172

BLOCKADE: EVOLUTION AND EXPECTATION

James F. McNulty

INTRODUCTION appears to be a sound basis for consider­ ing that the current "legal" definition of The principles of modern interna­ the terms and concept of blockade is tional law recognize the doctrine of but the most recent step of an evolu­ blockade as a legitimate option between tionary process which has not yet ar­ states in a declared state of war, giving rived at logical maturity. them the right to apply naval power to That the process might shortly be stop all seaborne commerce with the required to respond once more to the enemy, including that carried in neutral stress of international conflict seems ships. However, the "legality" of this apparent. With few exceptions, those instrument for exercising national modern states having pretensions of power is a very tenuous matter in the becoming international makeweights minds of jurists, being circumscribed by have sought to establish for themselves a a number of significant preconditions, claim to a share in the wealth and the absence or violation of any of which prestige resultant from international may void the blockader's claim to legiti­ carrying trade. Even the Soviet Union, mate right, and expose him to heated long a formidable land power, has begun controversy. to make its presence felt in the great The fundamental concept of mari­ competitive arena formed by the world's time blockade is an ancient one, and, in oceans. Compounding the commercial its essence, it seems to be fully in threat of this seaward expansion by the harmony with the realities of national Soviets, the United States is faced as well existence even in a modern world. How­ with their sponsorship of militant world ever, it is the purpose of this paper to communism through the new medium suggest that the precise technical condi­ of "wars of liberation." It seems super­ tions surrounding the modern instru­ fluous to state that the United States ment of blockade have overlaid this today finds itself in a position analogous fundamental concept with elements to that of insular Britain in the face of which have divorced the doctrine from Napoleon-a power dependent on sea reality. communication with its allies, its The modern doctrine of blockade sources of crucial materials, and its and the associated principles of contra­ markets, opposed by a dedicated and band have evolved over centuries, re­ ingenious enemy having central lines of maining basically constant in the princi­ communication. To confine that threat ples invoked but continuously changing to the limits of continental Europe was as to structural details. Thus, there the aim of Britain's effort in the 18th 173 and 19th centuries, while the aim of the participators into allies; failing in that, it United States today must also be to was expected that action could be taken contain the Communist threat within to at least insure that the opposition the limits of its existing sphere of would not receive the assistance of influence in Eastern Europe and Asia. bystanders. Such action normally re­ Britain's success against Napoleon sulted in some form of operations was gained largely through her intelli­ against the commerce of the neutrals, as gent application of all the devices of they later came to be known, and such seapower available to her, including that interference was justified on political of blockade-not a blockade according rather than legal grounds, if indeed it to rules made by scholars and law were thought necessary to justify it at clerks, but one governed by rules born all? In those early centuries of human of the dictates of necessity and the violence, the "style" of warfare was talents of seamen-a viable doctrine, usually that of the siege against the responsive less to the protests of diplo­ strong points of an enemy rather than mats than to the realities of the threat general campaigns throughout the coun­ to be overcome. tryside. Under such circumstances, little This paper proposes to review in need existed among states to formulate detail the evolutionary process to which any sort of legal basis for regulating the the concept of maritime blockade has trade of neutrals with all belligerents, been subjected in order to point out the since it was clearly unprofitable for an historic facility by which nations yield apolitical neutral to attempt to continue up principle in favor of political reality. trade with a besieged point when a Further, it is intended to illustrate that ready market for his goods existed the doctrine of blockade is merely part among the besiegers. On the other hand, of a larger scheme which is appropriate neutrals were normally required to con­ for application as an instrument of tinue trade with any accessible belliger­ national power in the complex interna­ ent, since "the discontinuance by a tional society of the current century. neutral of intercourse with either bel­ It will not be advocated that the ligerent, where not an effect of the "rule of law" so treasured by our operations taking place ... seemed Western society be overthrown in a ... so plain a form of alliance with or qucst for temporary advantage. It is subservience to, the other ..."3 that it hoped merely to articulate what is was clearly a political act rather than believed to be an existing ground swell one arguable as a matter oflaw. of legal and lay opinion that "laws and Before it was possible to contemplate institutions are constantly tending to legal justification for the continuance or gravitate. Like clocks, they must be suspension of commerce with a bellig­ occasionally cleansed, and wound up, erent by a neutral, it was first necessary and set to the true time. ,,1 for the concept of neutrality to become in "some" form a recognized institution I-FOUNDATION OF THE LAW of the law of nations, and until the AND CUSTOM OF BLOCKADE freedom of neutral commerce was in some form guaranteed. '>4 This status of In ancient times, conflicts between authorized impartiality of third states rulers of tribes or the early city-states while war raged between others was not usually resulted in the involvement of formalized and incorporated into the all political entities adjacent to associ­ law of nations as the institution of ated military operations. Belligerents, as neutrality until the 16th century.5 Until the active participants became known, that time, the principle of land warfare always attempted to convert non- which forbade all forms of intercourse 174 with hesieged places governed. Toward forces at the same time, although it was the later portion of the period the clearly the Dutch intention "to usc the growth of international commerce in­ right of siege on an unprecedented tensified the helief that partial neu­ scale."IO trality was unjust, and rules aimed at The concept of the maritime hlock­ formalizing the limits of a "just neu­ ade thus was estahlished at the end of trality" hegan to evolve. The earliest of the 16th century, hut hefore any sense these rules ended the total interdiction of legality could he attached to it, it was of neutral commerce with hesieged necessary for the puhlicists to hegin the places hut enjoined neutrals from trans­ process of formalizing the institution hy porting into such places either armed incorporating it into the growing hody troops or specified materials which of writings which we have come to would tend to mitigate the effects of know as the law of nations. The most the siege. 6 One author points out that renowned of the early puhlicists, this relaxation was more significant as Grotius, writing in 1624, ohliquely men­ the estahlishment of a principle rather tions the justification for the closure of than any meaningful authorization to ports as distinct from the idea of con­ trade, "since places so circumscrihed current siege hy land forces in the would he very unlikely markets to seek following terms: with articles not of some immediate For if I cannot defend myself utility to the defense. "7 without intercepting what is sent, Thus, hy the 16th century, at least necessity ... will give me the right some elementary rules regulating neutral to intercept it .... If the introduc­ commerce with respect to helligerents tion of the supplies impeded me existed, although they were derived in the pursuit of my right, and principally from the experiences of land this was open to the knowledge of warfare. It was at this time that the the person who introduced them, unilateral action of one state, Holland, as if I was [sic] keeping a town introduced into the growing stream of invested, or ports closed, and a international law a new principle, hased surrender or peace was already in part on older precedent. The princi­ looked for, he will he hound to ple was that of hlockade, wherehy a repay me for the damage occa­ helligerent has come to he entitled as a sioned hy his fault .... 11 (Em­ matter of law to cut off the free access phasis added.) of neutral commerce to the ports or This early articulation hy Grotius is coast of an enemy.8 significant for several reasons. First, hy In 1584, while at war with the the use of the words "keeping a town Spanish Netherlands, the Dutch Govern­ invested, or ports closed," he seems to ment issued a proclamation (placaat) imply that he was considering two declaring that all Flanders ports then in distinct concepts, one of siege in the the hands of Spain were under siege traditional sense, and the other of from the sea, and that no commerce hlockade in the more modern sense, would he allowed entry. 9 This preten­ although he fails to use the word sion was hased on the ancient right of a "hlockade. "12 Secondly, the use of the hesieger to prevent hy all means avail­ phrase, "and a surrender or peace was ahle the crossing of a line of investment already looked for," has heen inter­ hy a neutral and the fact that the Dutch preted as indicating an essential differ­ naval forces had considerahle power to ence hetween actual hloekades hacked enforce the declaration on neutrals up hy real naval strength as opposed to seeking entry. Significantly, no effort fictitious hlockades laid on only hy was made to invest these ports with land placaat. I3 It is exactly this point of 175 actual vcrsus "paper" blockades that very long and no records are available as latcr became so controversial in the to its results, the swift development of a cvolution of ncutral rights at sea, and it body of treaties between Holland and is notcworthy to sce that this issue was various countries beginning with the anticipated in the earliest days of the French in 1646 (all of which rejected institution. Finally, the statement actu­ the broad principles of the 1630 ally prohibits all commerce with be­ placaat) indicates vigorous neutral diplo­ sicgcd places, since, as noted above, matic activity to secure their trade with such places would have little interest in belligerents.16 Such activity continues goods not helpful in some way to the even today. dcfcnse, and all such goods were his­ As the proponents of the institution torically prohibited. of blockade, the Dutch continued to In 1630, with Grotius' formulation figure prominently in its development only five years old, the Dutch once so long as they remained a significant more desired to apply naval pressure- on seapower. Their stewardship of the insti­ Flanders, but by this date had not the tution during this era has been charac­ means to apply this new form of siege terized by the English jurist Westlake as to all ports at the same time. Question­ having been "marked by the widest ing the applicability of blockade under renunciation of the right to interfere these conditions, and fearing to an­ with neutral commerce, the widest tagonize the now-neutral England, the actual intederence with it when oppor­ Admiralty of Amsterdam was queried tunity offered, and the absolute refusal for its opinion. The analysis given was to recognize [the right to] a similar summed up by a jurist writing in a later interference with it by others."1 7 The century, and was to the effect that "the Dutch did not remain alone for long, as rule which obtains in the case of towns, the changing realities of European which are properly said to be be­ power soon brought the rising seapower sieged ... extends also to the enemy's of England into partnership with them ports, which when invested by ships, are in proclaiming a blockade "of France said to be besieged. ,,14 Accordingly, the and all French possessions" after 1689. States General announced in a placaat In this proclamation, both states resur­ dated 9 July 1630, that the Flanders rected completely the spirit of the 1630 coast was blockaded and that neutral Dutch placaat by asserting the intention ships found at any distance from of capturing ships bound for French Flandcrs intending to call at those ports ports wherever found.18 This first would be confiscated. Further, the appearance of England as a blockading placaat went on to state that ships power should be marked as some sort of which succeeded in passing the blockade milestone since she continued to occupy into Flanders ports would remain sub­ that role almost perpetually afterward, ject to confiscation wherever inter­ rapidly assuming from Dutch hands the cepted on the outward voyage. 15 Here, responsibility for enforcing and en­ then, is the source document of the larging the doctrine. Additionally, West­ modern institution of blockade-all lake claims that this event is the commerce to be cut off, without regard probable source of the basis for all to its status as contraband, with the English (and consequently American) further claim to vast powers over neu­ Prize Law, which, according to repeated tral commerce far removed from the Admiralty and U.S. Supreme Court actual place of investment. This preten­ decisions, has been derived from "the tious claim by the Dutch did not remain received law of nations": i.e., the unchallenged, of course. Although the placaat of 1630.19 blockade thus established did not last The British, however, did not 176 vacillate in their application of this new against the French Revolution and doctrine as had the Dutch. They Napoleon. A passage by Mahan best claimed the right to interdict com­ describes the situation as it affected pletely neutral commerce bound for neutral states: their opponents and in the years im­ In the effort to bring under the mediately following established the yoke of their own policy the British "doctrine of war that, no matter commerce of the whole world, the by whom carried, goods for an enemy or two chief contestants, France and belonging to an enemy could legiti­ Great Britain, swayed back and mately be taken. '>2 0 From this date forth in deadly grapple over the onward, the history of blockade is vast arena, trampling underfoot largely the history of England and her the rights and interests of the rise to maritime greatness. When Britan­ weaker parties; who, whether as nia ruled the waves, one of the most neutrals, or as subjects of friendly efficient tools of her leadership was the or allied powers, looked helplessly blockade. on, and found that in this great struggle for self-preservation, II-BRITISH SEAPOWER neither outcries, nor threats, nor AND BLOCKADE despairing submission, availed to lessen the pressure that was gradu­ Throughout the 18th century, ally crushing out both hope and Europe was in an almost constant state life.23 of war, with Britain sometimes a bel­ British practice was especially ligerent, sometimes neutral, and some­ onerous, as she clung to her contention times cast in both roles simultane­ that blockades were enforceable by ously.21 During the period, the crucible far-ranging isolated cruisers, and she of frequent and intensifying war not frequently declared blockades backed only permitted the forging of a refined by just sufficient naval force as to instrument of blockade but forced as permit the barest claim to efficiency. well the advancement of naval tech­ But the real basis of neutral complaint nology at an accelerated pace. In 1700, against England was the belief that the fleets generally duplicated the practice British use of the blockade often had of land armies in retiring to winter the aim, not to deprive an enemy of quarters, leaving only a small force to goods, but to secure for Englishmen the patrol vital areas. By 1800, large squad­ trade thus barred to neutrals. The . rons were able to be constantly at sea, suspicion appears justified in the light of exercising dominion over vast areas of an observation by Lord Grenville in a the ocean surfaces by virtne of their letter of 18 February 1806, in which he presence. Such increased activity "made says: far more rigorous and oppressive" those We have a right to prevent that British assertions over control of neutral [trade] which is injurious to us, commerce made in earlier years.22 The and may, if we think right, in growing presence of the Royal Navy at cases where we think the advan­ sea was met by ever more vociferous, tage to ourselves compensates or but generally ineffective, resistance on overbalances the injury; a princi­ the part of maritime neutrals toward ple manifest in the case of a siege, interference with their claimed rights to where we exclude all the world trade with any country with which they from intercourse with the town were at peace. besieged, but carry it on ourselves, The turbulence of the age was whenever we think it beneficial to capped by the cataclysmic struggle our interests to do SO.24 177 In response to this so-called British power had now arisen on the western system, "the continental powers began shore of the Atlantic, whose position, to aim only at establishing some rule and maritime spirit, were calculated to which should prevent ineffe'ctive, and give new and vast importance to every therefore ... inequitable, blockades. "25 question of neutral rights. '>2 9 The early These continental powers advocated British appreciation of deep American another interpretation of the blockade interest in affairs concerning maritime principle which was drawn from their neutral rights was predicated on the own experience as maritime states more announced aims of the newborn Re­ often cast in the role of neutrals rather public from the earliest days of inde­ than belligerents. In their view, block­ pendence.3o Even the earliest American ades could only be legitimate "if there diplomacy attempted to deal with all be manifest danger in entering the aspects of maritime commercial blockaded port, from the cannon either freedom in order to secure for her of ships, stationary and sufficiently ncar private traders and national good the one another, or of works on land.'>2 6 benefits of international commerce, but That is, they claimed that the right of the basic American view of blockade is the blockading power to interdict non­ best represented in the instructions contraband neutral commerce derived given to the American Minister in solely from the blockader's ability to London in 1804, which said, in part: control the sea immediately off the port In order to determine what in the same sense that a besieging army characterizes a blockaded port, could command the land approaches to that denomination is given only 27 a town. , ... where there is by the disposi­ Countering this claim, the British tion of ... ships stationary or suf­ insisted that the legality of a blockade ficiently ncar an evident danger in was proven if the blockader could entering.31 "maintain such a force as would be of itself sufficient to enforce the block­ The fictitious blockades pro­ ade. ,>2 8 Additionally, Britain refused to claimed by Great Britain, and accept any limitation on the geographic made the pretext for violating the placement of the blockading forces or commerce of neutral nations, has of their numbers. The real danger been one of the greatest abuses needed to make a blockade effective, ever committed on the high and thus legal, she asserted, could be seas. ... The whole scene was a posed by numbers of individual cruising perfect mockery, in which fact was sacrificed to form, and right warships even at great distances from 32 the blockaded coast; and that such to power and plunder. cruisers, in keeping with the practice of What had been a controversy be­ Holland in earlier years, could capture tween Britain and the continental neu­ lawfully even intended violators of the trals was now joined by a parallel, but blockade. The British position, thus, independent, controversy between was identical to that of the Dutch at the Britain and America; yet, British deter­ time of the 1630 placaat, and, as the mination to uphold her position "be­ Mahan quote above indicates, no power came a cornerstone of national policy," or plea could move them from it in the and "was considered of such importance face of the threat from France. in 1812 that ... we considered the dis­ At the same time, however, it was advantages of having the United States realized in Britain that the maritime added to our enemies less than those balance of the world had begun to shift that would follow from a modification from European waters, for "a new of our code. "3 3 This intransigence had 178 its expected result when President Madi­ codified the pragmatic essence of recent son "made clear that 'mock blockades' experience, and is significant less for its were one of the principal causes of the content than for the fact that any war" which opened in 1812.34 agreement was possible among the self­ Neither the European settlement at seeking states which authored it. It is Vienna in 1815 nor the Treaty of Ghent significant to point out that it was between Britain and the United States historic British policy and seapower late in the preceding year resolved the after 1689 which essentially fixed both issues of neutral rights so hotly con­ the form and scope of the Declaration, tested through the previous 25 years. It since the principles set forward either remained for the next major European conformed directly with those policies war to bring about the conditions under or were generated by the erosion of which some degree of reconciliation certain facets of them by decades of between the opposing views could be neutral resistance. attained. In 1854, the perpetual ene­ The broad theoretical claims of Brit­ mies, continental France and insular ish blockade policy over those years Britain, were allies in the Crimean War were given meaning and effect by Brit­ which opened in that year. If they were ish seamen. However, the reality of to be effective in the joint application British principle is summed up by the of their seapower, it was recognized that remarks of one Member of Parliament, some compromise must be struck on who, after acknowledging insular Brit­ their policies toward neutral rights at ain's dependence on imported food and sea, and a temporary agreement was exported manufactures, goes on to say: reached. At the Congress of Paris in These considerations have 1856, this compromise was enacted into always led us, practically,' to vio­ a joint convention among the states late our own theory of a com­ present and was promulgated as the mercial blockade, whenever the Declaration of Paris, in which all mari­ power to do so has remained in time powers were invited to join.35 our hands .... It is true we have The Declaration of Paris represented maintained, for our navy, the tra­ the first codification of the rules of ditional right and duty of a block­ maritime war which was generally ade, whilst (I beg your attention accepted among maritime states. The to the distinction) we have in­ 3 Declaration consisted of four points of variably connived at its evasion. 7 agreement among the powers, of which the first abolished privateering, and the III-AMERICAN INFLUENCE ON fourth declared the principle that: THE LAW: CONTINUOUS VOYAGE Blockades, in order to be bind­ ing, must be effective; that is to Although American influence on the say, maintained by force suf­ Declaration of Paris was negligible, the ficient really to prevent access to maturing of her sea strength and the 3 the coast of the enemy. 6 necessities of the American Civil War Even this enunciation fell far short of which broke out in 1861 were to leave a complete reconciliation of the differ­ distinct American influence on the ences of the powers, as the language further evolution of the recognized prin­ apparently was left deliberately obscure ciples of blockade. During that conflict, and ambiguous. Britain remained free to American courts were to apply a prin­ interpret "force sufficient really to pre­ ciple to blockade which had once been vent access" as she might see her inter­ purely a colonial policy of the European ests at the moment. In retrospect, it is mercantilist states, i.e., the Doctrine of 3 clear that the Declaration simply Continuous Voyage. 8 179 Shortly before the outbreak of the as opposed' to the European states. In insurrection, the United States position 1861, however, the Federal Government with respect to the law of blockade was found itself at war with a group of summarized in the instructions of the southern states whose maritime poten­ American Secretary ,of State to Ameri­ tial was miniscule compared to that of can Ministers abroad. The position the North, and consequently we find taken reverted to the archaic view of the the North quickly attempting to occupy blockade as an extension to seaward of the same "high ground" so firmly held investing forces around localized mili­ by Great Britain vis-a-vis the United tary strongpoints. In the words of the States. Once more, principle yielded to Secretary: political reality. The investment of a place by President Lincoln acted within a sea and land with a view to its week of the fall of Fort Sumter to reduction ... is a legitimate mode proclaim on 19 April 1861, that the of prosecuting hostilities .... But ports of the rebellious states from South the blockade of a coast, or of Carolina to Texas were blockaded "in commercial positions along it, pursuance of the laws of the United without any regard to ulterior States and the law of nations," later military operations, and with the extending the blockade to the states of real design of carrying on a war Virginia and North Carolina as their against trade ... is a proceeding rebel status became apparent.40 which is difficult to reconcile with Although the United States had re­ reason or with the opinions of fused to accede to the recent Declara­ modern times. To watch every tion of Paris,4 i the question of effec­ creek, and river, and harbour tiveness of the blockade was immedi­ upon an ocean frontier, in order ately a point of controversy, as the to seize and confiscate every ves­ United States had long championed the sel ... attempting to enter or go principle of "effectiveness" as a deter­ out, without any direct effect minant of legality. One historian has upon the true objects of war, is a noted that in April 1861 the Federal mode of conducting hostilities Navy possessed only 35 modern vessels, which would find few advocates if and that only three steam-propelled now first presented for considera­ vessels were immediately available for tion.39 blockade duty.42 Another points out This interpretation was one not only that the length of the shoreline to be substantially out of step with the dis­ interdicted by this force was in excess tilled theory of the previous centuries of 3,500 miles, from Washington down but one directly contrary to that the Potomac around to the mouth of adoptcd by the Federal forces in 186l. the Rio Grande, and that it included It is instructive only as one additional 189 river mouths and harbors.43 example of the readiness of states in the It is easy to visualize the mixture of international community to lay what­ skepticism and outrage with which Brit­ ever interpretation on ambiguous as­ ain and the other European maritime pects of the law of nations as best serves powers greeted the pretensions of the their instant interests. In 1859, Cass was Federal Government! Truly, "an effec­ expressing an interpretation that would tive blockade on such a scale was a thing favor the commercial interests of the unprecedented, even in the operations United States in any contest of major of the foremost naval powers in the European naval powers; it represents world. ,>44 merely a diplomatic gambit to compen­ Nevertheless, the normal seaborne satc for America's weak naval strength trade of the southern states declined 180 immediately after the proclamation of such ports. In the first announced deci­ blockade, partly because some neutrals sion, which was not appealed by the acceded to it voluntarily and took their British owners, ship and cargo were trade elsewhere, but more likely because condemned for attempting violation of of the normal dislocation of trade ac­ the blockade. The U.S. District Court companying a shift from a peacetime to held that: a wartime economy.45 This reduction The cutting up of a continuous of trade and its effect on the price of voyage into several parts ... can­ cotton in Europe lent credence to the not make a voyage which in its Federal claim to effectiveness of their nature is one to become two or skeletal sea forces in the early months more voyages, nor make any of of the blockade.46 one entire voyage to become legal Soon, however, the weakness of the which would be illegal if not so Federal force, combined with the grow­ divided.48 ing demand in the South for the import A better-known case, that of the Ber­ of the sinews of war, encouraged the muda, which was finally decided in development of enlarged trade efforts in 1865, is even more definitive of the defiance of the blockade. Since under Doctrine as applied by the American Anglo-American policies the liability to Courts. Intercepted on a voyage be­ capture began for the blockade runner tween Bermuda and Nassau, both neu­ at the moment of departure on the tral ports, the Bermuda and her cargo illegal voyage, enterprising shippers were condemned by the District Court sought to shorten this exposure to a for attempted blockade running. On minimum. The several neutral ports appeal to the U.S. Supreme Court, the which closely surrounded the blockaded decision was confirmed, because, in the area, such as Bermuda, Nassau, Havana, words of the Court: etc., soon became entrepots for the Successive voyages, connected transshipment of goods bound in and by a common plan and a common out of the South. The arrangement object, form a plural unit. They facilitated specialization of shipping are links in the same chain, each used in the trade, with fast, shallow­ identical in description with every draft steamers used for the two- or other, and each essential to the three-day run in and out of the block­ continuous whole. The ships are aded ports, and large slow, and stout planks of the same bridge, all of vessels used for the long ocean crossing the same kind, and all necessary to Europe.4 7 to the convenient passage of per­ The Federal authorities now looked sons and property from one end to the mercantilist Doctrine of Continu­ to the other.4 'l1 ous Voyage as justification for the The most celebrated case of the war was arresting of this trade. Union cruisers that of the Springbok, which had been operated far offshore to back up the captured enroute from London to Mata­ forces available for close-in observation moros, Mexico, a port adjacent to the of southern ports, and deliberately Rebel port of Brownsville, Texas. On positioned themselves to intercept appeal, the Supreme Court confirmed oceangoing traffic bound from Europe the condemnation of the cargo only, to the various neutral ports off the saying: southern coast. They soon began to That the voyage ... was as to bring in for adjudication under prize law cargo, both in law and in the a number of neutral vessels, mostly intent of the parties, one voyage; British, which appeared from their and that the liability to con­ cargoes and documents to be enroute to demnation ... attached to the 181 cargo from the time of carried to some effectively hlockaded sailing.50 port. "54 Two significant aspects of the Spring­ The Doctrine of Continuous Voyage bok case are worth noting. First, the was not a uniquely American contribu­ initial condemnation had been based on tion to the developing law, being evidence adduced from two other cases founded in earlier British colonial prac­ then in the process of being tried.51 tice, but its application to blockade hy This violated the traditional principle American courts opened the Pandora's that condemnation must derive solely box which had long served to contain in on evidence adduced from the ship's large measure the most volatile issues of papers or the responses of her officers neutral rights. By this action, the United or crew to interrogation. Secondly, the States unwittingly contributed to the British Government openly approved growing demand of all maritime powers the decision in its rejection of the for some consensual formulation of the request of the British owners for an law of maritime warfare, a demand expression of protest, by saying: which was realized shortly after the Having regard to the very opening of the new century at the doubtful character of all trade London Conference of 1908-1909. At ostensibly carried on at Nassau, that conference, the confused interpre­ and to many other circumstances tations of centuries of experience would of suspicion before the Court, Her be clarified in a code of maritime Majesty's Government are not dis­ warfare known as the Declaration of posed to consider the argument of London-a code which even now in the the court on this point as other­ 1960's stands as the only· accepted wise than tenable.5 2 formulation of the law of blockade and Some observers53 viewed the absence of contraband. British protest as reflecting a sinister intent to let the method and decision IV-PRECEDENT ENSHRINED: stand as a precedent upon which to base THE DECLARATION future British actions, as in fact they did OF LONDON, 1909 during World War 1. In the extension of the Doctrine of The Hague Peace Conference of 1907, Continuous Voyage to blockade, the at the suggestion of both the British and Amcrican courts had moved into an German delegates, adopted a Convention area without exact precedent; even in for the establishment of an International the colonial confiscations, no ship or Prize Court as a court of appeal from the cargo had been condemned during the national prize courts which alone had first stage of an illegal voyage. Under­ traditionally evaluated the lawfulness of standably, international jurists captures made at sea in time of war. expressed general disapproval, and over Before such a court could function, the next several decades dozens of however, it was necessary for all maritime criticisms of the American action were powers to agree on the standards of delivered within the international law maritime warfare which the Court would community. This wave of disapproval be required to enforce. Accordingly, culminated in an expression by the Great Britain suggested that a conference maritime prize committee of the In­ of such states be assembled in London in stitute of International Law in 1882 late 1908 to formulate "rules which, in that such a doctrine, if allowed to the absence of special treaty provisions stand, would "annihilate" neutral trade applicable to a particular case, the Court on the mere "suspicion that the car­ should observe in dealing with appeals go . .. may be transshipped ... and brought before it. "5 5 182 Such a conference did convene in segment of the law of nations, and the November 1908, and proceeded to Declaration began to gather dust on the devise a code of maritime warfare which shelves of law libraries throughout the was generally acceptable to the repre­ world. sentatives of the maritime community. Nevertheless, the Declaration did It was issued in February 1909 as the exist as the most recent consensus of Declaration of London. the law of maritime war when World The Declaration was the first, and War I broke out in 1914. Further, since only, exhaustive compilation of all the British representatives had contributed aspects of maritime warfare which had to its construction and had endorsed its for so long divided the maritime powers provisions at the close of the Con­ of the world. Even though the Declara­ ference, the maritime powers of the tion ultimately failed to be incorporated world looked on the defunct Declara­ formally into the law of nations, it tion as "not merely a codification of remains even today as the basis for the law," but as a "declaration of British current international law on blockade, maritime policy. ,,60 contraband, and neutral maritime rights. Although this appraisal may have The Declaration treated the matters been accurate under the conditions of blockade and contraband quite ex­ existing in 1909, it appears that when tensively, devoting 44 of its 71- Articles faced with the actuality of war with the to those topics. In brief, it confirmed Central Powers in 1914, Britain realized the 1856 pronouncement of effective­ that a blanket acceptance of the Dec­ ness as the test for legality of blockade laration would be inimical to her na­ and, contrary to the wishes of the tional interest. Consequently, she an­ United States,S 6 forbade the applica­ nounced on 20 August 1914, that the tion of the Doctrine of Continuous Declaration would be the general basis Voyage to blockades, reserving it for use of her maritime policy during the war only against absolute contraband.57 but "with certain modifications. '061 Further, the Declaration forbade inter­ These modifications ultimately rendered ference by blockading forces with access impotent the most significant advances to neutral coasts or ports, a point much made under the Declaration, from the sought after by the northern European point of view of the neutral maritime neutrals. 58 states. By 1918, the terms of the Dec­ When the Conference adjourned on laration aimed at protecting neutral 26 February 1909, the delegates re­ rights had been honored more by their turned home feeling that they had breach than their observance. With contributed to a great stride forward in respect to the detailed principles of the the regularization of international law of blockade so extensively set out in affairs. However, despite Britain's role the Declaration, Britain avoided their as sponsor, the publication of the Decla­ restrictions simply by not declaring a ration while pending ratification formal blockade. The rationale was brought great opposition by many quite pragmatic, although not expressed Britons who saw it as an abdication of openly until long after the war. From 5 British power. 9 When the House of the British view, Lords failed to enact a bill in support of A formal declaration of block­ the International Prize Court in 1911, ade was deemed inadvisable for the Declaration was effectively rejected. strategic and legal reasons; naval Since Britain had failed to take the experts realized that we could not initiative in ratifying the Declaration, operate successfully in the Baltic the remaining powers saw the futility of with any continuity.... More­ attempting to consider it as a viable over, the Baltic is only one of the 183 commercial gates into Germany, accepted rules of the Declaration, by and much of her trade arrives via 1915 the effects of new technology had Rotterdam .... Thus, it would be begun to be exerted, and both Germany wiser not to announce the word and Britain embarked on open and "blockade. ,062 unrestricted economic war against the The prewar views of at least one other's commerce. It might be suggested British naval authority had recognized that the only principle of international before 1911 that the realities of modem law which was strictly observed war had outstripped the detailed legal­ throughout the war was that of neces­ isms of the Declaration. After noting sity, whereunder all manner of hereto­ the practical impossibility of maintain­ fore reprehensible actions could at least ing a close blockade against a continen­ be rationalized. tal enemy in the face of submarines, The enactment of the Declaration, its torpedo boats, and mines, this prescient failure of ratification, and its ultimate naval officer went on to assert that the rejection under the stress of modem doctrine of blockade had become technology are all significant to this merged within a larger doctrine dictated study, but it seems specious to berate by 20th century necessity-that of total the obvious direct contribution of these economic war. Pointing out the particu­ events to the thesis of this paper. It lar sensitivity of both Britain and Ger­ seems more profitable to point out many to attack through their com­ some of the less obvious lessons to be merce, he went on to outline proposed drawn from this experience. British actions in the event of a war The code of maritime war hammered with Germany on the assumption that out by the delegates to London in the terms of the London Declaration 1908-1909 has made a contribution to could be ignored or avoided. He the developing law of nations. It is advised: instructive primarily as a codification of In that case, our obvious historical experience, and also as ex­ course, to be adopted as soon as ample of the considerable risk inherent the naval situation permitted, in the enshrinement of precedent with­ would be to declare a blockade of out regard either to the special circum­ the North Sea ports, and simul­ stances of its creation or the immediate taneously to make a sweeping realities of existing· technology and declaration of what was contra­ politics. band, including all the principal raw materials .... Neutral vessels. V-CURRENT STATUS OF THE LAW would be rigorously held up and cxamined ... the doctrine of con­ The evolutionary process described tinuous voy~e would be rigor­ in earlier chapters has remained essen­ ously applied. 3 tially at a standstill since the abortive The British actions after 1914 closely London Declaration of 1909. Despite paralleled this program with all manner the failure of the Declaration to be of additional devices employed in the formally adopted by the international effort to completely cut off all German community, and despite the almost uni­ sea commerce. These activities greatly versal rejection of its key principles antagonized the neutral trading powers during the major wars of this century, but ultimately resulted in the total the terms of the Declaration are yet disruption of German economic considered to be an acceptable expres­ strength and starvation for her popula­ sion of the developed law of maritime tion. Despite an intention early in the warfare. This paradox is explained by war to remain within the generally the customary practice of the inter- 184 national legal profession of regarding all establishing the legal sufficiency of a such consensual agreements among blockade since this element requires the states as contributory to the formation application of actual naval power to of law. In its view, the Declaration itself enforce the blockade, and is the only is meaningless as a matter of law; but it principle truly accepted as a part of the is significant still because it represents law of nations on the subject of block­ the then-current views of the interna­ ade.66 tional community and, thus, can be Further conditions must be satisfied, used as a standard against which to and they are- again usually found to have compare state practices since that time. been expressed in the London Declara­ Thus, it is common to find heavy tion. Among them is the requirement reliance placed by jurists and publicists that blockades must be confined to the on the terms of the Declaration in their coasts or ports of the enemy and that extensive writings on the subject of access to neutral ports may not be maritime warfare. restricted.67 A natural corollary to this There are, therefore, some number of requirement is the principle that cap­ fundamental characteristics which a tures may not be made if, at the given instance of blockade must display moment of interception, the neutral 6 if it is to avoid condemnation by the vessel is enroute to a neutral port. 8 international jurist and thus command This, of course, prevents the application the respect and cooperation of the of the Doctrine of Continuous Voyage community of nations which inhabit the to blockades and constitutes a rejection modern world. These characteristics are by the international law community of derived from the terms of the entire American practice during the Civil War. developed body of the law, including The issue of when a vessel becomes the London Declaration which so con­ liable to condemnation for breach of veniently reflects previous experience. It blockade was left obscure by the Lon­ will be meaningful, then, to review don Declaration, which merely men­ those characteristics given the greatest tions the possibility of condemnation if significance by those two bodies of "at the time of shipment of the goods" organized opinion: First, in order to the shipper could be presumed or complete the summary of the evolu­ proven to have knowledge of intent to tionary process begun in the 17th cen­ break the blockade.69 However, it tury; and second, to permit a critical appears that at least Anglo-American analysis of the continued validity of jurists would support the practice such criteria in the world of today. whereunder liability would commence The first principle generally applied at the instant of departure for a block­ is that the right to blockade is one aded port. Such a position appears to deriving only to a belligerent power, have been supported by American prac­ solely as a function of the existence of tice in 1917.70 that state of belligerency.64 Modern In addition to imposing restrictive publicists do recognize a similar institu­ conditions on the blockading state, cur­ tion under a condition short of bellig­ rent law as expressed by the publicists erency known as pacific blockade, but continues to reward it by acknowledg­ generally dismiss this device of the 19th ing its right to stop completely all sea 65 century as outmoded and in any traffic enroute to or from the enemy. 71 event not subject to the principles of In the view of the international law commercial blockade under discussion. community, no state has the right to Secondly, the acknowledged princi­ seize or delay commerce on the high ple of the Declaration of Paris regarding seas except under specific conditions effectiveness is regarded as crucial to associated with belligerent and neutral 185 status; it is, therefore, asserted by them into which a .layman may proceed only that the advantages to be secured by a with great caution after accepting the state only under the precise conditions sure knowledge that at least as many associated with the developed law of authorities in the field will disagree with blockade are sufficient to warrant the him as may be inclined to agree with his insistence that states comply completely views. However, it is necessary to at with these conditions when exerting least express some general views about naval power against commerce at sea. the institution in order to analyze the It appears, however, that there are position in its context of the modem some fatal flaws in this argument, some law of blockade. of which are traceable to faults in the First, international law must be a source of modem law and others arising tool of world society to be applied in purely from the modem status of inter­ regulating the political and economic national law itself. affairs among the member states of that First, it is clear that the technical society. Historically, the applications of conditions of the modem law of block­ this tool have met with varying degrees ade are derived from the experience of of success and cooperation. Generally, maritime states since the 17th century, the greatest success has occurred in and that these conditions are the applications to matters of obvious progeny of similar terms expressed in benefit to all states, such as in the the Declaration of London. But, if the establishment of rules for the preven­ Declaration itself could have been re­ tion of collisions at sea and the prin­ garded within only a few years of its ciples governing the exchange of diplo­ formulation as "merely a body of rules matic and consular agents. Further, it for regulating naval operations against appears that international law has commercial systems that had dis­ shown the ability to grow in usefulness appeared, "72 is it not valid to suspect with the passage of time. Those of a that a modernized form of that code is legalistic tum of mind might suggest equally contaminated by that charge of that this growing utility arises primarily anachronism? In short, does the view from the parallel growth of custom and of blockade expressed by modem precedent, touching on an ever-wider writers agree with the realities of the scope of matters of interest to state social and economic system which it relations. It seems more believable, seeks to regulate as sound international though, to attribute the growing influ­ law must do,73 or is it so far out of step ence of the law to the increased recogni­ with the reality that it needs to "be set tion by states of the necessity for to true time"? members of international society to get along with one another in their mutual VI-BLOCKADE IN THE self-interest. Additionally, it appears COLD WAR ENVIRONMENT that this recognition of mutual interest is directly attributable to the enlarged It has been shown that the developed economic and social interdependence of law of blockade has evolved parallel to the states within the community. and coordinate with that body of rules However, it may be that the law has generally referred to as international law become more effective, and, whatever or the law of nations. The general theories one might wish to credit with subject, international law, is one of the responsibility for improved per­ enormous scope and importance in the formance, it remains clear only that modem world. However, it is also one such a body of "law" exists, and that it of broad controversy, imprecise both in is respected and obeyed by states in acceptance and application-a thicket varying degrees. If it is necessary to 186 correlate this variable acceptance with can be expected to command the ad­ some factor, it readily appears that, at herence of states only so long as those least in the past, obedience and respect states remain convinced of the self­ for the law has generally been a func­ advantage of such adherence, it would tion of state power and the interpreta­ seem that the law of blockade may be tion of national interest. It must be regarded as binding only insofar as its admitted that this situation seems rea­ tenets reflect the reality of modern sonable to the individual observer in the politics and economics. Wherever the light of his own experience with his developed law of blockade can be fellowmen. shown to rest on precedent no longer This last generalization, at least, valid in modern society, it should be would seem to be borne out by some adhered to only if such adherence is in members of the juristic community who the national interest. Preferably, such have considered the revised status of the aspects of the law should he rejected, law of nations in the environment of the and newer and more timely principles world of the Iron Curtain and the cold should be enunciated in order to bring war. Regarding the historic evolution of that doctrine to a more logical maturity. the law of nations itself, one author In keeping with this view, let us states that "international legal norms evaluate the elements of the law of underwent constant reinterpretation blockade as it seems to exist in the eyes and development-generally keeping in of modern writers and jurists and see if step with the evolving needs and policies it, in fact, conforms to the social order of the stronger states. "74 Another, which it is intended to serve. addressing himself more directly to the First, it is contended that the right to polarized nature of modern world blockade is a belligerent right only; that politics, observes that "a realistic analy­ is, one which may be exercised only by sis of the limited scope for international a nation in an acknowledged state of law in East-West relations implies that war with another. The essence of the ultimately, these relations are not point is that legality (i.e., general governed by law, but by power. "75 The approval by the states of society) can most chilling confirmation of the ob­ attach only to a blockade proclaimed as server's assumption of a "power and an act of war. However, there now self-interest" theory to explain the appears to be some doubt that any act applicability of law in the modern con­ of war can be regarded as "legal" text is provided by the words of a because of the direction taken by the Soviet jurist, who said in 1948: body of international law after World Those institutions in interna­ Wars I and II. Beginning with the tional law which can facilitate the Covenant of the League of Nations after execution of the stated tasks of World War 1,77 progressin~ through the the USSR are recognized and Pact of Paris in 1928, 8 and cul­ applied by the USSR, and those minating in the Charter of the United institutions which conflict in any Nations signed in 1945,79 the interna­ manner with these purposes are tional community steadily progressed rejected by the USSR.7 6 toward the official banishment of war as How then should the law of blockade an acceptable "legal" means of solving be regarded in an era characterized by international differences. such apostasy toward an institution At least one authority considers that which once was viewed with almost the the ancient right of states to make war same blind faith accorded religion? If in the "traditional sense is definitely the law of blockade be a part of the law ruled out" under the Charter of the of nations, and if that law of nations United Nations since the use of force 187 for the settling of disputes is reserved to parties to the dispute were unable to the Security Council by that agree­ resolve it within the purely peaceful ment. SO Thus, in a strict sense, no means now available under modern degree of legality can be attached to any international law yet were unwilling to violent act, excepting only acts taken in extend the tension to a complete war self-defense. status. Is it not equally plain that many However accurate this interpretation such situations can and will occur as a may be, additional grounds seem to result of the Soviet-American contest exist for claiming legality for a blockade for world leadership? Further, in view not declared as an act of war under the of the great expansion of the Soviet sanction of belligerent right. The status merchant marine in the last decades5 of belligerence exists under law simply and the expressed intention of the as a means of describing the condition Soviets to support "wars of national of states not at peace. That is, it appears liberation" wherever occurring, is it not to be based on the inability of the early probable that confrontations at sea will jurists or publicists to conceive of states become commonplace in the future existing in a condition other than that between the naval forces of the West of war or its opposite, peace. There is, and Soviet seapower? Already the however, some evidence indicating the Cuban "quarantine" crisis of 1962 rccognition by a measurable segment of appears in retrospect as an obvious opinion of a third status, beyond that of example of a condition of intermediacy. peace yet short of war. For example, as Because the status of that time had not early as 1907 the English jurist Westlake been widely enunciated, the condition considered that such a condition could was not so easily recognized, nor even exist, observing that "~cts of force are now has it been generally accepted as a not war unless either a government does principle. Yet, it would ~eem that such a them with the intent of war or the status must ultimately be recognized, as government against which they are done so many others have been in the past, clects to treat them as war. ,>81 A more because of the reality of political and recent publicist expressed the idea more economic circumstances now abroad in concretely by stating that "there may the international community. be ... a state of 'intermediacy' between Another characteristic of the law of peace and war ... characterized blockade which might be open to ques­ by ... hostility between the opposing tion in the light of modern experience is parties ... but accompanied by an that provision forbidding interference absence of intention or decision to go to with free access to neutral ports. In war. "S 2 In a comprehensive discussion discussing this provision, it might first of the matter, another eminent au­ be observed that it, above all others, thority conceded the significant advan­ seems to have been honored more in the tage of recognizing such a sta~s of breach than in the observance almost intermediacy to be that it could be from the day of its formulation in 1909. endowed with "legal consequences" In World War I all pretense of com­ similar in force and effect to the two pliance with this principle was dropped traditional conditions. S 3 In the view of after early 1915 by Great Britain.s6 another author, such legal consequences The reality of her position on the might "include limited restrictions on subject was expressed at a later date in the freedom of the seas hitherto recog­ terms of clearly recognizing the nized only in war but falling short of dominance of self-interest over princi­ full scale blockade.'>84 It is clear from ple. At that time one authority stated: these observations that such a state of ... the extent of a belligerent's intermediacy could exist only where the right to interfere with seaborne 188 commerce is conditioned by the at sea in war by outlawing war and by extent of his command of the sea, the implied denial of the status of and that the real principle under­ neutrality in the face of armed conflict lying the idea of blockade is the by any member of the organization. If right of a belligerent to deny to _ neutrality as a legal subsystem in inter­ the commerce of his enemy the national law is inconsistent with the use of areas of sea which he is in a collective security ~stem of the United 8 position effectively to control. 7 Nations as alleged,9 then observance of Associated with the dictum that rules created as part of that subsystem blockading forces may not interfere have at least become optional if not with traffic enroute to and from neutral completely unnecessary. Certainly, in ports is the requirement that no vessel view of the expressed intent of the may be seized for breach of blockade if Soviet Union to observe only those she is first encountered on her way to a portions of the law of nations which are neutral port. That is, the Doctrine of consistent with its wishes, it would be Continuous Voyage may not be applied wise for other states to reserve to 8 to blockade. 8 A cursory review of themselves the degree of observance to world history since 1914 would reveal be given to patently outdated rules of that the practice of states at war during maritime war. that period has been quite directly the opposite from that intended by both VII-CONCLUSIONS AND these requirements. In both world wars RECOMMENDATIONS tlle commerce of neutrals and bellig­ erents alike was attacked mercilessly Under the simplified circumstances with all of the means available to the of antiquity, combatants recognized the contesting powers. There does not seem necessity of depriving the enemy of to be any reason to suspect that such supplies and reinforcements essential to rules would be observed by the parties his continued resistance. As society to any future contest between the major grew more complex and economically antagonists now dominating world more interdependent, the realities of politics. international politics dictated that some In point of fact, it seems ludicrous to concession be made to nonparticipants contemplate the possibility of any to retain the support their supplies meaningful observance of the "legal" would provide for warlike operations by code of blockade in the current or both sides. Such concessions led to the predictable future state of political concept of neutrality and ultimately reality. It is clear that the rules of became thoroughly circumscribed with blockade came into existence solely to technical conditions under which neu­ protect the ordinary sea commerce of trals might continue trade with any neutrals and to regulate the circum­ belligerent they could reach. But the stances under which such trade could be continuing evolution of international interrupted. The rules derive out of a society resulted in widening the scope 19th century legal regime-a regime of wartime operations, as individual oriented toward regulating the conduct states accrued great military power, of states in war and peace. 8 9 But they acquired the ability to destroy modern international law, of which completely the social and economic blockade is a part, no longer seeks to fabric of their enemies, and war had regulate war but to prevent its occur­ become a matter of national survival by rence. The formation of a world organi­ the beginning of the 19th century. zation dedicated to this end has effec­ Under these classic rules of neu­ tively ended the issue of neutral rights trality, the right to blockade an enemy 189 was a valued tool of the belligerent, for and relations. It is submitted that only by complying with certain the extent of the structural accepted principles associated with the changes in international relations institution could he deprive his enemy in our time requires a far more of commerce with the general acquies­ basic reorientation in our thinking cence of the world society. However, as in international law. 91 war became more total, the once simple Such a basic reorientation is neces­ rules of blockade became more and sary at this time with regard to the law more complex until the technicalities of blockade. If the historic status of imposed in the name of neutral rights "neutrality" can be regarded by some obscured the fundamental purpose of authorities as extinct, why cannot a new the institution itself-to cut off an status supersede it? If armed confronta­ enemy's commerce and thus weaken or tions between East and West are starve him to the point of submission. accepted by the international com­ As the law grew out of touch with· the munity as being something other than realities of power and politics, states "war" in the traditional sense solely which had the naval strength and the because the contestants have no inten­ national will to survive began to ignore, tion to engage in war, then some status corrupt, or circumvent the principles so under law should be accorded to the carefully constructed by the scholars condition. Within such a new category and legalists. The determining factors of of law arising from the circumstances of compliance with the laws became those the society it is intended to serve, there of self-interest and naval power­ would be a place for a new code of tempered only by the ability of a state maritime war-a code which would re­ to recognize its own long-term self­ flect 20th century conditions rather interest Principle yielded to power and than the outmoded precedents set in an necessity, and the emergence of the era which could not even conceive of a 20th century concept of total war totally bipolarized world. It appears to sounded the tocsin for any carefully be manifestly clear that such a code drawn rule which conflicted with the would contain rules for the conduct of necessities of such conflict operations against commerce at sea. The body of international law which Whether such actions be called block.ade exists today represents the result of or "quarantine," commerce warfare will forces generated by conflict of the always remain as a tool of seapower, international state system since the 17th and a workable code for its conduct century. It grew in an environment of could only benefit all of world society. constant change, but the rate of such We are in an era of "limited war" change remained fairly slow until recent because the realities of "total war" in decades. Many of its precepts are rooted the nuclear age are too grotesque to in economic, social, and political ex­ consider as real possibilities. The one periences of the last century-and the characteristic of the 1962 Cuban "quar­ law of blockade is peculiarly representa­ antine" which drew general approval tive of this fault from the world community of nations Speaking of international law in was its controlled and limited nature.92 general, one writer has said: And one view expressed with regard to To the majority of the writers the selection of the quarantine method and exponents of international in response to the Soviet challenge of law, contemporary changes appear that autumn remains valid today. Dis­ as extensions and modifications cussing the President's reasoning on the rather than as basic challenges to selection of this action, Theodore the structure of international law Sorensen has said of the operation: 190 Whatever the balance of stra­ with the United States under the same tegic and ground forces may have grounds that they once devolved upon been, the superiority of the Britain. It is clearly the duty of such American Navy was unquestioned; power to be exercised in defense of the and. this superiority was world­ concept when threatened by a power wide, should Soviet submarines which might not act to preserve such 9 retaliate elsewhere. 3 freedom, but to hamper or destroy it. What is proposed herein is simply All states have recognized the need to that some form of sea operations against accept restrictions on the usual freedom Commerce be sanctioned despite the to use the sea when war has broken out absence of a traditional condition of between maritime states.9S Such restric­ belligerency. If ever a traditional war tions imposed in times of nominal peace erupts between the major antagonists of would undoubtedly generate widespread the modern world scene, the issue of outcry by the maritime states of the neutral rights at sea will be academic world, but historic experience indicates even for the survivors. Some form of that under the pressing circumstances conflict seems to be a reasonable ex­ now at issue-for example, in Vietnam­ pectation in the future as it even now such a move by the United States would exists in Southeast Asia, and, therefore, not long be opposed by states having a some provision should be made by the sincere interest in preserving the international community to regulate the freedom which we have long cham­ application of seapower in such con­ pioned at sea. flicts. It is, therefore, proposed that the The most vociferous retort to this United States take the initiative in proposal may very well be based on its forcing the modification of the tradi­ apparent suggestion that America tional laws associated with the institu­ abandon its traditional advocacy of tion of blockade: First, by a unilateral "freedom of the seas," and so some statement that the existing doctrine is brief observations are appropriate on inconsistent with the needs of modern that subject. society; and, second, by propOSing ap­ Freedom of the seas, in the classic propriate modifications to the doctrine. Wilsonian sense, means those rights Such action should be followed by the which we believe have accrued to all announcement of a n~val "quarantine" states as a result of British policing of of the port of Haiphong in North the oceans in the decades since Trafal­ Vietnam, including the application of gar. The basic concept of freedom of the Doctrine of Continuous Voyage to the seas presupposes the dominance of a designated contraband at least to the naval power so disposed as to make such British Crown Colony port of Hong freedom possible for itself and others. Kong, where it has been observed that That Great Britain was such a power is much of the Haiphong commerce "origi­ borne out by study of naval history. As nates. '>9 6 Such action could be tied in Bell remarks, "Great Britain was recog­ with the recent and continuing efforts nized to have protected the usages and of the United States to secure peace in customs of Europe [and consequently that area by: (1) announcing the naval all of Western society] by her un­ quarantine to be a more humane sub­ flinching resistance to the Napoleonic stitute for the aerial bombing campaign empire. "94 Now, with Britain eclipsed recently resumed; and (2) calling upon by modern U.S. naval power, the bur­ all states who have expressed dis­ den of protecting, exploiting, or re­ approval of the bombing action to join futing those rights associated with the with the United States in carrying out concept of "freedom of the seas" lies the quarantine operation. 191

One precedent of the historical law The United States is today engaged of maritime warfare seems most applic­ in an exceptional struggle for which able even today, and that is the argu­ there are few hard and fast rules. If we ment in favor of exceptional measures must act to set new precedents on the being valid when states find themselves ground in the face of this need, we engaged in an "exceptional" struggle. should equally act to set precedents on Writing of the events at sea in 1689, the seas. Both actions will stand to Samuel Puffendorf acknowledged that guide nations in the future. powers engaged in defense of the religi­ In the words of one commentator: ous liberty of Europe were not required United States naval power to observe ordinary rules of capture; makes freedom of the seas pos­ again in 1792, it was claimed, with some sible. During periods of bellig­ justice, that "extraordinary rigours were erence, that freedom is subject to justifiable against a regicide government control The bloody Ho Chi Minh [France], who were themselves con­ trail is long and winding. It begins temptuous of the law of nations.'>9 7 at sea.9 8

NOTES

1. Henry Ward Beecher, Life Thoughts. 2. John Westlake, The Collected Papers of John Westlake on Public International Law (Cambridge, Eng.: Cambridge University Press, 1914), p. 325. 3. Ibid., pp.316·317. 4. Lassa F. Oppenheim, International Law: Disputes, War and Neutrality, H. Lauterpacht, ed., 7th ed. (London: Longmans, 1952), v. II, pp. 768-769. 5. Ibid., pp. 624-625. 6. Such materials later came to be known as "contraband," and as such have often become confused with the concept of Blockade. 7. Westlake, Collected Papers, p. 321. 8. Some evidence exists that the idea was not original with the Dutch. See, Neutrality, Its History, Economics and Law: the Origins (New York: Columbia University Press, 1935), v. I, p. 106. It is unquestioned that the Dutch made the greater contribution to the establishment of the doctrine, however. 9. Westlake, Collected Papers, p. 325. 10. John Westlake, International Law (Cambridge, Eng.: Cambridge University Press, 1907), pt. II, p. 222. 11. De Jure Belli ac Pacis, quoted in Westlake, Collected Papers, p. 324. See also Westlake, International Law, p. 222. 12. Westlake points out that there is no inconsistency here, as the word itself, although coined in the original Dutch placaat nearly a half century earlier, was not commonly applied in the technical sense until a later date. (Collected Papers, p. 330) 13. Westlake, Collected Papers, p. 326. 14. Bynkershoek, Quaestiones juris publici, i, 11. Quoted in Westlake, Collected Papers, p. 327. 15. Westlake, Collected Papers, p. 327. See also Neutrality: Origins, pp. 111-112. 16. Neutrality: Origins, p. 113 ff gives good account of reactions of maritime neutrals and treaty development. 17. Westlake, Collected Papers, p. 328. 18. Ibid., pp. 330-331. 19. Ibid., p. 332. 20. Herbert W. Richmond, National Policy and Naval Strength, CVI to XX Century (London: Oxford University Press, 1923), p. 10. 21. Neutrality: Origins, p. 82 ff. Summarizes the wars of the period and Britain's changing roles thereilL 22. Archibald C. Bell, A History of the Blockade of Germany, 1914-1918 (London: H.M. Stationery Off., 1937), p. 5. 23. Alfred T. Mahan, The Influence of Sea Power upon the French Revolution and Empire, lOth ed. (Boston: Little, Brown, 1898), v. 11, p. 199. 192 24. Grenville to Lord Auckland. Quoted in Neutrality: Today and Tomorrow (New York: Columbia University Press, 1936), v. IV, pp. 40·41. 25. Westlake, Collected Papers, p. 334. 26. Ibid., p. 335. 27. Westlake,fnternational Law, p. 230. 28. Great Britain, Lords of Appeal, decision In the case of the Nancy, quoted in Westlake, International Law, p. 230. 29. James Stephen, War in Disguise, 3d cd. (London: University of London Press, 1917), p. 18. 30. Carlton Savage, ed., Policy of the United States toward Maritime Commerce in War (Washington: U.S. Govt Print. Off., 1934), v. I, pp. 1-10. 3l. Madison to Monroe, 5 January 1804. Reproduced in Savage, v: I, p. 246. 32. Ibid., pp. 248-249. 33. Richmond, p. ll. 34. Savage, v. I, p. lI8. 35. Westlake, International Law, p. 128. 36. Congress of Paris, "Annex to Protocol 23-Declaration." Reproduced in Savage, v. I, p. 38l. 37. Letter from Mr. Cobden, M.P., to Henry Ashworth, Esq., 1862. Quoted in Westlake, Collected Papers, p. 357. 38. For the colonial evolution of this principle, see Appendix I. The Doctrine had been previously applied to blockade in only one instance, during the Napoleonic Wars, but undcr highly specialized circumstances. 39. Cass to Mason, 27 June 1859. Reproduced in Savage, v. I, pp. 402-412. 40. See Savage, v. I, pp. 415-416 for complete text 4l. The United States refusal was predicated on the outlawing of privateering, and the refusal of the Congress Powers to agree to forbid the confiscation of private property at sea belonging to belligerents. See Savage, v. I, p. 76 ff for diplomatic exchanges on subject 42. James R. Soley, The Blockade and the Cruisers (New York: Scribner, 1883), p. 27. 43. Allen Westcott, ed., American Seapower since 1775 (Philadelphia: Lippincott, 1952), p. 109. 44. Soley, p. 27. 45. Ibid., p. 42. 46. See Seward to C.F. Adams, 6 March 1862, quoted in Savage, v. I, p. 439. 47. Soley, pp. 35-38, describes development of this trade. 48. The Dolphin, 7 Fed. Cases 868. Quoted in Herbert W. Briggs, The Doctrine of Continuous Voyage (Baltimore: Johns Hopkins Press, 1926), p. 45. 49. Quoted in Briggs, p. 54- 50. Quoted in Savage, v. I, p. 466. 5l. The Stephan Hart and the Gertrude. Both ships held cargo for the same port as the Springbok, all of which was complementary in use and linked by common ownership. 52. Briggs, p. 68. See also Lord Russell's comment of 20 February 1864, quoted in Briggs, p.67. 53. Notably Mr. L. Gessner, in Zur Reform des Kriegs-Seerechts (Berlin: 1875), quoted in Briggs, p. 68. 54. Quoted in Briggs, pp. 78-79. (Emphasis in original) 55. Arthur Cohen, The Declaration of London (London: Hodder and Stoughton, 1911), pp. 6-9. 56. See Instructions to the Delegates to the London Naval Conference of 1908-1909, dated 21 November 1908. Quoted in full in Savage, v. I, pp. 521-524- 57. See Savage, v. II, pp. 163-179 for complete text of the Declaration. Specifically, see arts. 2,19, and 30. 58. Ibid., art. 18. 59. A number of contemporary writings reflect the intensity of the controversy. Sec particularly T. Gibson Bowles, Sea Law and Sea Power (London: Murray, 1910); Norman D. Bentwieh, The Declaration of London (London: Wilson, 1911); Thomas Baty, Britain and Sea Law (London: Bell, 19l1); and Arthur Cohen, The Declaration of London (London: Hodder and Stoughton, 1911). 60. Bell, p. 38. See also Marion C. Siney, The Allied Blockade of Germany, 1914-1916 (Ann Arbor: University of Michigan Press, 1957), p. 8 ff. 6l. Bell, p. 40. 62. Edward K. Chatterton, The Big Blockade (London: Hurst and Blackett, 1932), p. 28. 193

63. Captain M.P.A. Hankey, RN, Naval Assistant Secretary, Committee of Imperial Defence, undated memorandum, extensively quoted in Bell, pp. 20-22. Note the emphasis on cutting off of raw materials; practically all such materials had been specifically exempted from capture by the Declaration. (See art. 28.) 64. All definitive texts of International Law cited elsewhere herein set forth the discussion of the law of blockade in adjectival phrases such as "belligerent right," etc., and the subject is nowhere considered in any other context than as a portion of the law of war. 65. See Oppenheim, v. II, pp. 144-149 for a representative view of the entire institution. 66. Ibid., chap. II. 67. Oppenheim, p. 771. See also, Charles C. Hyde, International Law, Chiefly as Interpreted and Applied by the United States, 2d ed. (Boston: Little, Brown, 1945), p. 2190. 68. Declaration of London, art 19. 69. Ibid., art 21. 70. See Instructions Governing Maritime Warfare, June 1917 (Washington: U.S. Govt. Print. Off., 1918), pp.16-17. 71. See Hyde, v. III, pp. 2211-2212. 72. Bell, p. 18. 73. Philip C. Jessup, A Modern Law of Nations (New York: Macmillan, 1948), p. 1. 74. Oliver J. Lissitzyn, International Law in a Divided World (New York: Carnegie Endowment for International Peace, 1963), p. 7. 75. Georg Schwarzenberger, "The Impact of the East-West Rift on International Law," Grotius Society, Transactions (Longmans, Green, 1951), v. XXXVI, p. 232. 76. F.I. Kozhevnikov. Quoted by Lissitzyn, p. 16. 77. Articles 12 and 13. See complete text in Charles G. Fenwick, International Law, 4th ed. (New York: Appleton-Century-Crofts, 1965), appendix A. 78. See Ruhl J. Bartlett, ed., The Record of American Diplomacy, 4th ed. (New York: Knopf, 1964), pp. 520-521. 79. See Fenwick, appendix C. 80. Fenwick, pp. 649-650. Also, under the "Uniting for Peace Resolution" of 1950, the Gencral Assembly may act if the Council defaults on its obligation. 81. Westlake, International Law, v. II, p. 2. (Emphasis added) 82. Wolfgang G. Friedmann, The Changing Structure of International Law (New York: Columbia University Press, 1964), p. 271. 83. Philip C. Jessup, "Should International Law Recognize an Intermediate Status between Peace and War?", American Journal of International Law, January 1954, pp. 98-103. 84. Friedmann, p. 271. 85. C.R. Huan, "La Flotte Marchande Sovietique," La Revue Maritime, August-September, 1965, pp. 981-1004. 86. Bell, chap. III. 87. H.W. Malkin, "Blockade in Modern Conditions," British Yearbook of International Law, 1922-1923 (London: Frowde, 1923), pp. 87-88. 88. Declaration of London, art 19. See also Herbert A. Smith, The Law and Custom of the Sea, 2d cd. (New York: Praeger, 1950), p.112. 89. See Fenwick, p. 667 ff. 90. Ibid., p. 727, p. 729 ff. 91. Friedmann, p. 3. 92. The New York Times, 26 October 1962, passim. 93. Theodore C. Sorensen, Kennedy (New York: Harper & Row, 1965), p. 688. 94. Bell, p. 4. 95. Fenwick, p. 511. 96. See Raymond Moley, "Blockade Saves Lives," Newsweek, 3 January 1966, p. 60. 97. Bell, p. 5, paraphrases Puffendorf and an anonymous later writer. 98. Raymond Moley, "Freedom of the Seas," Newsweek, 27 December 1965, p. 74. 194 BIBLIOGRAPHY

Bartlett, Ruhl J., ed. The Record of American Diplomacy, 4th ed. New York: Knopf, 1964.

Baty, Thomas. Britain and Sea Law. London: Bell, 1911.

Bell, Archibald C. A History of the Blockade of Germany ••• 1914-1918. London: H.M. Stationery Off., 1937.

Bentwich, Norman D. The Declaration of London. London: Wilson, 1911.

Bowles, T. Gihson. Sea Law and Sea Power. London: Murray, 1910.

Brierly, James L. The Law of Nations. 4th ed. Oxford, Eng.: Clarendon Press, 1949.

Briggs, Herhert W. The Doctrine of Cpntinuous Voyage. Baltimore: Johns Hopkins Press, 1926.

British Yearbook of International Law, 1922-1923. London: Frowde, 1922, v. ill.

Chatterton, Edward K. The Big Blockade. London: Hurst and Blackett, 1932.

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Grotius Society. Transactions. London: Longmans, Green, 1951, v. XXXVI.

Huan C.L. "La Flotte Marchande Sovietique." La Revue Maritime, August­ September 1965, pp. 981-1004.

Hyde, Charles C. International Law, Chiefly as Interpreted and Applied by the United States, 2d rev. ed. Boston: Little, Brown, 1945. 3 v.

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______. "Should International Law Recognize an Intermediate Status hetween Peace and War?" The American Journal of International Law, January 1954, pp. 98-103.

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Mahan, Alfred T. The Influence of Sea Power upon the French Revolution and Empire. lOth ed. Boston: Little, Brown, 1898, v. II. 195

Moley, Raymond. "Blockade Saves Lives. "Newsweek, 3 January 1966, p. 60. ______. "Freedom of the Seas. " Newsweek, 27 December 1965, p. 74.

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______. International Law: War. Cambridge, Eng.: Cambridge University Press, 1907. pt. II. 196 APPENDIX I THE RULE OF 1756 AND THE DOCTRINE OF CONTINUOUS VOYAGE European mercantilist doctrine in the 18th century asserted that colonies existed ·only to supply the mother country with raw materials and to provide a market for the processed goods of the homeland. In Britain, to prevent encroachment by outsiders in this profitable two-way trade, a series of laws had been enacted to deprive outsiders of participation in colonial trade, in part by requiring that all such trade be carried on in ships of the British flag. France and others had similar regulations for the trade of their colonies. When war broke out among the colonial powers, as it frequently did, belligerent £lag ships and their cargoes became lawful prize. Under such circumstances, how was the mother country to continue to supply and be supplied by her overseas colonies? The answer, of course, was to carry on colonial trade using neutral £lag bottoms; but the right of neutral ships to carry enemy goods was itself a source of heated controversy among maritime powers, and even more so when belligerents employed neutral ships only to carry on colonial trade ''lith out enduring the risk of confiscation associated with their own £lag. 1 To confound this practice, British prize courts evolved what became known as the Rule of the War, 1756, under whiCh neutrals were prohibited, by confiscation if intercepted, from participating in colonial trade in war if such trade were denied them in peace by the laws of the mother country.2 Hoping to evade this rule, neutrals and belligerent shippers conspired to make the colonial voyages in two distinct stages, the first from the colony to a neutral port, and the second from that port to the mother country. Fictitious transfers of ownership and actual or simulated transshipment of the cargo while in the interim port were often resorted to in order to disguise the true character of the voyage from intercepting cruisers. This practice permitted them to claim that captures made during either segment of the voyage were illegal, since neutral trade to and from neutral ports was always allowed. The prize courts responded with the development of the Doctrine of Continuous Voyage under which cargoes were condemned at any stage in the voyage, disregarding paper transfers and transshipments as "a fraudulent contrivance merely on account of the war to continue the original voyage and cover the goods of the enemy to their destined port."3

IFor a general summary, see Richard Pares, Colonial Blockade and Neutral Rights, 1739·1763 (Oxford, Eng.: Clarendon Press, 1938), p. 169. The controversy on neutral rights stemmed from a fundamental difference between Continental and British jurists on the sources and character of international law. Pares (pp. 148-162) disagrees with other authorities who assert that the issues were resolved before this time. See Neutrality: the Origins, v. I., p. 247. 2Pares, pp. 18()'204. See also Neutrality: the Origins, p. 153, where they describe the Rule as "one of the clearest examples of the economic basis of the law of neutral and belligerent rights. It was a measure adapted ... to meet a definite economic problem." 3Decision in the case of the ship Young Gertruyde Adriane, June 1764. Quoted in Pares, p. 221.