The economic warfare that each side is carrying on against the other on the sea in the present war has its legal basis in two rights that the laws of naval warfare give to belligerents—the right to confiscate enemy property on the sea, whatever its character, unless this enemy property is both non-contraband and being carried in neutral ships, and the right to confiscate even neutral property there, when it falls within the category of contraband of war. These are the operations which we commonly refer to as me blockade; and that is a convenient term, provided we remember that there is no blockade in the sense in which lawyers use that word, namely, the blocking by the naval lorees of the belligerent of ingress to or ogress from the enemy's coast to the ships of all nations, and that in judging the actions of the belligerents we are not concerned with the technical rules of blockade but with a different branch of the laws of naval warfare.
I spoke of each side carrying on their economic warfare; for, of course, it is a complete delusion to suppose that in our blockade we are doing something to Germany which she is not trying to do to us. German propaganda would like that to be believed, but it is not the case. Moreover, German submarines, as we now know, had taken up their stations before the war began, and they have been trying to blockade us from the first day of the war; so that when propaganda suggests that the German blockade is only a reprisal for ours, that again is not true.
The plain truth is, of course simply this that each of us is trying to disorganize the economic life of the other, and that that is a perfectly legitimate aim in war, provided you do it in the way that rules of law and rules of humanity prescribe. The difference is that whereas the Allies have both the will and the means to disorganize Germany's arrangements, the course of the war at sea already gives us good reason for hoping that though Germany has the will, she has not got the means of disorganizing ours. 8
I want, then, to say something about the belligerent rights on which our blockade of Germany, and hers of us, rest; and to illustrate what can and what can not legally be done under each of them, I shall use some of the incidents in the war at sea which have already been reported in the Press. First, about the right to capture enemy merchant ships on the sea: this right mainly concerns Germany's blockade of us; because, except in the Baltic, Germany shipping has quickly disappeared from the sea.
But there are circumstances in which it is lawful to destroy an enemy merchantman at sea, instead of bringing her into po There are different views as to what circun stances do justify destruction at sea, about one point there is absolutely difference of opinion; and that is that the destroying warships must first provide for the safety of those on board the merchantman. As recently as 1936, Germany—and note that it was Hitlers Germany—signed a treaty in which these words occur: "Except in case of persistent refusal to stop on being duly summoned, or of active resistance to visit and search, a warship, whether surface vessel or submarine, may not sink a merchant vessel without having first placed passengers, crew and ships papers in a place of safety." And the treaty went on to say that the ship's boats were not to be regarded as a place of safety unless the safety of passengers and crew was assured by the sea and weather conditions, or the proximity of land, or the presence of another vessel able to take them on board. rir We do well to remember this treaty when we read of the Athenia, sunk by a German submarine on the first day of the war with the loss of 112 non-combatant lives. And we do well to remember it, too, and how it has proved not to be worth the paper it was written on, when we find in Hitlers peace offensive speech a proposal that a conference should be held to define the use of submarines "in such a manner that the war will be deprived of its terrible character of a fight against women and children." No conference, and no new treaty, is necessary if that is his purpose.
Suppose an enemy merchantman prefers to resist at the risk of being sunk, knowing perhaps—as our ships came to know during the last war—that whether she resists or' not, the German submarine, if it can, will sink her without regard to the lives of those on board. Take the case of the Athenia, for instance. Suppose she had sighted the submarine and guessed its intentions in time to offer resistance. What are the legal rights and wrongs of such a case? You have seen, I expect, that the British Admiralty is putting guns on to our merchantman so that they may defend themselves against submarines, and perhaps you saw that the German wireless in English which said that this was "a direct violation of international law."
The position was put in a nutshell by the United States in a Memorandum written while they were still neutral in the last war, which said thi: "The right to capture and the right to prevent capture are recognized as equally justifiable." In fact, one of the oldest and best established of the rules of naval warfare is that a merchantman may carry arms for the purpose of defending herself. She may not use them offensively, but she may defend herself. All this was recognized by the German Admiralty itself right down to the eve of the last war, for as late as June, 1914, they issued this perfectly proper order to the German Navy: that if an armed enemy merchantman attacked one of their ships she was a pirate; but if she merely resisted capture, she was to be overcome, but her crew were to be prisoners of war—that is to say, honourable enemies who had not violated the laws of war. It is true that Germany changed her mind in this matter during the war; but rules of law are not changed in this way to suit the convenience of a belligerent, and this rule—that a merchant man may defend herself, at her own risk, and that for that purpose she may carry arms—still stands. uw Now let me say something about the second of the rights that is being used in the economic war on the sea—the one that chiefly affects neutrals—the right to intercept contraband goods. The essence of it can be put very simply. A belligerent has a right to confiscate goods which are en route to his enemy by sea, whether they are going to him directly through one of his own ports, or indirectly through a neutral port, if the goods are of a kind that would increase the enemy's military strength, helping him to avert defeat or to prolong the war.
Let us look, then, at the position of a neutral ship which is transporting contraband goods, because in some respects it differs from that of an enemy ship which we have been considering. If a neutral ship is ordered to stop, to submit to visit-and-search by a belligerent warship, it is her duty to do so; she is not entitled to resist as the enemy ship is. Another difference is that there is a special reason why a neutral ship should be brought into port and not destroyed at sea, if that is at all possible. If a belligerent destroys an enemy ship, he destroys what is in effect his own property, because if the ship were brought before a Prize Court its enemy character alone would be enough to condemn it. But mere capture does not turn a neutral ship into the belligerent's property. Whether, after it has been captured, it will or will not become his property depends on many circumstances, Even if there is no doubt that it is carrying contraband, it is not certain that the ship ought to be condemned; and until all the circumstances have been investigated, the rights of the case cannot be known. Hence if a neutral ship is destroyed at sea, it follows that the captor has destroyed something which is not, and very likely never would be, his own property; he has probably destroyed, too, the evidence by which the neutral owner would have been able to prove the innocence of his ship before the Prize Court.
Text read from the printed page and cleaned; old type leaves the occasional error.