.”
52 It has been recently asserted by Dr. Von Mach and other German sympathizers in the United States that Secretary Seward during the Civil War took the position that British subjects who furnished arms and munitions to the Confederacy were enemies of the United States and were not entitled to the protection of the British Government. This is an error. What Seward actually said was that British subjects who “interfere in our civil war by furnishing arms and munitions of war to the Confederacy in vessels owned or chartered by the pretended insurgent authorities or running the blockade with them * * * were by the law of nations liable to be treated by this government as enemies of the United States, having no lawful claim to be protected by Her Majesty’s Government.” Dispatch to Mr. Adams, Minister to England, July 9, 1864. Moore, Digest, Vol. VII, p. 958. The acts to which the Secretary of State here referred were of course of a very different character from the transportation of contraband in neutral vessels to non-blockaded ports.
53 The embargo of 1822 was laid in pursuance of an old treaty with Spain by which it was stipulated that neither party would in case of war permit the exportation of arms to the enemy of the other; that of 1848 was laid in consequence of treaties concluded between Great Britain and Denmark in 1670, 1780 and 1814. Calvo, Vol. IV, Sec. 2627, and Gessner, p. 129.
54 In pursuance of an act of Parliament passed in the 29th year of George II.
55 See the text in British and Foreign State Papers, Vol. XII, p. 529.
56 Wellington, Despatches, Vol. III, 3d series, p. 364, cited by Gessner, Droit des Neutres, p. 131.
57 16 and 17 Victoria, Ch. 107, cited by Phillimore, III, 410.
58 British and Foreign State Papers, Vol. 61, p. 764.
59 Text of memorandum of Sept. 1, 1870, in British and Foreign State Papers, 1870–71, Vol. 61, pp. 714–716.
60 Italics are mine.
61 Text in British and Foreign State Papers, Vol. 61, pp. 759 ff.
62 Commenting on this proposition of the Prussian Ambassador, Westlake, in an article on the “Export of Contraband of War” (Collected Papers, p. 374) remarks: “He assumes that the cause of Germany is just, that the public opinion, and even the statesmen of England have recognized its justice and that therefore we should furnish not a strict neutrality, but one which should be calculated to give effective expression to our real or supposed sentiments in favor of his country.” Westlake adds that considering the circumstances, the first elements of the act of persuasion would have dictated an appeal in the name of strict neutrality rather than in that of a benevolent neutrality.
63 For example, Bluntschli, Dr. Int. Cod., p. 442; Gessner, Kriegs-fiihrende und neutrale Mächte, p. 77; also his Le Droit des Neutres sur Mer, p. 133; Kusserow, , “Les Devoirs d’un Gouvernement Neutre,” Revue de Droit Int., Vol. VI (1874), p. 64 Google Scholar; and Gotha, La question des Exportations d’armes Anglaises (1871). Perels, Droit Mar. Int., discusses the question but expresses no opinion.
64 Der Handel mit Waffen und Kriegsrnaterial, in Holtzendorff’s Handbuch, Bd. IV, p. 692 ff; also his edition of Heffter, p. 350, note.
65 “Observations sur la Contrebande de Guerre,” Rev. de Dr. Int., Vol. XXVI (1894), p. 405.
66 In a petition addressed to the President and Congress of the United States during the present war and alleged to have been signed by 1,000,000 American citizens, the statement is made that “on April 23, 1898, after the Spanish–American War had begun, the British Government placed an embargo on munitions of war.” This statement, like many others made by the embargo propagandists, is erroneous. The Queen’s neutrality proclamation of April 23 warned British subjects that if any of them presumed to do any acts in derogation of their duty as neutral subjects or in violation or contravention of the law of nations, and more especially by breaking a blockade, or by carrying officers, soldiers, despatches, arms, munitions, military stores or articles deemed contraband according to the law of nations, for the use of either belligerent, all such persons so offending, together with their ships and goods would rightfully incur and be justly liable to hostile capture and to the penaltiesd enounced by the law of nations. (See the text in “Proclamations and Decrees of Neutrality in the war with Spain,” published by the United States Government, p. 35.) It will be noted that the proclamation did not prohibit British subjects from transporting contraband to either belligerent, and no penalty was prescribed fordoing such acts. There is merely the customary warning usually found in neutrality proclamations that those who engage in contraband trade are exposed to the loss of their ships and goods through capture and confiscation by one of the belligerents. The English colony of Jamaica indeed is said to have become the chief source of supply for the Spanish army in Cuba, and except for a mild protest from the American consul at Kingston, no complaint was made by any official of the United States. Benton, International Law and Diplomacy of the Spanish-American War, pp. 195–196.
67 See Bonfils, Droit International Public, p. 891. “During the Russo-Japanese War of 1904–1905,” says Bonfils, “the exportation of arms from France to Russia took place freely.” The only instances of embargoes by the French Government appear to have been laid on the exportation of arms to Spain during the Carlist up-risings of 1873, 1875, and 1876.
68 Jefferson Davis, Rise and Fall of the Confederate Government, Vol. I, p. 311. Speaking of the purchase of arms in Europe during the Civil War, Bernard (British Neutrality during the American Civil War, p. 331) says, “Many rifles were also imported from Prussia.” The British case before the Geneva Arbitration Tribunal in 1872 stated that “large quantities of arms were purchased by the United States in France, Austria, and other neutral countries.” Moore, History and Digest of International Arbitrations, I, 620.
69 Boston, T. R. Marvin and Son, 1904.
70 Pp. 26–27. Professor T. S. Woolsey in an article entitled “The Case for the Munitions Trade” (Leslie’s Weekly, July 29, 1915), commenting on the above statements of Major Huse, remarks that the reader’s suspicions are naturally aroused by the implication that the sale was made by the Austrian Government direct or through the agency of an intermediary. Professor Woolsey adds that: “Quite apart from anything that Major Huse asserted, there is abundant evidence that the Confederates got war supplies from Austria. The subject was frequently mentioned in the correspondence of the Confederate Chief of Ordnance, General Joseph Gorgas, with the Confederate War Department. In the ‘Official Records’ there are, for the year 1863, various references to war supplies purchased in Austria by Huse, and shipped apparently by Fraser and Trenholme. For example, a letter of Feb. 3, 1863(in series IV, Volume II, pages 382–384), states that Huse had shipped 21,000Austrian rifles, with 32 guns and 10,000 shrapnel shells for them. At the same time there were waiting in Vienna munitions to the value of £117,500, to be shipped when payment was made by the Confederate Government.”
71 This assertion was made by Representative Vollmer in the House on March 4, 1915; (Cong. Record, App. p. 736). See also the New York Evening Mail of January27, 1916, and the petition of 1,000,000 American citizens (Cong. Record, January27, 1916, p. 1743). Also the Fatherland of July 9, 1916; and the Boston Transcript of January 31, 1916. In an issue of the Fatherland in August, 1915, we find the following: “During our war with Spain * * * one belligerent appealed to a friendly Power to stop the export of munitions of war from its teeming war factories. That appeal came from the United States and was addressed to Germany! Did Germany justify its traffic in murder tools when the United States appealed to her to observe a benevolent neutrality? Let Andrew D. White answer the question, as he answers it in his Autobiography.” Note also the following from an interview given by Field Marshal Von Moltke to a correspondent of the Washington Post, reprinted in the Continental Times of August 16, 1915: “During your various wars in North America your government never had reason to complain of arms or munitions being furnished by us to your enemies. Spain, for instance, long before its war with the United States freely purchased Mauser rifles from our German manufacturers; but the moment war broke out between Spain and the United States and our neutrality was declared, our government shut down on any further exportation of arms to Spain, Cuba, Porto Rico or the Philippines. Your former Ambassador to us, Dr. Andrew D. White, who served here during that war, can attest this fact.”
72 Chapter XVI, pp. 168–169. The passage is as follows: “As to the conduct of Germany during our war with Spain, while the press, with two or three exceptions was anything but friendly, and while a large majority of the people were hostile to us on account of the natural sympathy with a small Power battling against a larger one, the course of the Imperial Government, especially of the Foreign Office under Count von Bülow and Baron von Richthofen, was all that could be desired. Indeed, they went so far on one occasion as almost to alarm us. The American consul at Hamburg having notified me by telephone that a Spanish vessel, supposed to be loaded with arms for use against us in Cuba, was about to leave that port, I hastened to the Foreign Office and urged that vigorous steps be taken, with the result that the vessel, which in the meantime had left Hamburg, was overhauled and searched at the mouth of the Elbe. The German Government might easily have pleaded, in answer to my request, that the American Government had generally shown itself opposed to any such interference with the shipments of small arms to belligerents, and had contended that it was not obliged to search vessels to find such contraband of war, but that this duty was incumbent upon the belligerent nation concerned.”
73 This letter is dated October 6, 1915, and was addressed to W. B. Blake of New York City. It was printed in the New York Times of January 29, 1916, and in the Fatherland of July 9, 1916.
74 See extracts from the correspondence relating to the incident and appropriate comment by William C. Dennis in the Annals of the American Academy of Political and Social Science, July, 1915, pp. 13–14; see also an official statement of the Secretary of State regarding the matter, published in the daily press of April 23, 1915.
75 Spaight, War Rights on Land, p. 478. See the statistics concerning the exportations of arms, munitions and other war supplies from Germany into England during the years 1899–1901, compiled by Dr. C. N. Gregory and published in an article entitled “The Sale of Munitions of War by Neutrals,” Annals of the American Academy of Political and Social Science, July 1915, pp. 190–191, and in an article by the same author in the preceding issue of this Journal. Dr. Gregory quotes from a letter from the British Embassy addressed to him on April 27, 1915, in which it was said that “When the Boers were shut off from supplies by sea, Great Britain got from Germany 108 fifteen-pound quick-firing guns and 500 rounds per gun. They were purchased from Ehrhardt by private negotiation.” See also tables of statistics of German and Austro-Hungarian exports of arms and munitions to Great Britain during the years 1899–1902, printed as an appendix to Secretary Lansing’s note of August 12, 1915, in reply to the Austro-Hungarian note of June 29 in respect to the sale of arms and munitions during the present war. In this note the Secretary of State says, “Germany sold to Great Britain hundreds of thousands of kilos of explosives, gunpowder, cartridges, shot and weapons; and it is known that Austria-Hungary also sold similar munitions though in smaller quantities.” This Journal, Special Supplement, July, 1915, pp. 166, 172.
76 Aked and Rauschenbusch, in their pamphlet entitled “Private Profit and the Nation’s Honor,” remark that “the small and peaceful Boer Republics had no chance to profit by our war supplies. It was England that bought them and used them against the Boers.” But, as stated above, England also purchased freely war supplies in German markets. If it was not contrary to the spirit of neutrality for Germany to permit sales to the English when the Boers were cut off from access to German markets, why is it a violation of neutrality for the American Government to permit sales to Great Britain during the present war when the situation of Germany is similar to that of the South African Republics during the Boer War? There is no substantial difference between the policy of Germany during that war and that of the United States during the present war.
77 It appears that in November, 1899, Dr. Hendrick Muller, Envoy Extraordinary of the Orange Free State at The Hague, complained to the American Minister to The Netherlands that the shipment of war materials from the United States on a large scale to Great Britain was contrary to the law of nations, and urged him to remonstrate with the American Government against the continuance of the traffic. Secretary Hay on December 15, 1899, replied to the communication of the American Minister, saying that in view of the fact that the law and practice of the United States was then settled in favor of the right of neutrals to sell and export contraband goods to belligerents, it was not considered necessary to investigate the charges of Dr. Muller. Again in 1901, when one Samuel Pearson, on behalf of the Transvaal, sought an injunction in the Circuit Court of the United States for the Eastern District of Louisiana to restrain the exportation of mules, arms and munitions of war for the use of the British forces in South Africa, the court refused to grant the injunction on the ground that it had no jurisdiction. In the course of his opinion the judge reviewed the law and practise regarding the right of American citizens to sell and export arms and munitions to belligerents, and concluded that belligerents had an undoubted right to purchase war supplies in the United States and transport them abroad for their use. See this Journal, July, 1915, pp. 691–694.
78 According to an editorial in the Baltimore Star, German exportations of arms and munitions to Russia increased from 64,680 pounds in 1903 to 131,340 in 1904, and the total of such exports for the year 1905 was ten times as large as during the previous year and twenty times as large as for 1903, or 1,655,940 pounds. There was also a large increase in the exportation of copper, which was on the Russian list of contraband. In December, 1904, 3,000,000 pounds of ammunition consigned to a Russian naval base and concealed in bales of wool brought on the backs of camels from Kalgan were seized by the Japanese. The newspapers of the time contained frequent reports of large contracts between the Russian Government and German manufacturers for the delivery of war material for the use of the Russian Government.
79 These charges were made by certain Socialist members of the Reichstag and were widely published in the newspapers of the time. See Hershey, International Law and Diplomacy of the Russo-Japanese War, pp. 91–92.
80 The embargo during the Crimean War, referred to above, applied only to the transit through Prussia of arms from foreign countries.
81 This was during the Franco-German War of 1870–1871.
82 Bluntschli, Sec. 766, and Rivier, Droit des Gens, Vol. II, p. 412. Rivier says all the states above-mentioned issued such prohibitions, but Kleen does not include Austria-Hungary, Denmark, Spain, Italy, or the Netherlands in the list which he gives. Lois et Usages, I, 382, and Contrebande de Guerre, pp. 52, 68. Bonfils, Sees.1472 and 1474, mentions only Belgium, Switzerland, and The Netherlands.
83 Proclamations and Decrees During the War with Spain, p. 13.
84 Ibid., p. 22.
85 Ibid., p. 27.
86 Ibid., p. 61.
87 It appears that Brazil has general rules of neutrality governing trade in contraband, Article IV of which “absolutely forbids” the exportation of arms and munitions of war from Brazil to any belligerent under the Brazilian or any other flag. See an article by Senor Da Gama, Brazilian Ambassador to the United States, in the Annals of the American Academy of Political and Social Science, July, 1915, pp. 147 ff.
88 See my article on Contraband, Right of Search, and Continuous Voyage, in this JOURNAL for April, 1915, p. 393.
89 Corppare the remarks of Prof. J. B. Moore, who, referring to the above mentioned embargoes, says “in reality they are essentially regulations of a domestic nature, employed for the purpose of preserving a proper supply of articles, even arms and munitions of war, in the countries concerned.” Annals of the American Academy of Political and Social Science, July, 1915, p. 146.
90 The German Government, in a note of December 15, 1914, had already stated that “under the general principles of international law no exception can be taken to neutral states letting war material go to Germany’s enemies from or through neutral territory.”
Compare also the remarks of Dr. Dernburg before the American Academy of Political and Social Science in the Annals of the Academy, July, 1915, p. 195: “I want to state here most emphatically that Germany at no time has disputed the right to ship and sell arms.”
91 In fact, the quantity of arms and munitions exported during the present war has not been larger in proportion to the total amount consumed by the various belligerents than the sales and exportations during previous wars. Thus the records of the Department of Commerce show that during the first nine months of the war the United States furnished the Entente Allies with less than a week’s supply of ammunition. It is stated that up to May 1, 1915, only $27,000,000 worth of munitions and $1,142,000 worth of fire arms had been exported since the beginning of the war. At the outbreak of the war there were no private concerns in the United States which manufactured army rifles such as were then generally used. On account of the necessity of installing new equipment and introducing new processes, the output of American manufactories was comparatively small during the early months of the war. Even as late as July, 1916, it was stated that American plants were turning out only 19,000 rounds of artillery ammunition per day whereas England was using 60,000 rounds and France 125,000 rounds daily. This statement, if true, disposes of the contention that the United States is supplying the bulk of the ammunition used by the Entente armies.
92 The italics are mine.
93 Adverting to the German contention that the United States should prohibit the sale of arms and munitions to the Entente Allies because, among other reasons, the effect is to deprive Germany from reaping the advantage which she has gained by the cutting off of the chief source of France’s local supply, the New York Times, in a recent editorial, remarks, “Just so. It is the fortune of war. By the fortune of war France is unable to make all her own supplies. By the fortune of war Germany is unable to get supplies from us. Therefore, it is our duty to stop these sales to France which are ‘thoroughly within our legal rights’ so that we may enable Germany to reap the full advantage of that other fortune of war by which France is unable to get her munitions except from us. The fortune of war, he says, has made us an ally of France, and it is our duty to take immediate action to change that situation by making ourselves an ally of Germany. Having crippled France by the fortune of war, Germany could conquer her if we would only cripple her further by giving up our ‘legal rights’ in Germany’s interest.”
94 Congressional Record, 64th Cong., 1st sess., p. 1797. Compare also the remarks of Senator Kenyon to the same effect, ibid., p. 1793; of Senator La Follette, ibid., p. 1800;of Senator Ashurst, ibid., p. 1796; of Senator Robinson, ibid., p. 1797; of Representative Ricketts, ibid., pp. 2657–2658; of Senator Hitchcock, ibid., 63rd Cong., 3rd sess., p. 3938; of Representative Porter, ibid., App. pp. 583–585; of Representative Vollmer, ibid., App. pp. 735–736. See also a pamphlet entitled “ Private Property and the Nation’s Honor”, by Aked and Rauschenbuch; Burgess, the European War, Ch. VII; an article by von Mach, “ The German View Point”, Boston Transcript, April 14, 1915;and Butte, Proceedings of the American Society of International Law, 1915, p. 129.
In a recent issue of the Boston Transcript, Professor Kuno Franke poses the following questions, which, however, he made no attempt to answer:
“Is it moral, from the national point of view, that the United States, a nation which officially stands for the policy of peace and against excessive armament, should now permit within its own borders the manufacture of arms on so large a scale that this industry bids fair to become one of the leading industries of the country?
“Is it moral, from the national point of view, that our Government should permit the rise in this country of a set of capitalists, whose interests are exclusively or predominantly identified with war, and which therefore, by its own self-interest, is bound to abet and to foster the war spirit among masses of people?
“Is it moral, from the international point of view, that this country, while officially holding aloof from the gigantic carnage which is now devastating Europe, should, as a matter of fact, through its continued shipment of arms make itself a participant in this destruction, and indeed thrive upon it?”
95 Compare the remarks of Representative Vollmer in the House on March 4, 1915 (Cong. Record, p. 735), who stated that he had introduced a resolution to prohibit the “infamous traffic” of exporting arms and munitions of war because “as an American I did not want my country, in the eyes of all contemporaries and of all posterity, to stand as the arch hypocrite of the world * * * a country that prays for peace while her pockets are filled with blood money.”
96 “ I believe,” said Senator Hitchcock in the Senate on February 17, 1915 (Cong. Rec, p. 3939), “the United States should put a stop to this horrible traffic, not because of the effect it may have upon the European War, but because of the effect that it is having among our own people, the effect it is having in stirring up hate, in arousing prejudices, in destroying neutrality, and in dissipating the American spirit, which before the war was welding us into a common people.”
97 Cong. Record, page 3938.
98 Cf. on this point the remarks of Professor T. S. Woolsey in an article entitled “Case for the Munitions Trade,” Leslie’s Weekly, July 29, 1915.
General Von Moltke, in an interview with Edwin Emerson, published in the Washington Post and reproduced in the Continental Times of August 16, 1915,remarked that, “There is a great difference between selling arms to outsiders during peace and between furnishing arms to actual belligerents warring against one’s own friends. In everyday life a licensed gunsmith is not only permitted but expected to sell arms across his counter to all lawful customers: but he is not expected to run out of his shop during a street fight to thrust loaded pistols into the hands of a combatant, no matter how friendly he may feel towards him. Just so, our Krupp and Mauser works have sold arms to all the world during peace times, even as the Creusot works in France, the Armstrongs in England, or the Winchester and Remington companies in America have done. There is no objection to this in times of peace; but in the midst of war it is quite another matter.”
Unfortunately for his argument, there is also a “great difference” between the act of the neutral trader who sells arms in his own shop to all belligerents who wish to purchase, and the gunsmith who runs out of his shop during a street fight and thrusts a pistol into the hands of one of the combatants.
99 Collected Papers, pp. 379–380. Cf. also the following remarks of Senator Lodge in a recent address before the Worcester Chamber of Commerce: “If it is wrong to ship munitions of war, is it right to ship copper and steel? They will be turned into cartridges and munitions of war when they reach the other side. How about barbed wire? It is true they do not use barbed wire to shoot men down with, but I venture to say that barbed wire entanglements on the western front in France have caused as many deaths as artillery or small arms.
“If you cut off the shipments of munitions of war, you must cut off the shipment of every form of export to belligerent Powers. You must cut off the shipment of shoes, of cloth, of every single thing that goes to help the soldier in the way of clothing or even help the non-combatant.”
100 Brit. & Foreign State Papers, Vol. 61, p. 765.
101 These views of Von Bar are set forth in an article entitled, Observations sur la Contrebande de Guerre, published in the Revue de Droit International et de Legislation Comparée, Vol. XXVI (1894), pp. 401 ff.
102 British and Foreign State Papers, Vol. 61, p. 764.
103 Westlake remarks (and his views apply with equal force to the United States)that if the exportation of contraband were prohibited, England would be the country in which with the best intentions and greatest activity on the part of the government, such a rule would be the worst observed, and which would suffer most from international difficulties to which the breach of it would give rise.—Collected Papers, p. 391.The Zulus, says Spaight (War Rights on Land, p. 478), who fought at Isandlewana and Rorke’s Drift in 1879 were armed with rifles which had been smuggled into Zululand by English traders who knew perfectly well for what purpose the arms were to be used. Spaight also remarks that the sword–bayonets for the French Chassepôts used in the Franco-German War of 1870, though sold at Birmingham, were first imported from Germany and thus employed to kill Germans.
104 War Rights on Land, p. 475.
105 Der Handel mit Waff en und Kriegsmaterial, in Holtzendorff, Handbvch, Bd. IV, Sec. 152.
106 Observations sur la Contrebande de Guerre, Revue de Droit International el de Legislation Comparee, Vol. XXVI (1894), p. 401.
107 The proposal to prohibit trade in contraband has also been criticised on the above mentioned grounds by Creasy, First Platform of Int. Law, p. 608; by Calvo, Droit Int. Pub., Vol. V, Sec. 2774; by Davis, Elements of Int. Law, p. 403; Lawrence, Principles, p. 712 (who remarks that the effective enforcement of such a policy would require an army of spies and informers); and by many jurists at various sessions of the Institute of International Law, notably by Westlake and Lorimer at the meeting of 1875 (Rev. de Droit Int., Vol. VII, pp. 605 ff.) and by General den Beer Portugael and M. Lardy in 1894 (ibid., Vol. XXVI, pp. 323 ff).
108 Principles of International Law, 4th ed., p. 702.
109 Revue de Droit Int. etc., Vol. VII (1875), p. 609. In this connection it may be remarked that the ground upon which Great Britain remonstrated against the transit of arms through Prussian territory to Russia during the Crimean War was not that Prussia was bound to prohibit such traffic, but that having issued a decree for this purpose, she was bound to enforce it. See Earl Granville’s note of September 30,1870, to Count Bernstorff, Brit. & Foreign State Papers, Vol. 61, p. 762.
110 Cf. the remarks of William C. Dennis, in the Annals of the American Academy of Political and Social Science, July, 1915, p. 173.
111 Collected Papers, pp. 391–392. Cf. also the remarks of Wm. C. Dennis, Esq., in the Annals of the American Academy of Political and Social Science, July, 1915,p. 175; and a letter of Ex-President Taft of January 24, 1916, to E. von Mach, published in the press at that time.
112 Mr. Lansing, in his note of June 29, 1915, to the Austro-Hungarian Government, thus stated the practical objection to such a policy: “The general adoption by the nations of the world of the theory that neutral Powers ought to prohibit the sale of arms and ammunition to belligerents, would compel every nation to have in readiness at all times sufficient munitions of war to meet any emergency which might arise and to erect and maintain establishments for the manufacture of arms and ammunition sufficient to supply the needs of its military and naval forces throughout the progress of a war. Manifestly the application of this theory would result in every nation becoming an armed camp, ready to resist aggression, and tempted to employ force in asserting its rights rather than appeal to reason and justice for the settlement of international disputes.
113 Professor Burgess (The European War, p. 181) pronounces this argument as “manifest sophistry” and says “if it is advanced by the neutral it is only a pretext for favoring one belligerent. It is one of the most fundamental rules of international law that indirect consequences are not to be taken into account.”
114 Collected Papers of John Westlake, p. 378.
115 This argument was emphasized by Senator Hitchcock in his speech in the Senate, referred to above.
116 See his remarks in the Senate January 5, 1915 (Cong. Rec, pp. 585–586). In the course of the debate, Senator Lodge said, “Mr. President, on the single point of neutrality, the test of neutrality is whether the action of the neutral changes the conditions created by the war. Our markets are open to all the world to buy. We have taken no action to prevent any belligerent or anyone else from buying in our markets, and we are at peace with all the world. A condition has been created by this war, and by this war alone, which prevents one or more of the belligerents from buying in this market. Now, if we undertake to reverse a condition created by the war we at once pro tanto enter into the war and endeavor to restore a condition existing before the war, and that is an act of unneutrality.”
Again,—“I think, Mr. President, if this government placed an embargo now on the export of munitions of war, it would be guilty of a grossly unneutral act, because it would by so doing change a condition created by the war, and by changing a condition created by the war, that is created by one belligerent, it would make itself to that extent the ally of the other belligerent.”
117 The Austro-Hungarian Minister of Foreign Affairs in his note of June 29, 1915, defending the proposition that an embargo on the exportation of arms and munitions during the progress of a war would not be an unneutral act, relied upon a portion of the preamble to the Hague Convention No. XIII, which reads as follows: “Seeing that, in this category of ideas, these rules should not in principle be altered, in the course of the war, by a neutral Power, except in a case where experience has shown the necessity for such change for the protection of the rights of that Power.”
The italicized words of this preamble, argued Baron Burian, introduced an exception to the general principle and authorized, if it did not require, in certain circumstances, an alteration of the rule embodied in Article 7 of the convention, which declares that a neutral Power is not bound to prevent the export or transit of arms and munitions of war for the use of either belligerent.
It is difficult to see how such an argument can be drawn from the preamble quoted. Clearly its purpose was to confer a discretionary power on neutrals to prohibit the export of arms during a war, for their own national protection rather than to impose upon them a duty to do so. As Mr. Lansing pointed out in his note of August 12 to the Austro-Hungarian Government, the right and duty of determining when this necessity exists rests with the neutral and not with any belligerent. If the neutral does not choose to exercise the right, a belligerent cannot justly complain; and to assert such a claim would be assuming to dictate to the neutral what the belligerent regarded as necessary to the protection of the neutral’s own rights. The assertion of such a claim, as Mr. Lansing remarked, would invite just rebuke from the neutral to whom it was addressed.
Compare to the same effect the views of the Editor-in-Chief of this Journal, October, 1915, p. 932.