Legal Rights in the War at Sea


By J. L. BRIERLY, English Authority

Delivered over the British Broadcasting System, October 24, 1939

Vital Speeches of the Day, Vol. VI., pp. 122-124.

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 the 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 forces of the belligerent of ingress to or egress 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 wouldlike 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 disorganise 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 disorganise 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 disorganising ours.

I want, then, to say something about these two belligerent rights on which our blockade of Germany, and hers of us, rest; and to illustrate what can and what cannot 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, German shipping has quickly disappeared from the seas. But you probably saw that a French submarine the other day brought a belated German merchantman for 1,000 miles across the Atlantic into a French port, where it will doubtless be brought before a French Prize Court and condemned as a prize in due course. That is the proper lawful procedure which a capturing ship ought to follow if it is at all possible.

But there are circumstances in which it is lawful to destroy an enemy merchantman at sea, instead of bringing her into port. There are different views as to what circumstances do justify destruction at sea, but about one point there is absolutely no difference of opinion; and that is that the destroying warship must first provide for the safety of those on board the merchantman. As recently as 1936, Germany— and note that it was Hitler's 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 ship's 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.

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 Hitler's "peace offensive" speech of October 6 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.

You may have noticed that this treaty of 1936, which I have just quoted, implies that if a merchant ship persistently refuses to stop or actively offers resistance to the warship that orders her to do so, she may be sunk, and that in such a case the duty to ensure the safety of those on board does not apply. That is so, although it is qualified by the rule that only such force may be used as is essential in order to overcome resistance, and that neither refusal nor resistance justifies sinking without regard to the safety of the crew if the ship has surrendered before being sunk.

Now that brings me to another matter on which there has been discussion in the last few weeks. 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 merchantmen so that they may defend themselves against submarines, and perhaps you saw that the German wireless in English, of October 2, said that this was "a direct violation of international law."

Well, I suppose there are few people in this or any other Country who look on Nazi Germany as a trustworthy authority on international law. But what does the law really say about this matter? It says that if an enemy merchantman tries to escape or resists capture, the warship may sink her, and those on board must take their chance. But if she chooses to resist she is entitled to do so. The position wasput in a nutshell by the United States in a Memorandum written while they were still neutral in the last war, which said this: "The right to capture and the right to prevent capture are recognised 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 recognised 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 merchantman may defend herself, at her own risk, and that for that purpose she may carry arms—still stands.

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 respect 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.

There are, therefore, strong reasons against allowing neutral ships to be destroyed at sea, and British practice has traditionally held that they ought never to be destroyed— we say that if they can't be brought into port, they can always be released. Probably the only case where the destruction of neutral ships is at all admissible is where either the ship in question is performing an un-neutral service, or in a case of 'gravest military emergency' where not to sink the neutral ship would be to bring the capturing warship itself into imminent danger. Many States do however, regard destruction at sea as allowable in certain cases, but even they say it should be the exception and not the rule. Nevertheless, it became the rule of German practice in the last war. She sank then more than 1,700 neutral merchantships, in most cases without even searching them to see if they were actually carrying contraband, and over 2,000 lives were lost on them. I need hardly say—it is an a fortiori case—that never in any circumstances can the destruction of a neutral prize without provision made for the safety of those on board be justified.

In the last few weeks we have seen this practice of sinking neutral ships revived by Germany, and in many cases lives have been lost—eleven lives, for instance, in the Danish ship Vendia. No doubt, now that the convoy system has been established for the defence of allied ships, an undefended neutral ship is easier game.

One other point: is there any force in the German argument that her conduct is justified because we are trying to prevent food from going to the German people? The treatment of food as contraband is a thing that easily appeals to the emotions of humane people, but most of the things that war makes it legitimate to do to one's enemy would be ruled out if we took emotion for our guide. It is only right that we should judge in this matter with a full and clear realisation of what war is. Food in past wars has generally been treated as conditional contraband. That means that it has been condemned if it could be shown, not merely that it was going to the enemy country, but also that if it arrived there it was destined for the use of the enemy government or its armed forces. Now, in earlier wars it has often been possible to make this distinction, and so to let food go tothe enemy with a fair assurance that it would not be a source of added military strength to him. But, as one of the fore-most living American writers on international law has written: 'As war is now conducted, it is a probability rather than a possibility that foodstuffs imported into belligerent territory will serve a military end'. When practically the whole population is either with the colours or engaged in some form of war work, and when governments have the power to requisition any commodity that they need and have instituted elaborate systems of control, it is practically impossible to have any assurance at all that food which is allowed to pass will be consumed by non-combatants, and if it were, it would mean that other food would be released for military consumption.

And this American writer's conclusion is that a belligerent has a right to intercept whatever offers military aid to his adversary, and therefore that the right to treat foodstuffs as contraband must be recognised. Foodstuffs as contraband are, in fact, just one facet of that totalitarian war towards which German military doctrine and German practice have always pointed the way. Nevertheless, Great Britain maintains the classification of food as being only conditional contraband; and it can be taken as certain that a cargo of food will be condemned as contraband by the British Prize Court only if that Court is satisfied that the presumption is that the cargo of food in question will be put to warlike use.