ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 295 



But first, and in order that the Tribunal may, when I am calling- 

 attention to these cases, appreciate the distinction which I make in 

 reference to them, aud the criticism which I shall take the liberty of 

 addressing in reference to them, I should like to be permitted to point 

 out in general language what I submit are the fallacies of the argu- 

 ments based upon them. The fundamental fallacy in this connection 

 is found in the proposition advanced- in the Argument of the United 

 States that a State has in time of peace a right under international law, 

 and in its full rights of self defence and self-preservation, to do on the 

 high seas whatever it may conceive to be necessary to protect its prop- 

 erty or its interests. That I conceive to be an unsound ])ro])osition. 

 It makes the rights in time of peace the same as the rights in 

 1073 time of war. It confuses, I conceive, a variety of actions npon 

 the part of States, and treats them as if they were all of the 

 same character, to be explained and to be defended upon the same 

 grounds, although, in fact, as I have to submit, they are different in 

 character and are defensible or are explicable by very various reasons. 



It will be found that in these illustrations my learned friend, as I 

 submit, has confounded acts done in a state of belligerency with acts 

 done in time of peace, and confounded acts which a nation will do in 

 defence of what it conceives to be its interest with what it may legally 

 do under the sanction of international law. Now, still speaking gen- 

 erally, I would ask to be allowed, without referring for the moment to 

 text books, which I shall do hereafter, to state generally the view which 

 we desire to present upon this subject. I think, it will help to clear the 

 ground, and to make the subject more intelligible, if we consider the 

 case in which the rights of self-protection and defence, or self-preserva- 

 tion as they are called, are recognized by international law, and the 

 grounds on which that recognition is based. 



Now, by far the greatest number of instances apply to the state of 

 belligerency, yet even here there are very strict rules. It will be recol- 

 lected that belligerent rights rest on the genuine emergency of danger, 

 which is the true basis of all exceptional acts of self-defence, or of self- 

 preservation, and ujion the consent which in consideration of that dan- 

 ger is given by neutral States. But even in the state of belligerency, 

 aud as to belligerent rights, there are very clear limitations. Take the 

 case of contraband of war. The law of contraband of war does not 

 extend to every commodity which a belligerent Power may choose to 

 declare contraljand: and, therefore, if something which international 

 law does not recognize as contraband of war is seized by a belligerent, 

 and brought into a Prize Court for condemnation, although the bellig- 

 erent might have been morally justified, according to its view of the 

 emergency at the moment, in seizing that particular thing, a Prize 

 Court could not condemn it, according to international law, unless it 

 fulfilled the conditions which are recognized by international law as 

 being essential to contraband. 



Again, take the case of blockade. There was an attempt in years 

 gone by to establish what was known as paper blockade, but that is not 

 recognized by international law. A blockade, according to existing 

 international law, in order to carry with it the subsequent sanctions for 

 attempts to break it, must be an effective blockade. And if a ship is 

 seized by a belligerent Power, the International Prize Court would have 

 to consider whether or not the condition of blockade existed which 

 justified the seizure of a particular vessel as attempting to run that 

 blockade. Again, the belligerent Power might have thought itself jus- 

 tified in doing it on moral grounds; but, still, invoking international 



