until recognized as belligerents, have no war rights upon the sea against foreign states, have no responsible prize courts, and no international status which will entitle them to exercise the right of blockade.3 Blockades are sometimes distinguished as commercial or as military or strategic. The commercial blockade is regarded as aimed to cut off intercourse between the coast and the world at large, while the military or strategic is aimed to cut off the military forces from communication by sea. Both are at present regarded as equally legitimate, though the abolition of commercial blockade has been advocated.* PLACES THAT MAY BE BLOCKADED. 192. Blockade is not confined to a seaport, but may extend to any avenue of communication wholly within the jurisdiction of the enemy, such as a river, gulf, bay, etc., or a portion of the enemy coast. A blockade aims to cut off communication between the enemy and the outside world. It is legitimate to close any avenue of communication which is wholly within enemy jurisdiction, as ports, bays, rivers, or coasts." There may be, however, waterways which furnish access to the enemy which are partly within neutral jurisdiction. It is generally held that straits connecting the open seas are not liable to blockade, even though both shores may be within 8 Letter of Secretary Hay to Secretary of Navy, Nov. 15, 1902; In re Prize Cases, 2 Black, 635, 17 L. Ed. 459. "To forbid all neutral commerce, when no immediate military end is to be served, and when the effect of the measure upon the ultimate issue of the war is so slight as usually to be almost inappreciable, is to contradict in the plainest manner the elementary principle that neutrals have a right, as a general rule, to trade with the enemy. If this principle can be invaded, in order that a belligerent may be subjected to a mere incidental annoyance, it is for all practical purposes nonexistent." Hall, Int. Law (5th Ed.) 632. The blockade declared by President McKinley on April 22, 1898, extended to "the north coast of Cuba, including all ports on said coast between Cardenas and Bahia Honda, and the port of Cienfuegos on the south coast of Cuba." Foreign Relations U. S. 1898, p. enemy jurisdiction. A river flowing between a neutral and a belligerent state may not be closed by blockade, though, of course, a belligerent may invest the enemy towns along the river and exercise war rights within belligerent jurisdiction. When a river flows through neutral states and belligerent states, and its outlet is in a neutral state, its outlet may not be blockaded. When the outlet is, however, within belligerent jurisdiction, there is much diversity of opinion as to the right of blockade. Some claim that the neutral riparian states have the right to free navigation, even in time of war. Others claim that the belligerent has full right to blockade the mouth of any river, where both banks are enemy territory. Practice has varied. The Danube was blockaded in 1854. France refrained from blockading the Ems in 1870, because it would injure Holland, a neutral. Russia closed the Danube to commerce in 1877. Treaties have been made by which certain powers have agreed not to blockade certain rivers, as the convention in regard to the Rhine in 1831, and the treaty in regard to the Parana and Uruguay rivers in 1853. It seems, from practice and from the fact of treaty agreement, that it is not contrary to the principles of international law to blockade a river which, though traversing neutral territory, discharges within belligerent territory. Probably expediency would have a large influence. If the neutral interests along the river were large and the belligerent small, blockade would not be established hastily; while if the reverse were the case, probably the belligerent would feel justified in establishing a blockade.s The status of canals in time of war is usually determined by treaty agreement. Blockade of the Suez and Panama canals is prohibited by treaty. The Peterhoff, 5 Wall. 54, 18 L. Ed. 564. 7 "If it should happen (which God forbid) that war should break out between any of the states, republics or provinces of the River Plate or its confluents, the navigation of the Rivers Paraná and Uruguay shall remain free to the merchant flag of all nations, excepting in what may relate to munitions of war, such as arms of all kinds, gunpowder, lead and cannon balls." Article VI, Treaty between United States and Argentine Republic, July 10, 1853. Other states are also parties to this treaty. 8 Fauchille, Du Blocus Maritime, p. 172. 'The Declaration of London, 1909, enunciates the general principles: "Article I. A blockade must be limited to the ports and coasts belonging to or occupied by the enemy." "Article 18. The blockading forces must not bar access to ports or to the coasts of neutrals." ESTABLISHMENT OF A BLOCKADE. 193. Blockade may be established (a) By the authority of the senior officer in the area of military operations as a step in the prosecution of those operations, a de facto blockade. (b) or more frequently by formal proclamation by the government, a public blockade. (a) It may be necessary for the senior officer in the area of hostilities to act without consulting the central government, particularly if he is at a great distance from or in a place where communication is not easy with his superiors. The senior officer is sometimes clothed with authority to establish a blockade. It is in general held that de facto blockades must, so soon as known to the central government, receive its sanction. There is a difference of opinion in regard to blockades. The continental writers usually maintain that establishment by the central government is essential to bring the laws of blockade into operation. American, English, and Japanese opinion does not regard such action as necessary. "Blockades are divided by English and American (and Japanese) publicists, into two kinds: (1) A simple, or de facto, blockade; and (2) a public, or governmental, blockade. This is by no means a mere nominal distinction, but one that leads to practical consequences of much importance. In cases of capture, the rules of evidence which are applicable to one kind of blockade are entirely inapplicable to the other; and what a neutral vessel might lawfully do in case of a simple blockade would be sufficient cause for condemnation in case of a governmental blockade. A simple, or de facto, blockade is constituted merely by the fact of an investment, and without any necessity of a public notification. As it arises solely from facts, it ceases when they terminate. Its existence must, therefore, in all cases, be established by clear and decisive evidence. The burthen of proof is thrown upon the captors, and they are bound to show that there was an actual blockade at the time of the capture. If the blockading ships were absent from their stations at the time the alleged breach occurred, the captors must prove that it was accidental, and not such an absence as would dissolve the blockade. (b) "A public, or governmental, blockade is one where the investment is not only actually established, but where also a public notification of the fact is made to neutral powers by the government, or officers of state, declaring the blockade. Such notice to a neutral state is presumed to extend to all its subjects; and a blockade established by public edict is presumed to continue till a public notification of its expiration. Hence the burthen of proof is changed, and the captured party is now bound to repel the legal presumptions against him by unequivocal evidence. It would, probably, not be sufficient for the neutral claimant to prove that the blockading squadron was absent, and there was no actual investment at the time the alleged breach took place. He must also prove that it was not an accidental and temporary absence, occasioned by storms, but that it arose from causes which, by their necessary and legal operation, raised the blockade." 2 Halleck, Int. Law (4th Ed.) p. 218. In the case of The Olinde Rodrigues, 174 U. S. 510, 19 Sup. Ct. 851, 43 L. Ed. 1065, the United States Supreme Court said: "This country has always recognized the essential difference between a military and a commercial blockade. The one deals with the exclusion of trade, and the other involves the consideration of armed conflict with the belligerent. The necessity of a greater blockading force in the latter case than in the former is obvious. The difference is in kind, and in degree. "Our government was originally of opinion that commercial blockades in respect of neutral powers ought to be done away with; but that view was not accepted, and during the period of the Civil War the largest commercial blockade ever known was established." DECLARATION AND NOTIFICATION OF BLOCKADE. 194. In order to incur liability for its breach, a neutral must have knowledge of the existence of a blockade. This knowledge may be communicated: (a) By public declaration and notification, announcing the conditions of the establishment of the blockade. (b) By notifying vessels when they approach the place blockaded. It is universally held that, to be binding, a blockade must be known. There is, however, difference of opinion as to what constitutes knowledge which will render a neutral vessel liable to penalty. (a) The Declaration of London, 1909, makes provision as to what points must be specified in a declaration of blockade: "Article 9. A declaration of blockade is made either by the blockading power or by the naval authorities acting in its name. "It specifies— "(1) The date when the blockade begins. "(2) The geographical limits of the coast blockaded. "(3) The delay to be allowed to neutral vessels for departure." And also that the declaration of blockade must be officially notified: "Article 11. A declaration of blockade is notified "(1) To neutral powers, by the blockading power, by means of a communication addressed to the governments themselves, or to their representatives accredited to it. "(2) To the local authorities, by the officer commanding the blockading force. These authorities will, on their part inform as soon as possible the foreign consuls who exercise their functions in the port or on the coast blockaded." The provisions of this article 11 make necessary two notifications. Notification to the neutral states has been customary. Notification to the local authorities is necessary, in order that neutrals at the time within the blockaded area may have knowledge of the blockade and become liable in case of violation. The responsibility for making known to the neutrals |