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International Law and the

Submarine
By Lieutenant H. G. Rickover, U. S. Navy
September 1935

Proceedings

Vol. 61/9/391
ARTICLE

VIEW ISSUE

COMMENTS

*This article was submitted in the Prize Essay Contest, 1935.

"Every truth has practical consequences and these are the test of its
truth."—Pierce’s Principle
In their relations with each other, civilized states feel bound by certain
principles and rules of conduct declaratory thereof to which the term
international law is applied. International law is a weaker law than
national law because it lacks a central authority with power to make
laws, interpret, and enforce them. To be part of international law a
principle or rule of conduct must have been accepted by the several
states of the family of nations as the law governing their mutual
relations. For its enforcement international law depends on the
pressure of world opinion and on the fear that a state whose rights
have been violated may resort to retaliation or war. Important
consequences follow.

The absence of a central authority and the fact that a large part of
international law is based on custom rather than on written agreement
account for a certain vagueness as to what constitutes an obligatory
rule of law. While the main principles of the law are fairly well
understood and agreed upon, considerable difference of opinion exists
concerning many of the rules of conduct declaratory of these
principles. States never admit having violated international law, they
justify their actions on the ground that they are in conformity with
accepted principles and that the other side errs in its interpretation of
the correct rule of conduct declaratory of the principle in question.

An even more serious weakness of the law of nations is the lack of

adequate machinery for the adjustment of once established rules of
conduct to changed conditions. The industrial revolution and the
development of new methods of communication have during the past
century brought about profound changes in the relations between
states. The possibilities for changing international law by means of
international convention or judicial decision have been inadequate to
keep pace with these changes. But, as Hyde points out, "rules of
conduct, however definitely established, if applied under conditions
differing sharply from those prevailing when they were laid down, fail
to reflect, and may even oppose, the underlying principles to which
their origin was due,"1 and "what the consensus of opinion of
enlightened states deems to be essential to the welfare of the
international society is ever subject to change."2 However, changes in
the law require the consent of all states affected thereby and are,
therefore, difficult to effect. Yet, since international law finds its
strongest sanction in the conviction of states that its rules accord with
international justice, failure to modify a rule of conduct which no
longer carries out the fundamental principle to which it owes its origin
will inevitably result in general disregard of that rule.

In examining any given question of international law it is, therefore,

important to distinguish between basic principles and rules of conduct
declaratory thereof. A particular rule of conduct, to receive general
compliance, must not only have been firmly established in the practice
of states, but must, even under the test of changed conditions, still
reflect the underlying principle.
During the war of 1914-18 the laws regulating war at sea were, despite
the protests of neutrals, stretched by both sides under the plea of
"changed conditions of modern warfare." At the end of the war the
laws of naval warfare were left in a state of unprecedented confusion
and chaos. In an excellent article, "Troubles of a Neutral," Charles
Warren, who was Assistant Attorney-General of the United States
during the period of our neutrality, says: "Not a single controversy
which arose between our government and the belligerent powers has
been settled. Every single contention made by them respectively as to
use of submarines and as to neutral rights on the high seas is still
made by them."3 No international agreement has been reached
concerning the legality or illegality of the various extensions of the
laws of naval warfare made during the World War and unless
agreement is reached before the outbreak of another war it is to be
feared that belligerents will be strongly tempted to follow the
practices of the World War, rather than the rules of warfare generally
accepted before 1914. The fact must be frankly faced that almost any
conceivable practice could be justified by World War precedents.

A restatement of the laws of naval war is, consequently, needed to

safeguard against complete lawlessness in a future war. Such a
restatement can be made only by a conference of international scope,
such as the ones held at The Hague in 1899 and 1907, and at London in
1909. Its task would be to reconsider the laws of naval war and of
neutrality with a view to determining rules of conduct which, under the
changed conditions of modern warfare, carry out the underlying
principles of international law. In reviewing these laws it will be of
particular importance that account be taken of the new weapons
whose significance had not been fully understood prior to the World
War. Obviously naval weapons which are capable of attacking from
under water and in the air can hardly be regulated in a satisfactory
manner by rules evolved at a time when naval operations were limited
to the surface of the sea.

In the meantime, the author feels that a useful purpose will be served
by taking up one of these new weapons, the submarine. The object of
this study is to examine the rules of naval war which govern this
weapon, with a view to ascertaining whether, under the changed
conditions of modern war, the rules generally accepted prior to 1914
still reflect underlying principles of international law.
Such an examination appears to be opportune at the present moment
because submarines now constitute an important part of practically all
navies, and because the imminent denunciation by Japan of the
Washington Arms Limitation Treaty has, for the time being at least,
eliminated all possibility of abolishing the submarine by international
agreement. Moreover, it is to be expected that since the military and
naval restrictions imposed upon Germany by the Versailles Treaty will
probably soon be terminated, she will again be in a position to build a
submarine fleet. Germany has never abandoned the position taken
during the World War that her use of submarines was lawful.

The rules of international law which regulate the special relations

between states caused by the existence of a state of war are of two
kinds: (1) laws of war regulating the relations between belligerents,
and (2) laws of neutrality regulating the relations between belligerents
and neutrals.

The laws of war are controlled by two basic principles: (1) "That a
belligerent should be justified in applying any amount and any kind of
force which is necessary for the realization of the purpose of war,
namely, the overpowering of the opponent," and (2) the principle of
humanity "which says that all such kinds and degrees of violence as
are not necessary for the overpowering of the opponent should not be
permitted to a belligerent."4 The most significant result of the
acceptance of the principle of humanity has been the gradual evolution
of a distinction between combatants and noncombatants and the
protection of noncombatants against injuries not incidental to military
operations against combatants.

The fundamental principles of the laws of neutrality, so far as they

refer to the rights and duties of neutral states, became generally
recognized towards the end of the eighteenth century. They are,
briefly, that neutral governments must maintain an attitude of strict
impartiality and that belligerent governments must respect neutral
territory. In particular, it became the established duty of neutral states
to prevent belligerents from making use of their territories and of their
resources for military and naval purposes during the war. This applied
not only to actual fighting on neutral soil, but also to the transport of
troops, war material, and provisions for troops across neutral territory,
the fitting out of men-of-war and privateers, and the establishment of
prize courts in neutral ports.5
While the above principles have become firmly established and are on
the whole well observed, states were slow to reach agreement
concerning the status of neutral vessels in time of war. The area of
naval operations is the high seas, open to neutrals as well as to
belligerents and belonging to no state. Hence the need in naval wars to
regulate the use of these waters by belligerents and neutrals; the
special laws of neutrality applicable in naval wars have no analogy in
land warfare where belligerent operations take place on the soil of the
parties to the conflict.

These special laws of neutrality represent a compromise between the

claims made by belligerents to conduct war-like operations on the high
seas and to prevent interference by neutrals with these operations,
and the resistance to these claims made by neutrals, who asserted
that the existence of war did not annul their right to use the high seas
for the purpose of carrying on commercial intercourse with each other
and with the belligerents. Out of these conflicting interests there were
gradually evolved the laws of contraband, blockade, and unneutral
service.

Each one of them was the product of a long historical evolution

based upon precedents, which represented in each case a
compromise between what the belligerent wished to exact and
what his consideration for his own future neutral position, or the
possibility of irritating the neutral, inclined him to accept.6

The conflicting interests of neutrals and belligerents in the use of the

high seas in time of war had reached a fairly well-defined, if somewhat
precarious, balance in the laws of neutrality generally accepted prior
to the outbreak of the World War. Belligerents conceded the right of
neutral traders to continue maritime commerce, subject to the
prohibition of trade in contraband, breach of blockade, and unneutral
service. Neutral governments were held to be under the duty not to
assist either belligerent, but to maintain an attitude of strict
impartiality in the conflict; they were not, however, bound to prevent or
punish their nationals for engaging in contraband trading, breach of
blockade, or unneutral service, such prevention and punishment being
left to the belligerents themselves. The duty of the neutral extended no
farther than its acquiescence in allowing belligerents to punish its
nationals for such illegal practices.
 The existence of a state of war duly proclaimed confers upon a
belligerent the right to attack seaborne commerce of his enemy by
seizing his merchant ships and further by preventing neutral
merchant ships from affording him such assistance in the war as
comes under the designation of contraband trading, breach of
blockade and the rendering of unneutral service.7

For the purpose of exercising this right, international law permits

belligerent warships to visit, search, capture, and in exceptional
circumstances, even to destroy enemy and neutral merchantmen. All
merchant vessels are subject to visit and search. The procedure in
which visit and search shall be carried out, while not embodied in any
written agreement, is nevertheless well established by the practice of
states. "Before summoning a vessel to lie to, a ship of war must hoist
her own national flag. The summons shall be made by firing a blank
charge, by other international signal, or by both."8 "When the
summoned vessel has brought to, the ship of war shall send a boat
with an officer to conduct the visit and search."9 The purpose of visit
and search is to ascertain—by examining the ship's papers,
questioning the personnel, or searching the ship and cargo—the
nationality, ports of departure and destination, character of cargo, and
other facts deemed necessary to establish whether she is subject to
capture. If found to be innocent, the vessel must be allowed to
proceed, after the appropriate entry has been made in her log book.

"The summoned vessel, if a neutral, is bound to stop and lie to. . . if an

enemy vessel, she is not so bound, and may legally even resist by
force, but she thereby assumes all risks of resulting damage."10

If the vessel is found to be of enemy character, or, if neutral to be

engaged in contraband trade, breach of blockade, or unneutral service,
the warship may capture her. Ordinarily the commander of the warship
will send a prize crew on board the merchant vessel which will take
her into port for adjudication by a prize court. It is, however,
permissible if, for any reason, this is impracticable, for the captor to
order the captured vessel to lower her flag and to steer according to
his orders.11

As regards the right of a belligerent warship to destroy an enemy

merchantman, Hyde, after careful examination of state practice
concludes that the provision in the United States Naval Instructions of
June, 1917, according to which such destruction is permissible "in
case of military necessity, when the vessel cannot be sent or brought
in for adjudication,"12 is in substantial harmony with the present
practice of maritime states.13 He points out that

the exigencies of a naval commander now tend to make of common

occurrence acts which in wars of the last century were less
frequently committed, not because they were deemed essentially
illegal, but rather for the reason that destruction was usually
regarded as unnecessary and undesirable.14

The destruction of a neutral merchant man differs in essential points

from the destruction of an enemy merchantman. In the former case the
bare fact of capture does not, as in the latter case, effect a change of
ownership.

Such a change is only brought about by an investigation showing

illegal conduct, and resulting in the formal imposition of a penalty
which takes the form of forfeiture. To bring about such a result the
ship is sent in and subjected, with its cargo, to the jurisdiction of a
prize court.15

Until the beginning of this century there were scarcely any cases in
which neutral vessels were sunk, and up to the time of the conference
of London of 1909, the British government maintained that the practice
was illegal.16 During the Spanish- American War the American
government issued orders to its warships to destroy captured
merchantmen in case of unseaworthiness, the existence of infectious
disease, or the lack of a prize crew, as well as danger of
recapture.17 No distinction was made between neutral and belligerent
vessels. During the Russo-Japanese War of 1904-5 several neutral
vessels were sunk by Russian warships.

The question was thoroughly discussed at the London naval

conference in 1909 where the prevailing opinion was that all prizes,
belligerent or neutral, might be destroyed if their preservation
compromised the security of the capturing warship or the success of
the operations in which she was engaged.18 Although Great Britain and
Japan at first objected to this view, both finally signed the Declaration
of London. The provisions of the declaration are, as Hyde says,

indicative of the opinion of the leading maritime Powers in 1909,

that the destruction of neutral Prizes under the exceptional
circumstances specified is far from wrongful.19
In case a merchant vessel was destroyed, international law, as it stood
before the World War, imposed a clear duty on the warship to first
place all persons on board in safety and to take on board all the ship's
papers and other documents which were relevant for the purpose of
deciding the validity of the capture.20 The only exception to this rule
was the case of a vessel which, after having been summoned, took to
flight or resisted visit and search. In such a case, the belligerent
warship was permitted to employ force to stop her and the merchant
vessel, if damaged or sunk in the process, had no right to
complain.21 However, once the merchant vessel had been overcome by
the warship, the latter was under obligation to save persons and
papers on board.

The above outlines the rights and duties of belligerent warships in

commerce war. The question arises whether these are also obligatory
on submarines.

The submarine was first used in the World War. International

conferences held before 1914 had not considered the employment of
this special war vessel as a commerce destroyer; consequently, at the
outbreak of the war there existed no international rules designed
especially for the regulation of submarine warfare.

The position taken by the allied and neutral governments during the
World War was that the submarine was a man-of-war and bound by all
existing rules of naval warfare.22 In its official correspondence with
the government of the United States the German government appears
not to have questioned the American contention that the rules of
international law governing surface men-of-war applied also to the
submarine. Germany defended her practices as measures of retaliation
against alleged allied violations of international law.23 However, there
occurs one doubtful passage in a memorandum from the German
Embassy, filed with the State Department March 8, 1916: ". . . Germany
was compelled to resort, in February 1915, to reprisals in order to fight
her opponents' measures, which were absolutely contrary to
international law. She chose for this purpose a new weapon, the use of
which had not yet been regulated by international law and, in doing so,
could and did not violate any existing rules but only took into account
the peculiarity of this new weapon, the submarine boat."24

This passage does not make it dear whether the German government
claimed that its submarine practices were lawful because: (a) they
were in the nature of reprisals for allied violations of international law,
or (b) the use of the submarine had not been regulated by international
law prior to the World War and her practices merely took into account
the peculiar characteristics of this new weapon.

The general view, however, seems to be that during the World War
Germany did not claim exemption from the established rules of
international law for the sub marine, but that she justified her
submarine practices as reprisals. 25 Since the war the German
government has made no official statement concerning the use of
submarines in commerce war.

Nor has any international agreement been reached conceding to the

submarine exemption from the rules of international law binding
surface vessels. The status of the submarine in international law was
examined in 1926 by the United States Naval War College which came
to the following conclusion:

A belligerent submarine lawfully commissioned as a vessel of war

may exercise the rights of a vessel of war, but its nature gives it no
special rights or privileges.26

Let us see whether the submarine is capable of conducting commerce

warfare in accordance with established rules of international law.

The submarine usually lacks a suitable boat to send a boarding party

for the purpose of visiting and searching a merchant vessel which has
been ordered to stop. The sending of a search party would, moreover,
deprive the submarine of the needed services of those sent on board
the merchantman, should the sighting of a suspicious vessel compel
her to submerge instantly. The submarine will, therefore, usually be
compelled to require the captain of the vessel to come on board and
bring his papers with him. The submarine commander is dependent on
the information contained in the papers, whose correctness he cannot
test. By use of false papers the effectiveness of the submarine can be
seriously hindered.

Even if it is possible to send a search party, the fact that modern

merchant vessels are often very large and can be loaded so as to hide
contraband articles effectively renders it extremely difficult for a small
boarding party, such as a sub marine can spare, to determine with any
degree of certainty whether or not contraband is actually carried.
What has been said so far is based on the assumption that the
merchantman is unarmed. Since the submarine is practically
defenseless on the surface it can conduct visit and search only if it is
assured that the merchantmen of the enemy are not armed. However,
under existing rules of international law it is not unlawful for a
belligerent merchant vessel to arm defensively and to resist visit and
search by force27; furthermore, the use of false flags is still permissible
in naval war, although unlawful in land warfare. Consequently, if the
enemy authorizes his merchant marine to arm defensively and to fly
false flags, the submarine is no longer assured of being able to
exercise its right of visit and search without incurring grave danger of
being attacked and sunk while it is on the surface attempting to
ascertain the character of a merchant vessel.

But let it be supposed that the submarine has stopped a vessel and has
established that the vessel is liable to capture. Because of its small
complement, the submarine is unable to furnish a prize crew. It must,
therefore, sink the captured vessel. However, it lacks room to
accommodate the crew and passengers. Thus the submarine is faced
with the alternative of permitting a guilty vessel to proceed
unmolested, in other words, it is incapable of engaging in war against
commerce, or of forcing crew and passengers to take to their boats.
The boats can be regarded as a "place of safety" only in exceptional
circumstances when sea and weather conditions are favorable and the
distance to the coast is not great. At times the submarine may be able
to tow the boats towards the coast.28

It may be argued that the submarine could be accompanied by a

surface vessel to receive crews and passengers of captured vessels,
or that the first captured vessel should be used for this purpose, or
that the submarine could order a captured merchantman to lower its
flag and steer according to orders, thus taking it into a home port. All
of these are impracticable solutions. The very fact that a belligerent
must resort to the use of the submarine in commerce warfare indicates
that the enemy is in control of the area of operations.

The conclusion is inevitable that, except in rare circumstances, it is

impossible for the submarine to carry on commerce warfare in
accordance with international law as it stands today. Consequently,
states must either renounce this weapon as a commerce destroyer or
undertake a revision of the laws governing naval warfare, taking into
account the changed conditions of modern war and the appearance of
new weapons capable of operating under water and in the air. Let us
see what has been done.

At the Washington Arms Limitation Conference, Great Britain made a

strong plea for the abolition of the submarine since "it was a weapon
of murder and piracy, involving the drowning of noncombatants." 29 The
British argument was that the submarine was only to a limited extent
useful as a weapon of defense and that for offense it was really
valuable only when used against merchant ships. The four other
powers represented at the conference were, however, not willing VI
abolish the submarine, although they expressed strong disapproval of
the manner in which submarines had conducted commerce warfare in
the World War. Elihu Root, one of the American delegates, introduced a
resolution designed to pre vent the recurrence of the submarine
practices of the World War.

The resolution consisted of three parts. In Part I the signatory powers

laid down certain rules which "are deemed an established part of
international law" and from which "belligerent submarines are not
under any circumstances exempt." These were: (1) That before a
merchantman can be captured it must be ordered to stop for visit and
search; (2) that it may not be attacked unless it refuse to stop for visit
and search after warning; and (3) that it may not be destroyed unless
the crew and passengers have first been placed in safety. The
signatory states invited all other civilized powers to adhere to the
above statement of existing law. Part II of the resolution stated that
the signatory states

recognize the practical impossibility of using submarines as

commerce destroyers without violating the requirements
universally accepted by civilized nations for the protection of the
lives of neutrals and noncombatants and to the end that the
prohibition of such use shall be universally accepted as part of the
law of nations they declare their assent to such prohibition and
invite all other nations to adhere thereto.

Part III embodied an important change in existing law. It provided that

any person in the service of any of the powers adopting these rules
who shall violate any of the rules thus adopted . . . shall be liable to
trial and punishment as if for an act of piracy, and may be brought
to trial before the civil or military authorities of any such powers
within the jurisdiction of which he may be found.
The French, Italian, and Japanese delegates expressed their entire
agreement with the aims of the resolution but doubted its legal
correctness and clarity on several points. These doubts were received
with a trace of impatience. Mr. Root admitted that the resolution would
be ineffective "if made between diplomats or foreign offices or
governments," but he thought that if it "were adopted by the
conference and met with the approval (as would surely be the case) of
the great mass of the people, the power of the public opinion of the
world would enforce them."30

On reading the minutes of the conference, so far as they relate to the

Root Resolution, it is difficult to escape the conviction that the
delegates were still influenced by the "spirit of Versailles." No attempt
was made to consider the submarine problem calmly and realistically.
Everyone denounced the horror of the practices of the late enemy with
becoming fervor; questions concerning the legality or practicality of
the rules of the resolution were swept aside. The only alterations made
in the resolution served to make the prohibition of submarines as
commerce destroyers still more stringent.31 The resolution was then
embodied in a separate treaty and signed by all five powers.

This is not the place to discuss the Washington submarine treaty in

detail. An excellent critique of this treaty will be found in an article in
this journal by Captain W. S. Anderson, U. S. Navy.32 He says:

The most comprehensive rights of life and death over their naval
personnel are conceded by the signatories to the officials of any
country, in the heat of war, under the authority of a treaty
containing inconsistent and ambiguous articles, and defying
interpretation even by the eminent statesmen who signed it.

The treaty has not been ratified by France and is therefore not in force.
It is doubtful whether it will ever be generally accepted, since it
represents a solution of the submarine problem which is chiefly
emotional and far too simple in view of the complexity of the
considerations involved.

Eight years later, at the London naval conference, another attempt to

abolish the submarine was made and failed, although the United States
now supported the British plea for abolition. However, the five powers
came to an agreement concerning the employment of submarines in
commerce warfare; this was embodied in art. 22 of the London treaty
and is to remain in force indefinitely. Article 22 reads as follows:
 Part 1: In their action with regard to merchant ships, submarines
must conform to the rules of international law to which surface
vessels are subject.

Part 2: In particular, 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 boat, may not sink
or render incapable of navigation a merchant vessel without having
first placed her passengers, crew, and ship's papers in a place of
safety. For this purpose the ship's boats are not regarded as a
place of safety unless the safety of the passengers and crew is
assured, in the existing sea and weather conditions, by the
proximity of land or the presence of another vessel which is in a
position to take them on board.

The High Contracting Parties invite all other powers to express

their assent to the above rules.

There was a marked difference in the spirit in which the submarine

question was discussed at London as compared to that at the
Washington conference. The passage of time since the World War
made a calmer and more realistic approach possible. The new
agreement is far less ambitious than the Washington treaty; the piracy
clause is omitted, the tone of moral disapproval is wanting, and no
attempt is made to lay down detailed rules of conduct. There is an
implied recognition of the lawfulness of sinking vessels after placing
passengers and crew in lifeboats, provided sea and weather conditions
make the latter a "place of safety." The article applies both to
submarines and surface vessels, thus expressing the sound principle
that no particular type of warship should be singled out and subjected
to special rules of warfare."33

The principal defect both of the Washington submarine treaty and of

art. 22 of the London treaty is that they attempt a regulation of
submarine warfare without at the same time considering the question
of the armed merchantman; yet the two problems are intimately
connected.

The custom of arming merchantmen for defense originated in times

when pirates and privateers infested the seas. As these were gradually
eliminated, one reason for defensive armament disappeared, and with
the development of the modern warship, which is both in offensive and
in defensive strength far superior to any merchantman, howsoever
armed, another reason for arming merchantmen disappeared.
Nevertheless, while the placing of armament on merchant vessels
became less and less frequent, states did not formally renounce the
right to arm their merchant marines defensively.

The question became acute again after the Second Hague Conference.
It had been found impossible at that conference to reach agreement
concerning the place where merchant vessels could be converted into
warships in time of war. Such conversion must be distinguished from
the placing of defensive armament on merchantmen. In the former
case the vessel becomes part of the navy and is placed under the
command of a duly commissioned officer; it is regarded as a warship.
In the latter case the vessel retains its private character and remains
under the command of its master.

In view of the fact that several great Continental European powers

reserved to themselves the right to convert merchant steamers into
cruisers not merely in national harbors but also on the high seas, Great
Britain, fearing that if British ships had no armament they would be at
the mercy of any foreign liner carrying one effective gun and a few
rounds of ammunition, made preparation in 1913 to place defensive
armament on certain vessels of its merchant marine. In reply to a
question asked in Parliament as to whether such vessels were
"equipped for defense only and not for attack," Mr. Churchill said on
June 11, 1913:

Surely these ships will be quite valueless for the purposes of

attacking armed vessels of any kind. What they are serviceable for
is to defend themselves against the attack of other vessels of their
own standing.34

And on March 17, 1914, he stated in the House of Commons that these
vessels "are not allowed to fight with any ships of war."35 The same
position was taken by Great Britain at the beginning of the 'World War
in its correspondence with the American government concerning the
status of British armed merchantmen in American ports. Sir Cecil
Spring-Rice stated on August 25, 1914: "They will never under any
circumstances attack any vessel."36

However, in 1916, the German foreign office communicated to the

American ambassador in Berlin what purported to be copies of
instructions to British merchant vessels, found on board the British
steamer Woodfield. These required the vessel to "open fire in self-
defense" as soon as she sighted a submarine, "notwithstanding the
submarine may not have committed a definite hostile act."37 On March
2, 1916, the British government made public instructions issued in
regard to armed merchant ships which were stated to be an affirmation
of a policy which had remained unchanged throughout the war. These
contained the provision that if a merchant vessel sighted a submarine
or aircraft which was deliberately approaching it, "fire may be opened
in self-defense."38

The German government took the position that the British practice of
arming merchantmen and instructing them to fire on pursuing
submarines, and the fact that on January 31, 1915, Great Britain
expressly authorized the use of neutral flags by her merchant vessels,
made it impossible for German submarines to conduct commerce
warfare in accordance with the rules of international law. The
reasonableness of the German argument was finally recognized by the
American government and on January 18, 1916, Secretary of State
Lansing addressed a note to the allied governments suggesting that "in
order to bring submarine warfare within the general rules of
international law and the principles of humanity without destroying its
efficiency in the destruction of commerce" they agree not to arm their
merchant vessels. The proposal was not accepted. However, this note
contains probably the best analysis of the principles upon which the
immunity of defensively armed merchant vessels is based.

Secretary Lansing said:

Prior to the year 1915 belligerent operations against enemy

commerce on the high seas had been conducted with cruisers
carrying heavy armaments. Under these conditions international
law appeared to permit a merchant vessel to carry an armament for
defensive purposes without losing its character as a private
commercial vessel. This right seems to have been predicated on
the superior defensive strength of ships of war, and the limitation
of armament to have been dependent on the fact that it could not
be used effectively in offense against enemy naval vessels, while it
could defend the merchantman against the generally inferior
armament of piratical ships and privateers.

He then pointed out that the use of the submarine "has changed these
relations" and that a comparison of the defensive strength of the
submarine and the cruiser shows that the former, relying for protection
on its power to submerge, is almost defenseless in point of
construction. He remarked that since pirates and privateers have been
swept from the seas "the placing of guns on merchantmen at the
present day of submarine warfare can be explained only on the ground
of a purpose to render merchantmen superior in force to submarines"
and that "any armament on a merchant vessel would seem to have the
character of an offensive armament." Finally he stated that

my government is impressed with the reasonableness of the

argument that a merchant vessel carrying an armament of any sort,
in view of the character of submarine warfare and the defensive
weakness of undersea craft, should be held to be an auxiliary
cruiser and so treated by a neutral as well as by a belligerent
government and is seriously considering instructing its officials
accordingly.39

The case against arming merchantmen could not be stated more

clearly. It cannot be required of the submarine to carry on visit and
search in accordance with the rules of international law, if it thereby
exposes itself to almost certain destruction by the guns of a
belligerent merchantman which has received instructions to attack
submarines on sight and which, under international law, is entirely
justified in resisting visit and search. If, in addition, the belligerent
merchantman flies the neutral flag,40 it becomes suicidal for the
submarine to visit and search any merchant vessel.

The Advisory Committee to aid the American delegation at the

Washington conference of 1921-22 submitted a report in which it
examined the effect of the arming of merchantmen on the conduct of
submarine warfare; it arrived at the conclusion that "defensive
armament was al most sure to be used offensively in an attempt to
strike a first blow. The next step was for each to endeavor to sink the
other on sight." It proposed that "laws should be made prohibiting the
arming of merchant vessels as well as the use of false flags by them." 41

Unfortunately the conference did not take up the question of the armed
merchantman. The Italian and Japanese delegates did indeed express
doubts whether an armed merchant vessel could be called a private
vessel and whether it was not really a warship,42 but the matter was
left undecided. The treaty defining the laws governing submarine
warfare was adopted without prohibiting simultaneously the arming of
merchantmen. Nor was such a prohibition included in the Treaty of
London.

It is doubtful whether any convention requiring submarines to comply

with the existing rules of international law governing commerce
warfare will receive general recognition unless it is also agreed that
under the "changed conditions of modern warfare" armed
merchantmen are no longer entitled to the immunities of private
vessels.

The controversy over the employment of submarines as commerce

destroyers is now twenty years old and no agreement has been
reached. Failing such agreement it is almost certain that the
submarine practices of the World War will be repeated in a future war.
It is believed that a satisfactory solution of the submarine problem can
only be effected in connection with a general revision of the laws of
naval warfare, for the submarine problem is not an isolated one, but is
intimately connected with the confused status of the laws of war in
general. Of course, only an international conference is competent to
undertake this task. Nevertheless, it is permissible to indicate briefly
in this article some of the principal problems which must be faced and
to suggest possible solutions.

The submarine is the weapon par excellence of the weak naval power.
Control of the seas can never be obtained through possession of a
submarine fleet, no matter how large. But control of the seas can be
effectively challenged and its exercise rendered hazardous by
submarine operations. The average number of German submarines
operating at any one time on the Atlantic approaches to France and
Great Britain during the World War was not more than nine or ten, but
Great Britain was forced to maintain an average of no less than 3,000
anti-submarine surface craft in order to deal with these.43

Now, as a matter of practical politics, is it not improbable that the

smaller naval powers will agree to abolish a weapon which can be so
effectively used against the state or states in control of the sea? They
might perhaps be willing to renounce the submarine if the strong naval
powers in their turn consented to a limitation on the belligerent right to
interfere with maritime trade. We thus arrive at the perennial question
of whether private property should not enjoy at sea the same immunity
which it now enjoys on land. The United States has long advocated this
principle. The chief objection would seem to be that property is not
really "owned" on the high seas, but is merely "transported." Immunity
of private property at sea would thus actually be "immunity of trading
operations." And it must be pointed out that a trading operation
between neutrals and belligerents is as much a belligerent as a neutral
trading operation. It is doubtful whether the strong naval powers will
be ready to concede immunity of enemy trading operations on the high
seas, even if the principle were limited to articles not contraband.

Having mentioned the word "contraband" we arrive at the crux of the

whole problem. John Bassett Moore has said that the keynote to the
question of neutral rights is to be found in the doctrine of
contraband;44 it may be added that it is also the keynote to the
submarine problem.

As the law stands at present, a belligerent may seize neutral property

if it is contraband. If all goods are declared contraband by a belligerent
in control of the sea, all neutral property going directly or indirectly to
the enemy may be seized.

Before the World War it was generally held that goods fell into three
classes:

Of these classes, the first consists of articles manufactured and

primarily and ordinarily used for military purposes in time of war;
the second, of articles which may be and are used for purposes of
war or peace, according to circumstances; and the third, of articles
exclusively used for peaceful purposes. Merchandise of the first
class, destined to a belligerent country. . . is always contraband;
merchandise of the second class is contraband only when actually
destined to the military or naval use of a belligerent; while
merchandise of the third class is not contraband at all, though
liable to seizure and condemnation for violation of blockade. 45

Before the war, arms and ammunition belonged in the first or absolute
class; fuel, foodstuffs, grain, etc., in the second.46 During the World
War, however, more and more articles, formerly regarded as non-
contraband or as conditional contraband, were placed on the absolute
contraband list by Great Britain. This was done under the plea of
"changed conditions." Thus, as regards foodstuffs, Sir Edward Grey, in
a communication to the American government on February 10, 1915,
admit ted that no country had in modern times maintained more stoutly
than Great Britain the principle that a belligerent should abstain from
interference with the shipment of foodstuffs intended for the civil
population of the enemy; however, he doubted whether the principle
was still applicable in view of the fact that the German government
had taken control of the food supplies of the country. 47 Great Britain
finally abolished the distinction between absolute and conditional
contraband on April 13, 1916. On that day the British Foreign Office
announced that the circumstances of the war were so peculiar that His
Majesty's Government considered that for practical purposes the
distinction between absolute and conditional contraband had ceased
to have any value. So large a portion of the inhabitants of the enemy
country were taking part, it was said, directly or indirectly, in the war
that no real distinction could be drawn between the armed forces and
the civilian population.48

The argument that under "changed conditions of modern war" the

distinction between combatants and noncombatants ceases to have
any practical value represents the most serious attack on the laws of
war in general. We need only point to its implications with regard to
poison gas and aerial bombardment to see that, if it were logically
applied, the relations between belligerents during war would no longer
be subject to any legal restraint at all.

As has been stated at the beginning of this article, the distinction

between combatants and noncombatants was gradually evolved under
the influence of principles of humanity. It should be added that it was
largely due to the institution of standing armies.49 This century is
witnessing a retrogressive movement, owing to the magnitude of
modern wars and the manner in which belligerent governments draft
their civilian populations into indirect war service and the control
exercised by them over the entire economic resources, and
particularly over the food supply of their countries.50

The law of contraband, as it stood prior to the World War, was based
on the distinction between combatants and noncombatants. Neutrals
were permitted to trade with citizens of belligerent states except in
articles manufactured and primarily used for war (absolute
contraband).51 Through an extension of the law of contraband and by
disregarding the distinction between combatants and noncombatants
all neutral commerce with the enemy, even if it is routed via a
neighboring neutral country52 can be confiscated by the dominant sea
power. However, it must be remembered that the humanitarian rule
that enemy merchant vessels shall be immune from attack without
warning is also a direct consequence of the principle that a distinction
should be made between armed forces and private enemy individuals
and that war-like operations should only be undertaken against the
former. It can readily be seen that if, under the plea of "changed
conditions," this distinction is abandoned by the belligerent in control
of the sea so far as it applies to the right of neutrals to trade with
enemy individuals, the same plea is likely to be made by the weaker
belligerent as regards the immunity of enemy merchant vessels
against unwarned submarine attack. Legally this may be wrong, but to
the layman the argument will probably appear to have some
justification. In the memorial accompanying her first war-zone
declaration of February 4, 1915, Germany referred expressly to the
measures taken by Great Britain in restraint of neutral trade with
Germany which she claimed were,

Part of a plan to strike not only the German military operations but
also the economic system of Germany, and in the end to deliver the
whole German people to reduction by famine, by intercepting
legitimate neutral commerce by methods contrary to international
law.53

This is not the place to consider the respective merits of the British
and German viewpoints; it must, however, be pointed out that both in
effect maintained that "changed conditions" made it impossible to
further distinguish between enemy armed forces and civil populations.

It is, therefore, apparent that a satisfactory solution of the submarine

problem involves a reconsideration of the question whether under the
"changed conditions of modern war" noncombatants should continue
to enjoy immunity from war-like operations.54

Elsewhere in this article it has been shown that submarines find it

difficult to conduct visit and search in accordance with established
rules of law. It is interesting to note that, while it is true that the
submarine is, by reason of its construction, peculiarly handicapped in
conducting the above operations, changes in the size and speed of
merchantmen and in the conduct of maritime war have rendered these
operations more difficult for surface warcraft also. Great Britain
pleaded "changed conditions" and the inability of her cruisers to
conduct a proper search of large vessels on the high seas amid the
constant danger of enemy attack as justification for her practice of
diverting neutral merchantmen into British ports for visit and search.
The lawfulness of this novel procedure was constantly denied by the
United States and other neutrals; nevertheless diversion became the
regular practice. Furthermore, in consequence of a number of British
orders in council every merchant ship was finally required to touch at
an English port for visit and search before proceeding to a northern
enemy port or to a neutral nation proximate thereto.55

While Great Britain thus avoided the difficulties of visit and search on
the high seas by the institution of the "Kirkwall practice," Germany
declared certain areas of the sea to be "war zones" and forbidden to
neutral vessels who must expect to be torpedoed by her submarines on
sight. It would seem that both violations of existing law—while
differing greatly in the kind of interference with neutral rights—proceed
from the fact that under modern conditions of war belligerents are no
longer able to control neutral trade through the exercise of visit and
search at sea.

During the World War both sides laid extensive mine fields on the high
seas. Large areas of the ocean were declared to be "war zones" or
"danger zones" and neutrals were warned that navigation therein was
dangerous. On January 31, 1917, Germany notified neutral
governments that in certain areas proximate to the English coast all
vessels—including neutral vessels—would be sunk on sight. It would
seem that in substance there is little difference between the laying of
a mine field and the declaration that within a certain area submarines
will sink all vessels on sight. Both are serious violations of the right of
neutrals to navigate the high seas. Evidently the question whether
belligerents may render parts of the ocean dangerous to all navigation
by sowing mines ought to be considered together with the rules
governing submarine warfare.56

A solution of many of the difficulties which have been mentioned, and

these are by no means all existing difficulties as regards the laws of
naval warfare, may be found in establishing a new balance between
the conflicting interests of neutrals and belligerents in the use of the
high seas during war. Evidently the balance embodied in the laws of
neutrality as they existed prior to the World War has been upset by the
appearance of new weapons of war—the submarine, the mine, and also
the airplane, which has not even been touched upon in this article, but
which is destined to play an important part in the next war—together
with the speed and volume of international trade and the increased
dependence of all states upon over-seas supplies to carry on a war. It
would be impracticable as well as unfair to place the whole burden of
these changes upon the belligerents, and such a solution of the
problem would simply be disregarded by them. It would seem that in
order to retain the right to carry on legitimate neutral trade in war
time, neutral states may have to shoulder greater responsibilities.57 In
particular, they may find it necessary themselves to prevent and
punish their nationals for contraband trading, breach of blockade, or
unneutral service, in order to avoid controversies with belligerents
concerning the procedures used by these to effect such prevention and
punishment. Recently there have been reports that the United States is
contemplating a reversal of her policies as to neutral rights along the
lines indicated above.58

It may also be possible for neutral states in a future war to get

together, to agree on a common program of neutral rights and to assert
these collectively, if necessary through economic pressure on the
belligerents. A significant statement, foreshadowing such a possibility,
is contained in the Argentine Anti-War Treaty which has been signed—
but not yet ratified—by the United States on April 27, 1934. In art. III of
this treaty the signatory powers agree that if a state fails to comply
with the obligations for pacific settlement of disputes, contained in
arts. I and II of the treaty, "they will adopt in their character as
neutrals a common and solidary attitude."

In any event, it would seem to be clear that the submarine problem

cannot be treated as an isolated question, but must be considered as
part of the larger problem of the effect of "changed conditions of
modern warfare" on the laws of war in general.

1 C. C. Hyde, International Law, vol. i, p. 2.

2 Ibid., p.3.

3 Foreign Affairs, vol. xii, No. 3. April, 1934.

4 L. Oppenheim, International Law, vol.ii, p. 135.

5 Ibid., p. 476.

6 E. C. Stowell, International Law, p. 543.

7 J. A. Hall, The Law of Naval Warfare, p.262.

8 Instructions for the Navy of the United Stales Governing Maritime

Warfare, June 1917, art. 44.
9 Ibid., art. 46.

10 Ibid., art44.

11 L. Oppenheim, op. cit., pp. 325,699.

12 Art. 94.

13 C. C. Hyde, International Law, vol. ii, p.497.

14 Ibid., pp. 497-98. See also article by J. W. Garner in American

Journal of International Law, 1915, p. 615.
15 C. C. Hyde, op. cit., p.498.

16 J. A. Hall, op. cit., p.287.

17 Article 28, General Orders, No. 492, June 20, 1898, Foreign
Relations, 1898, pp. 780, 782; see also J. B. Moore, International Law
Digest, vol. vii, pp. 525-26.
18 Declaration of London, art. 49.

19 Op. cit., p. 503. The Declaration of London was, however, never

ratified. The Instructions for the Navy of the United States of 1917
specify that neutral vessels engaged in unneutral service may be
destroyed "in the case of military necessity, when the vessel cannot be
sent or brought in for adjudication" (art. 95), and that neutral vessels
guilty of contraband trading or breach of blockade may be sunk only "in
case of the greatest military emergency which would not justify . . .
releasing the vessel or sending it in for adjudication" (art. 96).

20 C. C. Hyde, op. cit., p. 497; Instructions for the Navy of the United
States, 1917, art. 97; Oxford Manual of Naval War, art. 114; Declaration
of London, art. 50.

21 See General Report presented to the Naval Conference (of London)

on behalf of its Draughting Committee, chapter viii; printed in C.
Stockton, Outlines of International Law, P. 590; also C. C. Hyde, op.
cit., p. 451.
22 See discussion of this question by Hyde, ibid., pp. 481-484.

23 See, for example, German memorandum of Feb. 4, 1915, enclosed in

communication of Mr. Gerard, Ambassador to Germany, to Mr. Bryan,
Secy. of State, Feb. 6, 1915, American White Book, European War, vol.
i, p. 53; Herr v. Jagow, German secy. for Foreign Affairs to Mr. Gerard,
July 8, 1915, id., vol. ii, p. 175.

24 Ibid., vol. iii, pp. 184, 185.

25 For a criticism of this attitude, see Bauer, Das Unterseeboot, pp.

57, 103.

26 International Law Situations, 1926, p. 39.

27 C. C. Hyde, op. cit., pp. 451-52. A neutral merchantman may not

resist visit and search by force.

28 This was frequently done by German submarines prior to the

commencement of unrestricted submarine warfare; see Bauer, op.cit.,
p. 59.

29 Lord Lee, Conference on the Limitation of Armaments, Senate Doc.,

No. 126, 67th Cong., 2d. Sess., p.484.

30 Ibid., p.596.

31 Thus the second part of the resolution was made immediately

binding on the signatory states, and the piracy clause was altered so
as to make "any person in the service of any power" who violated the
above stated rules liable to punishment as if for an act of piracy.

32"Submarines and Disarmament Conferences," Naval Institute

PROCEEDINGS, Jan. 1927, p. 50.

33 The London treaty has been ratified by Great Britain, the United
States, and Japan, but not by France and Italy.

34 Parl. Debates, Commons, 1913, vol. 53, p. 1599.

35 Ibid., 1914, vol. 59, p. 1925.

36 Naval War College, International Law Situations, 1927, p. 81.

37 Ibid., 1930, p.23.

38 Ibid., 1930, pp. 12-13.

39 American White Book, European War, vol. iii, pp. 162 et seq. It may
be mentioned that the Netherlands government took the stand that
armed merchantmen were assimilated to warships as regards their
right to use Dutch ports; see U.S. Naval War College, International
Law Situations, 1930, p. 14.
40 For British-American correspondence concerning the use of neutral
flags by British merchant vessels, see letter of Secy. of State to
Ambassador W. H. Page, Feb. 10, 1915, and reply thereto by Amb. W. H.
Page of Feb. 19, 1915 (printed in "Official Correspondence between the
United States and Great Britain," International Conciliation, 1915, pp.
36, 37).

41 Conference on the Limitation of Armament, Senate Doc. No. 126,

67th Cong., 2d sess., p. 274.

42 Ibid., pp. 692, 702.

43 Statement by Lord Lee at the Washington conference, op.cit., 482.

44 International Law and Some Current Illusions, pp. 47-48.

45 Chief Justice Chase, in the Peterhof, 5 Wall., 28,58.

46 As late as the Boer War Lord Salisbury said: "Foodstuffs, with a

hostile destination can be considered contraband of war only if they
are supplies for the enemy's forces" (J. B. Moore, International Law
Digest, vol. vii, p. 685.
47 American White Book, European War, vol. i, pp. 44, 50, 51.

48 British White Paper of April 13, 1916, American White Book,

European War, vol. ii, p. 52.

49 "The humanizing of the practices of war would have been

impossible without the discipline of standing armies; and without them
the important distinction between members of armed forces and
private individuals could not have arisen" (L. Oppenheim, op. cit., p.
136).

50 That in a future war food will almost certainly be treated as

absolute contraband can be seen from the negative reception
accorded President Hoover's suggestion made in 1931 that ships
carrying food supplies should be "free of any interference." The fact
that since the war many states have devoted themselves to becoming
self-sufficient in food, even at the expense of lowering the economic
standard of their populations, would appear to indicate that they
harbor no illusions as to the treatment food will receive during war.

51 Except that they were not permitted to break a blockade.

 52 By applying the doctrine of "continuous voyage" or "continuous
transportation."

53 American White Book, European War, vol. i, p. 53.

54 A blockade such as the one maintained by the Allies against the

Central Powers during the World War must be regarded as a war-like
operation. Admiral Bauer estimates that approximately 800,000
noncombatants in Germany died as a result of the allied blockade,
while 30,000 lost their lives in consequence of the German submarine
blockade (op. cit., p. 82).

55 See in particular the Order in Council of Feb. 16, 1917, 111, Brit.
and For. State Papers, p. 14.
56 Mine fields were laid during the Russo-Japanese War of 1904-5, and
certain parts of the ocean were declared by Japan to be "defense sea
areas," reserved for naval operations and forbidden neutral vessels.
The Second Hague Conference regulated the laying of mines in
Convention VIII which was, however, not in force in the World War
since it had not been ratified by Russia.

57 See the interesting proposals made by former Assistant Attorney-

General Charles Warren in an article "Troubles of a Neutral,"
in Foreign Affairs, vol. xii, No. 3, April 1934.

58 The New York Times reported on Dec. 17, 1934, that plans were
being considered by the State Department that in case of war "we
would seek. . . so to restrict the activities of our people, particularly in
supplying munitions to belligerents and in traversing the war zones, as
to eliminate practically all problems of neutrality for us." See also the
Burton and Capper Arms Embargo Resolutions of 1928.

Digital Proceedings content made possible by a gift from CAPT Roger

Ekman, USN (Ret.)

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