 All right. Welcome back again. So to those of you just joining, thank you for coming. And this is now the third panel of today's conference. So I'm going to introduce your speaker, Professor Stephen Neff. Stephen Neff studied at Harvard University in Sociology and the University of Virginia School of Law. He has worked in the Legal Advisors Office of Amnesty International's International Secretariat from 1977 to 1978 and briefly practiced law in London with a firm of solicitors from 1978 to 1980. After two years at Christ's College Cambridge as a research fellow, he began teaching international law at the University of Edinburgh from 1983. He is currently the Professor of War and Peace at the institution. He is the author of a number of works on the history of international law, including the rights and duties of neutrals, a general history, war and the law of nations, a general history, and justice among nations, a history of international law. So without any further ado, Stephen, I will hand over to you. Okay, thank you. And I had better give the title of my paper here, as that seemed not to have made it onto the program. Here it's impinging on third parties. It is that as blockades and reprisals in maritime warfare 1600 to 1918. And blockades and reprisals are both ways of impinging upon the rights of third parties, that is, of neutrals. And so I'm going to talk about some of the legal issues that have arisen about that over the course of a couple of centuries, culminating in the First World War. If I have time, I'll proceed to say some things about what the current law is in this area, that the focus will be on the period up to the First World War. Now, a couple of quick remarks about blockades initially. One thing that I think is not so often appreciated by people is that blockade running was not merely a risky business in the old days, but it was actually a, it was actually a criminal or more accurately quasi-criminal activity. It was not just risky to run a blockade, but illegal to run a blockade. So that the measures taken against blockade runners were in the nature of law enforcement measures by the blockading state. I say quasi-criminal here rather than outright criminal, because the penalties for blockade running only extended the confiscation of the cargo in its entirety, plus confiscation of the vessel itself, but did not extend to any kind of punishment of the persons involved. That is, there was not any imprisonment or corporal punishment allowed. And the question arose as to why this conduct was allowed to be inflicted onto neutral parties. You can understand why this would be allowed against a state's own nationals, if they could be prohibited from violating blockades, of course, and the enemy is fairer targeted more, but what gives a blockading power a right to assume this quasi-sovereign jurisdiction over strangers and to interfere with trade, which is in principle perfectly legal. That is between the opposing belligerent and a neutral party. It's a fundamental principle of the law of neutrality that neutrals are allowed to continue trading with either belligerent as if they were at peace, as indeed they are. So on what basis does one belligerent claim to be able to infringe the rights of third parties? Well, two rival justifications were put forward regarding blockades. I'll just mention these quickly. One was an application of the general principle of necessity. This was favored primarily by British writers and the British government. And the general principle of necessity is a sort of international law wildcard, as it were, it is somewhat paradoxically a license to break the law. That is acts which would ordinarily be illegal become permissible if they are done in the interest of warding off a grave and imminent peril of some kind. And by extension, the argument was that warfare itself is by its nature a continuing grave and imminent peril, and therefore steps can be taken which would infringe the rights of innocent parties. And I stress that the parties are innocent. There's no requirement of wrongdoing on the part of the affected party. The only requirement is that there be an extreme emergency facing the party that's acting. So that was one justification for interfering with ordinary rights of neutrals. The other, this is still regarding blockades specifically, was to posit that the blockading was an occupation of territory. This may sound a little bit strange at first instance, but it was continental writers who mostly pursued this line of thought. And that is that the blockading squadron actually had the effect of fencing off an area of what was normally high seas and thereby effectively occupying that area so that the area inside the line of blockade became a maritime counterpart of occupied territory and land war. And as the controller of occupied territory, the argument went the blockading power had the right to impose what was effectively legislation onto this territory that is making it illegal for any and all persons to penetrate the blockaded area. So that this was an exercise of a quasi sovereign right in effect. Well, there were many misgivings about the right of blockading and especially in the 19th century, there came to be vigorous objections to what were called commercial blockades. That is blockades which were only designed to inflict economic injury onto the enemy. And so various restrictions were devised to prevent rights of blockaders from getting out of hand. And these grew up over the course of time. And I'll mention just three of the most important ones. Number one was a requirement of effectiveness. That is, there could not be sporadic captures of persons trading with the port. There had to be a whole blockading squadron thrown up around the port with a view to capturing as nearly as possible 100% of the ships going into the affected area. So blockading is not just a general license to capture. It's a requirement that you have to pay for that license as it were by throwing an entire squadron around the blockaded area. A second legal restriction was that blockading was what is sometimes called by lawyers of the delictual character. In other words, you have to catch the blockade runner in the act in order to inflict the punishment. You cannot take action against them later. Once they get away, it's all over. And restriction number three is no blockading of neutral ports. And that's for understandable enough reasons. Now, in the course of time, though, a number of vigorous disputes arose about the law blockading. And I'll mention a couple of those two in particular are of interest here. One is what is called the intention doctrine. And this was put forward primarily by the major naval power, Great Britain, also supported by the United States. The intention doctrine was to the effect that a ship could be captured for breaching a blockade or violating a blockade, not just at the line of blockade, but at any point in its entire voyage to the blockaded area. So once it is ascertained, and this will be from the ship's papers, once it is ascertained that the ship is headed for a port which is blockaded, it doesn't matter how many hundreds or thousands of miles away from that port it might be, it can be captured for blockade running on the thesis that it was intending to run the blockade in the future. In other words, that it was already involved in a blockade running exercise or expedition right from the point of its departure. The end, obviously it was only the necessity view of blockade that would justify doing that. The continental thesis was no because blockade is based on territorial control. There cannot be any capture made outside of the line of the blockade itself. Only the physical crossing of the barrier of ships or the physical penetration of the line of ships could count as a blockade violation according to that school of thought. And obviously it's easy to see why Britain or major naval powers would favor the intention doctrine because it allows capture on a much more far-flung basis of ships. The second great controversy for present purposes was about something that was called the continuous voyage doctrine. And this was the thesis just simplifying somewhat that if a ship put into a port on the way to a blockaded port that ordinarily the ship could be taken only in the final leg of its voyage going to the blockaded port or even on the continental view at the line of the blockade itself. But the continuous voyage doctrine was that if the touching at another port en route was a mere touching, in other words, just a sort of nominal putting in, then the whole voyage could be regarded as a single one. The United States pioneered this during the American Civil War so that if a ship was going from, say, Liverpool to the Bahamas to the Confederate States, it could be captured not just between the Bahamas and the Confederacy, but it could be captured as soon as it left Liverpool on the thesis that touching in the Bahamas was just a sort of nominal affair just to disguise the voyage as two voyages. But they would be treated by American prize courts as one single continuous voyage, again allowing capture at a greatly far-flung distance from the line of blockade. There was vigorous dispute among lawyers as well as among governments about these rival views about blockading. And these were resolved finally in the declaration on maritime warfare known as the Declaration of London in 1909. And this was a most interesting conference of the major maritime powers only, not the states as a whole, attempt to reach agreement at the Hague Peace Conference of 1907 had failed. And so the countries decided, look, the major maritime powers need to sort this out on our own without all of these other extraneous people being involved. So the Declaration of London was an elaborate confection of compromises on a whole range of issues, and including the ones on blockade. So about the two that I'm talking about here, I'll just mention what the declaration provided. On the intention doctrine, the declaration provided that there could be capture only in it somewhat was deliberately a bit vague here, capture would be allowed only in the area of operations, as it was called, of the blockading squadron itself. So it was clear that you couldn't range too awfully far from the line of blockade, but still the strict continental view was rejected of allowing capture only right at the line of blockade. So this was a compromise between the two in Article 17 of the Declaration. On the continuous voyage question, there was an outright prohibition against applying the continuous voyage doctrine to blockades. So then came, however, the Great War in 1914, where there were some innovations made here. First of all, I'll mention a couple of ways of, shall we say exploiting or perhaps circumventing some of the limitations on the wall blockade. And I'll mention two devices that were attempted here, both of them under the heading of contraband rather than blockade legally. But one was a huge expansion in contraband lists, taking contraband beyond obvious things like arms and ammunition into a whole range of dual use goods and such. And a key thing was that for contraband, there is not a requirement of effectiveness. Sporadic capture is permitted. So many people objected that this huge expansion of contraband lists was effectively a means of expanding the wall blockade itself far beyond the line of blockade and expanding blockade blockaders rights de facto if not de jure. The other critical invention of the time were rationing systems applied to neutral countries. And the idea here was that the suspicion was growing that countries such as the Netherlands most obviously were functioning as pipelines for food supplies and other supplies through to the central powers. And so the British devised a system that we will decide what you need in the Netherlands for your own domestic use. And we will allow you to import goods up to that amount. But anything higher than that amount, we believe you are re-exporting to the Germans and we're not going to allow that. So the Allied powers unilaterally fixed the quotas of goods that would be allowed into the neutral states and caused a good deal of hardship in the neutral states. Let us say that the Allies gave themselves the benefit of the whenever a question arose. And people objected to this very vociferously saying that this was in effect, even if not on its face, a blockading of neutral countries which is in principle forbidden. And then there was in addition another way of playing a wild card to get around inconveniences in the law blockade. And this was the law of reprisal. And the idea here is somewhat similar to necessity is that if the one side commits a violation of law, the other side can act as a self-appointed enforcer and inflict measures on that other side that would ordinarily be illegal. So reprisal measures are self-help law enforcement measures. And what came to be controversial, now a key requirement though is, and the key weakness of the reprisal strategy is that there must be a prior wrongful act. Okay, otherwise reprisals are unjustified. And then the problem arose about what about reprisals involving injuries to third parties, that is to neutrals. Would that be allowed or not? The British insisted that it was, that you could inflict the injury onto the neutral party, onto a neutral party if the longer term effect was to injure the belligerent. In other words, it was a strategy of injuring the belligerent through the neutral party, using the neutral party instrumentally as it were, as a means of inflicting an injury in the slightly longer term against the belligerent. And there was a legal uproar about this as well. Many insisted that no reprisals are allowed only against the actual wrongdoing party. And on this the case law divided. There was an important case in 1919 from the British privy council that said, yes, measures involving at the first instance action against neutrals are permitted, so long as the injury to the neutral is not greater than reasonably necessary under the circumstances. But in 1930 there was an arbitral decision and a case between Britain and between Germany and Portugal, which laid down a flat rule that reprisal measures could not be taken against a neutral party. So the British after the war surveyed all of this and noted that there were several possible strategies. One was to use the wildcards, such as the doctrine of reprisal, that allows you to get around the law. It, like necessity, is a sort of license to break the law. But the problem is there has to be the triggering event of the wrongful act first by the other party. Britain much preferred a strategy of either changing the law itself, altering the legal rules themselves, or finding ways to exploit existing rules or reinterpret existing rules creatively, because those wouldn't require the awkwardness of a prior wrongful act by the enemy side. So the, but the, just in conclusion here, I'll just state, I don't have time to go into the modern law here, but we can take that up in the discussion if people are interested in, people are interested, but the crucial issues are still with us. And this three-part dilemma is to whether you change the law itself, or whether you adopt some measure for for trumping the law of which there are two necessity and reprisal. And anyway, all of these are still with us and still haunting us, and we may be hearing more about them in the future. So anyway, I'm happy to take any questions or comments. Brilliant. Thank you so much for that, Stephen, and for taking us from the period of, you know, the late 18th century all the way into even the 1930s. I'm going to use my privilege as chair to ask you the first question if that is okay. And you mentioned the Americans and the Civil War at one point and sort of British-American interactions in the legal sphere. And I was wondering if you could speak a bit about British legal thinking and how it influenced the development of American thought on things like prized law and neutrality. My suspicion is that there was quite a bit, but I actually don't know, so I'm quite curious. Your suspicion is quite right. The British prized law was a huge influence on the American prized law. And largely because of somebody, he's my favorite judge, actually, is the William Scott, with a marvelous writer. And he was active during the French Revolutionary Wars with a string of cases. And most of all in the area of blockade. That was one of his foremost contributions to the development of international law. And you could even use such a word as slavish when describing the American tendency to follow Scott. He was invoked constantly by American writers. So the United States legal thinking was very much in the wake of British thinking here. William Scott is certainly one of my favorites as well, so I commend you on your taste of jurists. I've got some questions from the audience. So Dr. Alan James says, first he says, fascinating talk. Thank you very much. He says, resistance to the right of blockade grew, you say, in the 19th century to commercial blockade. This led to many of the legal complications that you talk about. What about in earlier periods? Was the right of blockade really just happily recognized by the blockaded powers? That seems like a remarkable respect for what I'm assuming is a largely unwritten international law. Yeah, that's a good point. And it was largely, largely accepted early on. And I think because it grew out of practice rather than doctrine, there is almost no area of the whole of international law. I think that's a better example than the law of neutrality of an area where the practice arose first and the doctrine chased after it. And so it wasn't until the mid to late 18th century that there was really any systematic thinking on the law of neutrality in general, not just blockade, whereas the practices had been going on for years. But bear in mind that blockading had a different purpose in the early centuries and say the 17th and 18th centuries. A primary purpose of blockading at that time was to bottle up an enemy fleet in an enemy harbor. And thereby the ships would degrade, I don't know, the ships would, the sails would rot or the ropes, the sailors would drift off or whatever. So it was to degrade a fleet by bottling it up. And it was only in the 19th century that blockades came to be what they called commercial blockades, that they were purely for economic injury directed against commercial ports with an intention of inflicting economic injury onto the state. Now one of the objections to that was people were becoming a little bit more humanitarian minded in the 19th century and also free trade was becoming ever more of an important and accepted doctrine. And also the laws of war were developing such that it was stated in the St. Petersburg declaration particularly but reflecting much earlier practice that measures of war may only be directed against the enemy armed force. The idea is that civilians should be as unaffected by war as possible but commercial blockades seemed starkly incompatible with that. In fact that seemed to be basically a targeting, a deliberate targeting of the civilian population, not through arms of course but through economic injury and hardship. And sometimes this was justified if the port was being captured or invested or besieged but typically for commercial blockades that wasn't the purpose. A commercial blockade was regarded as something where there was no intention to capture the port but simply to choke off its trade with the outside world. And so it seemed to be divorced from any real military purpose and seemed to be targeting civilians so that's the reason that there came to be great objections to that in the 19th century when blockading took had had that rather different purpose from before. And so the but still blockading came to be even commercial blockading did come to be accepted somewhat grudgingly. So following on from Lucas's paper which is all about of course deception and evading the law and evading the prize courts in particular how I suppose almost how how easy or how successful were merchants in running blockades through means of deception or you know were they prepared to try to say oh well we're not this is not commercial we're bringing you know food in for the city in that sense of that that blend of humanitarian respect versus just trying to you know blockade a port for commercial or economic warfare. But see I can't say with with great definiteness in terms of facts and figures but I would say that deception was probably not an important factor. Now distress was one of the recognized excuses for going through a blockade but by distress was meant the distress of the ship in other words it was a ship that was unsee worthy or had been damaged by a storm or something like that so that people's so that sailors lives were at risk and they needed desperately to get into into shore somehow that and that's a little hard to fake but just bringing in food for humanitarian purposes was not recognized generally it is in modern law by the way but but not in the 19th century. So the main form of deception would be people who would turn up at the line of the blockade claiming that they didn't know that there was a blockade and that they hadn't had sufficient notice and there was quite a bit of law that grew up around that because one of the limitations on legal restrictions on blockaders was the was a requirement of informing the commercial world at large that a blockade was enforced and so it was a recognized excuse that if some ship set sail without knowing about the blockade and then turned up at the port that they should be allowed through so of course there was some tendency for people to turn up at the line of blockade you may have had students do this on occasion with their papers oh I didn't know that I nobody told me about that and but there was but the blockaders were pretty watchful a lot about that. Well just following on for that was there a next expectation and I take this mostly from from my knowledge of trees of neutrality but with blockade was there an expectation that if the blockade had begun after a ship had set sail and therefore there was no there was genuinely no reasonable way that that ship could know other than running into another ship that it would be let through the blockade or was it just a very firm absolutely not. No it would have to be let through because one of the justifications for capture the justification for capture was knowingly running running the blockade and if you went to all the trouble to go trading with the city and genuinely didn't know there was one that was recognized as an excuse for passing for being allowed through. Great excellent well thank you so much for that Steven and I suspect that you will have a lot to talk about with the more modern side of our panelists later this afternoon and evening so hopefully that will that will spark some great conversations as well that was a wonderful paper and thank you so much for being with us and guys we're gonna take another small break and we will be back at 6 p.m UK time actually for my paper so I will see you all then and thanks again Steven for a wonderful paper thank you