Expansion
of contraband
lists

the navy with war supplies. It would seem that, under such conditions, the proclamation of one of the governments at war would be effective to impress the provisions with the character of contraband. At any rate, I am inclined so to treat the flour concerned here.

Balfour, Guthrie & Co. v. Portland & Asiatic S.S. Co., 167 Fed. 1010, 1015 (D. Oreg., 1909). The decision was, nevertheless, for the plaintiff. During the World War, 1914-18, a Netherlands vessel was seized carrying coffee and cocoa from Venezuela to Copenhagen. From intercepted communiIcations the Prize Court was convinced that the cargo was destined for Germany and that the Danish consignee was merely an agent for sale. Before the shipment was made the British Government had notified certain powers, including Denmark and the Netherlands but not Venezuela, that only certain foodstuffs would be treated as contraband, not including coffee and cocoa. The Prize Court held that, since there had been no such notification to or arrangement with Venezuela, the goods were subject to condemnation as contraband in view of the proclamation at the beginning of the war under which "foodstuffs" were listed as conditional contraband. The Prins Frederik Hendrik, X Ll. Pr. Cas. 93 (1920).

In instructing the Delegates to the Second Hague Peace Conference of 1907, the Department of State said:

It is of the highest importance that not only the rights but the duties of neutrals shall be most clearly and distinctly defined and understood, not only because the evils which belligerent nations bring upon themselves ought not to be allowed to spread to their peaceful neighbors and inflict unnecessary injury upon the rest of mankind, but because misunderstandings regarding the rights and duties of neutrals constantly tend to involve them in controversy with one or the other belligerent.

For both of these reasons, special consideration should be given to an agreement upon what shall be deemed to constitute contraband of war. There has been a recent tendency to extend widely the list of articles to be treated as contraband; and it is probable that if the belligerents themselves are to determine at the beginning of a war what shall be contraband, this tendency will continue until the list of contraband is made to include a large proportion of all the articles which are the subject of commerce, upon the ground that they will be useful to the enemy. When this result is reached, especially if the doctrine of continuous voyages is applied at the same time, the doctrine that free ships make free goods and the doctrine that blockades in order to be binding must be effective, as well as any rule giving immunity to the property of belligerents at sea, will be deprived of a large part of their effect, and we shall find ourselves going backward instead of forward in the effort to prevent every war from becoming universally disastrous. The exception of contraband of war in the Declaration of Paris will be so expanded as to very largely destroy the effect of the declaration. On the other hand, resistance to this tendency toward the expansion of the list of contraband ought not to be left to the neutrals affected by it at

the very moment when war exists, because that is the process by which neutrals become themselves involved in war. You should do all in your power to bring about an agreement upon what is to constitute contraband; and it is very desirable that the list should be limited as narrowly as possible.

Secretary Root to the Delegates of the United States to the Hague Conference of 1907, May 31, 1907, MS. Department of State, file 40/302a; 1907 For. Rel., pt. 2, p. 1138. No agreement was reached on this subject at The Hague. See Scott, Proceedings of the Hague Peace Conferences: The Conference of 1907 (1920), vol. I, pp. 250-254.

Chapter II of the unratified declaration signed at London in 1909, dealing with "Contraband of War", includes in articles 22 and 24 lists of articles which may without notice be regarded as absolute and conditional contraband, respectively. Article 23 provides:

Articles and materials which are exclusively used for war may be added to the list of absolute contraband by means of a notified declaration.

The notification is addressed to the Governments of other Powers, or to their representatives accredited to the Power which makes the declaration. A notification made after the opening of hostilities is addressed only to the neutral Powers.

The General Report of the Drafting Committee reads in part:

Some have considered excessive the right given to a Power to make an addition to the list by a mere declaration. It should be noticed that this right does not present the dangers supposed. In the first place, it being understood, the declaration is operative only for the Power which makes it, in the sense that the article added will be contraband only for it, as a belligerent; other States may, of course, make a similar declaration. The addition may refer only to articles exclusively used for war .. If a Power make claim to add to the list of absolute contraband articles not exclusively used for war, it would draw upon itself diplomatic remonstrances, because it would be disregarding an accepted rule.

Article 25 of the declaration provides:

Articles and materials susceptible of use in war as well as for purposes of peace, and other than those enumerated in Articles 22 and 24, may be added to the list of conditional contraband by means of a declaration, which must be notified in the manner provided for in the second paragraph of Article 23.

1909 U. S. Naval War College, Int. Law Topics 61-63, 67. See the Report of the British Delegation, Correspondence and Documents Respecting the International Naval Conference, Held in London, December 1908February 1909, Miscellaneous, No. 4 (1909), Cd. 4554, p. 95. Article 27 declared that "Articles which are not susceptible of use in war may not be declared contraband of war."

In a note dated January 13, 1915, addressed to the British Ambassador, the Secretary of State said:

I note your excellency's statement that in taking the measure of placing resinous products and turpentine on the list of contraband, His Britannic Majesty's Government followed the usage of all maritime nations, and notably that of the United States, when at war, who have invariably claimed and exercised the right of making additions from time to time to their lists of contraband-a right explicitly conferred in the Declaration of London.

I do not for a moment suppose that by this statement your excellency intends to advance the principle that belligerents have the right to add at their pleasure to the list of contraband without reference to the character of the article involved, for in that case I would be compelled to question the principle.

The Secretary of State (Bryan) to the British Ambassador (Spring Rice), Jan. 13, 1915, MS. Department of State, file 763.72112/630. To the same effect, see paragraph (32) of the note to the British Foreign Office transmitted under instruction of Oct. 21, 1915, Secretary Lansing to Ambassador Page, ibid. /1861a. 1915 For. Rel. Supp. 306-307, 588-589.

In reply to an inquiry from Senator Stone concerning complaints of American acquiescence in British interference with trade in petroleum, rubber, leather, wool, etc., Secretary Bryan wrote:

Petrol and other petroleum products have been proclaimed by Great Britain as contraband of war. In view of the absolute necessity of such products to the use of submarines, aeroplanes, and motors, the United States Government has not yet reached the conclusion that they are improperly included in a list of contraband. Military operations to-day are largely a question of motive power through mechanical devices. It is therefore difficult to argue successfully against the inclusion of petroleum among the articles of contraband. . . .

Great Britain and France have placed rubber on the absolute contraband list and leather on the conditional contraband list. Rubber is extensively used in the manufacture and operation of motors and, like petrol, is regarded by some authorities as essential to motive power to-day. Leather is even more widely used in cavalry and infantry equipment. It is understood that both rubber and leather, together with wool, have been embargoed by most of the belligerent countries. It will be recalled that the United States has in the past exercised the right of embargo upon exports of any commodity which might aid the enemy's cause.

Senator Stone to Secretary Bryan, Jan. 8, 1915, and Mr. Bryan to Mr. Stone, Jan. 20, 1915, MS. Department of State, file 763.72111/1435; 1914 For. Rel. Supp. x.

list of

Upon the entry of the United States into the World War of 1914-18, Contraband Secretary Lansing suggested to President Wilson a general form U. S., 1917 of contraband list as preferable to a detailed one. President Wilson indicated his approval of the suggested list, with certain clarifications, and the list appeared as articles 24 and 25 of the Instructions for the Navy of June 1917. It read:

CONTRABAND LIST

24. The articles and materials mentioned in the following paragraphs (a), (b), (c), and (d), actually destined to territory belonging to or occupied by the enemy or to armed forces of the enemy, and the articles and materials mentioned in the following paragraph (e) actually destined for the use of the enemy Government or its armed forces, are, unless exempted by treaty, regarded as contraband.

(a) All kinds of arms, guns, ammunition, explosives, and machines for their manufacture or repair; component parts thereof; materials or ingredients used in their manufacture; articles necessary or convenient for their use.

(b) All contrivances for or means of transportation on land, in the water, or air, and machines used in their manufacture or repair; component parts thereof; materials or ingredients used in their manufacture; instruments, articles or animals necessary or convenient for their use.

(c) All means of communication, tools, implements, instruments, equipment, maps, pictures, papers and other articles, machines, or documents necessary or convenient for carrying on hostile operations.

(d) Coin, bullion, currency, evidences of debt; also metal, materials, dies, plates, machinery or other articles necessary or convenient for their manufacture.

(e) All kinds of fuel, food, foodstuffs, feed, forage, and clothing and articles and materials used in their manufacture.

NONCONTRABAND

25. Articles and materials even though enumerated in paragraph 24, if exempted, by special treaty provisions, are not regarded as contraband.

Secretary Lansing to President Wilson, Apr. 19, 1917, MS. Department of State, file 763.72112/3527a; President Wilson to Mr. Lansing, Apr. 20, 1917, ibid. /35271⁄2; II The Lansing Papers, 1914-1920 (For. Rel.: 1940) 10-11; Instructions for the Navy of the United States Governing Maritime Warfare (June 1917), arts. 24-25.

When Great Britain inquired in April of 1918 whether the United States would concur in the addition to the British list of absolute contraband of (1) willows and osiers; (2) sodium fluoride; (3) tin waste; (4) tin and lead and their alloys, salts, compounds, and ores; and (5) wire steel and iron, the Navy Department, to which the inquiry was referred, replied that the American contraband list already was broad enough to embrace these items, since willows and osiers could be used in the manufacture of aircraft parts, sodium fluoride was involved in the production of aluminum which

was used in the manufacture of aircraft and of munitions, and the remaining items were all "employed or capable of being employed" in the manufacture of munitions. The British Ambassador was informed that these items were included in the list issued by the United States in June 1917. When the British Government later inquired concerning the addition of citric acid and citrates to the list of British absolute contraband, the State Department replied that these products were regarded as included within the American contraband list of June 1917, since citric acid was the active principle of lime juice, which was included in the naval ration of some governments, and since citrates were drugs or medicines useful to the armed forces as well as to the general population. The Acting Secretary of State (Phillips) to the Secretary of the Navy (Daniels), June 4, 1918, MS. Department of State, file 763.72112/8091; Mr. Daniels to the Secretary of State (Lansing), June 18, 1918, and the Acting Secretary of State (Polk) to the British Ambassador on Special Mission (Reading), no. 152, July 10, 1918, ibid. /9135; Mr. Polk to Mr. Reading, no. 161, July 18, 1918, ibid. /8835; 1918 For. Rel., Supp. 1, vol. II, pp. 917-922.

The Instructions for the Navy of the United States issued Feb. 8, 1917 contained contraband lists following closely the provisions of the Declaration of London. Section 23 provided that in the absence of special proclamation by the Government the classification and enumeration in the Instructions would govern. Section 24 gave the list of articles which were to be regarded as absolute contraband and section 25 the list to be regarded as conditional contraband. Section 26 provided that "articles and materials not susceptible of use in war" were not to be regarded as contraband. These provisions were superseded by the Instructions of June 1917. Instructions for the Navy of the United States Governing Maritime Warfare (Feb. 1917).

Upon the outbreak of war in Europe in 1914 the German and AustroHungarian Governments announced that their lists of contraband would conform to those of the Declaration of London. See 1914 For. Rel. Supp. 216, 222. For references to subsequent modifications by Germany, see ibid. 266; 1915 For. Rel. Supp. 162-163, 607; 1916 For. Rel. Supp. 281. Japan announced a list conforming largely to the Declaration of London except for the inclusion of aircraft as absolute contraband. 1914 For. Rel. Supp. 179; 1925 U.S. Naval War College, Int. Law Docs. 146, 152.

For Turkish lists, see ibid. 268.

For British lists, to which French lists conformed, see 1914 For. Rel. Supp. 215-216, 236, 245, 261-262, 269-270; 1915 For. Rel. Supp. 137, 160, 165, 174–177; 1916 For. Rel. Supp. 385-387, 405, 453, 486; 1917 For. Rel., Supp. 1, p. 492; 1918 For. Rel., Supp. 1, pp. 917–918.

The following contraband list was proclaimed by the British Government upon the outbreak of war in Europe in September 1939:

"Absolute Contraband

"SCHEDULE I

“(a) All kinds of arms, ammunition, explosives, chemicals, or appliances suitable for use in chemical warfare and machines for their manufacture or repair; component parts thereof; articles necessary or convenient for their use; materials or ingredients used in their manufacture; articles necessary or convenient for the production or use of such materials or ingredients.