[Circular.]
Neutral commerce in articles conditionally
contraband of war.
Department of State,
Washington, June 10, 1904.
To the Ambassadors of the
United States in Europe.
Gentlemen: It appears from public
documents that coal, naphtha, alcohol, and other fuel have been
declared contraband of war by the Russian Government.
These articles enter into general consumption in the arts of
peace, to which they are vitally necessary. They are usually
treated not as “absolutely contraband of war” like articles that
are intended primarily
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for military purposes in time or war, such as ordnance, arms,
ammunition, etc., but rather as “conditionally contraband”—that
is to say, articles that may be used for or converted to the
purposes of war or peace, according’ to circumstances. They may
rather be classed with provisions and food stuffs of ordinarily
innocent use, but which may become absolutely contraband of war
when actually and especially destined for the military or naval
forces of the enemy.
In the war between the United States and Spain the Navy
Department, General Orders, No. 492, issued June 20, 1898,
declared, in article 19, as follows: “The term ‘contraband of
war’ comprehends only articles having a belligerent
destination.” Among articles absolutely contraband it declared
ordnance, machine guns, and other articles of military or naval
warfare. It declared as conditionally contraband “coal, when
destined for a naval station, a port of call, or a ship or ships
of the enemy.” It likewise declared provisions to be
conditionally contraband “when destined for the enemy’s ship or
ships, or for a place that is besieged.”
The above rules as to articles absolutely or conditionally
contraband of war were adopted in the Naval War Code,
promulgated by the Navy Department, June 27, 1900.
While it appears from the documents mentioned that rice, food
stuffs, horses, beasts of burden, and other animals which may be
used in time of war are declared to be contraband of war only
when they are transported for account of or in destination to
the enemy, yet all kinds of fuel, such as coal, naphtha,
alcohol, are classified along with arms, ammunition, and other
articles intended for warfare on land or sea.
The test in determining whether articles ancipitis usus are
contraband of war is their destination for the military uses of
a belligerent. Mr. Dana, in his Notes to Wheaton’s International
Law, says: “The chief circumstance of inquiry would naturally be
the port of destination. If that is a naval arsenal, or a port
in which vessels of war are usually fitted out, or in which a
fleet is lying, or a garrison town, or a place from which a
military expedition is fitting out, the presumption of military
use would be raised, more or less strongly according to the
circumstances.”
In the wars of 1859 and 1870 coal was declared by France not to
be contraband. During the latter war Great Britain held that the
character of coal depended upon its destination, and refused to
permit vessels to sail with it to the French fleet in the North
Sea. Where coal or other fuel is shipped to a port of a
belligerent, with no presumption against its pacific use, to
condemn it as absolutely contraband would seem to be an extreme
measure.
Mr. Hall, International Law, says: “During the West African
Conference, in 1884, Russia took occasion to dissent vigorously
from the inclusion of coal amongst articles contraband of war,
and declared that she would categorically refuse her consent to
any articles in any treaty, convention, or instrument whatever
which would imply its recognition as such.”
We are also informed that it is intended to treat raw cotton as
contraband of war. While it is true that raw cotton could be
made up into clothing for the military uses of a belligerent, a
military use for the supply of an army or garrison might
possibly be made of food stuffs of every description which might
be shipped from neutral
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ports to the nonblockaded ports of a belligerent. The
principle under consideration might, therefore, be extended so
as to apply to every article of human use which might be
declared contraband of war simply because it might ultimately
become in any degree useful to a belligerent for military
purposes.
Coal and other fuel and cotton are employed for a great many
innocent purposes. Many nations are dependent on them for the
conduct of inoffensive industries, and no sufficient presumption
of an intended warlike use seems to be afforded by the mere fact
of their destination to a belligerent port. The recognition, in
principle, of the treatment of coal and other fuel and raw
cotton as absolutely contraband of war might ultimately lead to
a total inhibition of the sale, by neutrals to the people of
belligerent States, of all articles which could be finally
converted to military uses. Such an extension of the principle
by treating coal and all other fuel and raw cotton as absolutely
contraband of war, simply because they are shipped by a neutral
to a nonblockaded port of a belligerent, would not appear to be
in accord with the reasonable and lawful rights of a neutral
commerce.
I am, gentlemen, your obedient servant,
