The Rule of 1756 is the usual name for the rule forbidding a neutral trader from availing himself of a line of trade with a belligerent in wartime which is unknown to him in peacetime. It actually significantly predates 1756 and traditionally referred to trade between a colony and the belligerent colonial power.240 Almost without exception, colonial powers exercised strict monopolies over the trade of their colonies in order to maximize their own economic returns. However, in the 1756 war between France and England, France granted to neutral Dutch vessels the right to carry goods from French colonies to France.241 This was an attempt to place those goods beyond capture by England.
Prior to the universal recognition of the “free ships, free goods” principle in the 1856 Declaration of Paris, England had entered into a 1674 treaty with the Netherlands which provided that, in the event of war between England and any other country, goods belonging to England’s enemy in Dutch ships would remain free from seizure.242 The English Prize Court nonetheless found that Dutch ships carrying French colonial trade
238. See infra pp. 69-73.
239. For example, the U.S. assertion that lists of free goods satisfies the requirement of reasonably specific contraband lists.
240. Marsden, Early Prize Law: Part II, supra note 135, at 244.
241. NEFF, supra note 9, at 65.
242. Treaty of Navigation and Commerce art. 8, Eng.-Neth., Dec. 10, 1674, reprinted in 13 CONSOLIDATED T.S. 1673–1675, at 255 (Clive R. Parry ed., 1969). The Treaty is discussed in NEFF, supra note 9, at 65.
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were exempt from England’s treaty obligation to the Netherlands.243 Sir William Scott later explained the rule in The Immanuel (1799):
[T]he general rule is, that the neutral has a right to carry on in time of war, his accustomed trade to the utmost extent of which that accustomed trade is capable. Very different is the case of a trade which the neutral has never possessed, which he holds no title of use and habit in time of peace. . . .244
The basis of the Rule of 1756 was that the neutral was rendering service to a belligerent inconsistent with the neutral duty of impartiality. In essence, the neutral vessel was trading for the enemy belligerent, rather than with him.245 The penalty for infraction of the Rule was accordingly severe—forfeiture of not only the offending cargo, but also the vessel.246 However, the English Prize Court treated that penalty as discretionary and, in at least two cases, chose in the circumstances only to condemn the cargo.247
Whether the rule was ever reflective of customary law is a matter of doubt. Sir William Scott, in a later case, ruled that French State practice indicated that the French government recognized the rule as one of international law.248 A version of the rule was enforced by the Japanese Prize Court during the Russo-Japanese War. In The Montara, decided in 1906, the Japanese Higher Prize Court expressly relied on it to sanction capture of a neutral vessel engaged in small coastal trade in Russia, trade which was normally open only to Russians.
The Japanese court ruled that the Rule of 1756 remained a rule of international law.249 The Rule of 1756 was not addressed at all by the Hague XIII delegates. The British government also specifically excluded it from the scope of the 1909 Declaration of London, indicating perhaps a desire that the rule be unmolested.250 The 1939 commentary to the Harvard Draft Convention opined that breach of the “famous” Rule of 1756 might constitute unneutral service and justify capture, but nothing more than that was said and
243. Mootham, supra note 178, at 64.
244. 2 C Rob. 186, 198.
245. Id. at 195; NEFF, supra note 9, at 66.
246. The Minerva (1801) 3 C Rob. 229, 232 per Sir William Scott.
247. Id. at 232; The Immanuel, supra note 191, at 205–6.
248. The Wilhelmina 4 C Rob. App 4; Scott, supra note 161, at 539.
249. The Montara (1906), HURST &BRAY VOL.II, supra note 216, at 403. Contrarily, in The Thea (1904), the Russian Supreme Prize Court said in reference to engagement in Japanese coastal trade “the Thea was engaged in a perfectly peaceful occupation.” HURST &BRAY VOL.I, supra note 194, at 96.
250. Scott, supra note 161, at 540.
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no substantive provision was included in the Draft Convention.251 The present author has not found a prize case since The Montara which relies on the rule as a ground for capture or condemnation. It is not reflected in any of the modern military manuals surveyed. The rule’s origin in the context of colonial trade heavily suggests that it has fallen into desuetude. However, it had lain practically dormant for over one hundred years before being employed in Japan in 1906. This reliance placed upon it by the Japanese government in a wholly novel context allows for a very remote possibility that the rule could be invoked in some new way by States in future conflicts.
251. Harvard Draft Convention with Commentary, supra note 30, cmt. at 658–59.
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P
ARTF
OUR: B
ELLIGERENTC
ONTROL OF THES
EAPart Three examined belligerent States’ authority to place controls on their enemy’s trade, including where this trade is carried out by neutral vessels. This Part examines the circumstances in which belligerent States may place controls over areas of the sea, even to the detriment of neutral shipping. The legal concepts of blockade, maritime zones and control of shipping in the immediate vicinity of naval operations are examined. Blockade is a device allowing belligerent States to control access to and egress from an area of enemy coast. Maritime zones, a relatively new and still controversial concept, may allow belligerents to establish controls, including the exclusion of neutral shipping, over operationally significant sea areas. They might be static geographically defined zones, or they might be mobile zones around a moving belligerent warship or other unit. Finally, the law has long accepted that belligerents may place controls on all shipping in the immediate vicinity of their naval operations. These three concepts are designed to allow the belligerent to have an effect on its enemy, but each has the ability significantly to interfere with neutral ships exercising their freedoms of trade and navigation.