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The Law of Blockade

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The Law of Blockade YALE LAW JOURNAL VOL. XII APRIL, 1903 .6 THE LAW OF BLOCKADE. Classed with the most ancient and well ascertained operations of war is the blockade. Sir Robert Phillimore, the eminent English jurist, in his comprehensive work on International Law, (Vol. III, page 473, 3rd ed.), observes that, "Among the rights of belligercnts there is none more clear and incontrovertible, of more just and necessary in the application, than that which gives rise to the law of blockade." For this he .especially relies upon our own great commentator, Chancellor Kent. It is a curious fact that during the last half century, perhaps since the Declaration of Paris of 1856, this right has played no important part in the wars of Europe. She has had no great naval wars. On the other hand. the blockade of the southern coast, undertaken by the United States in its war with the Confederacy, was the most extensive blockade known to history, and that of the ports of Cuba and Porto Rico during the recent Spani.l-American war. was an important and extensive operation of its kind. In the Napoleonic wars. the Emperor Napoleon, by various decrees, and the authorities of Great Britain by orders in ,council, attempted on the one hand to impose the conditions of a blockade by mere declaration, not accompanied by the presence of an ade- quate force shutting off communication with the blockaded coast. and on the other hand, to meet these declarations by severe and unprecedented condemnations. These so-called "'paper" blockade: were strongly disapproved, and finally, bv the Declaration of Paris YALE LAW JOURNAL. of i856, most of the leading civilized nations of the world declared that a blockade, to be obligatory, must be effective, that is to say, "maintained by a sufficient force to shut out the access of the enemy's ships, and other vessels," in reality. Thirty-eight states acceded to this, but our own country was not among the number. However, that declaration may be accepted as making an end to the so-called "paper" blockades. (Lawrence's Wheaton, 2nd Ed., page 637, and notes.) And although the United States refused to be a party to it, yet our Supreme Court (The tPeterhoif, 5 Wall. 28, at page 5o ) declared in i886: "It must be premised that no paper or constructive blockade is allowed by International Law. When such blockades have been attempted by other nations, the United States have ever protested against them and denied their validity. Their illegality is now confessed on all hands. It was solemnly proclaimed in the Declaration of Paris of I856, to which most of the civilized nations of the world have since adhered; and this principle is nowhere more fully recognized than in our own country, though not a party to that declaration." Chief Justice Fuller, speaking for the court in The Olinde Rod- rigues, 174 U. S. 5io, observes: "This is now the settled doctrine of the English and American courts and publicists, and it is embodied in the second of the instructions issued by the Secretary of the Navy, June 2o, 1898, General Order No. 492: 'A block- ade to be effective and binding, must be maintained by a force sufficient to render ingress to or egress from the port dangerous.'" A blockade declared but not maintained with adequate force may operate, it seems, to modify the rights of shippers and the duties of carriers, though not to give the right of capture and condemna- tion. Thus in an action by Lechartieragainst La Compagnie Trans- atlantique Francaise for non-delivery of goods shipped to Porto- Plata (Hait), by which were not unshipped there on account of an alleged blockade of the port, but were left at Port-au-Prince, the "Tribunal de Commerce du Havre" decreed in 1889 that if a block- ade had not been established in conformity with the convention of Paris, that is to say, with adequate force, it is enough, that it has been declared by one of the belligerents, to discharge a master, charged with the unloading of the goods in the blockaded port, from all responsibility for non-performance of his contract. He is equally THE LAW OF BLOCKADE. exonerated when in accordance with the directions of the bill of lading, he has deposited the goods in the port nearest to the block- aded port. (Calvo, Le Droit International Th6orique et Pratique, Tome 6, (Supplement G6n&al) Section 446; Journal du droit international priv6, 1892, p. 183. The right of a belligerent in time of war is to invest a port or coast of the enemy, and to interdict all merchant vessels from ap- proaching or dealing with the blockaded district. The vessels of neutrals are affected, and this right of a belligerent is universally admitted. The leading principles, as announced in Phillimore (Vol. III, page 495) are: "a-That where there has been a formal notifica- tion of the blockade, a reasonable time must be allowed for it to take effect. b-That where there has been no formal notification, the knowledge of the party must be proved." "That after a certain time it lies prima facie upon the party to show that he was not apprised of the fact of the blockade." In the first place, a blockade must be established by competent authority. It may be by ministerial notice, or by an officer pursuant to authority confided to him, or by a naval commander on a distant station without express authority; but in the latter case, to affect neutrals, this action must be ratified by the commander's govern- nient. (Walker's International Law, page 520; The Rolla, 6 C. Rol). 364.) Thus, as a recent example of a blockade proclaimed by the government, we have that proclaimed by the United States government with reference to the south coast of Cuba and San Juan in Porto Rico, the proclamation for which is partially set out in The Olinde Rodrigues, 174 U. S. 5xo; and as an example of a blockade established by a naval officer, the blockade of Guantanamo, declared by the late Admiral Sampson, which was passed upon by the same great tribunal in The Adula, 176 U. S. 361, and was held to be within the power of a naval com- mander. The court distinguishes " a simple or actual blockade," from "a public or presidential blockade," holding that the former is "constituted merely by the fact of an investment, without any necessity of a public notification." and that it ceases with the in- vestment. By custom the blockading belligerent in case of public blockade issues formal notice to neutrals of the institution of the blockade. This practice differs, but "according to the Anglo-American rule, a public notification given by the belligerent to a neutral govern- ment is ordinarily sufficient to convict all subjects of that govern- YALE LAW JOURNAL. ment of the requisite guilty intent, provided that the statements of the notice are fully borne out by the facts of the actual block- ade." (Walker's International Law, page 520; Northcote v. Doug- las, The Franciska, io Moore P. C. C. 59.) In case of a blockade de facto by a naval commander without special powers from his government, the existence of the blockade must be brought to the knowledge of the blockade runner, and warning must be given to vessels seeking to enter the forbidden port. Even in case of blockade by proclamation, a reasonable time must be given for the neutral government to advise its sub- jects. Several of the continental countries of Europe assert a more lenient rule than that adhered to by Great Britain and the United States. Thus France, Italy, Spain and Sweden require direct and individual notice of the blockade by one of the blockading squadron to the neutral master before seizure. Such warning when given, is endorsed on the ship's register. Prussia and Denmark follow the Anglo-American practice. (Hall's International Law, page 698; Walker's International Law, page 521.) It was lately urgently contended, on the authority of a French treatise on International Law by Pistoye and Duverdy, that since the Declaration of Paris this Anglo-American doctrine had been abandoned. But the Supreme Court (The Adula, 176 U. S. 361) re-affirmed it in all its rigor, and there declared that "the opinions of foreign writers on International Law cannot be accepted as overruling in any particular prior decisions of the Supreme Court of the United States." Mr. Walker (International Law, page 517) shows that "the powers of the First Armed Neutrality required for the establish- ment of a valid blockade of any port that the belligerents, 'by a disposition of vessels, anchored and sufficiently near, make the at- tempt to enter manifestly dangerous.'" That like provision was made by the Neutral League of 18oo. In the Convention of i8oi, Russia substituted the word "or" for "and,"' making it read, "anchored or sufficiently near." The Declaration of Paris in 1856 declared that "blockades in order to be binding must be effective, that is to say, maintained by force sufficient really to prevent access to the coast of the enemy." It is interesting to find that under this doctrine, which, as we have seen, has been fully adopted by the civilized world and de- clared by our own Supreme Court to be a part of International Law, a blockade maintained by a single vessel has been held so "effective," (see The Olinde Rodrigues, 174 U. S. 5IO), where the THE LAW OF BLOCKADE. blockade of the port of San Juan in Porto Rico was held to be complete and effective though one modem cruiser only was sta- tioned before the port.
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