The Destruction of Merchant Ships under International Law
Bibliographic Details
New York: E. P. Dutton and Company. 1917
Book Review
The author of more than one valuable treatise on international law, and now holding the office of Attorney-General of Great Britain, has undertaken to set forth in brief compass the law upon a subject which, together with contraband and blockade, has been the very center of belligerent and neutral controversy in the present war, and which has been the immediate occasion of forcing the greatest of the neutral nations to abandon its neutrality and to resort to that force of arms which is the ultimate arbiter of violated law.
Introduction to The Destruction of Merchant Ships under International Law
If it be thought that under such circumstances further discussion of the law might have been left to a period of calmer judgments, the author anticipates our objection with the suggestion that his presentation of the question may “enable those who suffer from the present Reign of Terror to understand and formulate their legal grievance” in the hope of a day of retribution to come.
Context of The Destruction of Merchant Ships under International Law
The subject is arranged under the headings of enemy merchantmen and neutral merchantmen, which enables the author to present the case of neutral ships with the force of an a fortiori argument. In neither case is the question limited to the destruction of ships after peaceful capture, but, in addition, the author discusses the necessity of visit and search and the penalties of resistance thereto. In the case of enemy merchantmen it is shown that, on the one hand, belligerent warships may not dispense with visit and search, and, on the other hand, the merchantmen have the right to evade search and to defend themselves against attack, subject, of course, to the exercise of the full force of the enemy to bring them to submission. This right of resistance, which includes the right of the merchantman to carry a defensive armament, raises the issue of the attack upon merchant ships by submarines without warning, and the conclusion reached by the author is that the danger to the submarine of exposing itself to attack, by following the normal procedure of visit and search, and the lack of facilities for the safe removal of passengers, do not justify the submarine in violating existing law.
Thesis Statement
No better summary of the law within this limited field could be given, and the nationality and official position of the author would never be suspected from the impartial way in which the issues are handled. The volume still leaves, however, several questions unsettled. It is marked by a tendency to cling to the old law without sufficient consideration of the changed circumstances of modern wars. For example, the author's conclusion that “the use of submarines against commerce must necessarily remain illegal until international law has made express provision for their employment is a stern verdict, though one to which the United States has also given its approval.
More about The Destruction of Merchant Ships under International Law
Was there not room to consider whether the circumstances of naval wars before the abolition of privateering had not so completely changed as to render illogical the carrying of armament by merchantmen for defensive purposes? Likewise the conclusions reached with regard to the destruction of neutral merchantmen are not altogether convincing. It is doubtful whether there was any “customary law” to fall back upon when the provisions of the Declaration of London remained unratified. The practice of the past, especially at a time when there was no great temptation to destroy neutral ships, cannot be said to constitute a law in the face of the express repudiation by Russia, Germany, and other Powers of the rule of nondestruction at the Second Hague Conference and the London Naval Conference. Customary law rests upon implied consent, which must yield before express dissent. The volume contains references to the judicial cases in point, including a dozen or more of the cases that have arisen during the present war, while the references in the footnotes to the literature of the questions discussed will prove of use to the student in pursuing the subject further.
Book Review Details
This legal book review was published in:
The American Journal of International Law,Vol. 11, No. 4 (Oct., 1917), pp. 901-903