40 Yale Law Journal 492 (1931)
This is quite a remarkable book. It consists of six lectures delivered at the Williamstown Institute of Politics by a distinguished Englishman-lectures in which he undertakes, in a broad sweep, to analyze and explain ,the legal relations between belligerents and neutrals in time of war, and -to propose possible solutions for the present conflict of views. Recognizing what he claims to be confusion and uncertainty in the subject and the fact that the United States and Great Britain seem to entertain different views upon it, he undertakes to discuss the policies and justifications which led to the adoption of the British practices in the late war and indicates how far these might be modified in the future. Without once explaining to the reader the underlying reasons for the whole structure of maritime law in this respect, namely, the distinction between combatant and non-combatant and the necessity for a working compromise between belligerent military and neutral trading privileges, he presents what in the main must be regarded as a defense of the British practices in the late war as the natural and presumably lawful outcome of the "logic" of the existing rules-practices which the British Government, during the War, did not venture to excuse on any other ground than that of retaliation for enemy illegality. He freely admits that Great Britain by these measures-which in fact ultimately wiped out any neutral rights-controlled the trade of the world; but he suggests that she would not resort to these extremes in an ordinary war, but only in an extraordinary war (p. 49). He intimates that the solution of the question of freedom of the seas in the future lies in a distinction to be made between just wars and unjust wars-the "just" belligerent to have a fairly free hand which neutrals shall concede, the "unjust" belligerent to be greatly restricted. Presumably if one cannot tell which is the "just" side-and that would be in most cases-the objective law shall prevail. Lord Percy is not impressed with the practicality of League wars against aggressors or with the possibility of abolishing the status of neutrality. He admits that the conflict (which he occasionally seems to consider, though it is believed incorrectly, one between the continental view and the Anglo-Amerlcan view) must be settled before a new war breaks out. But he concedes that an international conference would not be appropriate because it would probably make matters worse, and suggests that the better mode of procedure would be for private groups of experts, first an Anglo-American group, endowed with a statesmanlike outlook, to undertake drafts of proposed rules to be submitted for consideration to governmental bodies and public opinion, in order thus to accomplish the desired end with the least friction. He does not think that the United States and Great Britain would easily submit differences which arise in actual cases to an international tribunal until an agreement on the rules has been reached.
Date of Authorship for this Version
Borchard, Edwin, "Book Review: Maritime Trade in War" (1931). Faculty Scholarship Series. Paper 3658.