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Title: Letters To "The Times" Upon War And Neutrality (1881-1920)
Author: Thomas Erskine Holland
Release Date: December 24, 2004 [EBook #14447]
Language: English
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LETTERS
UPON
WAR AND NEUTRALITY
(1881-1920)
LETTERS TO "THE TIMES"
UPON
WAR AND NEUTRALITY
(1881-1920)
WITH SOME COMMENTARY
BY
SIR THOMAS ERSKINE HOLLAND
K.C., D.C.L., F.B.A.
FELLOW OF ALL SOULS COLLEGE
SOMETIME CHICHELE PROFESSOR OF INTERNATIONAL LAW
MEMBRE (PRÉSIDENT 1913) DE L'INSTITUT DE DROIT INTERNATIONAL
ETC., ETC.
THIRD EDITION
LONGMANS, GREEN, AND CO.
39 PATERNOSTER ROW, LONDON
FOURTH AVENUE & 30TH STREET, NEW YORK
BOMBAY, CALCUTTA, AND MADRAS
1921
PREFACE TO THE FIRST EDITION
For a good many years past I have been allowed to comment, in letters to
_The Times_, upon points of International Law, as they have been raised
by the events of the day. These letters have been fortunate enough to
attract some attention, both at home and abroad, and requests have
frequently reached me that they should be rendered more easily
accessible than they can be in the files of the newspaper in which they
originally appeared.
I have, accordingly, thought that it might be worth while to select,
from a greater number, such of my letters as bear upon those questions
of War and Neutrality of which so much has been heard in recent years,
and to group them for republication, with some elucidatory matter (more
especially with reference to changes introduced by the Geneva Convention
of 1906, The Hague Conventions of 1907, and the Declaration of London of
the present year) under the topics to which they respectively relate.
The present volume has been put together in accordance with this plan;
and my best thanks are due to the proprietors of The Times for
permitting the reissue of the letters in a collected form.
Cross-references and a full Index will, I hope, to some extent remove
the difficulties which might otherwise be caused by the fragmentary
character, and the chances of repetition, inseparable from such a work.
T. E. H.
EGGISHORN, SWITZERLAND,
_September_ 14, 1909.
* * * * *
PREFACE TO THE SECOND EDITION
I have again to thank _The Times_ for permission to print in this new
edition letters which have appeared in its columns during the past four
years. They will be found to deal largely with still unsettled questions
suggested by the work of the Second Peace Conference, by the Declaration
of London, and by the, unfortunately conceived, Naval Prize Bill of
1911.
I have no reason to complain of the reception which has so far been
accorded to the views which I have thought it my duty to put forward.
T. E. H.
OXFORD,
_January_ 10, 1914.
* * * * *
PREFACE TO THE THIRD EDITION
This, doubtless final, edition of my letters upon War and Neutrality
contains, by renewed kind permission of _The Times_, the whole series of
such letters, covering a period of no less than forty years. To the
letters which have already appeared in former editions, I have now added
those contained in the "Supplement" of 1916 (for some time out of print)
to my second edition; as also others of still more recent date. All
these have been grouped, as were their predecessors, under the various
topics which they were intended to illustrate. The explanatory
commentaries have been carefully brought up to date, and a perhaps
superfluously full Index should facilitate reference for those
interested in matters of the kind. Such persons may not be sorry to have
their attention recalled to many questions which have demanded practical
treatment of late years, more especially during the years of the great
war.
Not a few of these questions are sure again to come to the front, so
soon as the rehabilitation of International Law, rendered necessary by
the conduct of that War, shall be seriously taken in hand.
T. E. H.
OXFORD,
_April_ 25, 1921.
CONTENTS
CHAPTER I
MEASURES SHORT OF WAR FOR THE SETTLEMENT
OF INTERNATIONAL CONTROVERSIES 1
SECTION 1
_Friendly Measures_ 1
The Petition to the President of the United States (1899) 2
Commissions of Enquiry and The Hague Convention (1904) 3
The League of Nations (1919) 7
" " " " ( " ) 8
" " " " (1920) 9
SECTION 2
_Pacific Reprisals_ 9
The Blockade of the Menam (1893) 10
Pacific Blockade (1897) 11
The Venezuelan Controversy (1902) 13
The Venezuela Protocol (1903) 18
War and Reprisals (1908) 18
CHAPTER II
STEPS TOWARDS A WRITTEN LAW OF WAR 22
Count von Moltke on the Laws of Warfare (1881) 23
Professor Bluntschli's Reply to Count von Moltke (1881) 26
The United States Naval War Code (1901) 29
A Naval War Code (1902) 31
CHAPTER III
TERMINOLOGY 33
International Terminology (1918) 33
CHAPTER IV
CONVENTIONS AND LEGISLATION 36
Government Bills and International Conventions (1911) 36
The present Bill in Parliament (1914) 38
The Foreign Enlistment Bill (1912) 39
CHAPTER V
THE COMMENCEMENT OF WAR 41
SECTION 1
_Declaration of War_ 41
The Sinking of the _Kowshing_ (1894) 41
SECTION 2
_The Immediate Effects of the Outbreak of War_ 44
Foreign Soldiers in England (1909) 45
The Naval Prize Bill: Civil Disabilities of Enemy
Subjects (1911) 47
Enemy Ships in Port (1917) 49
CHAPTER VI
THE CONDUCT OF WARFARE 50
SECTION 1
_On the Open Sea_ 51
The Freedom of the Seas? (1917) 51
SECTION 2
_In Other Waters_ 51
The Suez Canal (1898) 51
" " " ( " ) 51
" " " ( " ) 53
" " " ( " ) 54
The Closing of the Dardanelles (1912) 55
" " " " " ( " ) 58
SECTION 3
_In a Special Danger Zone?_ 59
The German Threat (1915) 59
SECTION 4
_Aerial Warfare_ 61
The Debate on Aeronautics (1909) 61
The Aerial Navigation Act (1913) 63
Sovereignty over the Air (1913) 65
Attack from the Air: The Enforcement of International Law (1914) 66
" " " " The Rules of International Law (1914) 67
SECTION 5
_Submarines_ 69
Germany and the Hague (1914) 69
The "Pirates" (March 13, 1915) 70
Submarine Crews (March 22, 1915) 71
Mr. Wilson's Note (May 16, 1915) 72
SECTION 6
_Lawful Belligerents_ 73
Guerilla Warfare (1906) 73
The Russian Use of Chinese Clothing (1904) 75
The Rights of Armed Civilians (1914) 77
Civilians in Warfare: The Right to take up Arms (1914) 78
Civilians and a Raid (1914) 79
Miss Cavell's Case (1915) 79
SECTION 7
_Privateering and the Declaration of Paris_ 80
Our Mercantile Marine in War Time (1898) 81
" " " " " " ( " ) 84
Our Mercantile Marine in War (1898) 87
The Declaration of Paris (1911) 87
" " " " (1914) 89
" " " " (1916) 91
" " " " (1916) 92
SECTION 8
_Assassination_ 93
The Natal Proclamation (1906) 93
SECTION 9
_The Choice of Means of Injuring_ 94
Bullets in Savage Warfare (1903) 94
Gases (1918) 97
SECTION 10
_The Geneva Convention_ 98
Wounded Horses in War (1899) 98
SECTION 11
_Enemy Property in Occupied Territory_ 100
International "Usufruct" (1898) 101
Requisitions in Warfare (1902) 103
SECTION 12
_Enemy Property at Sea_ 104
Private Property at Sea (1913) 104
SECTION 13
_Martial Law_ 105
The Executions at Pretoria (1901) 106
The Petition of Right (1901) 108
The Petition of Right (1902) 109
Martial Law in Natal (1906) 111
SECTION 14
_The Naval Bombardment of Open Coast Towns_ 112
Naval Atrocities (1888) 113
The Naval Manoeuvres (1888) 113
" " " ( " ) 117
Naval Bombardments of Unfortified Places (1904) 120
SECTION 15
_Belligerent Reprisals_ 123
Reprisals (1917) 123
" ( " ) 124
SECTION 16
_Peace_ 124
Undesirable Peace Talk (1915) 124
CHAPTER VII
THE RIGHTS AND DUTIES OF NEUTRALS 126
SECTION 1
_The Criterion of Neutral Conduct_ 126
Professor de Martens on the Situation (1905) 126
Neutrals and the Laws of War (1915) 127
SECTION 2
_The Duties of Neutral States, and the Liabilities of Neutral
Individuals, distinguished_ 129
Contraband of War (1904) 130
Coal for the Russian Fleet (1904) 132
German War Material for Turkey (1911) 135
SECTION 3
_Neutrality Proclamations_ 135
The British Proclamation of Neutrality (1904) 136
" " " " ( " ) 138
" " " " (1911) 141
The Proclamation of Neutrality (1911) 143
SECTION 4
_Neutral Hospitality_ 143
Belligerent Fleets in Neutral Waters (1905) 144
The _Appam_ (1916) 146
SECTION 5
_Carriage of Contraband_ 147
_Absolute and Conditional Contraband_ 147
Contraband of War (1898) 147
Is Coal Contraband of War? (1904) 149
Cotton as Contraband of War (1905) 151
" " " " (1916) 154
Japanese Prize Law (1905) 155
" " " (1915) 157
_Continuous Voyages_ 157
Prize Law (1900) 158
The _Allanton_ (1904) 161
_Unqualified Captors_ 162
The _Allanton_ (1904) 162
SECTION 6
_Methods of Warfare as affecting Neutrals_ 164
_Mines_ 164
Mines in the Open Sea (1904) 164
Territorial Waters (1904) 166
_Cable-cutting_ 168
Submarine Cables (1881) 168
" " in Time of War (1897) 169
" " " " " " ( " ) 171
SECTION 7
_Destruction of Neutral Prizes_ 173
Russian Prize Law (1904) 174
" " " ( " ) 177
" " " ( " ) 178
The Sinking of Neutral Prizes (1905) 179
SECTION 8
_An International Prize Court_ 181
An International Prize Court (1907) 182
A New Prize Law (1907) 183
" " " " ( " ) 186
" " " " ( " ) 189
SECTION 9
_The Naval Prize Bill_ 191
The Naval Prize Bill (1910) 192
" " " " (1911) 194
Naval Prize Money (1918) 195
SECTION 10
_The Declaration of London_ 196
The Declaration of London (1909) 196
" " " " (1910) 197
" " " " (1911) 199
" " " " ( " ) 202
" " " " ( " ) 203
" " " " (1915) 204
" " " " (1916) 205
Germany wrong again (1917) 207
INDEX 209
CHAPTER I
MEASURES SHORT OF WAR FOR THE SETTLEMENT OF INTERNATIONAL CONTROVERSIES
SECTION 1
_Friendly Measures_
Of the letters which follow, the first was suggested by a
petition presented in October, 1899, to the President of the
United States, asking him to use his good offices to terminate
the war in South Africa; the second by discussions as to the
advisability of employing, for the first time, an International
Commission of Enquiry, for the purpose of ascertaining the
facts of the lamentable attack perpetrated by the Russian fleet
upon British fishing vessels off the Dogger Bank, on October
21, 1905. The Commission sat from January 19 to February 25,
1905, and its report was the means of terminating a period of
great tension in the relations of the two Powers concerned (see
_Parl. Paper_, Russia, 1905, No. 3): this letter deals also
with Arbitration, under The Hague Convention of 1899.
It may be worth while here to point out that besides direct
negotiation between the Powers concerned, four friendly methods
for the settlement of questions at issue between them are now
recognised, _viz_ (1) Good offices and mediation of third
Powers; (2) "Special mediation"; (3) "International Commissions
of Enquiry"; (4) Arbitration. All four were recommended by The
Hague Convention of 1899 "For the Peaceful Settlement of
International Disputes" (by which, indeed, (2) and (3) were
first suggested), as also by the amended re-issue of that
convention in 1907. It must be noticed that resort to any of
these methods is entirely discretionary, so far as any rule of
International Law is concerned; all efforts to render it
universally and unconditionally obligatory having, perhaps
fortunately, hitherto failed.
It remains to be seen how far the settlement of international
controversies has been facilitated by the establishment of a
"League of Nations" (to which reference is made in the
concluding letters of this chapter), and, in particular, by the
plan for the establishment of a "Permanent Court of
International Justice," formulated by the League, in pursuance
of Art. 14 of the Treaty of Versailles, and submitted to its
members in December, 1920.
THE PETITION TO THE PRESIDENT OF THE UNITED STATES
Sir,--It seems that a respectably, though perhaps thoughtlessly signed
petition was on Thursday presented to President McKinley, urging him to
offer his good offices to bring to an end the war now being waged in
South Africa. From the _New York World_ cablegram, it would appear that
the President was requested to take this step "in accordance with Art. 3
of the protocol of the Peace Conference at The Hague." The reference
intended is doubtless to the _Convention pour le règlement pacifique des
conflits internationaux_, prepared at the Conference [of 1899], Art. 3
of which is to the following effect:--
"Les Puissances signataires jugent utile qu'une ou plusieurs
Puissances étrangères au conflit offrent de leur propre
initiative, en tant que les circonstances s'y prêtent, leurs
bons offices ou leur médiation aux États en conflit.
"Le droit d'offrir les bons offices ou la médiation appartient
aux Puissances étrangères au conflit, même pendant le cours
des hostilités.
"L'exercice de ce droit ne peut jamais être considéré par
l'une ou l'autre des parties en litige comme un acte peu
amical."
Several remarks are suggested by the presentation of this petition:--
(1) One might suppose from the glib reference here and elsewhere made to
The Hague Convention, that this convention is already in force, whereas
it is [1899], in the case of most, if not all, of the Powers represented
at the conference, a mere unratified draft, under the consideration of
the respective Governments.
(2) The article, if it were in force, would impose no duty of offering
good offices, but amounts merely to the expression of opinion that an
offer of good offices is a useful and unobjectionable proceeding, in
suitable cases (_en tant que les circonstances s'y prêtent_). It cannot
for a moment be supposed that the President would consider that an
opportunity of the kind contemplated was offered by the war in South
Africa.
(3) One would like to know at what date, if at all, the Prime Minister
of the British colony of the Cape was pleased, as is alleged, to follow
the lead of the Presidents of the two Boer Republics in bestowing his
grateful approval upon the petition in question.
Your obedient servant,
T. E. HOLLAND.
Oxford, October 28 (1899).
_Par._ 2 (1).--The Convention of 1899 was ratified by Great
Britain, on September 4, 1900; and between that year and 1907
practically all civilised Powers ratified or acceded to it. It
is now, for almost all Powers, superseded by The Hague
Convention, No. i. of 1907, which, reproduces Art. 3 of the
older Convention, inserting, however, after the word "utile,"
the words "et désirable."
_Ib._ (2).--On March 6, 1900, the two Boer Republics proposed
that peace should be made on terms which included the
recognition of their independence. Great Britain having, on
March 11, declared such recognition to be inadmissible, the
European Powers which were requested to use their good offices
to bring this about declined so to intervene. The President of
the United States, however, in a note delivered in London on
March 13, went so far as to "express an earnest hope that a way
to bring about peace might be found," and to say that he would
aid "in any friendly manner to bring about so happy a result."
Lord Salisbury, on the following day, while thanking the United
States Government, replied that "H.M. Government does not
propose to accept the intervention of any Power in the South
African War." Similar replies to similar offers had been made
both by France and Prussia in 1870, and by the United States in
1898.
COMMISSIONS OF ENQUIRY AND THE HAGUE CONVENTION
Sir,--It is just now [1904] especially desirable that the purport of
those provisions of The Hague Convention "for the peaceful settlement of
international controversies" which deal with "international commissions
of enquiry" should be clearly understood. It is probably also desirable
that a more correct idea should be formed of the effect of that
convention, as a whole, than seems to be generally prevalent. You may,
therefore, perhaps, allow me to say a few words upon each of these
topics.
Art. 9 of the convention contains an expression of opinion to the effect
that recourse to an international commission of enquiry into disputed
questions of fact would be useful. This recommendation is, however,
restricted to "controversies in which neither honour nor essential
interests are involved," and is further limited by the phrase "so far as
circumstances permit." Two points are here deserving of notice.
In the first place, neither "the honour and vital interests clause," as
seems to be supposed by your correspondent Mr. Schidrowitz, nor the
clause as to circumstances permitting, is in any way modified by the
article which follows. Art. 10 does not enlarge the scope of Art. 9, but
merely indicates the procedure to be followed by Powers desirous of
acting under it. In the second place, it is wholly unimportant whether
or no the scope of Art. 9 is enlarged by Art. 10. The entire liberty of
the Powers to make any arrangement which may seem good to them for
clearing up their differences is neither given, nor impaired, by the
articles in question, to which the good sense of the Conference declined
to attach any such obligatory force as had been proposed by Russia. It
may well be that disputant Powers may at any time choose to agree to
employ the machinery suggested by those articles, or something
resembling it, in cases of a far more serious kind than those to which
alone the convention ventured to make its recommendation applicable; and
this is the course which seems to have been followed by the Powers
interested with reference to the recent lamentable occurrence in the
North Sea.
As to the convention as a whole, it is important to bear in mind that,
differing in this respect from the two other conventions concluded at
The Hague, it is of a non-obligatory character, except in so far as it
provides for the establishment of a permanent tribunal at The Hague, to
which, however, no Power is bound to resort. It resembles not so much a
treaty as a collection of "pious wishes" (_voeux_), such as those which
were also adopted at The Hague. The operative phrases of most usual
occurrence in the convention are, accordingly, such as "jugent utile";
"sont d'accord pour recommander"; "est reconnu comme le moyen le plus
efficace"; "se réservent de conclure des accords nouveaux, en vue
d'étendre l'arbitrage obligatoire à tous les cas qu'elles jugeront
possible de lui soumettre."
It is a matter for rejoicing that, in accordance with the suggestion
contained in the phrase last quoted, so many treaties, of which that
between Great Britain and Portugal is the most recent, have been entered
into for referring to The Hague tribunal "differences of a juridical
nature, or such as relate to the interpretation of treaties; on
condition that they do not involve either the vital interests or the
independence or honour of the two contracting States." Such treaties,
conforming as they all do to one carefully defined type, may be
productive of much good. They testify to, and may promote, a very widely
spread _entente cordiale_, they enhance the prestige of the tribunal of
The Hague, and they assure the reference to that tribunal of certain
classes of questions which might otherwise give rise to international
complications. Beyond this it would surely be unwise to proceed. It is
beginning to be realised that what are called "general" treaties of
arbitration, by which States would bind themselves beforehand to submit
to external decision questions which might involve high political
issues, will not be made between Powers of the first importance; also,
that such treaties, if made, would be more likely to lead to fresh
misunderstandings than to secure the peaceful settlement of disputed
questions.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 21 (1904).
_Pars._ 1-3.--The topic of "Commissions of Enquiry," which
occupied Arts. 9-13 of the Convention of 1899 "For the Peaceful
Settlement of International Disputes," is more fully dealt with
in Arts. 9-36 of the Convention as amended in 1907.
_Par._ 4.--The amended Convention, as a whole, is still, like
its predecessor, purely facultative. The Russian proposal to
make resort to arbitration universally obligatory in a list of
specified cases, unless when the "vital interests or national
honour" of States might be involved, though negatived in 1899,
was renewed in 1907, in different forms, by several Powers,
which eventually concurred in supporting the
Anglo-Portuguese-American proposal, according to which,
differences of a juridical character, and especially those
relating to the interpretation of treaties, are to be submitted
to arbitration, unless they affect the vital interests,
independence, or honour, of the States concerned, or the
interests of third States; while all differences as to the
interpretation of treaties relating to a scheduled list of
topics, or as to the amount of damages payable, where liability
to some extent is undisputed, are to be so submitted without
any such reservation. This proposal was accepted by thirty-two
Powers, but as nine Powers opposed it, and three abstained from
voting, it failed to become a convention. The delegates to the
Conference of 1907 went, however, so far as to include in their
"Final Act" a statement to the effect that they were unanimous:
(1) "in recognising the principle of obligatory arbitration";
(2) "in declaring that certain differences, and, in particular,
such as relate to the interpretation and application of the
provisions of International Conventions, are suitable for being
submitted to obligatory arbitration, without any reservations."
_Par._ 5.--The Convention between France and Great Britain,
concluded on October 14, 1903, for five years, and renewed in
1908, and again in 1913, for a like period, by which the
parties agree to submit to The Hague tribunal any differences
which may arise between them, on condition "that they do not
involve either the vital interests, or the independence, or
honour of the two contracting States, and that they do not
affect the interests of a third Power," has served as a model
or "common form," for a very large number of conventions to the
same effect, entered into between one State and another. The
Convention of April 11, 1908, between Great Britain and the
United States is substantially of this type.
But see now the three letters which follow.
THE LEAGUE OF NATIONS
Sir,--The League is unquestionably "a brave design." Sympathy with its
objects and some hope that they may be realised have induced myself, as,
doubtless many others, to abstain from criticising the way in which the
topic has been handled by the representatives of the victorious Powers.
Recent discussions seem, however, to render such reticence no longer
desirable.
It begins to be recognised that, as some of us have all along held to be
the case, a serious mistake was made by the Paris delegates when they
combined in one and the same document provisions needed for putting an
end to an existing state of war with other provisions aiming at the
creation in the future of a new supernational society. Two matters so
wholly incongruous in character should surely have been dealt with
separately. Whether it is now too late to attempt a remedy for the
consequences of this unfortunate combination is a question which can be
answered only by the diplomatists whose business it is to be intimately
in touch with the susceptibilities of the various nations concerned. In
the meantime, however, on the assumption that this state of things is
productive of regrettable results, I may perhaps venture to indicate,
recommending their adoption, the steps which appear to be required for
the reformation of the Treaty as drafted. My suggestions would run as
follows:--
(1) Subtract from the Treaty of Versailles, Parts I. and XIII., the
former constituting a League of Nations, the latter, in pursuance of a
recital that universal peace "can be established only if it is based
upon social justice," wholly occupied with a sufficiently ambitious
scheme for the regulation by the League of all questions relating to
"Labour" which may arise within its jurisdiction.
(2) Let Part I., with Part XIII. annexed, constitute a new and
independent Treaty; to be, as such, submitted to the Powers for further
consideration. (The opportunity might be taken of ridding it of all
references to a system of "mandates," which might very probably lead to
jealousies and misunderstandings.)
(3) Parts II. to XII., XIV., and XV. would then constitute the real
Treaty of Peace, in which it would, however, be necessary in the
numerous articles attributing functions, for the most part of a
temporary character, the "League of Nations," to substitute for any
mention of the League words descriptive of some other authority, yet to
be created, such as, for instance, "a Commission to be constituted by
the principal Allied and Associated Powers."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 16 (1919).
Sir,--Let me assure Lord Robert Cecil that I am perfectly serious in
giving expression to a long-felt wish that the Treaty of Peace could be
relieved of articles relating exclusively to an as yet to be created
League of Nations, and in proceeding to indicate the steps that must be
taken if this reform is to be effected.
It can hardly be necessary also to assure Lord Robert that I am fully
aware of the formidable, though perhaps not insuperable, difficulties
which would beset any efforts to carry out my suggestions. He may have
inferred so much from my letter of the 16th, in which, treating the
question whether it is now too late to attempt a remedy for the existing
state of things as beyond the competence of an outsider, I describe it
as one which can be answered "only by the diplomatists whose business it
is to be intimately in touch with the susceptibilities of the various
nations concerned."
On a point of detail, I am surprised that Lord Robert is unwilling that
the contents of Part XIII. should be removed to their natural context,
on the ground that the Labour organisation might be annoyed if this were
done. I am, however, confident that the organisation is too intelligent
not to see that it would lose nothing if the articles in which it is
interested were made an integral part of a Convention constituting a
League of Nations; the League being already solely charged with giving
effect to the articles in question.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 20 (1919).
Sir,--Professor Alison Phillips is not quite accurate in attributing to
me a belief that the task of amending the Treaty of Versailles is "not
beyond the powers of competent diplomatists." No such belief is
expressed in my letter of December 16, in which I was careful to admit
that the question, "whether it is now too late to attempt" the reform
which appears to me to be desirable is one "which can be answered only
by the diplomatists."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, January 5 (1920).
* * * * *
SECTION 2
_Pacific Reprisals_
The four letters next following were suggested by the ambiguous
character of the blockades instituted by France against Siam in
1893, by the Great Powers against Crete in 1897, and by Great
Britain, Germany, and Italy, against Venezuela in 1902. The
object, in each case, was to explain the true nature of the
species of reprisals known as "Pacific Blockade," and to point
out the difference between the consequences of such a measure
and those which result from a "Belligerent Blockade." A fifth
letter, written with reference to the action of the Netherlands
against Venezuela in 1908, emphasises the desirability of more
clearly distinguishing between war and reprisals. On the
various applications of a blockade in time of peace, see the
author's _Studies in International Law_, pp. 130-150.
THE BLOCKADE OF THE MENAM
Sir,--Upon many questions of fact and of policy involved in the quarrel
between France and Siam it may be premature as yet to expect explicit
information from the French Government; but there should not be a
moment's doubt as to the meaning of the blockade which has probably by
this time been established.
Is France at war with Siam? This may well be the case, according to
modern practice, without any formal declaration of war; and it is, for
international purposes, immaterial whether the French Cabinet, if it has
commenced a war without the sanction of the Chambers, has or has not
thereby violated the French Constitution. If there is a war, and if the
blockade, being effective, has been duly notified to the neutral Powers,
the vessels of those Powers are, of course, liable to be visited, and,
if found to be engaged in breach of the blockade, to be dealt with by
the French Prize Courts.
Or is France still at peace with Siam, and merely putting upon her that
form of pressure which is known as "pacific blockade"?
In this case, since there is no belligerency there is no neutrality, and
the ships of States other than that to which the pressure is being
applied are not liable to be interfered with. The particular mode of
applying pressure without going to war known as "pacific blockade"
dates, as is well known, only from 1827. It has indeed been enforced, by
England as well as by France, upon several occasions, against the
vessels of third Powers; but this practice has always been protested
against, especially by French jurists, as an unwarrantable interference
with the rights of such Powers, and was acknowledged by Lord Palmerston
to be illegal. The British Government distinctly warned the French in
1884 that their blockade of Formosa could be recognised as affecting
British vessels only if it constituted an act of war against China; and
when the Great Powers in 1886 proclaimed a pacific blockade of the
coasts of Greece they carefully limited its operation to ships under the
Greek flag.
The Subject has been exhaustively considered by the Institut de Droit
International, which, at its meeting at Heidelberg in 1887, arrived at
certain conclusions which may be taken to express the view of learned
Europe. They are as follows:--
"L'établissement d'un blocus en dehors de l'état de guerre ne
doit être considere comme permis par le droit des gens que
sous les conditions suivantes:--
"1. Les navires de pavillon étranger peuvent entrer librement
malgré le blocus.
"2. Le blocus pacifique doit être déclaré et notifié
officiellement, et maintenu par une force suffisante.
"Les navires de la puissance bloquée qui ne respectent pas un
pareil blocus peuvent être séquestrés. Le blocus ayant cessé,
ils doivent être restitués avec leur cargaisons à leurs
propriétaires, mais sans dédommagement à aucun titre."
If the French wish to reap the full advantages of a blockade of the
Siamese coast they must be prepared, by becoming belligerent, to face
the disadvantages which may result from the performance by this country
of her duties as a neutral.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Athenæum Club, July 26 (1893).
PACIFIC BLOCKADE
Sir,--The letter signed "M." in your issue of this morning contains, I
think, some statements which ought not to pass uncorrected. A "blockade"
is, of course, the denial by a naval squadron of access for vessels to a
defined portion of the coasts of a given nation. A "pacific blockade" is
one of the various methods--generically described as "reprisals," such
as "embargo," or seizure of ships on the high seas--by which, without
resort to war, pressure, topographically or otherwise limited in extent,
may be put upon an offending State. The need for pressure of any kind
is, of course, regrettable, the only question being whether such limited
pressure be not more humane to the nation which experiences it, and less
distasteful to the nation which exercises it, than is the letting loose
of the limitless calamities of war.
The opinion of statesmen and jurists upon this point has undergone a
change, and this because the practice known as "pacific blockade" has
itself changed. The practice, which is comparatively modern, dating only
from 1827, was at first directed against ships under all flags, and
ships arrested for breach of a pacific blockade were at one time
confiscated, as they would have been in time of war. It has been purged
of these defects as the result of discussions, diplomatic and
scientific. As now understood, the blockade is enforced only against
vessels belonging to the "quasi-enemy," and even such vessels, when
arrested, are not confiscated, but merely detained till the blockade is
raised. International law does not stand still; and having some
acquaintance with Continental opinion on the topic under consideration,
I read with amazement "M.'s" assertion that "the majority in number,"
"the most weighty in authority" of the writers on international law
"have never failed to protest against such practices as indefensible in
principle." The fact is that the objections made by, e.g. Lord
Palmerston in 1846, and by several writers of textbooks, to pacific
blockade, had reference to the abuses connected with the earlier stages
of its development. As directed only against the ships of the
"quasi-enemy," it has received the substantially unanimous approbation
of the Institut de Droit International at Heidelberg in 1887, after a
very interesting debate, in which the advocates of the practice were led
by M. Perels, of the Prussian Admiralty, and its detractors by Professor
Geffken. It is true that in an early edition of his work upon
international law my lamented friend, Mr. Hall, did use the words
attributed to him by "M.": "It is difficult to see how a pacific
blockade is justifiable." But many things, notably Lord Granville's
correspondence with France in 1884 and the blockade of the Greek coast
in 1886, have occurred since those words were written. If "M." will turn
to a later edition of the work in question he will see that Mr. Hall had
completely altered his opinion on the subject, or rather that, having
disapproved of the practice as unreformed, he blesses it altogether in
its later development. With reference to the utility of the practice, I
should like to call the attention of "M." to a passage in the latest
edition of Hall's book which is perhaps not irrelevant to current
politics:--
"The circumstances of the Greek blockade of 1886 show that
occasions may occur in which pacific blockade has an efficacy
which no other measure would possess. The irresponsible
recklessness of Greece was endangering the peace of the
world; advice and threats had been proved to be useless; it
was not till the material evidence of the blockade was
afforded that the Greek imagination could be impressed with
the belief that the majority of the Great Powers of Europe
were in earnest in their determination that war should be
avoided."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 5 (1897).
THE VENEZUELAN CONTROVERSY
Sir,--Apart from the practical difficulty, so ably described by Sir
Robert Giffen in your issue of this morning, of obtaining compensation
in money from a State which seems to be at once bankrupt and in the
throes of revolution, not a few questions of law and policy, as to which
misunderstanding is more than probable, are raised from day to day by
the action of the joint squadrons in Venezuelan waters. It may therefore
be worth while to attempt to disentangle the more important of these
questions from the rest, and to indicate in each case the principles
involved.
1. Are we at war with Venezuela? Till reading the reports of what passed
last night in the House of Commons, I should have replied to this
question unhesitatingly in the negative. Most people whose attention has
been directed to such matters must have supposed that we were engaged in
the execution of "reprisals," the nature and legitimacy of which have
long been recognised by international law. They consist, of course, in
the exertion of pressure, short of war; over which they possess the
following advantages: They are strictly limited in scope; they cease,
when their object has been attained, without the formalities of a treaty
of peace; and, no condition of "belligerency" existing between the
Powers immediately concerned, third Powers are not called upon to
undertake the onerous obligations of "neutrality." The objection
sometimes made to reprisals, that they are applicable only to the weaker
Powers, since a strong Power would at once treat them as acts of war, is
indeed the strongest recommendation of this mode of obtaining redress.
To localise hostile pressure as far as possible, and to give to it such
a character as shall restrict its incidence to the peccant State, is
surely in the interest of the general good. That the steps taken are
such as would probably, between States not unequally matched, cause an
outbreak of war cannot render them inequitable in cases where so
incalculable an evil is unlikely to follow upon their employment.
2. The justification of a resort either to reprisals or to war, in any
given case, depends, of course, upon the nature of the acts complained
of, and upon the validity of the excuses put forward either for the acts
themselves, or for failure to give satisfaction for them. The British
claims against Venezuela seem to fall into three classes. It will hardly
be disputed that acts of violence towards British subjects or vessels,
committed under State authority, call for redress. Losses by British
subjects in the course of civil wars would come next, and would need
more careful scrutiny (on this point the debates and votes of the
Institut de Droit International, at its meeting at Neuchâtel in 1900,
may be consulted with advantage). Last of all would come the claims of
unpaid bondholders, as to which Mr. Balfour would seem to endorse, in
principle, the statement made in 1880 by Lord Salisbury who, while
observing that "it would be an extreme assertion to say that this
country ought never to interfere on the part of bondholders who have
been wronged," went on to say that "it would be hardly fair if any body
of capitalists should have it in their power to pledge the people of
this country to exertions of such an extensive character.... They would
be getting the benefit of an English guarantee without paying the price
of it."
3. Reprisals may be exercised in many ways; from such a high-handed act
as the occupation of the Principalities by Russia in 1853, to such a
mere seizure of two or three merchant vessels as occurred in the course
of our controversy with Brazil in 1861. In modern practice, these
measures imply a temporary sequestration, as opposed to confiscation or
destruction, of the property taken. In the belief that reprisals only
were being resorted to against Venezuela one was therefore glad to hear
that the sinking of gunboats by the Germans had been explained as
rendered necessary by their unseaworthiness.
4. Pacific reprisals should also, according to the tendency of modern
opinion and practice, be so applied as not to interfere with the
interests of third Powers and their subjects. This point has been
especially discussed with reference to that species of reprisal known as
a "pacific blockade," of which some mention has been made in the present
controversy. The legitimacy of this operation, though dating only from
1827, if properly applied, is open to no question. Its earlier
applications were, no doubt, unduly harsh, not only towards the peccant
State, but also towards third States, the ships of which were even
confiscated for attempting to break a blockade of this nature. Two views
on this subject are now entertained--viz. (1) that the ships of third
Powers breaking a pacific blockade may be turned back with any needful
exertion of force, and, if need be, temporarily detained; (2) that they
may not be interfered with. The former view is apparently that of the
German Government. It was certainly maintained by M. Perels, then as now
the adviser to the German Admiralty, during the discussion of the
subject by the Institut de Droit International at Heidelberg in 1887.
The latter view is that which was adopted by the Institut on that
occasion. It was maintained by Great Britain, with reference to the
French blockade of Formosa in 1884; was acted on by the allied Powers in
the blockade of the coast of Greece, instituted in 1886; and is
apparently put forward by the United States at the present moment.
5. If, however, we are at war with Venezuela (as will, no doubt, be the
case if we proclaim a belligerent blockade of the coast, and may at any
moment occur, should Venezuela choose to treat our acts, even if
intended only by way of reprisals, as acts of war), the situation is
changed in two respects: (1) the hostilities which may be carried on by
the allies are no longer localised, or otherwise limited, except by the
dictates of humanity; (2) third States become _ipso facto_ "neutrals,"
and, as such, subject to obligations to which up to that moment they had
not been liable. Whatever may have previously been the case, it is
thenceforth certain that their merchant vessels must respect the (now
belligerent) blockade, and are liable to visit, search, seizure, and
confiscation if they attempt to break it.
6. If hostile pressure, whether by way of reprisals or of war, is
exercised by the combined forces of allies, the terms on which this is
to be done must obviously be arranged by previous agreement. More
especially would this be requisite where, as in the case of Great
Britain and Germany, different views are entertained with reference to
the acts which are permissible under a "pacific blockade."
7. When, besides the Power, or Powers, putting pressure upon a given
State, with a view to obtaining compensation for injuries received from
it, other Powers, though taking no part in what is going on, give notice
that they also have claims against the same offender; delicate questions
may obviously arise between the creditors who have and those who have
not taken active steps to make their claims effective. In the present
instance, France is said to assert that she has acquired a sort of prior
mortgage on the assets of Venezuela; and the United States, Spain, and
Belgium declare themselves entitled to the benefit of the
"most-favoured-nation clause" when those assets are made available for
creditors. What principles are applicable to the solution of the novel
questions suggested by these competing claims?
8. It is satisfactory to know, on the highest authority, that the
"Monroe doctrine" is not intended to shield American States against the
consequences of their wrongdoing; since the cordial approval of the
doctrine which has just been expressed by our own Government can only be
supposed to extend to it so far as it is reasonably defined and applied.
Great Britain, for one, has no desire for an acre of new territory on
the American continent. The United States, on the other hand, will
doubtless readily recognise that, if international wrongs are to be
redressed upon that continent, aggrieved European Powers may
occasionally be obliged to resort to stronger measures than a mere
embargo on shipping, or the blockade (whether "pacific" or
"belligerent") of a line of coast.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 18 (1902).
THE VENEZUELA PROTOCOL
Sir,--The close (for the present, at any rate) of the Venezuelan
incident will be received with general satisfaction. One of the articles
of the so-called "protocol" of February 18 seems, however, to point a
moral which one may hope will not be lost sight of in the future--viz.
the desirability of keeping unblurred the line of demarcation between
such unfriendly pressure as constitutes "reprisals" and actual war.
After all that has occurred--statements in Parliament, action of the
Governor of Trinidad in bringing into operation the dormant powers of
the Supreme Court of the island as a prize Court, &c.--one would have
supposed that there could be no doubt, though no declaration had been
issued, that we were at war with Venezuela.
Our Government has, therefore, been well advised in providing for the
renewal of any treaty with that Power which may have been abrogated by
the war; but it is curious to find that the article (7) of the protocol
which effects this desirable result begins by a recital to the effect
that "it may be contended that the establishment of a blockade of the
Venezuelan ports by the British naval forces has _ipso facto_ created a
state of war between Great Britain and Venezuela."
It is surely desirable that henceforth Great Britain should know, and
that other nations should at least have the means of knowing, for
certain, whether she is at war or at peace.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, February 17 (1903).
WAR AND REPRISALS
Sir,--Professor Westlake's interesting letter as to the measures
recently taken by the Netherlands Government in Venezuelan waters
opportunely recalls attention to a topic upon which I addressed you
when, six years ago, our own Government was similarly engaged in putting
pressure upon Venezuela--viz. the desirability of drawing a clear line
between war and reprisals. Perhaps I may now be allowed to return, very
briefly, to this topic, with special reference to Professor Westlake's
remarks.
In any discussion of the questions involved, we ought, I think, clearly
to realise that The Hague Convention, No. iii. of 1907, has no
application to any measures not amounting to war. The "hostilities"
mentioned in Art. 1 of the Convention are, it will be observed,
exclusively such as must not commence without either a "declaration of
war," or "an ultimatum with a conditional declaration of war"; and Art.
2 requires that the "state of war" thus created shall be notified to
"neutral Powers." There are, of course, no Powers answering to this
description till war has actually broken out. Neutrality presupposes
belligerency. Any other interpretation of the Convention would, indeed,
render "pacific blockades" henceforth impossible.
In the next place, we must at once recognise that the application of the
term "reprisals," whatever may have been its etymological history, must
no longer be restricted to seizure of property. It has now come to
cover, and it is the only term which does cover generically, an
indeterminate list of unfriendly acts, such as embargo, pacific
blockade, seizure of custom-houses, and even occupation of territory, to
which resort is had in order to obtain redress from an offending State
without going to war with it. The pressure thus exercised, unlike the
unlimited _licentia laedendi_ resulting from a state of war, is
localised and graduated. It abrogates no treaties, and terminates
without a treaty of peace. It affects only indirectly, if at all, the
rights of States which take no part in the quarrel.
The questions which remain for consideration would seem to be the
following:--
1. Would it be feasible to draw up a definite list of the measures which
may legitimately be taken with a view to exercising pressure short of
war?--I think not. States differ so widely in offensive power and
vulnerability that it would be hardly advisable thus to fetter the
liberty of action of a State which considers itself to have been
injured.
2. Ought it to be made obligatory that acts of reprisal should be
preceded, or accompanied, by a notification to the State against which
they are exercised that they are reprisals and not operations of
war?--This would seem to be highly desirable; unless indeed it can be
assumed that, in pursuance of The Hague Convention of 1907, no war will
henceforth be commenced without declaration.
8. Ought a statement to the like effect to be made to nations not
concerned in the quarrel?--This would, doubtless, be convenient, unless
the non-receipt by them of any notification of a "state of war," in
pursuance of the Convention, could be supposed to render such a
statement superfluous.
On the ambiguous character sometimes attaching to reprisals as now
practised, I may perhaps refer to an article in the _Law Quarterly
Review_ for 1903, entitled "War Sub Modo."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 26 (1908).
The operations against Venezuela which were closed by the
protocol of February 13, 1903, had given rise to the
enunciation of the so-called "Drago doctrine," in a despatch,
addressed on December 29 of the preceding year, by the
Argentine Minister for Foreign Affairs to the Government of the
United States, which asserts that "public indebtedness cannot
justify armed intervention by a European Power, much less
material occupation by it of territory belonging to any
American nation." The reply of the United States declined to
carry the "Monroe doctrine" to this length, citing the passage
in President Roosevelt's message in which he says: "We do not
guarantee any State against punishment, if it misconducts
itself, provided such punishment does not take the form of the
acquisition of territory by any non-American Power."
It is, however, now provided by The Hague Convention, No. ii.
of 1907, ratified by Great Britain on November 27, 1909, that
"the contracting Powers have agreed not to have recourse to
armed force for the recovery of contractual debts, claimed from
the Government of a country by the Government of another
country, as being due to its subjects. This stipulation shall
have no application when the debtor State declines, or leaves
unanswered, an offer of arbitration, or, having accepted it,
renders impossible the conclusion of the terms of reference
(_compromis_), or, after the arbitration, fails to comply with
the arbitral decision."
CHAPTER II
STEPS TOWARDS A WRITTEN LAW OF WAR
A large body of written International Law, with reference to
the conduct of warfare, has been, in the course of the last
half-century, and, more especially, in quite recent years,
called into existence by means of General Conventions, or
Declarations, of which mention must frequently be made in the
following pages. Such are:--
(i.) With reference to war, whether on land or at sea: the
Declaration of St. Petersburg, of 1868, as to explosive
bullets; the three Hague Declarations of 1899 (of which the
first was repeated in 1907), as to projectiles from balloons,
projectiles spreading dangerous gases, and expanding bullets;
The Hague Convention, No. iii. of 1907 as to Declaration of
War; all ratified by Great Britain, except the Declaration of
St. Petersburg, which was thought to need no ratification.
(ii.) With reference only to war on land: the Geneva Convention
of 1906 (superseding that of 1864) as to the sick and wounded,
which was generally ratified, though by Great Britain only in
1911 (it was extended to maritime warfare by Conventions iii.
of 1899 and x. of 1907, both ratified by Great Britain, _cf.
infra_, Ch. VI. Section 10); the Hague Conventions of 1907, No.
iv. (superseding the Convention of 1899) as to the conduct of
warfare, and No. v. as to neutrals, of which only the former
has as yet been ratified by Great Britain.
(iii.) With reference only to war at sea: the Declaration of
Paris, of 1856, supposed apparently to need no ratification (to
which the United States is now the only important Power which
has not become a party), as to privateering, combination of
enemy and neutral property and blockades; The Hague Conventions
of 1907, No. vi. as to enemy merchant vessels at outbreak, No.
vii. as to conversion of merchantmen into warships, No. viii.
as to mines, No. ix. as to naval bombardments, No. x. as to the
sick and wounded, No. xi. as to captures, No. xii. as to an
International Prize Court, supplemented by the Convention of
1910, No. xiii. as to neutrals. It must be observed that, of
these Conventions, Great Britain has ratified only vi., vii.,
viii., ix., and x., the three last subject to reservations. The
Declaration of London of 1909, purporting to codify the laws of
naval warfare as to blockade, contraband, hostile assistance,
destruction of prizes, change of flag, enemy character, convoy,
resistance and compensation, and so to facilitate the working
of the proposed International Prize Court, if, and when, this
Court should come into existence, has failed to obtain
ratification, as will be hereafter explained.
Concurrently with the efforts which have thus been made to
ascertain the laws of war by general diplomatic agreement, the
way for such agreement has been prepared by the labours of the
Institut de Droit International, and by the issue by several
governments of instructions addressed to their respective
armies and navies.
The _Manuel des Lois de la Guerre sur Terre_, published by the
Institut in 1880, is the subject of the two letters which
immediately follow. Their insertion here, although the part in
them of the present writer is but small, may be justified by
the fact that they set out a correspondence which is at once
interesting (especially from its bearing upon the war of 1914)
and not readily elsewhere accessible.
The remaining letters in this chapter relate to the _Naval War
Code_, issued by the Government of the United States in 1900,
but withdrawn in 1904, though still expressing the views of
that Government, for reasons specified in a note to the British
_chargé d'affaires_ at Washington and printed in _Parl. Papers,
Miscell._ No. 5 (1909), p. 8. The United States, it will be
remembered, were also the first Power to attempt a codification
of the laws of war on land, in their _Instructions for the
Government of Armies of the United States_, issued in 1863, and
reissued in 1898. Some information as to this and similar
bodies of national instructions may be found in the present
writer's _Studies in International Law_, 1898, p. 85. _Cf._ his
_Manual of Naval Prize Law_, issued by authority of the
Admiralty in 1888, his _Handbook of the Laws and Customs of War
on Land_, issued by authority to the British Army in 1904, and
his _The Laws of War on Land (written and unwritten)_, 1908.
The Institut de Droit International, which has been engaged for
some years upon the Law of War at Sea, by devoting the whole of
its session at Oxford, in 1913, to the discussion of the
subject, produced a _Manuel des Lois de la Guerre sur Mer_,
framed in accordance with the now-accepted view which sanctions
the capture of enemy private property at sea. It is to be
followed by a manual framed in accordance with the contrary
view. _Cf._ the letters upon the _Declaration of London_, in
Ch. VII. Section 10, _infra_.
COUNT VON MOLTKE ON THE LAWS OF WARFARE
Sir,--You may perhaps think that the accompanying letter, recently
addressed by Count von Moltke to Professor Bluntschli, is of sufficient
general interest to be inserted in _The Times_. It was written with
reference to the Manual of the Laws of War which was adopted by the
Institut de Droit International at its recent session at Oxford. The
German text of the letter will appear in a few days at Berlin. My
translation is made from the proof-sheets of the February number of the
_Revue de Droit International_, which will contain also Professor
Bluntschli's reply.
Your obedient servant,
T. E. HOLLAND.
Oxford, January 29 (1881).
"Berlin, Dec. 11, 1880.
"You have been so good as to forward to me the manual
published by the Institut de Droit International, and you hope
for my approval of it. In the first place I fully appreciate
the philanthropic effort to soften the evils which result from
war. Perpetual peace is a dream, and it is not even a
beautiful dream. War is an element in the order of the world
ordained by God. In it the noblest virtues of mankind are
developed; courage and the abnegation of self, faithfulness to
duty, and the spirit of sacrifice: the soldier gives his life.
Without war the world would stagnate, and lose itself in
materialism.
"I agree entirely with the proposition contained in the
introduction that a gradual softening of manners ought to be
reflected also in the mode of making war. But I go further,
and think the softening of manners can alone bring about this
result, which cannot be attained by a codification of the law
of war. Every law presupposes an authority to superintend and
direct its execution, and international conventions are
supported by no such authority. What neutral States would ever
take up arms for the sole reason that, two Powers being at
war, the 'laws of war' had been violated by one or both of the
belligerents? For offences of that sort there is no earthly
judge. Success can come only from the religious moral
education of individuals and from the feeling of honour and
sense of justice of commanders who enforce the law and conform
to it so far as the exceptional circumstances of war permit.
"This being so, it is necessary to recognise also that
increased humanity in the mode of making war has in reality
followed upon the gradual softening of manners. Only compare
the horrors of the Thirty Years' War with the struggles of
modern times.
"A great step has been made in our own day by the
establishment of compulsory military service, which introduces
the educated classes into armies. The brutal and violent
element is, of course, still there, but it is no longer alone,
as once it was. Again, Governments have two powerful means of
preventing the worst kind of excesses--strict discipline
maintained in time of peace, so that the soldier has become
habituated to it, and care on the part of the department which
provides for the subsistence of troops in the field. If that
care fails, discipline can only be imperfectly maintained. It
is impossible for the soldier who endures sufferings,
hardships, fatigues, who meets danger, to take only 'in
proportion to the resources of the country.' He must take
whatever is needful for his existence. We cannot ask him for
what is superhuman.
"The greatest kindness in war is to bring it to a speedy
conclusion. It should be allowable with that view to employ
all methods save those which are absolutely objectionable
('dazu müssen alle nicht geradezu verwerfliche Mittel
freistehen'). I can by no means profess agreement with the
Declaration of St. Petersburg when it asserts that 'the
weakening of the military forces of the enemy' is the only
lawful procedure in war. No, you must attack all the resources
of the enemy's Government: its finances, its railways, its
stores, and even its prestige. Thus energetically, and yet
with a moderation previously unknown, was the late war against
France conducted. The issue of the campaign was decided in two
months, and the fighting did not become embittered till a
revolutionary Government, unfortunately for the country,
prolonged the war for four more months.
"I am glad to see that the manual, in clear and precise
articles, pays more attention to the necessities of war than
has been paid by previous attempts. But for Governments to
recognise these rules will not be enough to insure that they
shall be observed. It has long been a universally recognised
custom of warfare that a flag of truce must not be fired on,
and yet we have seen that rule violated on several occasions
during the late war.
"Never will an article learnt by rote persuade soldiers to see
a regular enemy (sections 2-4) in the unorganised population
which takes up arms 'spontaneously' (so of its own motion) and
puts them in danger of their life at every moment of day and
night. Certain requirements of the manual might be impossible
of realisation; for instance, the identification of the slain
after a great battle. Other requirements would be open to
criticism did not the intercalation of such words as 'if
circumstances permit,' 'if possible,' 'if it can be done,' 'if
necessary,' give them an elasticity but for which the bonds
they impose must be broken by inexorable reality.
"I am of opinion that in war, where everything must be
individual, the only articles which will prove efficacious are
those which are addressed specifically to commanders. Such are
the rules of the manual relating to the wounded, the sick, the
surgeons, and medical appliances. The general recognition of
these principles, and of those also which relate to prisoners,
would mark a distinct step of progress towards the goal
pursued with so honourable a persistency by the Institut de
Droit International.
"COUNT VON MOLTKE, Field-Marshal-General."
PROFESSOR BLUNTSCHLI'S REPLY TO COUNT VON MOLTKE
Sir,--In accordance with a wish expressed in several quarters, I send
you, on the chance of your being able to make room for it, a translation
of Professor Bluntschli's reply to the letter from Count von Moltke
which appeared in _The Times_ of the 1st inst.
Your obedient servant,
T. E. HOLLAND.
Oxford, February (1881).
"Christmas, 1880.
"I am very grateful for your Excellency's detailed and kind
statement of opinion as to the manual of the laws of war. This
statement invites serious reflections. I see in it a testimony
of the highest value, of historical importance; and I shall
communicate it forthwith to the members of the Institut de
Droit International.
"For the present I do not think I can better prove my
gratitude to your Excellency than by sketching the reasons
which have guided our members, and so indicating the nature of
the different views which prevail upon the subject.
"It is needless to say that the same facts present themselves
in a different light and give a different impression as they
are looked at from the military or the legal point of view.
The difference is diminished, but not removed, when an
illustrious general from his elevated position takes also into
consideration the great moral and political duties of States,
and when, on the other hand, the representatives of science of
international law set themselves to bring legal principles
into relation with military necessities.
"For the man of arms the interest of the safety and success of
the army will always take precedence of that of the
inoffensive population, while the jurist, convinced that law
is the safeguard of all, and especially for the weak against
the strong, will ever feel it a duty to secure for private
individuals in districts occupied by an enemy the
indispensable protection of law. There may be members of the
Institut who do not give up the hope that some day, thanks to
the progress of civilisation, humanity will succeed in
substituting an organised international justice for the wars
which now-a-days take place between sovereign States. But the
body of the Institut, as a whole, well knows that that hope
has no chance of being realised in our time, and limits its
action in this matter to two principal objects, the attainment
of which is possible:--
"1. To open and facilitate the settlement of trifling disputes
between nations by judicial methods, war being unquestionably
a method out of all proportion in such cases.
"2. To aid in elucidating and strengthening legal order even
in time of war.
"I acknowledge unreservedly that the customs of warfare have
improved since the establishment of standing armies, a
circumstance which has rendered possible a stricter
discipline, and has necessitated a greater care for the
provisionment of troops. I also acknowledge unreservedly that
the chief credit for this improvement is due to military
commanders. Brutal and barbarous pillage was prohibited by
generals before jurists were convinced of its illegality. If
in our own day a law recognised by the civilised world
forbids, in a general way, the soldier to make booty in
warfare on land, we have here a great advance in civilisation,
and the jurists have had their share in bringing it about.
Since compulsory service has turned standing armies into
national armies, war has also become national. Laws of war are
consequently more than ever important and necessary, since, in
the differences of culture and opinion which prevail between
individuals and classes, law is almost the only moral power
the force of which is acknowledged by all, and which binds all
together under common rules. This pleasing and cheering
circumstance is one which constantly meets us in the Institut
de Droit International. We see a general legal persuasion ever
in process of more and more distinct formation uniting all
civilised peoples. Men of nations readily disunited and
opposed--Germans and French, English and Russians, Spaniards
and Dutchmen, Italians and Austrians--are, as a rule, all of
one mind as to the principles of international law.
"This is what makes it possible to proclaim an international
law of war, approved by the legal conscience of all civilised
peoples; and when a principle is thus generally accepted, it
exerts an authority over minds and manners which curbs sensual
appetites and triumphs over barbarism. We are well aware of
the imperfect means of causing its decrees to be respected and
carried out which are at the disposal of the law of nations.
We know also that war, which moves nations so deeply, rouses
to exceptional activity the good qualities as well as the evil
instincts of human nature. It is for this very reason that the
jurist is impelled to present the legal principles, of the
need for which he is convinced, in a clear and precise form,
to the feeling of justice of the masses, and to the legal
conscience of those who guide them. He is persuaded that his
declaration will find a hearing in the conscience of those
whom it principally concerns, and a powerful echo in the
public opinion of all countries.
"The duty of seeing that international law is obeyed, and of
punishing violations of it, belongs, in the first instance, to
States, each within the limits of its own supremacy. The
administration of the law of war ought therefore to be
intrusted primarily to the State which wields the public power
in the place where an offence is committed. No State will
lightly, and without unpleasantness and danger, expose itself
to a just charge of having neglected its international duties;
it will not do so even when it knows that it runs no risk of
war on the part Of neutral States. Every State, even the most
powerful, will gain sensibly in honour with God and man if it
is found to be faithful and sincere in respect and obedience
to the law of nations.
"Should we be deceiving ourselves if we admitted that a belief
in the law of nations, as in a sacred and necessary authority,
ought to facilitate the enforcement of discipline in the Army
and help to prevent many faults and many harmful excesses? I,
for my part, am convinced that the error, which has been
handed down to us from antiquity, according to which all law
is suspended during war, and everything is allowable against
the enemy nation--that this abominable error can but increase
the unavoidable sufferings and evils of war without necessity,
and without utility from the point of view of that energetic
way of making war which I also think is the right way.
"With reference to several rules being stated with the
qualifications 'if possible,' 'according to circumstances,' we
look on this as a safety-valve, intended to preserve the
inflexible rule of law from giving way when men's minds are
overheated in a struggle against all sorts of dangers, and so
to insure the application of the rules in many other
instances. Sad experience teaches us that in every war there
are numerous violations of law which must unavoidably remain
unpunished, but this will not cause the jurist to abandon the
authoritative principle which has been violated. Quite the
reverse. If, for instance, a flag of truce has been fired
upon, in contravention of the law of nations, the jurist will
uphold and proclaim more strongly than ever the rule that a
flag of truce is inviolable.
"I trust that your Excellency will receive indulgently this
sincere statement of my views, and will regard it as an
expression of my gratitude, as well as of my high personal
esteem and of my respectful consideration.
"Dr. BLUNTSCHLI, Privy Councillor, Professor."
THE UNITED STATES NAVAL WAR CODE.[1]
Sir,--The "Naval War Code" of the United States, upon which an
interesting article appeared in _The Times_ of Friday last, in so well
deserving of attention in this country that I may perhaps be allowed to
supplement the remarks of your Correspondent from the results of a
somewhat minute examination of the code made shortly after its
publication.
One notes, in the first place, that the Government of the United States
does not shirk responsibility. It puts the code into the hands of its
officers "for the government of all persons attached to the naval
service," and is doubtless prepared to stand by the rules contained in
it, as being in accordance with international law. These rules deal
boldly with even so disagreeable a topic as "Reprisals" (Art. 8), upon
which the Brussels, and after it The Hague, Conference preferred to keep
silence; and they take a definite line on many questions upon which
there are wide differences of opinion. On most debatable points, the
rules are in accordance with the views of this country--e.g. as to the
right of search (Art. 22), as to the two-fold list of contraband (Arts.
34-36), as to the moment at which the liability of a blockade-runner
commences (Art. 44), and as to the capture of private property (Art.
14), although the prohibition of such capture has long been favoured by
the Executive of the United States, and was advocated by the American
delegates at The Hague Conference. So also Arts. 34-36, by apparently
taking for granted the correctness of the rulings of the Supreme Court
in the Civil War cases of the _Springbok_ and the _Peterhoff_ with
reference to what may be described as "continuous carriage," are in
harmony with the views which Lord Salisbury recently had occasion to
express as to the trade of the _Bundesrath_ and other German vessels
with Lorenzo Marques. It must be observed, on the other hand, that Art.
30 flatly contradicts the British rule as to convoy; while Art. 3 sets
out The Hague Declaration as to projectiles dropped from balloons, to
which this country is not a party. Art. 7 departs from received views by
prohibiting altogether the use of false colours, and Art. 14 (doubtless
in pursuance of the recent decision of the Supreme Court in the _Paquete
Habana_), by affirming the absolute immunity of coast fishing vessels,
as such, from capture.
On novel questions the code is equally ready with a solution. It speaks
with no uncertain voice on the treatment of mail steamers and mail-bags
(Art. 20). On cable-cutting it adopts in Art. 5, as your Correspondent
points out, the views which I ventured to maintain in your columns when
the question was raised during the war of 1898.[2] I may also, by the
way, claim the support of the code for the view taken by me, in a,
correspondence also carried on in your columns during the naval
manoeuvres of 1888, of the bombardment of open coast towns.[3] Art. 4
sets out substantially the rules upon this subject for which I secured
the _imprimatur_ of the Institut de Droit International in 1896.
Secondly, the code is so well brought up to date as to incorporate
(Arts. 21-29) the substance of The Hague Convention, ratified only in
September last, for applying to maritime warfare the principles of the
Convention of Geneva. Art. 10 of The Hague Convention has been
reproduced in the code, in forgetfulness perhaps of the fact that that
article has not been ratified.
Thirdly, the code contains, very properly, some general provisions
applicable equally to warfare upon land (Arts. 1, 3, 8, 12, 54).
Fourthly, it is clearly expressed; and it is brief, consisting of only
54 articles, occupying 22 pages.
Fifthly, it deals with two very distinct topics--viz. the mode of
conducting hostilities against the forces of the enemy, and the
principles applicable to the making prize of merchant vessels, which as
often as not may be the property of neutrals. These topics are by no
means kept apart as they might be, articles on prize occurring
unexpectedly in the section avowedly devoted to hostilities.
It is worth considering whether something resembling the United States
code would not be found useful in the British Navy. Our code might be
better arranged than its predecessor, and would differ from it on
certain questions, but should resemble it in clearness of expression, in
brevity, and, above all things, in frank acceptance of responsibility.
What naval men most want is definite guidance, in categorical language,
upon those points of maritime international law upon which our
Government has made up its own mind.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, April 8 (1901).
NOTES
- 1: Withdrawn in 1904.
- 2: _Infra_, Ch. VII. Section 6.
- 3: _Infra_, Ch. VI. Section 14.
A NAVAL WAR CODE
Sir,--It is now nearly a year ago since I ventured to suggest in your
columns (for April 10, 1901) that something resembling the United States
"Naval War Code," dealing with "the laws and usages of war at sea,"
would be found useful in the British Navy.
The matter is, however, not quite so simple as might be inferred from
some of the allusions to it which occurred during last night's debate
upon the Navy Estimates. Upon several disputable and delicate questions
the Government of the United States has not hesitated to express
definite views; and they are not always views which the Government of
our own country would be prepared to endorse. For some remarks upon
these questions in detail, and upon the code generally, I must refer to
my former letter, but may perhaps be allowed to quote its concluding
words, which were to the following effect:--
"Our code might be better arranged than its predecessor, and
would differ from it on certain questions, but should
resemble it in clearness of expression, in brevity, and,
above all things, in frank acceptance of responsibility. What
naval men most want is definite guidance, in categorical
language, upon those points of maritime international law
upon which our Government has made up its own mind."
Before issuing such a code our authorities would have to decide--first,
what are the classes of topics as to which it is desirable to give
definite instructions to naval officers; and, secondly, with reference
to topics, to be included in the instructions, as to which there exist
international differences of view, what is, in each case, the view by
which the British Government is prepared to stand.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 12 (1902).
CHAPTER III
TERMINOLOGY
INTERNATIONAL TERMINOLOGY
Sir,--Demands for the punishment of the ex-Kaiser have produced many
"curiosities of literature," sometimes even over the signatures of men
deservedly respected as authorities upon subjects which they have made
their own; but _ne sutor supra crepidam_. A.B.,[1] for instance, wrote
of the Kaiser as guilty of "an indictable offence." X.Y.[1] naturally
protests against this misuse of terminology, which is, indeed, far more
specifically erroneous than was the popular application, which you
allowed me to criticise, of the terms "murder" and "piracy" to certain
detestable acts perpetrated under Government authority.[2] He goes on to
give an elaborate, though perhaps hardly necessary, explanation that
breaches of that generally accepted body of rules to be followed by
States _inter se_, which is known as "international law," can be
enforced, in the last resort, only by hostile State action--a fact which
he seems to suppose may entitle him to qualify the rules as "a mockery."
X.Y.[1] then proceeds to give an account of the so-called "private
international law" which surely needs revision for the benefit of any
"man in the street" who may care to hear about it. X.Y.[1] defines it as
"that part of the law of each separate country, as administered in its
own Courts, which deals with international matters," and he enumerates
as such matters "prize, contraband, blockade, the rights of
ambassadors." In fact none of these matters are within the scope of
"private international law," but are governed by "(public) international
law," non-compliance with which by the Courts or subjects of any State
is ground of complaint for the Government of any other State thereby
wrongfully affected.
The so-called "private international law," better described as "the
conflict of laws," deals, in reality, with the rules which the Courts of
each country apply, apart from any international obligation, to the
solution of questions, usually between private litigants, in which doubt
may arise as to the national law by which a given transaction ought to
be governed--e.g. with reference to a contract made in France, but to
be performed in England. There is here a "conflict," or "collision," of
laws, and it is decided in accordance with rules adopted in the country
in which the litigation occurs. These rules have no "international"
validity, and the term is applied to them, merely in a popular way, to
indicate that a Court may have in some cases to apply the law of a
country other than that in which it is sitting. The unfortunate
opposition of "public" to "private" international law has to answer for
much confusion of thought. "International law," properly so called, has,
of course, no need to be described as "public" to distinguish it from
rules for solving the "conflicts" of private laws, which are
"international" rules only in the sense that laws are sometimes applied
in countries other than those in which they are primarily binding.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 19 (1918).
NOTES
- 1: Writer's names are omitted as immaterial.
- 2: _Infra_, p. 70.
A full discussion of the topics dealt with in the last
paragraph of this letter may be found in my _Elements of
Jurisprudence_, edit. xii., pp. 409-425. A translation, by
Professor Nys, of the chapter in which those pages occur, as it
stood in edit. i., appeared in the _Revue de Droit
International_, t. xii., pp. 565, &c.
CHAPTER IV
CONVENTIONS AND LEGISLATION
Not a few International Conventions necessitate, before they
can be ratified, in order that their provisions may be carried
into effect, a certain amount of municipal legislation.
The letters which follow are concerned with some measures
introduced into the British Parliament for this purpose,
relating respectively to Naval Prize, to the Geneva Convention
of 1906, and to Conventions signed at The Hague Peace
Conference of 1907. It is with criticisms of Bills dealing with
the last-mentioned topic that this chapter is mainly occupied.
GOVERNMENT BILLS AND INTERNATIONAL CONVENTIONS
Sir,--You have already allowed me to point out how singularly
ill-adapted is the resuscitated "Naval Prize Consolidation Bill"[1] to
inform Parliament upon the highly technical points as to which a vote in
favour of the Bill might be supposed to imply approval of the Government
policy.
Two other Bills have now been presented to the House of Commons in such
a shape as to raise a doubt whether the wish of the Government, or of
the draftsman, has been that the topics to which they relate shall be
discussed _en pleine connaissance de cause_.
The "Geneva Convention Bill"[2] is intended to facilitate the withdrawal
of reservations subject to which the Convention was ratified by Great
Britain. These reservations, upon which I insisted at Geneva, somewhat
to the surprise of my French and Russian colleagues, relate to Arts. 23,
27, and 28 of the Convention, one of the effects of which would have
been to impose upon our Government an obligation to carry through,
within five years, an Act of Parliament, making the employment of the
Geneva emblem or name, except for military purposes, a criminal offence.
Any one who knows something of the difficulties which beset legislation
in this country, especially where commercial interests are involved,
will see that the performance of such an undertaking might well have
proved to be impossible. Though myself strongly in favour of placing, at
the proper time and in an appropriate manner, legislative restrictions
upon the general use of the emblem and name, I can hardly think the Bill
now before Parliament to be well adapted for its purpose. The
"Memorandum" prefixed to it ought surely to have stated, in plain
language, the effect of the articles in question and the reasons which
prevented them from being ratified together with the rest of the
Convention. Instead of this, only one of those articles is cited, and
few members of Parliament will be aware that an omitted paragraph of
that article requires that the use of the emblem or name should be
penalised by British law at the latest five years and six months from
the date of the British ratification, which was deposited on April 16,
1907--_i.e._, not later than October 16, 1912. This requirement is not
satisfied by the Bill, which, even if passed in the present Session,
would preserve intact till 1915 the rights of proprietors of
trade-marks, while somewhat harshly rendering forthwith illegal the user
of the emblem or name by all other persons.
On the drafting of the "Second Peace Conference Conventions Bill," I
will only remark that neither in the preamble nor elsewhere is any
information vouchsafed as to the Conventions, out of thirteen drafted at
The Hague, which are within the purview of the Bill. The reader is left
to puzzle out for himself, supposing him to have the necessary materials
at hand, that certain clauses of the Bill relate respectively to certain
articles which must be looked for in the Conventions numbered I., V.,
X., XII., and XIII.
I am, Sir, your obedient servant,
T. E. HOLLAND.
The Athenæum, July 7 (1911).
NOTES
- 1: This Bill, originally introduced in the House of Commons on June 23
1910, to enable the Government to ratify Hague Convention No xii.
of 1907 and the Declaration of London of 1909, was passed by that
House on December 7, 1911, but rejected on the 12th of the same
month, by 145 to 53 votes, in the House of Lords. Cf. _infra_,
pp. 191-196.
- 2: Cf. _infra_, p. 98. The Bill became an Act, 1 & 2 Geo. 5,
c. 20.
Questions were put and objections raised, in the sense of my
criticisms upon the drafting of the "Second Peace Conference
(Conventions) Bill" of 1911, upon several occasions in the
House of Commons, especially in August of that year, and on
December 16 the Bill was finally withdrawn. On the
re-introduction of the Bill in 1914, see the following letter.
THE PRESENT BILL IN PARLIAMENT
Sir,--In reintroducing their Bill "to make such amendments in the law as
are necessary in order to enable certain conventions to be carried into
effect," the Government has justified the criticisms which I addressed
to you upon the way in which this measure was first presented to
Parliament.
I pointed out that neither in the preamble nor elsewhere was any
information vouchsafed as to which of "the various conventions drawn up
at the second Peace Conference" were within the purview of the Bill.
Still less was any clue given to those articles, out of nearly 400
contained in the 13 conventions in question, which are relevant to the
proposed legislation. Members of Parliament sufficiently inquisitive not
to be inclined to take the measure on trust, were left to puzzle out all
this for themselves, but proved so restive under the treatment that the
Bill, which was introduced in June, 1911, had to be withdrawn in the
following December.
As now resuscitated, the Bill is accompanied by a memorandum containing
information which will enable the reader, even though no specialist,
supposing him to have the necessary documents at hand, though probably
only after several hours of labour, to ascertain what would be the
result of passing it. Is it too much to hope that similar aids to the
understanding of complicated legislative proposals will be
systematically provided in the future?
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, April 13, 1914.
This Bill was introduced into the House of Commons on April 8,
1914, with a memorandum proposed in compliance with the
criticisms, which had led to the withdrawal of its predecessor
of 1911. _Cf. supra_, p. 37. It also was withdrawn, after
sustaining much renewed criticism, on July 17, 1914.
THE FOREIGN ENLISTMENT BILL
Sir,--It is doubtless the case, as stated in your leading article of
to-day, that the Foreign Enlistment Bill has not received the attention
which it deserves. It may perhaps be worth while to mention, as
affording some explanation of this neglect, the fact that the memorandum
prefixed to the Bill vaguely describes its main object as being to bring
our law into conformity with "The Hague Conventions" at large. An
ordinary member of Parliament would surely be grateful to be referred
specifically to Convention No. xiii., Arts. 8, 17, and 25. He might well
shrink from the labour of exploring the hundreds of articles contained
in "The Hague Conventions" in order to ascertain which of the articles
suggest some modification of the English statute.
I would also venture to suggest that, in Article 1 (1) (b) of the Bill
the words "or allows to depart," carried over from the old Act, should
be omitted, as of doubtful interpretation. Would it not also be
desirable to take this opportunity of severing the enlistment articles
of the overgrown principal Act from those forbidding the despatch of
ships fitted for hostilities and restricting the hospitality which may
be extended to belligerent war ships?
Upon quite a different subject, I should like to answer the question
propounded in your article, as to the weight now to be given to the
Declaration of London, by saying that no weight should be given to it,
except as between Powers who may have ratified it or may have agreed to
be temporarily bound by its provisions. One has of late been surprised
to read of vessels carrying contraband being allowed to continue their
voyage after surrendering the contraband goods, in accordance with a new
rule suggested by the Declaration, whereas, under still existing
international law, the duty of a captor is to bring in the vessel
together with her cargo, in order that the rightfulness of the seizure
may be investigated by a Prize Court.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 23 (1912).
The Bill of 1912 "to amend the Foreign Enlistment Act, 1870,"
passed the House of Lords with little comment, but was
withdrawn, after much adverse criticism, in the House of
Commons on February 12, 1913.
CHAPTER V
THE COMMENCEMENT OF WAR
SECTION 1
_Declaration of War_
The following letter bears upon the question, much discussed in
recent years, of the lawfulness of hostilities commenced
without anything amounting to a declaration of war. Although
several modern wars, e.g. the Franco-Prussian of 1870, and
the Russo-Turkish of 1877, were preceded by declaration, it was
hardly possible, in view of the practice of the last two
centuries, to maintain, that this was required by international
law, and it has never been alleged that any definite interval
need intervene between a declaration and the first act of
hostilities. On the destruction of the _Kowshing_, the present
writer may further refer to his _Studies in International Law_,
1898, p. 126, and to Professor Takahashi's _International Law
during the Chino-Japanese War_, 1899, pp. 24, 192. But see now
the note at the end of the "Letter" which follows.
THE SINKING OF THE _KOWSHING_
Sir,--The words of soberness and truth were spoken with reference to the
sinking of the _Kowshing_ in the letter from Professor Westlake which
you printed on Friday last. Ignorance dies hard, or, after the
appearance of that letter and of your remarks upon it, one might have
expected that leading articles would be less lavishly garnished with
such phrases as "act of piracy," "war without declaration," "insult to
the British flag," "condign punishment of the Japanese commander." But
these flowers of speech continue to blossom; and, now that the facts of
the case seem to be established beyond reasonable doubt by the telegrams
of this morning, I should be glad to be allowed to state shortly what I
believe will be the verdict of international law upon what has occurred.
If the visiting, and eventual sinking, of the _Kowshing_ occurred in
time of peace, or in time of war before she had notice that war had
broken out, a gross outrage has taken place. But the facts are
otherwise.
In the first place, a state of war existed. It is trite knowledge, and
has been over and over affirmed by Courts, both English and American,
that a war may legally commence with a hostile act on one side, not
preceded by declaration. How frequently this has occurred in practice
may be seen from a glance at an historical statement prepared for the
War Office by Colonel Maurice _à propos_ of the objections to a Channel
tunnel. Whether or no hostilities had previously occurred upon the
mainland, I hold that the acts of the Japanese commander in boarding the
_Kowshing_ and threatening her with violence in case of disobedience to
his orders were acts of war.
In the second place, the _Kowshing_ had notice of the existence of a
war, at any rate from the moment when she received the orders of the
Japanese commander.
The _Kowshing_, therefore, before the first torpedo was fired, was, and
knew that she was, a neutral ship engaged in the transport service of a
belligerent. (Her flying the British flag, whether as a _ruse de guerre_
or otherwise, is wholly immaterial.) Her liabilities, as such ship, were
twofold:--
1. Regarded as an isolated vessel, she was liable to be stopped,
visited, and taken in for adjudication by a Japanese Prize Court. If, as
was the fact, it was practically impossible for a Japanese prize crew to
be placed on board of her, the Japanese commander was within his rights,
in using any amount of force necessary to compel her to obey his orders.
2. As one of a fleet of transports and men-of-war engaged in carrying
reinforcements to the Chinese troops on the mainland, the _Kowshing_ was
clearly part of a hostile expedition, or one which might be treated as
hostile, which the Japanese were entitled, by the use of all needful
force, to prevent from reaching its destination.
The force employed seems not to have been in excess of what might
lawfully be used, either for the arrest of an enemy's neutral transport
or for barring the progress of a hostile expedition. The rescued
officers also having been set at liberty in due course, I am unable to
see that any violation of the rights of neutrals has occurred. No
apology is due to our Government, nor have the owners of the _Kowshing_,
or the relatives of any of her European officers who may have been lost,
any claim for compensation. I have said nothing about the violation by
the Japanese of the usages of civilised warfare (not of the Geneva
Convention, which has no bearing upon the question), which would be
involved by their having fired upon the Chinese troops in the water; not
only because the evidence upon this point is as yet insufficient, but
also because the grievance, if established, would affect only the rights
of the Belligerents _inter se_; not the rights of neutrals, with which
alone this letter is concerned. I have also confined my observations to
the legal aspects of the question, leaving to others to test the conduct
of the Japanese commander by the rules of chivalrous dealing or of
humanity.
Your obedient servant,
T. E. HOLLAND.
Athenæum Club, August 6 (1894)
The controversy caused by the sinking of the _Kowshing_ in 1894
was revived by the manner of the Japanese attack upon Port
Arthur, in 1904 (see Professor Takahashi's _International Law
applied to the Russo-Japanese War_, 1908, p. 1), and led to a
careful study of the subject by a committee of the Institut de
Droit International, resulting in the adoption by the Institut,
at its Ghent Meeting in 1906, of the following resolutions:--
(1) "It is in conformity with the requirements of International
law, to the loyalty which the nations owe to one another in
their, mutual relations, as well as to the general interests of
all States, that hostilities ought not to commence without
previous and unequivocal warning.
(2) "This warning may be given either in the shape of a
declaration of war pure and simple, or in the shape of an
ultimatum duly notified to the adversary by the State which
wishes to begin the war.
(3) "Hostilities must not commence until after the expiration
of a delay which would suffice to prevent the rule as to a
previous and unequivocal warning from being thought to be
evaded." See the _Annuaire de l'Institut_, t, xxi. p. 292.
In accordance with the principles underlying the first and
second of these resolutions, The Hague Convention, No. iii. of
1907 (ratified generally by Great Britain on November 27,
1909), has now laid down as a principle of International Law,
binding upon the contracting Powers, that--
(1) "Hostilities between them ought not to commence without a
warning previously given and unequivocal, in the form either of
a reasoned declaration of war, or of an ultimatum, with a
conditional declaration of war."
And the Convention goes on to provide that--
(2) "The state of war ought to be notified without delay to
neutral Powers, and shall be of no effect with reference to
them, until after a notification, which may be made even
telegraphically. Nevertheless, neutral Powers may not plead
absence of notification, if it has been shown beyond question
that they were in fact cognisant of the state of war." Any
reference to the need of an interval between declaration and
the first act of hostility (such as is contained in the third
of the resolutions of the Institut) was deliberately omitted
from the Convention, although a declaration immediately
followed by an attack would obviously be of little service to
the party attacked. (See the present writer's _Laws of War on
Land (written and unwritten)_, 1908, P. 18.)
* * * * *
SECTION 2
_The Immediate Effects of the Outbreak of War_
_Enemy Residents_
Before any actual hostilities have taken place, each
belligerent acquires, _ipso facto_, certain new rights over
persons and property belonging to the other, which happen to be
at the time within its power, e.g. the right, much softened
in modern practice, and specifically dealt with in The Hague
Convention, No. vi. of 1907, of capturing enemy merchant
vessels so situated.
The following letter deals with the permissible treatment of
enemy persons so situated; and was suggested by a question
asked in the House of Commons on February 25, 1909, by Mr.
Arnold-Forster: viz. "What would be the _status_ of officers
and men of the regular Army of a hostile belligerent Power,
found within the limits of the United Kingdom after an act or
declaration of war; and would such persons be liable to be
treated as prisoners of war, or would they be despatched under
the protection of the Government to join the forces of the
enemy?" The general effect of the Attorney-General's reply may
be gathered from the quotations from it made in the letter.
The topic was again touched upon on March 3, in a question put
by Captain Faber, to which Mr. Haldane replied.
FOREIGN SOLDIERS IN ENGLAND
Sir,--The question raised last night by Mr. Arnold-Forster is one which
calls for more careful consideration than it appears yet to have
received. International law has in modern times spoken with no very
certain voice as to the permissible treatment of alien enemies found
within the territory of a belligerent at the outbreak of war.
There is, however, little doubt that such persons, although now more
usually allowed to remain, during good behaviour, may be expelled, and,
if necessary, wholesale, as were Germans from France in 1870. But may
such persons be, for good reasons, arrested, or otherwise prevented from
leaving the country, as Germans were prevented from leaving France in
the earlier days of the Franco-Prussian War? Grotius speaks with
approval of such a step being taken, "ad minuendas hostium vires."
Bynkershoek, more than a century later, recognises the right of thus
acting, "though it is rarely exercised." So the Supreme Court of the
United States in _Brown v. United States_ (1814). So Chancellor Kent
(1826), and Mr. Manning (1889) is explicit that the arrest in question
is lawful, and that "the individuals are prisoners of war."
Vattel, is it true (1758), ventures to lay down that--
"Le Souverain qui déclare la guerre ne peut retenir les
sujets de ennemi qui se trouvent dans ses états au moment de
la déclaration ... en leur permettant d'entrer dans ses
terres et d'y séjourner, il leur a promis tacitement toute
liberté et toute sûreté pour le retour."
And he has been followed by some recent writers. There is, however, I
venture to hold, no ground for asserting that this indulgent system is
imposed by international law. I am glad, therefore, to find the
Attorney-General laying down that--
"for strictly military reasons, any nation is entitled to
detain and to intern soldiers found upon the territory at the
outbreak of war."
And I should be surprised if, under all circumstances, as the learned
Attorney-General seems to think probable--
"England would follow, whatever the strict law may be, the
humane and chivalrous practice of modern times, and would
give to any subjects of a hostile Power who might be found
here engaging in civilian pursuits a reasonable time within
which to leave for their own country, even although they were
under the obligation of entering for service under the
enemy's flag."
The doctrine of Vattel has, in fact, become less plausible than it was
before universal liability to military service had become the rule in
most Continental countries. The peaceably engaged foreign resident is
now in all probability a trained soldier, and liable to be recalled to
the flag of a possible enemy.
There may, of course, be considerable practical difficulties in the way
of ascertaining the nationality of any given foreigner, and whether he
has completed, or evaded, the military training required by the laws of
his country. It may also be a question of high policy whether resident
enemies would not be a greater danger to this country if they were
compelled to remain here, than if they were allowed, or compelled, to
depart, possibly to return as invaders.
I am only concerned to maintain that, as far as international law is
concerned, England has a free hand either to expel resident enemies or
to prevent them from leaving the country, as may seem most conducive to
her own safety.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, February 25 (1909).
_Civil Disabilities of Alien Enemies_
THE NAVAL PRIZE BILL
CIVIL DISABILITIES OF ENEMY SUBJECTS
Sir,--The Naval Prize Bill has sins enough of its own to answer for. The
question dealt with under that heading in Mr. Arthur Cohen's letter of
this morning has, however, nothing to do with naval matters, but arises
under The Hague Convention of 1907 as to warfare on land, which was
ratified by our Government two years ago; unfortunately without any
reserve as to the extraordinary provision contained in Art. 28 (_h_) of
that Convention.
I lose not a moment in asking to be allowed to state that my view of the
question is, and always has been, the reverse of that attributed to me
by my friend Mr. Cohen. No less than three views are entertained as to
the meaning of Art. 28 (_h_). (1) Continental writers, e.g., MM.
Fauchille, Kohler, and Ullmann, with the German Whitebook, assert, in
the most unqualified manner, that Great Britain and the United States
have under this clause abandoned their long-established doctrine as to
the suspension of the private rights and remedies of enemy subjects; (2)
Our own Government, in a non-confidential reply to an inquiry from
Professor Oppenheim, asserts categorically, as does General Davis in the
United States, that the clause relates only to the action of a commander
in a territory of which he is in occupation; while (3) most English and
American writers look upon the meaning of the clause as doubtful. If Mr.
Cohen will look at p. 44 of my _Laws of War on Land_, 1909, he will find
that I carry this sceptical attitude so far as to include the clause in
question in brackets as "apocryphal," with the comment that "it can
hardly, till its policy has been seriously discussed, be treated as a
rule of international law." I have accordingly maintained, in
correspondence with my Continental colleagues, that the clause should be
treated as "non avenue," as "un non sens," on the ground that, while,
torn from their context, its words would seem ("ont faux air") to bear
the Continental interpretation, its position as part of a "Règlement,"
in conformity with which the Powers are to "issue instructions to their
armed land forces," conclusively negatives this interpretation. I will
not to-day trouble you in detail with the very curious history of the
clause; which, as originally proposed by Germany, merely prohibited (a
commander?) from announcing that the private claims ("réclamations") of
enemy subjects would be unenforceable. It is astonishing that no
objection was raised by the British or by the American delegates to the
subsequent transformation of this innocent clause into something very
different, first by the insertion of the words "en justice," and later
by the substitution of "droits et actions" for "réclamations." The
quiescence of the delegates is the more surprising, as, at the first
meeting of the sub-committee, General de Gundel, in the plainest
language, foreshadowed what was aimed at by the clause.
Art. 23 (_h_) is, I submit, incapable of rational interpretation and
should be so treated by the Powers. If interpreted at all, its sense
must be taken to be that which is now, somewhat tardily, put upon it by
our own Government.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 6 (1911).
I may perhaps refer here to my _Laws of War on Land_ (1908), p.
44, where I describe as "apocryphal" Art. 23 (_h_) of the Hague
Convention No. iv. of 1907; and to my paper upon that article
in the _Law Quarterly Review_ for 1912, pp. 94-98, reproduced
in the _Revue de Droit International_, the _Revue Générale de
Droit International Public_, and the _Zeitschrift für
Völkerrecht und Bundesstaatsrecht_, for the same year.
The view there maintained was affirmed by the Court of Appeal
in _Porter_ v. _Freudenberg_, [1915] 1 K.B. 857, _at_ p. 874.
_Enemy Ships in Port_
ENEMY SHIPS IN PORT
Sir,--The action taken by the United States in seizing German merchant
ships lying in their ports will raise several questions of interest. It
is, however, important at once to realise that, apart from anything
which may be contained in old treaties with Prussia, their hands are
entirely free in the matter. The indulgences so often granted: to such
ships during the last 60 years, notably by themselves in the Spanish War
of 1898, under endlessly varying conditions, have been admittedly acts
of grace, required by no established rule of international law.
The United States are also unaffected by The Hague Convention No. vi, to
which they are not a party. It is therefore superfluous to inquire what
construction they would have been bound to put upon the ambiguous
language of Section 1 of the Convention, which proclaims that "when a
merchant ship of one of the belligerent Powers is, at the commencement
of hostilities, in an enemy port, _it is desirable_ that it should be
allowed to depart freely," &c. It might perhaps be argued that our own
Prize Court might well have refrained from treating this section as if
it were obligatory, and have founded its decisions rather upon
international law, as supplemented by a non-obligatory custom. Be this
as it may, it would seem that the policy of the United States has to
some extent felt the influence of Convention vi. in announcing that
seizure will, provisionally, only amount to requisitioning.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, April 7 (1917).
CHAPTER VI
THE CONDUCT OF WARFARE
The three following sections relate to the waters in which
hostile operations may take place. Section 1 probably calls for
no explanatory remark. With reference to Section 2, dealing
with certain spaces of water more or less closed to belligerent
action, it may be desirable to state that the letters as to the
Suez Canal were written to obviate some misconceptions as to
the purport of the Convention of October 29, 1888, and to
maintain that it was not, at the time of writing, operative, so
far as Great Britain was concerned.
This state of things was, however, altered by the Anglo-French
Convention of April 8, 1804, which, concerned principally with
the settlement of the Egyptian and Newfoundland questions,
provides, in Art. 6, that "In order to assure the free passage
of the Suez Canal, the Government of His Britannic Majesty
declares that it adheres to the stipulations of the Treaty
concluded on the 29th October 1888; and to their becoming
operative. The free passage of the canal being thus guaranteed,
the execution of the last phrase of paragraph 1, and that of
paragraph 2 of the 8th article of this Treaty, will remain
suspended."
The last phrase of paragraph 1 of Art. 8 relates to annual
meetings of the agents of the signatory Powers.
Paragraph 2 of this Article relates to the presidency of a
special commissioner of the Ottoman Government over those
meetings.
On the whole question see _Parl. Papers, Egypt_, No. 1 (1888),
_Commercial_, No. 2 (1889), and the present writer's _Studies
in International Law_, pp. 275-293. Note must, of course, now
be taken of the constitutional changes resulting from the war
of 1914.
The provisions of the Treaty of 1888, with reference to the
free navigation of the Suez Canal, have, of course, acquired a
new importance from their adoption into the Hay-Pauncefote
Treaty of November 18, 1901, as to the Panama Canal, and from
the divergent views taken of their interpretation, as so
adopted.
SECTION 1
_On the Open Sea_
"THE FREEDOM OF THE SEAS"?
Sir,--Your remarks upon "the wide and ambiguous suggestions" contained
in the Pope's Peace Note are especially apposite to his desire for "the
freedom of the seas." It is regrettable that his Holiness does not
explain the meaning which he attaches to this phrase, in itself
unmeaning, so dear to the Germans. He is doubtless well aware that the
sea is already free enough, except to pirates, in time of peace, and
must be presumed to refer to time of war, and specifically to propose
the prohibition of any such interference with neutral shipping as is now
legalised by the rules relating to visit and search, contraband and
blockade.
If this be indeed the Pope's meaning, his aspirations are now less
likely than ever to be realised. It is curious to reflect that the
proposal actually made by our own Government at The Hague Conference of
1907, apparently under the impression that Great Britain would be always
neutral, for protecting the carriage of contraband was most fortunately
defeated by the opposition of the other great naval Powers, of which
Germany was one.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August 16 (1917).
* * * * *
SECTION 2
_In Other Waters_
THE SUEZ CANAL
Sir,--Your correspondent "M.B." has done good service by calling
attention to the misleading nature of the often-repeated statement that
the Suez Canal has been "neutralised" by the Convention of 1888. Perhaps
you will allow me more explicitly to show why, and how far, this
statement is misleading.
In the first place, this Convention is inoperative. It is so in
consequence of the following reservation made by Lord Salisbury in the
course of the negotiations which resulted in the signature of the
Convention:--
"Les Délégués de la Grande-Bretagne ... pensent qu'il est de
leur devoir de formuler une réserve générale quant à
l'application de ces dispositions en tant qu'elles ne
seraient pas compatibles avec l'état transitoire et
exceptionnel où se trouve actuellement l'Egypte, et qu'elles
pourraient entraver la liberté d'action de leur Gouvernement
pendant la période de l'occupation de l'Egypte par les forces
de sa Majesté Britannique."
Being thus unaffected by the treaty, the canal retains those
characteristics which it possesses, under the common law of nations, as
a narrow strait, wholly within the territory of one Power and connecting
two open seas. The fact that the strait is artificial may, I think, be
dismissed from consideration, for reasons stated by me in the
_Fortnightly Review_ for July, 1883. The characteristics of such a
strait are unfortunately by no means well ascertained, but may perhaps
be summarised as follows. In time of peace, the territorial Power is
bound by modern usage to allow "innocent passage," under reasonable
conditions as to tolls and the like, not only to the merchant vessels,
but also, probably, to the ships of war, of all nations. In time of war,
the territorial Power, if belligerent, may of course carry on, and is
exposed to, hostilities in the strait as elsewhere, and the entrances to
the strait are liable to a blockade. Should the territorial Power be
neutral, the strait would be closed to hostilities, though it would
probably be open to the "innocent passage" of belligerent ships of war.
It may be worth while to enquire how far this state of things would be
affected by the Convention of 1888, were it to come into operation. The
_status_ of the canal in time of peace would be substantially untouched,
save by the prohibition to the territorial Power to fortify its banks.
Even with reference to time of war, several of the articles of the
Convention merely reaffirm well-understood rules applicable to all
neutral waters--e.g. that no hostilities may take place therein. The
innovations proposed by the Convention are mainly contained, as "M.B."
points out, in the first article, which deals with the position of the
canal when the territorial Power is belligerent. In such a case, subject
to certain exceptions, with a view to the defence of the country, the
ships of that Power are neither to attack nor to be attacked in the
canal, or within three miles of its ports of access, nor are the
entrances of the canal to be blockaded. This is "neutralisation" only in
a limited and vague sense of the term, the employment of which was
indeed carefully avoided not only in the Convention itself but also in
the diplomatic discussions which preceded it.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Brighton, October 4 (1898).
THE SUEZ CANAL
Sir,--Your correspondent "M.B.," if he will allow me to say so, supports
this morning a good case by a bad argument, which ought hardly to pass
without remark.
It is impossible to accept his suggestion that the article which he
quotes from the Treaty of Paris can be taken as containing "an
international official definition of neutralisation as applied to
waters." The article in question, after declaring the Black Sea to be
"neutralisée," no doubt goes on to explain the sense in which this
phrase is to be understood, by laying down that the waters and ports of
that sea are perpetually closed to the ships of war of all nations. It
is, however, well known that such a state of things as is described in
the latter part of the article is so far from being involved in the
definition of "neutralisation" as not even to be an ordinary
accompaniment of that process. Belgium is unquestionably "neutralised,"
but no one supposes that the appearance in its waters and ports of ships
of war is therefore prohibited. The fact is that the term "neutralisée"
was employed in the Treaty of Paris as a euphemism, intended to make
less unpalatable to Russia a restriction upon her sovereign rights which
she took the earliest opportunity of repudiating.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Brighton, October 6 (1898).
THE SUEZ CANAL
Sir,--Will you allow me to reply in the fewest possible words to the
questions very courteously addressed to me by Mr. Gibson Bowles in his
letter which appeared in _The Times_ of yesterday?
1. It is certainly my opinion, for what it is worth, that the full
operation of the Convention of 1888 is suspended by the reserves first
made on behalf of this country during the sittings of the Conference of
1885. These reserves were texually repeated by Lord Salisbury in his
despatch of October 21, 1887, enclosing the draft convention which,
three days later, was signed at Paris by the representatives of France
and Great Britain, the two Powers which, with the assent of the rest,
had been carrying on the resumed negotiations with reference to the
canal. Lord Salisbury's language was also carefully brought to the
notice of each of the other Powers concerned; in the course of the
somewhat protracted discussions which preceded the final signature of
the same convention at Constantinople on October 29, 1888.
2. All the signatories of the convention having thus become parties to
it after express notice of "the conditions under which her Majesty's
Government have expressed their willingness to agree to it," must, it
can hardly be doubted, share the view that the convention is operative
only _sub modo_.
3. Supposing the convention to have become operative, and supposing the
territorial Power to be neutral in a war between States which we may
call A and B, the convention would certainly entitle A to claim
unmolested passage for its ships of war on their way to attack the
forces of B in the Eastern seas.
4. The language of the convention, being as it, is the expression of a
compromise involving much re-drafting, is by no means always as clear as
it might be. But when Mr. Gibson Bowles is again within reach of
Blue-books he will probably agree with me that the treaty need not, as
he suggests, be "read as obliging the territorial Power, even when
itself a belligerent, to allow its enemy to use the canal freely for the
passage of that enemy's men-of-war." The wide language of Art. 1 (which
is substantially in accordance with Mr. Gibson Bowles's reminiscence of
it) must be read in connection with Art. 10, and without forgetting
that, in discussing the effect of an attack upon the canal by one of the
parties to the convention, Lord Salisbury wrote in 1887, "on the whole
it appears to be the sounder view that, in such a case, the treaty,
being broken by one of its signatories, would lose its force in all
respects."
Your obedient servant,
T. E. HOLLAND.
Oxford, October 9 (1898).
THE CLOSING OF THE DARDANELLES
Sir,--Now that the pressure upon your space due to the clash of opposing
views of domestic politics is likely to be for the moment relaxed, you
may, perhaps, not think it inopportune that attention should be recalled
to a question of permanent international interest raised by the recent
action of the Turkish Government in closing the Dardanelles to even
commercial traffic.
I cordially agree, as would, I suppose, most people, with your leading
article of some weeks since in deprecating any crude application to the
case of the Dardanelles and Bosporus of _dicta_ with reference to
freedom of passage through straits connecting two open seas. It would,
indeed, be straining what may be taken to be a general principle of
international law to say that Turkey is by it prohibited from protecting
her threatened capital by temporarily closing the Straits.
A good deal of vague reference has, however, been made in the
discussions which have taken place upon the subject to "Treaties" under
which it seems to be thought that trading ships enjoy, in all
circumstances, rights of free navigation through the Straits in question
which they would not have possessed otherwise. I should like, therefore,
with your permission, to state what seem to be the relevant Treaty
provisions upon the subject, whether between the Powers constituting the
European Concert collectively, or between Russia and Turkey as
individual Powers.
As to what may be described as the "European" Treaties, it is necessary,
once for all, to put aside as irrelevant Art. 10 of the Treaty of Paris
of 1856 and its annexed Convention; Art. 2 of the Treaty of London of
1871; and the confirmatory Art. 63 of the Treaty of Berlin of 1878.
These articles have exclusive reference to the "ancient rule of the
Ottoman Empire," under which, so long as the Porte is at peace, no
foreign ships of war are to be admitted into the Straits. There are,
however, two articles, still in force, of these "European" Treaties
which may seem to bear upon the present inquiry. By Art. 12 of the
Treaty of Paris:--
"Free from any impediment, the commerce in the ports and
waters of the Black Sea shall be subject only to regulations
of health, Customs, and police, framed in a spirit favourable
to the development of commercial transactions."
And by Art. 3 of the Treaty of London:--
"The Black Sea remains open, as heretofore, to the mercantile
marine of all nations."
It is submitted that these provisions relate solely to commerce carried
on by vessels already within the Black Sea, and contain no covenant for
an unrestricted right of access to that sea.
As between Russia and Turkey individually, Treaties which are still in
force purport, no doubt, to give to the former a stronger claim to free
passage through the Straits for her mercantile marine than that which
can be supposed to be enjoyed by other Powers. By Art. 7, for instance,
of the Treaty of Adrianople of 1829, the Porte recognises and declares
the passage of the "Canal de Constantinople," and of the Strait of the
Dardanelles, to be entirely free and open to Russian merchant vessels;
and goes on to extend the same privilege to the merchant vessels of all
Powers at peace with Turkey. Art. 24 of the Treaty of San Stefano is
still more explicit, providing that "the Bosporus and Dardanelles shall
remain open in time of war as in time of peace to the merchant vessels
of neutral States arriving from or bound to Russian ports." The rest of
the article contains a promise by the Porte never henceforth to
establish a "fictitious blockade, at variance with the spirit of the
Declaration of Paris"; meaning thereby such a blockade of ports on the
Black Sea as had been enforced by Turkish ships of war stationed at the
entrance to the Bosporus.
It may well be doubted whether these articles, containing concessions
extorted from Turkey at the end of wars in which she had been defeated,
ought not, like so many other provisions of the Treaty of San Stefano,
to have been abrogated by the Treaty of Berlin. They are of such a
character that, in the struggle for existence, Turkey can hardly be
blamed for disregarding them. As was said long ago, "Ius commerciorum
aequum est, at hoc acquius, tuendae salutis." The imperious necessities
of self-preservation were recognised both by Lord Morley and by Lord
Lansdowne in the debate which took place on May 3, although Lord
Lansdowne intimated that
"the real question, which will have to be considered sooner
or later, is the extent to which a belligerent Power,
controlling narrow waters which form a great trade avenue for
the commerce of the world, is justified in entirely closing
such an avenue in order to facilitate the hostile operations
in which the Power finds itself involved."
It is, I think, clear that the solution of a question at once so novel
and so delicate must be undertaken, not by any one Power, but by the
Concert of Europe, or of the civilised world, which must devise some
guarantee for the safety of any littoral Power which would be called
upon in the general interest to restrict its measures of self-defence.
In the meantime, we may surely say that the case is provided for neither
by established international law nor by "European" Treaties; and,
further, that the Treaties between Russia and Turkey, which do provide
for it, are not such as it is desirable to perpetuate.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 22 (1912).
THE CLOSING OF THE DARDANELLES
Sir,--I am reminded by Mr. Lucien Wolf's courteous letter that I ought
probably to have mentioned, in alluding to the Treaty of San Stefano,
that it is doubtful whether Art. 24 of that Treaty is in force. It was
certainly left untouched by the Treaty of Berlin, but the language of
the relevant article (3) of the definitive Treaty of Peace of 1879 is
somewhat obscure, nor is much light to be gained upon the point from the
protocol of the 14th _séance_ of the Congress of Berlin, at which Art.
24 came up for discussion.
The earlier Treaties, however, which were revived beyond question by
Art. 10 of the Treaty of 1879, grant to Russian merchant vessels full
rights of passage between the Black Sea and the Ægean, exercisable, for
all that appears, in time of war as well as of peace, although these
Treaties contain no express words to that effect. Such rights, I would
again urge, if enjoyed by one Power, should be enjoyed by all; upon
terms to be settled, not by any pair of Powers but by the Powers
collectively.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, June 5 (1912).
* * * * *
SECTION 3
_In a Special Danger Zone?_
THE GERMAN THREAT
Sir,--It may perhaps be desirable, for the benefit of the general
reader, to distinguish clearly between the two topics dealt with in the
recent announcement of German naval policy.
1. We find in it what may, at first sight, suggest the establishment of
a gigantic "paper blockade," such as was proclaimed in the Berlin Decree
of 1806, stating that "Les îles Britanniques sont déclarées en état de
blocus." But in the new decree the term "blockade" does not occur, nor
is there any indication of an intention to comply with the prescriptions
of the Declaration of Paris of 1856 as to the mode in which such an
operation must be conducted. What we really find in the announcement is
the specification of certain large spaces of water, including the whole
of the British Channel, within which German ships will endeavour to
perpetrate the atrocities about to be mentioned.
2. These promised, and already perpetrated, atrocities consist in the
destruction of merchant shipping without any of those decent preliminary
steps, for the protection of human life and neutral property, which are
insisted on by long established rules of international law. Under these
rules, the exercise of violence against a merchant vessel is
permissible, in the first instance, only in case of her attempting by
resistance or flight to frustrate the right of visit which belongs to
every belligerent cruiser. Should she obey the cruiser's summons to
stop, and allow its officers to come on board, they will satisfy
themselves, by examination of her papers, and, if necessary, by further
search, of the nationality of ship and cargo, of the destination of
each, and of the character of the latter. They will then decide whether
or no they should make prize of the ship, and in some cases may feel
justified in sending a prize to the bottom, instead of taking her into
port. Before doing so it is their bounden duty to preserve the ship
papers, and, what is far more important, to provide for the safety of
all on board.
This procedure seems to have been followed, more or less, by the
submarines which sank the _Durward_ in the North Sea, and several small
vessels near the Mersey, but is obviously possible to such craft only
under very exceptional circumstances. It was scandalously not followed
in the cases of the _Tokomaru_, the _Ikaria_, and the hospital ship (!)
_Asturias_, against which a submarine fired torpedoes, off Havre,
without warning or inquiry, and, of course, regardless of the fate of
those on board. The threat that similar methods of attack will be
systematically employed, on a large scale, on and after the 18th inst.,
naturally excites as much indignation among neutrals as among the Allies
of the Entente.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, February 12 (1915).
* * * * *
SECTION 4
_Aerial Warfare_
It may be desirable to supplement what is said in the following
letters by mentioning that the Declaration of 1899 (to remain
in force for five years) was largely ratified, though not by
Great Britain; that of 1907 (to remain in force till the
termination of the third Peace Conference) was ratified by
Great Britain and by most of the other great Powers in 1909,
not, however, by Germany or Austria; that aerial navigation is
regulated by the Acts, I & 2 Geo. 5, c. 4, and 2 & 3 Geo. 5, c.
22; and that an agreement upon the subject was entered into
between France and Germany, on July 26, 1913, by exchange of
notes, "en attendant la conclusion d'une convention sur cette
matière entre un plus grand nombre d'états" (the international
Conference held at Paris in 1910 had failed to agree upon the
terms of such a Convention); and that Art. 25 of The Hague
Convention of 1907, No. iv., was ratified by Great Britain, and
generally.
THE DEBATE ON AERONAUTICS
Sir,--It is not to be wondered at that the Chairman of Committees
declined to allow yesterday's debate on aviation to diverge into an
enquiry whether the Powers could be induced to prohibit, or limit, the
dropping of high explosives from aerial machines in war time. The
question is, however, one of great interest, and it may be desirable,
with a view to future discussions, to state precisely, since little
seems to be generally known upon the subject, what has already been
attempted in this direction.
In the _Règlement_ annexed to The Hague Convention of 1899, as to the
"Laws and Customs of War on Land," Art. 23, which specifically prohibits
certain "means of injuring the enemy," makes no mention of aerial
methods; but Art. 25, which prohibits "the bombardment of towns,
villages, habitations, or buildings, which are not defended," was
strengthened, when the _Règlement_ was reissued in 1907 as an annexe to
the, as yet not generally ratified, Hague Convention No. iv. of that
year, by the insertion, after the word "bombardment," of the words "by
any means whatever," with the expressed intention of including in the
prohibition the throwing of projectiles from balloons.
The Hague Convention No. ix. of 1907, also not yet generally ratified,
purports to close a long controversy, in accordance with the view which
you allowed me to advocate, with reference to the naval manoeuvres of
1888, by prohibiting the "naval bombardment of ports, towns, villages,
habitations, or buildings, which are not defended." The words "by any
means whatever" have not been here inserted, one would incline to think
by inadvertence, having regard to what passed in Committee, and to the
recital of the Convention, which sets out the propriety of extending to
naval bombardments the principles of the _Règlement_ (cited, perhaps
again by inadvertence, as that of 1899) as to the Laws and Customs of
War on Land.
But the topic was first squarely dealt with by the first of the three
Hague Declarations of 1899, by which the Powers agreed to prohibit, for
five years, "the throwing of projectiles and explosives from balloons,
or by other analogous new methods." The Declaration was signed and
ratified by almost all the Powers concerned; not, however, by Great
Britain.
At The Hague Conference of 1907, when the Belgian delegates proposed
that this Declaration, which had expired by efflux of time, should be
renewed, some curious changes of opinion were found to have occurred.
Twenty-nine Powers, of which Great Britain was one, voted for renewal,
but eight Powers, including Germany, Spain, France, and Russia, were
opposed to it, while seven Powers, one of which was Japan, abstained
from voting. The Japanese delegation had previously intimated that, "in
view of the absence of unanimity on the part of the great military
Powers, there seemed to be no great use in binding their country as
against certain Powers, while, as against the rest, it would still be
necessary to study and bring to perfection this mode of making war."
Although the Declaration, as renewed, was allowed to figure in the "Acte
final" of the Conference of 1907, the dissent from it of several Powers
of the first importance must render its ratification by the others
highly improbable; nor would it seem worth while to renew, for some time
to come, a proposal which, only two years ago, was so ill received.
I may perhaps add, with reference to what was said by one of yesterday's
speakers, that any provision on the topic under discussion would be
quite out of place in the Geneva Convention, which deals, not with
permissible means of inflicting injury, but exclusively with the
treatment of those who are suffering from injuries inflicted.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August 3 (1909).
THE AERIAL NAVIGATION ACT
PRACTICAL DIFFICULTIES
Sir,--The haste with which Colonel Seely's Bill, authorising resort to
extreme measures for the prevention of aerial trespass under suspicious
circumstances, has been passed through all its stages, was amply
justified by the urgent need for such legislation, which Russia seems to
have been the first to recognise. The task of those responsible for
framing regulations for the working of the new Act will be no easy one.
They will be brought face to face with practical difficulties, such as
led to the adjournment of the Paris Conference of 1910.
In the meantime, it may interest your readers to have some clue to what
has taken place, with reference to the more theoretical aspects of the
questions involved, in so competent and representative a body as the
Institut de Droit International. The Institut has had the topic under
consideration ever since 1900, more especially at its sessions for the
years 1902, 1906, 1910, and 1911. In the volumes of its "Annuaire" for
those years will be found not only the text of the resolutions adopted
on each occasion, together with a summary account of the debates which
preceded their adoption, but also, fully set out, the material which had
been previously circulated for the information of members, in the shape
of reports and counter-reports from inter-sessional committees, draft
resolutions, and such critical observations upon these documents as had
been received by the secretary. The special committee upon the subject,
of which M. Fauchille is _Rapporteur_, is still sitting, and the topic
will doubtless be further debated at the session of the Institut, which
will this year be held at Oxford. No success has attended efforts to
pass resolutions in favour of any interference with the employment of
_aéronefs_ in time of war, such as was proposed by The (now discredited)
Hague Declaration, prohibiting the throwing of projectiles and
explosives from airships. With reference to the use of these machines in
time of peace, the debates have all along revealed a fundamental
divergence of opinion between the majority of the Institut and a
minority, comprising those English members who have made known their
views. Both parties are agreed that aerial navigation must submit to
some restrictions, but the majority, starting from the Roman law dictum,
"Naturali iure omnium communia sunt _aer_, aqua profluens, et mare,"
would always presume in favour of freedom of passage. The minority, on
the other hand, citing sometimes the old English saying, "Cuius est
solum eius est usque ad coelum," hold that the presumption must be in
favour of sovereignty and ownership as applicable to superimposed air
space.
It is hardly necessary to observe that neither of the maxims just
mentioned was formulated with reference to problems which have only
presented themselves within the last few years. The Romans, in the
passage quoted, were thinking not of aerial space, but of the element
which fills it. The old English lawyers were preoccupied with questions
as to projecting roofs and overhanging boughs of trees. The problems now
raised are admittedly incapable of solution _a priori_, but the
difference between the two schools of thinkers is instructive, as
bearing upon the extent to which those who belong to one or the other
school would incline towards measures of precaution against abuses of
the novel art. This difference was well summed up at one of our meetings
by Professor Westlake as follows: "Conservation et passage, comment
combiner ces deux droits? Lequel des deux est la règle? Lequel
l'exception? Pour le Rapporteur (M. Fauchille) c'est le droit de passage
qui prime. Pour moi c'est le droit de conservation."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, February 15 (1913).
SOVEREIGNTY OVER THE AIR
Sir,--Mr. Arthur Cohen has done good service by explaining that Great
Britain has practically asserted the right of a State to absolute
control of the airspace vertically above its territory. I may, however,
perhaps be permitted to remark that he seems to have been misinformed
when he states that the Institute of International Law has arrived at no
decision upon the subject. The facts are as follows: The problems
presented by the new art of aerostation have been under the
consideration of the Institute since 1900, producing a large literature
of reports, counter-reports, observations, and draft rules, to debates
upon which no fewer than four sittings were devoted at the Madrid
meeting in 1911. Wide differences of opinion then disclosed themselves
as to territorial rights over the air, the radical opposition being
between those members who, with M. Fauchille, the Reporter of the
Committee, would presume in favour of freedom of aerial navigation,
subject, as they would admit, to some measures of territorial
precaution, and those who, like the present writer ("il se proclame
opposé au principe de la liberté de la navigation aérienne, et s'en
tiendrait[A] plutôt au principe _cuius est solum, huius est usque ad
coelum_, en y apportant au besoin quelques restrictions," "Annuaire," p.
821), would subject all aerial access to the discretion of the
territorial Power.
The discussion took place upon certain _bases_, and No. 3 of these was
ultimately adopted, though only by 21 against 10 votes, to the following
effect: "La circulation aérienne internationale est libre, sauf le droit
pour les états sous-jacents de prendre certaines mesures à déterminer,
en vue de leur sécurité et de celle des personnes et des biens de leur
territoire."
The Institut then proceeded to deal with _bases_ relating to a time of
war, but was unable to make much progress with them in the time
available. The debate upon the "Régime juridique des aérostats" was not
resumed at Christiania in 1911, nor is it likely to be at Oxford "in the
autumn of the present year," as Mr. Cohen has been led to suppose. Other
arrangements were found to be necessary, at a meeting which took place a
week ago between myself and the other members of our _bureau_.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 30 (1913).
ATTACK FROM THE AIR
THE ENFORCEMENT OF INTERNATIONAL LAW
Sir,--In his interesting and important address at the Royal United
Service Institution, Colonel Jackson inquired: "Can any student of
international law tell us definitely that such a thing as aerial attack
on London is outside the rules; and, further, that there exists an
authority by which the rules can be enforced?" As one of the students to
whom the Colonel appeals I should be glad to be allowed to reply to the
first of his questions.
The "Geneva Convention" mentioned in the address has, of course, no
bearing upon aerial dangers. The answer to the question is contained in
the, now generally ratified, Hague Convention No. iv. of 1907. Art. 25
of the regulations annexed to this Convention runs as follows:
"It is forbidden to attack or to bombard _by any means
whatever (par quelque moyen que ce soit)_ towns, villages,
habitations, or buildings which are not defended."
It clearly appears from the "Actes de la Conférence," e.g. _T._ i.,
pp. 106, 109, that the words which I have italicised were inserted in
the article, deliberately and after considerable discussion, in order to
render illegal any attack from the air upon undefended localities; among
which I conceive that London would unquestionably be included.
I cannot venture to ask the hospitality of your columns for an adequate
discussion of the gallant officer's second question, as to the binding
force attributable to international law. Upon this I may, however,
perhaps venture to refer him to some brief remarks, addressed to you a
good many years ago, and now to be found at pp. 101 and 105 of the new
edition of my "Letters to _The Times_ upon War and Neutrality
(1881-1918)."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, April 24 (1914).
ATTACK FROM THE AIR
THE RULES OF INTERNATIONAL LAW
Sir,--In reply to Colonel Jackson's inquiry as to any rule of
international law bearing upon aerial attack upon London, I referred him
to the, now generally accepted, prohibition of the "bombardment, _by any
means whatever_, of towns, &c., which are not defended." This rule has
been growing into its present form ever since the Brussels Conference of
1874. The words italicised were added to it in 1907, to show that it
applies to the action of _aéronefs_ as well as to that of land
batteries. It clearly prohibits any wanton bombardment, undertaken with
no distinctly military object in view, and the prohibition is much more
sweeping, for reasons not far to seek, than that imposed by Convention
No. ix. of 1907 upon the treatment of coast towns by hostile fleets.
So far good; but further questions arise, as to which no diplomatically
authoritative answers are as yet available; and I, for one, am not wise
above that which is written. One asks, for instance, what places are
_prima facie_ "undefended." Can a "great centre of population" claim
this character, although it contains barracks, stores, and bodies of
troops? For the affirmative I can vouch only the authority of the
Institut de Droit International, which in 1896, in the course of the
discussion of a draft prepared by General Den Beer Pourtugael and
myself, adopted a statement to that effect. A different view seems to be
taken in the German _Kriegsbrauch_, p. 22. One also asks: Under what
circumstances does a place, _prima facie_, "undefended," cease to
possess that character? Doubtless so soon as access to it is forcibly
denied to the land forces of the enemy; hardly, to borrow an
illustration from Colonel Jackson's letter of Thursday last, should the
place merely decline to submit to the dictation of two men in an
aeroplane.
I read with great pleasure the colonel's warning, addressed to the
United Service Institution, and am as little desirous as he is that
London should rely for protection upon The Hague article, ambiguous as I
have confessed it to be; trusting, indeed, that our capital may be
enabled so to act at once in case of danger as wholly to forfeit such
claim as it may in ordinary times possess to be considered an
"undefended" town. Let the principle involved in Art. 25 be carried into
much further detail, should that be found feasible, but, in the
meantime, let us not for a moment relax our preparation of vertical
firing guns and defensive aeroplanes.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 2 (1914).
The war of 1914 has definitely established the employment of
aircraft for hostile purposes, and, as evidenced by the
reception given by belligerents to neutral protests, the
sovereignty of a state over its superincumbent air-spaces.
On the bombardment of undefended places, _cf. supra_, pp. 30,
62, 67, 68; _infra_, pp. 97, 109, 112-123.
On the authority of International Law, _supra_, pp. 25, 66, 67;
_infra_, pp. 77, 114, 115, 137, 169.
* * * * *
SECTION 5
_Submarines_
GERMANY AND THE HAGUE
Sir,--One excuse for German atrocities put forward, as you report, in
the _Kolnische Zeitung_, ought probably not to pass unnoticed, denying,
as it does, any binding authority to the restrictions imposed upon the
conduct of warfare, on land or at sea, by The Hague Conventions of 1907.
It is true that each of these Conventions contains an article to the
effect that its provisions "are applicable only between the contracting
Powers, and only if all the belligerents are parties to the Convention."
It is also true that three of the belligerents in the world-war now
raging--namely, Serbia, Montenegro, and, recently, Turkey--although they
have (through their delegates) signed these Conventions, have not yet
ratified them. Therefore, urges the _Zeitung_, the Conventions are, for
present purposes, waste paper. The argument is as technically correct as
its application would be unreasonable; and I should like to recall the
fact that, in the important prize case of the _Möwe_, Sir Samuel Evans,
in a considered judgment, pointed out the undesirability of refusing
application to the maritime conventions because they had not been
ratified by Montenegro, which has no navy, or by Serbia, which has no
seaboard; and accordingly, even after Turkey, which also has not
ratified, had become a belligerent, declined to deprive a German
shipowner of an indulgence to which he was entitled under the Sixth
Hague Convention.
Admiral von Tirpitz was perhaps not serious when he intimated to the
representative of the United Press of America that German submarines
might be instructed to torpedo all trading vessels of the Allies which
approach the British coasts. The first duty of a ship of war which
proposes to sink an enemy vessel is admittedly, before so doing, to
provide for the safety of all its occupants, which (except in certain
rare eventualities) can only be secured by their being taken on board of
the warship. A submarine has obviously no space to spare for such an
addition to its own staff.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 26 (1914).
The charitable view taken in the last paragraph has, of course,
not been justified.
For the _Möwe_, see 2 Lloyd, 70. On the restrictive article in
The Hague Convention, _cf. passim_.
"THE PIRATES"
Sir,--Would it not be desirable, in discussing the execrable tactics of
the German submarines, to abandon the employment of the terms "piracy"
and "murder," unless with a distinct understanding that they are used
merely as terms of abuse?
A ship is regarded by international law as "piratical" only if, upon the
high seas, she either attacks other vessels, without being commissioned
by any State so to do (_nullius Principis auctoritate_, as Bynkershoek
puts it), or wrongfully displaces the authority of her own commander.
The essence of the offence is absence of authority, although certain
countries, for their own purposes, have, by treaty or legislation, given
a wider meaning to the term, e.g., by applying it to the slave-trade.
"Murder" is such slaying as is forbidden by the national law of the
country which takes cognizance of it.
In ordering the conduct of which we complain, Germany commits an
atrocious crime against humanity and public law; but those who, being
duly commissioned, carry out her orders, are neither pirates nor
murderers. The question of the treatment appropriate to such persons,
when they fall into our hands, is a new one, needing careful
consideration. In any case, it is not for us to rival the barbarism of
their Government by allowing them to drown.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 13 (1915)
SUBMARINE CREWS
Sir,--My letter in _The Times_ of March 15 with reference to the conduct
of certain of the German submarines has been followed by a good many
other letters upon the same subject. Some of your correspondents have
travelled far from the question at issue into the general question of
permissible reprisals, into which I have no intention of following them.
But others, by exhibiting what I may venture to describe as an
_ignoratio elenchi_, have made it desirable to recall attention to the
specific purport of my former letter. It was to the effect--(1) that the
acts of those who, in pursuance of a Government commission, sink
merchant vessels without warning are not "piracy," the essence of that
offence at international law being that it is committed under no
recognised authority; and that neither is it "murder" under English law;
(2) that the question of the treatment appropriate to the perpetrators
of such acts, even under the orders of their Government, is a new one,
needing careful consideration. I was, of course, far from stating, as a
general rule, that Government authority exempts all who act under it
from penal consequences. The long-established treatment of spies is
sufficient proof to the contrary.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 22 (1915).
MR. WILSON'S NOTE
Sir,--I may perhaps be permitted to endorse every word of the high
praise bestowed in your leading article of this morning upon the Note
addressed to Germany by the Government of the United States. The
frequent mentions which it contains of "American ships," "American
citizens," and the like, were, no doubt, natural and necessary, as
establishing the _locus standi_ of that Government in the controversy
which it is carrying on. But we find also in the Note matters of even
more transcendent interest, relating to the hitherto universally
accepted doctrines of international law, applicable to the treatment of
enemy as well as of neutral vessels.
It may suffice to cite the paragraph which assumes as indisputable
"the rule that the lives of non-combatants, whether they be
of neutral citizenship or citizens of one of the nations at
war, cannot lawfully or rightfully be put in jeopardy by the
capture or destruction of unarmed merchantmen,"
as also
"the obligation to take the usual precaution of visit and
search to ascertain whether a suspected merchantman is in
fact of belligerent nationality, or is in fact carrying
contraband under a neutral flag."
[I assume that the word "unarmed" here does not exclude the case of a
vessel carrying arms solely for defence.]
The Note also recognises, what you some time ago allowed me to point
out,
"the practical impossibility of employing submarines in the
destruction of commerce without disregarding those rules of
fairness, reason, justice, and humanity which modern opinion
regards as imperative."
Adding:--
"It is practically impossible for them to make a prize of
her, and if they cannot put a prize crew on board, they
cannot sink her without leaving her crew and all on board her
to the mercy of the sea in her small boats."
Nothing could be more satisfactory than the views thus authoritatively
put forth, first as to the applicable law, and secondly as to the means
by which its prescriptions can be carried out.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Brighton, May 15 (1915).
_Cf. supra_, p. 70.
* * * * *
SECTION 6
_Lawful Belligerents_
GUERILLA WARFARE
Sir,--When Mr. Balfour last night quoted certain articles of the
"Instructions for the Government of Armies of the United States in the
Field" with reference to guerilla warfare, some observations were made,
and questions put, upon which you will perhaps allow me to say a word or
two.
1. Mr. Healy seemed to think that something turned upon the date (May,
1898) at which these articles were promulgated. In point of fact they
were a mere reissue of articles drawn by the well-known jurist Francis
Lieber, and, after revision by a military board, issued in April, 1868
by President Lincoln.
2. To Mr. Morley's enquiry, "Have we no rules of our own?" the answer
must be in the negative. The traditional policy of our War Office has
been to "trust to the good sense of the British officer." This policy,
though surprisingly justified by results, is so opposed to modern
practice and opinion that, as far back as 1878-80, I endeavoured,
without success, to induce the Office to issue to the Army some
authoritative, though simple, body of instructions such as have been
issued on the Continent of Europe and in America. The War Office was,
however, content to include in its "Manual of Military Law," published
in 1888, a chapter which is avowedly unauthoritative, and expressly
stated to contain only "the opinions of the compiler, as drawn from the
authorities cited."
3. The answer to Sir William Harcourt's unanswered question, "Were there
no rules settled at the Hague?" must be as follows. The Hague Convention
of 1899, upon "the laws and customs of warfare," ratified by this
country on September 4 last, binds the contracting parties to give to
their respective armies instructions in conformity with the _Règlement_
annexed to the Convention. This _Règlement_, which is substantially a
reproduction of the unratified _projet_ of the Brussels Conference of
1874, does deal, in Arts. 1-3, with guerilla warfare. It is no doubt
highly desirable that, as soon as may be, the drafting of rules in
accordance with the _Règlement_ should be seriously taken in hand, our
Government having now abandoned its _non possumus_ attitude in the
matter. It will, however, be found to be the case, as was pointed out by
Mr. Balfour, that the sharp distinction between combatants and
non-combatants contemplated by the ordinary laws of war is inapplicable
(without the exercise of undue severity) to operations such as those now
being carried out in South Africa.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 7 (1900).
"Lieber's Instructions," issued in 1863 and reissued in 1898,
will doubtless be superseded, or modified, in consequence of
the United States having, on April 9, 1902, ratified the
Convention of 1899, and on March 10, 1908, that of 1907, as to
the Laws and Customs of War on Land.
The answer to Mr. Morley's enquiry in 1900 would not now be in
the negative. The present writer's representations resulted in
Mr. Brodrick, when Secretary for War, commissioning him to
prepare a Handbook of the _Laws and Customs of War on Land_,
which was issued to the Army by authority in 1904. On the
instructions issued by other National Governments, see the
author's _Laws of War on Land_, 1908, pp. 71-73.
The answer, given in the letter, to Sir William Harcourt's
question must now be supplemented by a reference to the
Handbook above mentioned as having contained rules founded upon
the _Règlement_ annexed to the Convention of 1899, and by a
statement that that Convention, with its _Règlement_, is now
superseded by Conventions No. iv. (with its _Règlement_) and
No. v. of 1907, of which account has been taken in a new
Handbook upon _Land Warfare_, issued by the War Office in 1913.
As to what is required from a lawful belligerent, see Arts. 1
and 2 of the _Règlement_ of 1899, practically repeated in that
of 1907. The substance of Art. 1 is set out in the letter which
follows.
Art. 2 grants some indulgence to "the population of a territory
which has not been occupied who, on the approach of the enemy,
spontaneously take up arms to resist the invading troops,
without having had time to organise themselves in accordance
with Art. 1." _Cf. infra_, pp. 76, 79.
THE RUSSIAN USE OF CHINESE CLOTHING
Sir,--If Russian troops have actually attacked while disguised in
Chinese costume, they have certainly violated the laws of war. It may,
however, be worth while, to point out that the case is not covered, as
might be inferred from the telegram forwarded to you from Tokio on
Wednesday last, by the text of Art. 23 (_f_) of the _Règlement_ annexed
to The Hague Convention "on the laws and customs of war on land." This
article merely prohibits "making improper use of the flag of truce, of
the national flag or the military distinguishing marks and the uniform
of the enemy, as well as of the distinguishing signs of the Geneva
Convention."
Art. 1 of the _Règlement_ is more nearly in point, insisting, as it
does, that even bodies not belonging to the regular army, which, it is
assumed, would be in uniform (except in the case of a hasty rising to
resist invasion), shall, in order to be treated as "lawful
belligerents," satisfy the following requirements, viz.:--
"(1) That of being commanded by a person responsible for his
subordinates;
"(2) That of having a distinctive mark, recognisable at a
distance;
"(3) That of carrying their arms openly; and
"(4) That of conducting their operations in accordance with
the laws and customs of war."
The fact that, in special circumstances, as in the Boer war, marks in
the nature of uniform have not been insisted upon, has, of course, no
bearing upon the complaint now made by the Japanese Government.
All signatories of The Hague Convention are bound to issue to their
troops instructions in conformity with the _Règlement_ annexed to it.
The only countries which, so far as I am aware, have as yet fulfilled
their obligations in this respect are Italy, which has circulated the
French text of the _Règlement_ without comment; Russia, which has
prepared a little pamphlet of sixteen pages for the use of its armies in
the Far East; and Great Britain, which has issued a Handbook, containing
explanatory and supplementary matter, besides the text of the relevant
diplomatic Acts.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, October 21 (1904).
THE RIGHTS OF ARMED CIVILIANS
Sir,--It is interesting to be reminded by Sir Edward Ridley of the view
taken by Sir Walter Scott of the right and duty of civilians to defend
themselves against an invading enemy. International law is, however,
made neither by the ruling of an "impartial historian," on the one hand,
nor by the _ipse dixit_ of an Emperor, on the other.
In point of fact, the question raised by Sir Edward is not an open one,
and, even in our own favoured country, it is most desirable that every
one should know exactly how matters stand. The universally accepted
rules as to the persons who alone can claim to act with impunity as
belligerents are set forth in that well-known "scrap of paper" The Hague
Convention No. iv. of 1907; to the effect that members of "an army" (in
which term militia and bodies of volunteers are included) must (1) be
responsibly commanded, (2) bear distinctive marks, visible at a
distance, (3) carry their arms openly, and (4) conform to the laws of
war. By way of concession, inhabitants of a district not yet "occupied"
who spontaneously rise to resist invasion, without having had time to
become organised, will be privileged if they conform to requirements (3)
and (4). These rules are practically a republication of those of The
Hague Convention of 1899, which again were founded upon the
recommendations of the Brussels Conference of 1874, although, at the
Conference, Baron Lambermont regretted that "si les citoyens doivent
être conduits au supplice pour avoir tenté de défendre leur pays, au
péril de leur vie, ils trouvent inscrit, sur le poteau au pied duquel
ils seront fusillés, l'article d'un Traité signé par leur propre
gouvernement qui d'avance les condamnait à mort."
_An Englishman's Home_ was a play accurately representing the accepted
practice, shocking as it must be. I remember the strength of an epithet
which was launched from the gallery at the German officer on his
ordering the shooting of the offending householder. It may be hardly
necessary to add that nothing in international usage justifies execution
of innocent wives and children.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, September 17 (1914).
This letter was, it seems, perverted in the _Kreuz Zeitung_.
CIVILIANS IN WARFARE
THE RIGHT TO TAKE UP ARMS
Sir,--I have read with some surprise so much of Sir Ronald Ross's letter
of to-day as states that "the issue still remains dark" as to the right
of civilians to bear arms in case of invasion. It has long been settled
that non-molestation of civilians by an invader is only possible upon
the understanding that they abstain from acts of violence against him.
Modern written international law has defined, with increasing
liberality, by the draft Declaration of 1874 and the Conventions of 1899
and 1907, the persons who will be treated as lawful belligerents. Art. 1
of The Hague Regulations of 1907 recognises as such, not only the
regular army, but also militia and volunteers. Art. 2 grants indulgence
to a _levée en masse_ of "la population" (officially mistranslated "the
inhabitants") of a territory not yet occupied. Art. 3, also cited by Sir
Ronald, has no bearing upon the question.
The rules are, I submit, as clear as they could well be made, and are
decisive against the legality of resistance by individual civilians, the
sad, but inevitable consequence of which was, as I pointed out in _The
Times_ of September 19 last, truthfully represented on the stage in _An
Englishman's Home_.
In the same letter I wrote that "even in our own favoured country it is
most desirable that every one should know exactly how matters stand."
There are, however, obvious objections, possibly not insuperable, to
this result being brought about, as is proposed by Sir Ronald Ross, by
Government action.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, October 26 (1914).
CIVILIANS AND A RAID
Sir,--It is satisfactory to learn, from Mr. McKenna's answer to a
question last night, that the duty of the civilian population, at any
rate in certain counties, is engaging the attention of Government. I
confess, however, to having read with surprise Mr. Tennant's
announcement that "it was provided by The Hague Convention that the
wearing of a brassard ensured that the wearer would be regarded as a
belligerent." It ought surely to be now generally known that, among the
four conditions imposed by the Convention upon Militia and bodies of
Volunteers, in order to their being treated as belligerents, the third
is "that they shall bear a distinctive mark, fixed and recognisable at a
distance." Whether an enemy would accept the mere wearing of a brassard
as fulfilling this condition is perhaps an open question upon which some
light may be thrown by the controversies of 1871 with reference to
_francs-tireurs_.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 24 (1914).
MISS CAVELL'S CASE
Sir,--The world-wide abhorrence of the execution of Miss Cavell,
aggravated as it was by the indecent and stealthy haste with which it
was carried out, is in no need of enhancement by questionable arguments,
such as, I venture to say, are those addressed to you by Sir James
Swettenham.
It is, of course, the case that Germany is in Belgium only as the result
of her deliberate violation of solemnly contracted treaties, but she is
in military "occupation" of the territory. From such "occupation" it
cannot be disputed that there flow certain rights of self-defence. No
one, for instance, would have complained of her stern repression of
civilian attacks upon her troops, so long as it was confined to actual
offenders. The passages quoted by Sir James from Hague Convention v.,
and from the _Kriegsbrauch_, relate entirely to the rights and duties of
Governments, and have no bearing upon the tragical abuse of jurisdiction
which is occupying the minds of all of us.
May I take this opportunity of calling attention to the fresh evidence
afforded by the new Order in Council of our good fortune in not being
bound by the Declaration of London, which erroneously professed to
"correspond in substance with the generally recognised principles of
International Law"? Is it too late, even now, to announce, by a
comprehensive Order in Council, any relaxations which we and our Allies
think proper to make of well-established rules of Prize Law, without any
reference to the more and more discredited provisions of the
Declaration, the partial and provisional adoption of which seems, at the
outbreak of the war, to have been thought likely to save trouble?
Your obedient servant,
T. E. HOLLAND.
Oxford, October 26 (1915).
* * * * *
SECTION 7
_Privateering_
The three letters which immediately follow were written to
point out that neither belligerent in the war of 1898 was under
any obligation not to employ privateers. Within, however, a few
days after the date of the second of these letters, both the
United States and Spain, though both still to be reckoned among
the few powers which had not acceded to the Declaration of
Paris, announced their intention to conduct the war in
accordance with the rules laid down by the Declaration.
Art. 3 of the Spanish Royal Decree of April 23 was to the
effect that "notwithstanding that Spain is not bound by the
Declaration signed in Paris on April 16, 1856, as she expressly
stated her wish not to adhere to it, my Government, guided by
the principles of international law, intends to observe, and
hereby orders that the following regulations for maritime law
be observed," viz. Arts. 2, 3, and 4 of the Declaration,
after setting out which, the Decree proceeds to state that the
Government, while maintaining "their right to issue letters of
marque, ... will organise, for the present, a service of
auxiliary cruisers ... subject to the statutes and jurisdiction
of the Navy."
The Proclamation of the President of the United States of April
26 recited the desirability of the war being "conducted upon
principles in harmony with the present views of nations, and
sanctioned by their recent practice," and that it "has already
been announced that the policy of the Government will not be to
resort to privateering, but to adhere to the rules of the
Declaration of Paris," and goes on to adopt rules 2, 3, and 4
of the Declaration.
Ten years afterwards, viz. on January 18, 1908, Spain
signified "her entire and definitive adhesion to the four
clauses contained in the Declaration," undertaking scrupulously
to conduct herself accordingly. Mexico followed suit on
February 13, 1909. The United States are therefore now the only
important Power which has not formally bound itself not to
employ privateers. It seems unlikely that privateers, in the
old sense of the term, will be much heard of in the future,
though many questions may arise as to "volunteer navies" and
subsidised liners, such as those touched upon in the last
section, with reference to captures made by the _Malacca_;
possibly also as to ships "converted" on the High Seas.
OUR MERCANTILE MARINE IN WAR TIME
Sir,--There can be no doubt that serious loss would be occasioned to
British commerce by a war between the United States and Spain in which
either of those Powers should exercise its right of employing privateers
or of confiscating enemy goods in neutral bottoms.
Before, however, adopting the measures recommended, with a view to the
prevention of this loss, by Sir George Baden-Powell in your issue of
this morning, it would be desirable to enquire how far they would be in
accordance with international law, and what would be the net amount of
the relief which they would afford.
It is hardly necessary to say that non-compliance with the provisions of
the Declaration of Paris by a non-signatory carries with it none of the
consequences of a breach of the law of nations. The framers of that
somewhat hastily conceived attempt to engraft a paper amendment upon the
slowly matured product of oecumenical opinion, far from professing to
make general law, expressly state that the Declaration "shall not be
binding except upon those Powers who have acceded, or shall accede, to
it." As regards Spain and the United States the Declaration is _res
inter alios acta_.
It follows that, in recommending that any action taken by privateers
against British vessels should be treated as an act of piracy, Sir
George Baden-Powell is advocating an inadmissible atrocity, which
derives no countenance from the view theoretically maintained by the
United States, at the outset of the Civil War, of the illegality of
commissions granted by the Southern Confederation. His recommendation
that our ports should be "closed" to privateers is not very
intelligible. Privateers would, of course, be placed under the
restrictions which were imposed in 1870, in accordance with Lord
Granville's instructions, even on the men-of-war of belligerents. They
would be forbidden to bring in prizes, to stay more than twenty-four
hours, to leave within twenty-four hours of the start of a ship of the
other belligerent, to take more coal than enough to carry them to the
nearest home port, and to take any further supply of coal within three
months. We might, no doubt, carry discouragement of privateers by so
much further as to make refusal of coal absolute in their case, but
hardly so far as to deny entry to them under stress of weather.
The difficulties in the way of accepting Sir G. Baden-Powell's other
suggestion are of a different order. Although we could not complain of
the confiscation by either of the supposed belligerents of enemy
property found in British vessels, as being a violation of international
duty, we might, at our own proper peril, announce that we should treat
such confiscation as "an act of war." International law has long
abandoned the attempt to define a "just cause of war." That must be left
to the appreciation of the nations concerned. So to announce would be,
in effect, to say: "Although by acting as you propose you would violate
no rule, yet the consequences would be so injurious to me that I should
throw my sword into the opposite scale." We should be acting in the
spirit of the "Armed Neutralities" of 1780 and 1800. The expediency of
so doing depends, first, upon the extent to which the success of our
action would obviate the mischief against which it would be directed;
and, secondly, upon the likelihood that the benefit which could be
obtained only by imposing a new rule of international law _in invitos_
would counterbalance the odium incurred by its imposition. On the former
question it may be worth while to remind the mercantile community that,
even under the Declaration of Paris, neutral trade must inevitably be
put to much inconvenience. Any merchant vessel may be stopped with a
view to the verification of her national character, of which the flag is
no conclusive evidence. She is further liable to be visited and searched
on suspicion of being engaged in the carriage of contraband, or of enemy
military persons, or of despatches, or in running a blockade. Should the
commander of the visiting cruiser "have probable cause" for suspecting
any of these things, though the vessel is in fact innocent of them, he
is justified in putting a prize crew on board and sending her into port,
with a view to the institution of proceedings against her in a prize
Court. A non-signatory of the Declaration of Paris may investigate and
penalise, in addition to the above-mentioned list of offences, the
carriage of enemy goods. This is, no doubt, by far the most important
branch of the trade which is carried on for belligerents by neutrals,
but it must not be forgotten that even were this branch of trade
universally indulged, in accordance with the Declaration of Paris
neutral commerce would still remain liable to infinite annoyance from
visit and search, with its possible sequel in a prize Court.
The question of the balance between benefit to be gained and odium to be
incurred by insisting upon freedom to carry the goods of belligerents I
leave to the politicians.
I am, Sir, your obedient servant,
T. E. HOLLAND.
The Athenæum, April 16 (1898).
OUR MERCANTILE MARINE IN WAR TIME
Sir,--To-day's debate should throw some light upon the views of the
Government, both as to existing rules of international law and as to the
policy demanded by the interests of British trade. It is, however,
possible that the Government may decline to anticipate the terms of the
Declaration of Neutrality which they may too probably find themselves
obliged to issue in the course of the next few days, and it is not
unlikely that the law officers may decline to advise shipowners upon
questions to which authoritative replies can be given only with
reference to concrete cases by a prize Court.
You may perhaps, therefore, allow me in the meantime to supplement my
former letter by a few remarks, partly suggested by what has since been
written upon the subject.
It is really too clear for argument that privateers are not, and cannot
be treated as, pirates.
Sir George Baden-Powell still fails to see that the Declaration of Paris
was not a piece of legislation, but a contract, producing no effect upon
the rights and duties of nations which were not parties to it. We did
not thereby, as he supposes, "decline to recognise private vessels of
war as competent to use force on neutral merchantmen." We merely bound
ourselves not to use such vessels for such a purpose. Sir George is
still unable to discover for privateers any other category than the
"_status_ of pirate." He admits that it would not be necessary for their
benefit to resort to "the universal use of the fore-yard-arm." Let me
assure him that the bearer of a United States private commission of war
would run no risk even of being hanged at Newgate. President Lincoln, it
is true, at the outset of the Civil War, threatened to treat as pirates
vessels operating under the "pretended authority" of the rebel States;
but he was speedily instructed by his own law Courts--e.g. in the
_Savannah_ and in the _Golden Rocket_ (insurance) cases--that even such
vessels were not pirates _iure gentium_. It is also tolerably
self-evident that we cannot absolutely "close" our ports to any class of
vessels. There is no inconsistency here between my friend Sir Sherston
Baker and myself. We can discourage access, and of course, by refusal of
coal, render egress impossible for privateers. Mr. Coltman would
apparently be inclined to carry this policy so far that he would disarm
and intern even belligerent ships of war which should visit our ports: a
somewhat hazardous innovation, one would think.
It is quite possible that the question of privateering may not become a
practical one during the approaching war. Both parties may expressly
renounce the practice, or they may follow the example of Prussia in
1870, and Russia at a later date, in commissioning fast liners under the
command of naval officers--a practice, by the by, which is not, as Sir
George seems to think, "right in the teeth of the Declaration of Paris."
See Lord Granville's despatch in 1870.
On Sir George's proposals with reference to the carriage of enemy goods,
little more need be said, except to deprecate arguments founded upon the
metaphorical statement that "a vessel is part of the territory covered
by her flag," a statement which Lord Stowell found it necessary to meet
by the assertion that a ship is a "mere movable." There can be no
possible doubt of the right, under international law, of Spain and the
United States to visit and search neutral ships carrying enemy's goods,
and to confiscate such goods when found. They may also visit and search
on many other grounds, and the question (one of policy) is whether,
rather than permit this addition to the list, we choose to take a step
which would practically make us belligerent. This question also, it may
be hoped, will not press for solution.
In any case, let me express my cordial concurrence with your hope that,
when hostilities are over, some really universal and lasting agreement
may be arrived at with reference to the matters dealt with, as I venture
to think prematurely, by the Declaration of Paris. A reform of maritime
law to which the United States are not a party is of little worth. That
search for contraband of war can ever be suppressed I do not believe,
and fear that it may be many years before divergent national interests
can be so far reconciled as to secure an agreement as to the list of
contraband articles. In the meantime this country is unfortunately a
party to that astonishing piece of draftsmanship, the "three rules" of
the Treaty of Washington, to which less reference than might have been
expected has been made in recent discussions. The ambiguities of this
document, which have prevented it from ever being, as was intended,
brought to the notice of the other Powers, with a view to their
acceptance of it, are such that, its redrafting, or, better still, its
cancellation, should be the first care of both contracting parties when
the wished for congress shall take place.
May I add that no serious student of international law is likely either
to overrate the authority which it most beneficially exercises, or to
conceive of it as an unalterable body of theory.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Brighton, April 21 (1898).
OUR MERCANTILE MARINE IN WAR
Sir,--Let me assure Sir George Baden-Powell that if, as he seems to
think, I have been unsuccessful in grasping the meaning of his very
interesting letters, it has not been from neglect to study them with the
attention which is due to anything which he may write. How privateering,
previously innocent, can have become piratical, _i.e._ an offence,
everywhere justiciable, against the Law of Nations, if the Declaration
of Paris was not in the nature of a piece of legislation, I confess
myself unable to understand; but have no wish to repeat the remarks
which you have already allowed me to make upon the subject.
I shall, however, be glad at once to remove the impression suggested by
Sir George's letter of this morning, that Art. 7 of the Spanish Decree
of April 24 has any bearing upon the legitimacy of privateering
generally. The article in question (following, by the by, the very
questionable precedent of a notification issued by Admiral Baudin,
during the war between France and Mexico in 1889) merely threatens with
punishment neutrals who may accept letters of marque from a belligerent
Government.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, April 27 (1898).
THE DECLARATION OF PARIS
Sir,--There is really no question at issue between your two
correspondents Mr. Gibson Bowles and "Anglo-Saxon" as to the attitude of
the United States towards the Declaration of Paris.
Mr. Bowles rightly maintains that the United States has not acceded to
the Declaration as a whole, or to its second article, which exempts from
capture enemy property in neutral ships. He means, of course, that
neither the whole nor any part of that Declaration has been ratified by
the President with the advice and consent of the Senate. The whole
contains, indeed, an article on privateering, to which, as it stands,
the United States have always objected, and no part of the Declaration
can be accepted separately.
"Anglo-Saxon," on the other hand, is equally justified in asserting that
the "officially-recorded policy" of the States, _i.e._ of the Executive,
is in accordance with Art. 2 of the Declaration. This policy has been
consistently followed for more than half a century. Its strongest
expression is perhaps to be found in the President's Proclamation of
April 26, 1898, in which, after reciting that it being desirable that
the war with Spain "should be conducted upon principles in harmony with
the present views of nations and sanctioned by their recent practice, it
has already been announced that the policy of the Government will not be
to resort to privateering, but to adhere to the rules for the
Declaration of Paris," he goes on to "declare and proclaim" the three
other articles of the Declaration. The rule of Art. 2, as to exemption
of enemy goods in neutral ships, was embodied in Art. 19 of the Naval
War Code of 1900 (withdrawn in 1904, for reasons not affecting the
article in question), and reappears in Art. 17, amended only by the
addition of a few words relating to "hostile assistance" in the draft
Code which the United States delegates to the Conferences of 1907 and
1908 were instructed to bring forward "with the suggested changes, and
such further changes as may be made necessary by other agreements
reached at the Conference, as a tentative formulation of the rules which
should be considered." (My quotation is from the instructions as
originally issued in English.) Such changes as have been made in the
Code are due to discussions which have taken place between high naval
and legal authorities at the Naval War College. I do not know whether
the annual reports of these discussions, with which I am kindly
supplied, are generally accessible, but would refer, especially with
reference to the Declaration of Paris, to the volumes for 1904 and 1906.
It can hardly be necessary to add that no acts of the Executive, such as
the Proclamation of 1898, the order putting in force the Code of 1900,
or the instructions to delegates in 1907 and 1909, amount to anything
like a ratification of the Declaration in the manner prescribed by the
Constitution of the United States.
I have the honour to be, Sir,
Your obedient servant,
T. E. HOLLAND.
Oxford, January 4 (1911).
THE DECLARATION OF PARIS
Sir,--Mr. Gibson Bowles resuscitates this morning his crusade against
the Declaration of 1856. It is really superfluous to argue in support of
rules which have met with general acceptance for nearly sixty years
past, to all of which Spain and Mexico, who were not originally parties
to the Declaration, announced their formal adhesion in 1907, while the
United States, which for well-known reasons declined to accede to the
Declaration, described, in 1898, all the articles except that dealing
with privateering as "recognised rules of International Law."
It may, however, be worth while to point out why it was that no
provision was made for the ratification of the Declaration of 1856, or
for that of 1868 relating to the use of explosive bullets. At those
dates, when the first steps were being taken towards the general
adoption of written rules for the conduct of warfare, it was, curiously
enough, supposed that agreement upon such rules might be sufficiently
recorded without the solemnity of a treaty. This was, in my opinion, a
mistake, which has been avoided in more recent times, in which the
written law of war has been developed with such marvellous rapidity. Not
only have codes of such rules been promulgated in regular "Conventions,"
made in 1899, 1906, and 1907, but the so-called "Declarations," dealing
with the same topic, of 1899, 1907, and 1909 have been as fully equipped
as were those Conventions with provisions for ratification. The
distinction between a "Convention" and a "Declaration" is therefore now
one without a difference, and should no longer be drawn. Nothing in the
nature of rules for the conduct of warfare can prevent their expression
in Conventions, and the reason which seems to have promoted the
misdescription of the work of the London Conference of 1908-9 as a
"Declaration"--viz. an imaginary difference between rules for the
application of accepted principles and wholly new rules--is founded in
error. Much of the contents of The Hague "Conventions" is as old as the
hills while much of the "Declaration" of London is revolutionary.
This by the way. It is not very clear whether Mr. Gibson Bowles, in
exhorting us to denounce the Declaration, relies upon its original lack
of ratification, or upon some alleged "privateering" on the part of the
Germans. Nothing of the kind has been reported. The commissioning of
warships on the high seas is a different thing, which may possibly be
regarded as an offence of a graver nature. Great Britain is not going to
imitate the cynical contempt for treaties, evidenced by the action of
Germany in Belgium and Luxemburg, in disregard not only of the
well-known treaties of 1889 and 1867, but of a quite recent solemn
undertaking, to which I have not noticed any reference. Art. 2 of The
Hague Convention No. v. of 1907, ratified by her in 1909, is to the
following effect:--
"Belligerents are forbidden to move across the territory of a
neutral Power troops or convoys, whether of munitions or of
supplies."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August 12 (1914).
The true ground for objecting to the legality of the purchase by Turkey
of the German warships which have been forced to take refuge in her
waters is no doubt that stated by Sir William Scott in the _Minerva_, 6
C. Rob. at p. 400--viz. that it would enable the belligerent to whom
the ships belong "so far to rescue himself from the disadvantage into
which he has fallen as to have the value at least restored to him by a
neutral purchaser." The point is not touched upon in the (draft)
Declaration of London.
Even supposing the purchase to be unobjectionable, the duty of Turkey to
remove all belligerents from the ships would be unquestionable.
_Cf._ on the Declaration of Paris, _passim_, see Index; on the
misuse of Declarations, _infra_, p. 92; on privateering,
_supra_, pp. 80-84.
THE DECLARATION OF PARIS
Sir,--The resuscitation, a few days ago, in the House of Commons of an
old controversy reminds one of the mistaken procedure which made such a
controversy possible. It can hardly now be doubted that the rules set
forth in the Declaration of Paris of 1856, except possibly the
prohibition of privateering, have by general acceptance during sixty
years, strengthened by express accessions on the part of so many
Governments, become a portion of international law, and are thus binding
upon Great Britain, notwithstanding her omission to ratify the
Declaration. This omission is now seen to have been a mistake. So also
was the description of the document as a "declaration." Both mistakes
were repeated in 1868 with reference to the "Declaration" of St.
Petersburg (as to explosive bullets).
In those early attempts at legislation for the conduct of warfare it
seems to have been thought sufficient that the conclusions arrived at by
authorised delegates should be announced without being embodied in a
treaty. Surely, however, what purported to be international agreements
upon vastly important topics ought to have been accompanied by all the
formalities required for "conventions," and should have been so
entitled. In later times this has become the general rule for the
increasingly numerous agreements which bear upon the conduct of
hostilities. Thus we have The Hague "conventions" of 1899 and 1907, and
the Geneva "convention" of 1906, all duly equipped with provisions for
ratification. Such provisions are also inserted in certain other recent
agreements dealing with aerial bombardments, gases, and expanding
bullets, which it has nevertheless pleased their contrivers to
misdescribe as "declarations." Equally so misdescribed was the deceased
Declaration of London, with a view, apparently, to suggesting, as was
far from being the case, that it was a mere orderly statement of
universally accepted principles, creating no new obligations.
Is it not to be desired that all future attempts for the international
regulation of warfare should not only be specifically made subject to
ratification, but should also, in accordance with fact, be described as
"conventions"?
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August 13 (1916).
THE DECLARATION OF PARIS
Sir,--If Mr. Gibson Bowles, whose courteous letter I have just been
reading, will look again at my letter of the 18th, I think he will see
that I there carefully distinguished between the Declaration of Paris,
which, as is notorious, must be accepted as a whole or not at all, and
the rules set forth in it, "except, possibly, the prohibition of
privateering," which I thought, for the reasons which I stated, might be
taken to have become a portion of International Law.
I must be excused from following Mr. Bowles into a discussion of the
bearing of those rules upon the Order in Council of March 11, 1915--a
large and delicate topic, which must be studied in elaborate dispatches
exchanged between this country and the United States.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August 17 (1916).
* * * * *
SECTION 8
_Assassination_
THE NATAL PROCLAMATION
Sir,--It was reported a few days ago that the Natal Government had
offered a reward for Bambaata, dead or alive. I have waited for a
statement that no offer of the kind had been made, or that it had been
made by some over-zealous official, whose act had been disavowed. No
such statement has appeared. On the contrary, we read that "the price
placed upon the rebel's head has excited native cupidity." It may
therefore be desirable to point out that what is alleged to have been
done is opposed to the customs of warfare, whether against foreign
enemies or rebels.
By Art. 28 (_b_) of The Hague Regulations, "it is especially prohibited
to kill or wound treacherously individuals belonging to the hostile
nation or army": words which, one cannot doubt, would include not only
assassination of individuals, but also, by implication, any offer for an
individual "dead or alive." The Regulations are, of course, technically
binding only between signatories of the convention to which they are
appended; but Art. 28 (_b_) is merely an express enactment of a
well-established rule of the law of nations. A recent instance of its
application occurred, before the date of The Hague Convention, during
operations in the neighbourhood of Suakin. An offer by the British
Admiral of a reward for Osman Digna, dead or alive, was, if I mistake
not, promptly cancelled and disavowed by the home Government.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Brighton, April 17 (1906).
* * * * *
SECTION 9
_The Choice of Means of Injuring_
BULLETS IN SAVAGE WARFARE
Sir,--The Somaliland debate was sufficient evidence that The Hague
Convention "respecting the laws and customs of war on land" is far more
talked about than read. Colonel Cobbe had, it appears, complained of the
defective stopping power, as against the foes whom he was encountering,
of the Lee-Metford bullet. It is the old story that wounds inflicted by
this bullet cannot be relied on to check the onrush of a hardy and
fanatical savage, though they may ultimately result in his death.
Whereupon arises, on the one hand, the demand for a more effective
projectile, and, on the other hand, the cry that the proposed substitute
is condemned by "the universal consent of Christendom"; or, in
particular, "by the Convention of The Hague," which, as was correctly
stated by Mr. Lee, prohibits only the use of arms which cause
superfluous injury.
You print to-day two letters enforcing the view of the inefficiency
against savages of the ordinary service bullet. Perhaps you will find
space for a few words upon the question whether the employment for this
purpose of a severer form of projectile, such as the Dum Dum bullet,
would be a contravention of the "laws of war."
The law of the subject, as embodied in general international national
agreements, is to be found in four paragraphs; to which, be it observed,
nothing is added by the unwritten, or customary, law of nations. Of
these paragraphs, which I shall set out textually, three affirm general
principles, while the fourth contains a specific prohibition. The
general provisions are as follows:--
"The progress of civilisation should have the effect of
alleviating as much as possible the calamities of war. The
only legitimate object which States should set before
themselves during war is to weaken the military forces of the
enemy. For this purpose it is sufficient to disable the
greatest possible number of men. This object would be
exceeded by the employment of arms which would uselessly
aggravate the sufferings of disabled men or render their
death inevitable. The employment of such arms would,
therefore, be contrary to the laws of humanity." (St.
Petersburg Declaration, 1868. Preamble.)
"The right of belligerents to adopt means of injuring the
enemy is not unlimited." (Hague _Règlement_, Art. 22.)
"Besides the prohibitions provided by special conventions [the
Declaration of St. Petersburg alone answers to this
description] it is in particular prohibited (_e_) to employ
arms, projectiles, or material of a nature to cause
superfluous injury." (_Ib._ Art. 23.)
The only special prohibition is that contained in the Declaration of St.
Petersburg, by which the contracting parties--
"Engage mutually to renounce, in case of war among
themselves, the employment by their military or naval forces
of any projectile of a weight below 400 grammes which is
either explosive or charged with fulminating or inflammable
substances."
No one, so far as I am aware, has any wish to employ a bullet weighing
less than 14 oz. which is either explosive or charged as above. So far,
therefore, as the generally accepted laws of warfare are concerned, the
only question as to the employment of Dum Dum or other expanding bullets
is whether they "uselessly aggravate the sufferings of disabled men, or
render their death inevitable"; in other words, whether they are "of a
nature to cause superfluous injury." It is, however, probable that
people who glibly talk of such bullets being "prohibited by The Hague
Convention" are hazily reminiscent, not of the _Règlement_ appended to
that convention, but of a certain "Declaration," signed by the delegates
of many of the Powers represented at The Hague in 1899, to the effect
that--
"The contracting Powers renounce the use of bullets which
expand or flatten easily in the human body, such as bullets
with a hard casing, which does not entirely cover the core,
or is pierced with incisions."
To this declaration neither Great Britain nor the United States are
parties, and it is waste-paper, except for Powers on whose behalf it has
not only been signed, but has also been subsequently ratified.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Athenæum Club, May 2 (1903).
The Declaration last mentioned (No. 3 of the first Peace
Conference) is now something more than waste paper, having been
generally ratified. Great Britain, on August 17, 1907, at the
fourth plenary sitting of the Second Peace Conference,
announced her adhesion to it, as also to the, also generally
ratified, Declaration No. 2 of 1899, which forbids the
employment of projectiles constructed solely for the diffusion
suffocating or harmful gases.
The provisions of Arts. 22 and 23 (_e_) of the _Règlement_
annexed to The Hague Convention of 1899 "concerning the Laws
and Customs of War on Land," as quoted in the letter, have been
textually reproduced in Arts. 22 and 23 (_e_) of the
_Règlement_ annexed to the Hague Convention, No. iv. of 1907,
on the same subject, ratified by Great Britain on November 27,
1909.
The written agreements as to the choice of weapons may be taken
therefore to start from the general principles laid down in the
preamble to the Declaration of St. Petersburg (though held by
some Powers to err in the direction of liberality), and in
Arts. 22 and 23 (_e_) of The Hague _Règlements_. The specially
prohibited means of destruction are, by the Declaration of St.
Petersburg, explosive bullets; by The Hague _Règlements_, Art.
23 (_a_) poison or poisoned arms; by The Hague Declarations of
1898, Nos. 2 and 3, "projectiles the sole object of which is
the diffusion of asphyxiating or harmful gases," and "bullets
which expand or flatten easily in the human body, such as
bullets with a hard casing, which does not entirely cover the
core, or is pierced with incisions." As to Declaration No. 1,
_cf. supra_, p. 22. It must be remarked that the Declarations
of St. Petersburg and of The Hague, unlike The Hague
Règlements, apply to war at sea, as well as on land.
_Cf. supra_, p. 22, and see the author's _The Laws of War on
Land (written and unwritten)_, 1908, pp. 40-43.
GASES
Sir,--The weightily signed medical protest which you publish this
morning will be widely welcomed. The German employment of poisonous
gases for military purposes, which the Allies were obliged, reluctantly,
though necessarily, to reciprocate, was, of course, prohibited by
international Acts to which Germany is a party. Not only does the
Declaration of 1899 specifically render unlawful "the use of projectiles
the sole object of which is the diffusion of asphyxiating or harmful
gases," but the Hague Conventions of 1899 and 1907 both forbid, in
general terms, the employment of "(_a_) poison or poisoned arms," "(_c_)
arms, projectiles, or material of a nature to cause superfluous
suffering." The United States, like the rest of the world, are a party
to the two Conventions, and would doubtless, after the experiences of
recent years, no longer hesitate, as hitherto, to adhere to the
Declaration of 1899; in accordance with Admiral Mahan's view at that
date, to the effect that "the effect of gas shells has yet to be
ascertained," and, in particular, "whether they would be more, or less,
merciful than missiles now available."
The prohibition ought, no doubt, to be renewed and, if possible,
strengthened; but this is surely not, as your correspondents suggest,
work for the Peace Congress. The rules for naval warfare set out in the
Declaration of Paris of 1856 form no part of the Treaty of Paris of that
year.
I venture to make a similar remark with reference to any discussion by
the Peace Congress of "the freedom of the seas," a topic unfortunately
included by President Wilson among his "14 points." The peace delegates
will be concerned with questions of regroupings of territory, penalties,
and reparation. The rehabilitation and revision of international law is
a different business, and should be reserved for a subsequent
conference.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 29 (1918).
* * * * *
SECTION 10
_The Geneva Convention_
As far back as the year 1870, the Society for the Prevention of
Cruelty to Animals exerted itself to induce both sides in the
great war then commencing to make some special provision for
relieving, or terminating, the sufferings of horses wounded in
battle.
In 1899 it made the same suggestion to the British War Office,
but the reply of the Secretary of State was to the effect that
"he is informed that soldiers always shoot badly wounded horses
after, or during, a battle, whenever they are given time to do
so, _i.e._ whenever the operation does not involve risk to
human life. He fears that no more than this can be done unless
and until some international convention extends to those who
care for wounded animals the same protection for which the
Geneva Convention provides in the case of men; and he would
suggest that you should turn your efforts in that direction."
Thereupon, Mr. Lawrence Pike, on November 23, addressed to _The
Times_ the letter which called forth the letter which follows.
WOUNDED HORSES IN WAR
Sir,--Everyone must sympathise with the anxiety felt by Mr. L.W. Pike to
diminish the sufferings of horses upon the field of battle. How far any
systematic alleviation of such sufferings may be compatible with the
exigencies of warfare must be left to the decision of military experts.
In the meantime it may be as well to assure Mr. Pike that the Geneva
Convention of 1864 has nothing to do with the question, relating, as it
does, exclusively to the relief of human suffering. This is equally the
case with the second Geneva Convention, which Mr. Pike is right in
supposing never to have been ratified. He is also right in supposing
that "the terms of the convention are capable of amendment from time to
time," but wrong in supposing that they can be amended "by the setting
up of precedents." The convention can be amended only by a new
convention.
It is not the case that Art. 7 of the convention, which merely confides
to commanders-in-chief, under the instructions of their respective
Governments, "les détails d'exécution de la présente convention," gives
them any authority to extend its scope beyond what is expressly stated
to be its object--viz. "l'amélioration du sort des militaires blessés
dans les armées en campagne." While, however, the Geneva Convention,
does not contemplate the relief of animal suffering, it certainly cannot
be "set up as a bar" to the provision of such relief. Commanders who may
see their way to neutralising persons engaged in the succour or
slaughter of wounded horses would be quite within their powers in
entering into temporary agreements for that purpose.
I may add that the "Convention concerning the laws and customs of war on
land," prepared by the recent conference at The Hague, and signed on
behalf of most Governments, including our own, though not yet ratified,
contains a chapter "Des malades et des blessés," which merely states
that the obligations of belligerents on this point are governed by the
Convention of Geneva of 1864, with such modifications as may be made in
it. Among the aspirations (_voeux_) recorded in the "Acte final" of
the conference, is one to the effect that steps may be taken for the
assembling of a special conference, having for its object the revision
of the Geneva Convention. Should such a conference be assembled Mr. Pike
will have an opportunity of addressing it upon the painfully interesting
subject which he has brought forward in your columns.
Your obedient servant,
T. E. HOLLAND.
Oxford, November 27 (1899).
The "second Geneva Convention," above mentioned, was the
"Projet d'Articles additionnels," signed on October 20, 1868,
but never ratified.
Art. 21 of the _Règlement_ annexed to The Hague Convention of
1899 as to the "Laws and Customs of War on Land," stating that
"the obligations of belligerents, with reference to the care of
the sick and wounded, are governed by the Convention of Geneva
of August 22, 1864, subject to alterations which may be made in
it," is now represented by Art. 21 of The Hague _Règlement_ of
1907, which mentions "the Convention of Geneva," without
mention of any date, or of possible alterations. The Convention
intended in this later _Règlement_ is, of course, that of 1906,
for the numerous Powers which have already ratified it, since
for them it has superseded that of 1864. The British
ratification, of April 16, 1907, was subject to a reservation,
the necessity for which was intended to be removed by 1 & 2
Geo. 5, c. 20, as to which, see _supra_, p, 37. The later is
somewhat wider in scope than the earlier Convention, its
recital referring to "the sick," as well as to the wounded, and
its first article naming not only "les militaires," but also
"les autres personnes officiellement attachées aux armées."
With a view to the expected meeting of the Conference by which
the Convention was signed in 1906, Mr. Pike and his friends
again, in 1903, pressed upon the British Government their
desire that the new Convention should extend protection to
persons engaged in relieving the sufferings of wounded horses.
The British delegates to the Conference, however, who had
already been appointed, and were holding meetings in
preparation for it, were not prepared to advise the insertion
of provisions for this purpose in the revised Convention of
Geneva.
"The principles of the Geneva Convention" of 1864 were applied
to naval warfare by The Hague Convention No. iii. of 1899, and
those of the Geneva Convention of 1906 by The Hague Convention
No. x. of 1907 respectively. Both were ratified by Great
Britain. Cf. _supra_, Chapters ii. and iv.
* * * * *
SECTION 11
_Enemy Property in Occupied Territory_
By Art. 55 of The Hague _Règlement_ of 1899, which reproduces
Art. 7 of the Brussels _Projet_, and is repeated as Art. 55 of
the _Règlement_ of 1907: "The occupying State shall regard
itself as being only administrator and usufructuary of the
public buildings, immoveable property, forests and agricultural
undertakings belonging to the hostile State and situated in the
hostile country. It must protect the substance of these
properties and administer them according to the rules of
usufruct."
The following letter touches incidentally upon the description
of the rights of an invader over certain kinds of State
property in the occupied territory as being those of a
"usufructuary."
INTERNATIONAL "USUFRUCT"
Sir,--The terminology of the law of nations has been enriched by a new
phrase. We are all getting accustomed to "spheres of influence." We have
been meditating for some time past upon the interpretation to be put
upon "a lease of sovereign rights." But what is an international
"usufruct"? The word has, of course, a perfectly ascertained sense in
Roman law and its derivatives; but it has been hitherto employed,
during, perhaps two thousand years, always as a term of private
law--_i.e._ as descriptive of a right enjoyed by one private individual
or corporation over the property of another. It is the "ius utendi
fruendi, salva rerum substantia." The usufructuary of land not merely
has the use of it, but may cut its forests and work its mines, so long
as he does not destroy the character of the place as he received it. His
interest terminates with his life, though it might also be granted to
him for a shorter period. If the grantee be a corporation, in order to
protect the outstanding right of the owner an artificial limit is
imposed upon the tenure--e.g. in Roman law 100 years, by the French
Code 30 years. For details it may suffice to refer to the Institutes of
Justinian, II. 4; the Digest, VII. 1; the Code Civil, sects. 573-636;
the new German Civil Code, sects. 1030-1089.
It remains to be seen how the conception of "usufruct" is to be imported
into the relations of sovereign States, and, more especially, what are
to be the relations of the usufructuary to States other than the State
under which he holds. It is, of course, quite possible to adapt the
terms of Roman private law to international use. "Dominium,"
"Possessio," "Occupatio," have long been so adapted, but it has yet to
be proved that "Usufructus" is equally malleable. I can recall no other
use of the term in international discussions than the somewhat
rhetorical statement that an invader should consider himself as merely
the "usufructuary" of the resources of the country which he is invading;
which is no more than to say that he should use them "en bon père de
famille." It will be a very different matter to put a strict legal
construction upon the grant of the "usufruct" of Port Arthur. By way of
homage to the conception of such a grant, as presumably creating at the
outside a life-interest, Russia seems to have taken it, in the first
instance, only for twenty-five years. One may, however, be pardoned for
sharing, with reference to this transaction, the scruples which were
felt at Rome as to allowing the grant of a usufruct to a
corporation--"periculum enim esse videbatur, ne perpetuus fieret."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 30 (1898).
P.S.--It would seem from M. Lehr's _Éléments du droit civil Russe_ that
"usufruct" is almost unknown to the law of Russia, though a restricted
form of it figures in the code of the Baltic provinces.
It is certain that, apart from general conventions,
international law imposes no liability on an invader to pay for
requisitioned property or services, or to honour any receipts
which he may have given for them.
The Hague Convention of 1899 made no change in this respect.
Arts. 51 and 52 of the _Règlement_ annexed to the Convention
direct, it is true, that receipts should be given for
contributions ("un reçu sera délivré aux contribuables") also
for requisitions in kind, if not paid for ("elles seront
constatées par des reçus"), but these receipts were to be
merely evidence that money or goods have been taken, and it was
left an open question, by whom, if at all, compensation was to
be made or the losses thus established.
The _Règlement_ of 1907 is more liberal than that of 1899 with
reference to requisitioned property (though not with reference
to contributions). By the new Art. 52, "supplies furnished in
kind shall be paid for, so far as possible, on the spot. If
not, they shall be vouched for (_constatées_) by receipts, and
payment of the sums due shall be made as soon as may be." The
Hague Convention mentioned in the following letter is, of
course, that of 1899.
REQUISITIONS IN WARFARE
Sir,--A few words of explanation may not be out of place with reference
to a topic touched upon last night in the House of Commons--viz. the
liability of the British Government to pay for stock requisitioned
during the late war from private enemy owners. It should be clearly
understood that no such liability is imposed by international law. The
commander of invading forces may, for valid reasons of his own, pay cash
for any property which he takes, and, if he does not do so, is nowadays
expected to give receipts for it. These receipts are, however, not in
the nature of evidence of a contract to pay for the goods. They are
intended merely to _constater_ the fact that the goods have been
requisitioned, with a view to any indemnity which may eventually be
granted to the sufferers by their own Government. What steps should be
taken by a Government towards indemnifying enemies who have subsequently
become its subjects, as is now happily the case in South Africa, is a
question not of international law, but of grace and favour.
An article in the current number of the _Review of Reviews_, to which my
attention has just been called, contains some extraordinary statements
upon the topic under discussion. The uninformed public is assured that
"we owe the Boers payment in full for all the devastation which we have
inflicted upon their private property ... it is our plain legal
obligation, from the point of view of international law, to pay it to
the last farthing." Then The Hague Convention is invoked as permitting
interference with private property "only on condition that it is paid
for in cash by the conqueror, and, if that is not possible at the
moment, he must in every case give a receipt, which he must discharge at
the conclusion of hostilities." There is no such provision as to
honouring receipts in this much-misquoted convention.
Your obedient servant,
T. E. HOLLAND.
Oxford, July 30 (1962).
* * * * *
SECTION 12
_Enemy Property at Sea_
PRIVATE PROPERTY AT SEA
Sir,--The letter which you print this morning from Mr. Charles Stewart
can hardly be taken as a serious contribution to the discussion of a
question which has occupied for many years the attention of politicians,
international lawyers, shipowners, traders, and naval experts. Mr.
Stewart actually thinks that Lord Sydenham's argument to the effect that
"the fear of the severe economic strain which must result from the
stoppage of a great commerce is a factor which makes for peace" may be
fairly paraphrased as advice to "retain the practice because it is so
barbarous that it will sicken the enemy of warfare." He goes on to say
that this argument "would apply equally to the poisoning of wells and to
the use of explosive bullets."
It may be worth while to contrast with the attitude of a writer who
seems unable to distinguish between economic pressure and physical
cruelty that taken up by a competent body, the large majority of the
members of which belong to nations which, for various reasons, incline
to the abolition of the usage in question. The Institut de Droit
International, encouraged by the weight attached to its _Manual of the
Law of War on Land_ by the first and second Peace Conferences, has been,
for some time past, working upon a _Manual of the Laws of War at Sea_.
At its Christiania meeting in 1912 the Institut, while maintaining the
previously expressed opinion of a majority of its members in favour of a
change in the law, recognised that such a change has not yet come to
pass, and that, till it occurs, regulations for the exercise of capture
are indispensable, and directed the committee charged with the topic to
draft rules presupposing the right of capture, and other rules to be
applied should the right be hereafter surrendered (_Annuaire_, t. xxv.,
p. 602).
The committee accordingly prepared a draft, framed in accordance with
the existing practice, to the discussion of which the Institut devoted
the whole of its recent session at Oxford, eventually giving its
_imprimatur_ to a Manual of the law of maritime warfare, as between the
belligerents, in 116 articles. As opportunity serves, the committee will
prepare a second draft, proceeding upon the hypothesis that the right of
capturing private property at sea has been surrendered, which, in its
turn, will be debated, word for word, by the Institut de Droit
International.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 4 (1913).
* * * * *
SECTION 13
_Martial Law_
The first of the letters which follow has reference to the case
of two Boer prisoners who, having taken the oath of neutrality
on the British occupation of Pretoria, attempted to escape from
the town. Both were armed, and one of them fired upon and
wounded a sentinel who called upon them to stop. They were
tried by court-martial, condemned to death, and shot on June
11, 1901. The Hague Convention quoted in the letter is that of
1899, but the same Art. 8 figures in the Convention of 1907.
The second and third of these letters relate to a question of
English public law, growing out of the exercise of martial law
in British territory in time of war. One Marais, accused of
having contravened the martial law regulations of May 1, 1901,
was imprisoned in Cape Colony by military authority, and the
Supreme Court at the Cape held that it had no authority to
order his release. The Privy Council refused an application for
leave to appeal against this decision, saying that "no doubt
has ever existed that, when war actually prevails, the ordinary
courts have no jurisdiction over the action of the military
authorities"; adding that "the framers of the Petition of Right
knew well what they meant when they made a condition of peace
the ground of the illegality of unconstitutional procedure"
(_Ex parte_ D.F. Marais, [1902] A.C. 109). Thereupon arose a
discussion as to the extent of the prohibition of the exercise
of martial law contained in the Petition of Right; and Mr.
Edward Jenks, in letters to _The Times_ of December 27, 1901,
and January 4, 1902, maintained that the prohibition in
question was not confined to time of peace.
The last letter deals with the true character of a Proclamation
of Martial Law, and was suggested by the refusal of the Privy
Council, on April 2, 1906, to grant leave to appeal from
sentences passed in Natal by court-martial, in respect of acts
committed on February 8, 1906, whereby retrospective effect
had, it was alleged, been given to a proclamation not issued
till the day after the acts were committed, _See_ Mcomini
Mzinelwe and Wanda _v._ H.E. the Governor and the A.G. for the
Colony of Natal, 22 _Times Law Reports_, 413.
THE EXECUTIONS AT PRETORIA
Sir,--No doubt is possible that by international law, as probably by
every system of national law, all necessary means, including shooting,
may be employed to prevent the escape of a prisoner of war. The question
raised by the recent occurrence at Pretoria is, however, a different
one--viz. What are the circumstances in connection with an attempt to
escape which justify execution after trial by court-martial of the
persons concerned in it? This question may well be dealt with a part
from the facts, as to which we are as yet imperfectly informed, which
have called for Mr. Winston Churchill's letter. With the arguments of
that letter I in the main agree, but should not attach so much
importance as Mr. Churchill appears to do to a chapter of the British
_Manual of Military Law_, which, though included in a Government
publication, cannot be taken as official, since it is expressly stated
"to have no official authority" and to "express only the opinions of the
compiler, as drawn from the authorities cited."
I propose, without comment, to call attention to what may be found upon
this subject in conventional International Law, in one or two
representative national codes, and in the considered judgment of the
leading contemporary international lawyers.
I. The Hague "Convention on the laws and customs of war on land"
(ratified by twenty Powers) lays down:--
"ARTICLE 8.--Prisoners of war shall be subject to the laws,
regulations, and orders in force in the army of the State
into whose hands they have fallen. Any act of insubordination
warrants the adoption as regards them of such measures of
severity as may be necessary. Escaped prisoners, recaptured
before they have succeeded in rejoining their army, or before
quitting the territory occupied by the army that captured
them, are liable to disciplinary punishment. Prisoners who
after succeeding in escaping are again taken prisoners are
not liable to any punishment for their previous flight."
The Hague Conference, in adopting this article, adopted also, as an
"authentic interpretation" of it, a statement that the indulgence
granted to escapes does not apply to such as are accompanied by "special
circumstances," of which the instances given are "complot, rébellion,
émeute."
"ARTICLE 12.--Any prisoner of war who is liberated on parole
and recaptured bearing arms against the Government to which
he had pledged his honour, or against the allies of that
Government, forfeits his right to be treated as a prisoner of
war, and can be put on his trial."
II. The United States Instructions:--
"ARTICLE 77.--A prisoner of war may be shot or otherwise
killed in his flight; but neither death nor any other
punishment shall be inflicted on him simply for his
attempt.... If, however, a conspiracy is discovered, the
purpose of which is a united or general escape, the
conspirators may be rigorously punished even with death, &c."
"ARTICLE 78.--If prisoners of war, having given no pledge nor
made any promise on their honour, forcibly or otherwise,
escape, and are captured again in battle, having rejoined
their own army, they shall not be punished for their escape."
"ARTICLE 124.--Breaking the parole is punished with death when
the person breaking the parole is captured again."
_Cf._ the French _Code de Justice Militaire_, Art. 204, and other
Continental codes to the same effect.
III. The _Manuel des Lois de la guerre sur terre_ of the Institute of
International Law lays down:--
"ARTICLE 68.--Si le fugitif ressaisi[B] ou capturé de nouveau
avait donne sa parole de ne pas s'évader, il peut être privé
des droits de prisonnier de guerre."
"ARTICLE 78.--Tout prisonnier libéré sur parole et repris
portant les armes contre le gouvernement auquel il l'avait
donnée, peut être privé des droits de prisonnier de guerre, à
moins que, postérieurement à sa liberation, il n'ait été
compris dans un cartel d'échange sans conditions."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, June 17 (1901).
THE PETITION OF RIGHT
Sir,--This is, I think, not a convenient time, nor perhaps are your
columns the place, for an exhaustive discussion of the interpretation
and application of the Petition of Right. It may, however, be just worth
while to make the following remarks, for the comfort of any who may have
been disquieted by the letter addressed to you by my friend Mr. Jenks:--
1. Although, as is common knowledge, the words "in time of peace," so
familiar in the Mutiny Acts from the reign of Queen Anne onwards, do not
occur in the Petition, they do occur, over and over again, in the
arguments used in the House of Commons by "the framers of the Petition
of Right," to employ the phraseology of the judgment recently delivered
in the Privy Council by the Lord Chancellor.
2. The prohibition contained in the Petition, so far from being
"absolute and unqualified," is perfectly specific. It refers expressly
to "Commissions of like nature" with certain Commissions lately
issued:--
"By which certain persons have been assigned and appointed
Commissioners, with power and authority to proceed within the
land, according to the justice of martial law, against such
soldiers or mariners, or other dissolute persons joining with
them, as should commit any murder, robbery, felony, mutiny,
or other outrage or misdemeanour whatsoever, and by such
summary course and order as is agreeable to martial law, and
is used in armies in time of war, &c."
The text of these Commissions, the revocation of which is demanded by
the Petition, is still extant.
3. The Petition neither affirms nor denies the legality of martial law
in time of war; although its advocates were agreed that at such a time
martial law would be applicable to soldiers.
4. A war carried on at a distance from the English shore as was the war
with France in 1628, did not produce such a state of things as was
described by the advocates of the Petition as "a time of war." "We have
now no army in the field, and it is no time of war," said Mason in the
course of the debates. "If the Chancery and Courts of Westminster be
shut up, it is time of war, but if the Courts be open, it is otherwise;
yet, if war be in any part of the Kingdom, that the Sheriff cannot
execute the King's writ, there is _tempus belli_," said Rolls.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 31 (1901).
THE PETITION OF RIGHT
Sir,--In a letter which you allowed me to address to you a few days ago,
I dealt with two perfectly distinct topics.
In the first place I pointed out that the words occurring in a recent
judgment of the Privy Council, which were cited by Mr. Jenks as a clear
example of an assumption "that the Petition of Right, in prohibiting the
exercise of martial law, restricted its prohibition to time of peace,"
imply, as I read them, no assumption as to the meaning of that document,
but merely contain an accurate statement of fact as to the line of
argument followed by the supporters of the Petition in the House of
Commons. Can Mr. Jenks really suppose that in making this remark I was
"appealing from the 'text of the Petition' to the debates in
Parliament"?
I then proceeded to deal very shortly with the Petition itself, showing
that while it neither condemns nor approves of the application of
martial law in time of war (see Lord Blackburn's observations in R. _v._
Eyre), the prohibition contained in its martial law clauses, so far from
being "absolute and unqualified," relates exclusively to "commissions of
like nature" with certain commissions which had been lately issued (at a
time which admittedly, for the purposes of this discussion, was not "a
time of war"), the text of which is still preserved, and the character
of which is set forth in the Petition itself, as having authorised
proceedings within the land, "according to the justice of martial law,
against such soldiers or mariners," as also against "such other
dissolute persons joining with them," &c. The description of these
commissions, be it observed, is not merely introduced into the Petition
by way of recital, but is incorporated by express reference into the
enacting clause.
Thus much and no more I thought it desirable to say upon these two
topics by way of dissent from a letter of Mr. Jenks upon the subject. In
a second letter Mr. Jenks rides off into fresh country. I do not propose
to follow him into the history of the conferences which took place in
May, 1628, after the framing of the Petition of Right, except to remark
that what passed at these conferences is irrelevant to the
interpretation to be placed upon the Petition, and, if relevant, would
be opposed to Mr. Jenks's contention. It is well known that the Lords
pressed the Commons to introduce various amendments into the Petition
and to add to it the famous reservation of the "sovereign power" of the
King. One of the proposed amendments referred, as Mr. Jenks says, to
martial law, forbidding its application to "any but soldiers and
mariners," or "in time of peace, or when your Majesty's Army is not on
foot." The Commons' objection to this seems to have been that it was
both unnecessary and obscurely expressed. "Their complaint is against
commissions in time of peace." "It may be a time of peace, and yet his
Majesty's Army may be on foot, and that martial law was not lawful here
in England in time of peace, when the Chancery and other Courts do sit."
"They feared that this addition might extend martial law to the trained
bands, for the uncertainty thereof." The objections of the Commons were,
however, directed not so much to the amendments in detail as to any
tampering with the text of the Petition. "They would not alter any part
of the Petition" (nor did they, except by expunging two words alleged to
be needlessly offensive), still less would they consent to add to it the
reservation as to the "sovereign power" of the King.
The story of these abortive conferences, however interesting
historically, appears to me to have no bearing upon the legality of
martial law, and I have no intention of returning to the subject.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, January 8 (1902).
MARTIAL LAW IN NATAL
Sir,--It seems that in the application made yesterday to the Judicial
Committee of the Privy Council, on behalf of Natal natives under
sentence of death, much stress was laid upon the argument that a
proclamation of martial law cannot have a retrospective application. You
will, perhaps, therefore allow me to remind your readers that, so far
from the date of the proclamation having any bearing upon the merits of
this painful case, the issue of any proclamation of martial law, in a
self-governing British colony, neither increases nor diminishes the
powers of the military or other authorities to take such steps as they
may think proper for the safety of the country. If those steps were
properly taken they are covered by the common law; if they have exceeded
the necessities of the case they can be covered only by an Act of
Indemnity. The proclamation is issued merely, from abundant caution, as
a useful warning to those whom it may concern.
This view, I venture to think, cannot now be seriously controverted; and
I am glad to find, on turning to Mr. Clode's _Military and Martial Law_
that the passage cited in support of Mr. Jellicoe's contention as to a
proclamation having no retroactive application is merely to the effect
that this is so, if certain statements, made many years ago in a debate
upon the subject, are correct. As to their correctness, or otherwise,
Mr. Clode expresses no opinion.
I am, Sir, your obedient servant,
T. E. HOLLAND.
* * * * *
SECTION 14
_The Naval Bombardment of Open Coast Towns_
The four letters which first follow were suggested by the
British Naval Manoeuvres of 1888, during which operations
were supposed to be carried on, by the squadron playing the
part of a hostile fleet, which I ventured to assert to be in
contravention of international law. Many letters were written
by naval men in a contrary sense, and the report of a committee
of admirals appointed to consider, among other questions, "the
feasibility and expediency of cruisers making raids on an
enemy's coasts and unprotected towns for the purpose of levying
contributions," was to the effect that "there can be no doubt
about the feasibility of such operations by a maritime enemy
possessed of sufficient power; and as to the expediency, there
can be as little doubt but that any Power at war with Great
Britain will adopt every possible means of weakening her enemy;
and we know of no means more efficacious for making an enemy
feel the pinch of war than by thus destroying his property and
touching his pocket." (_Parl. Paper_, 1889 [c. 5632], pp. 4,
8.) The supposed hostile squadron had, it seems, received
express instructions "to attack any port in Great Britain."
(See more fully in the writer's _Studies in International Law_,
1898, p. 96.) The fifth letter was suggested by a Russian
protest against alleged Japanese action in 1904.
The subsequent history of this controversy, some account of
which will be found at the end of this section, has, it is
submitted, established the correctness of the views maintained
in it.
NAVAL ATROCITIES
Sir,--I trust we may soon learn on authority whether or no the enemies
of this country are conducting naval hostilities in accordance with the
rules of civilised warfare. I read with indignation that the _Spider_
has destroyed Greenock; that she announced her intention of "blowing
down" Ardrossan; that she has been "shelling the fine marine residences
and watering-places in the Vale of Clyde." Can this be true, and was
there really any ground for expecting that "a bombardment of the outside
coast of the Isle of Wight" would take place last night?
Your obedient servant,
T. E. HOLLAND.
Athenæum Club, August 7 (1888).
THE NAVAL MANOEUVRES
Sir,--In a letter which I addressed to you on the 7th inst. I ventured
to point out the discrepancy between the proceedings of certain vessels
belonging to Admiral Tryon's fleet and the rules of civilised warfare.
Your correspondent on board Her Majesty's ship _Ajax_ yesterday told us
something of the opinion of the fleet as to the bombardment and
ransoming of defenceless seaboard towns, going on to predict that, in a
war in which England should be engaged, privateers would again be as
plentiful as in the days of Paul Jones, and assuring us that in such a
war "not the slightest respect would be paid to old-fashioned treaties,
protocols, or other diplomatic documents." Captain James appears, from
his letter which you print to-day, to be of the same opinion as the
fleet, with reference both to bombardments and to privateers; telling us
also in plain language that "the talk about international law is all
nonsense."
Two questions are thus raised which seem worthy of serious
consideration. First, what are the rules of international law with
reference to the bombardment of open towns from the sea (I leave out of
consideration the better understood topic of privateering)? Secondly,
are future wars likely to be conducted without regard to international
law?
1. I need hardly say that I do not, as Captain James supposes, contend
"that unfortified towns will never be bombarded or ransomed."
International law has never prohibited, though it has attempted to
restrict, the bombardment of such towns. Even in 1694 our Government
defended the destruction of Dieppe, Havre, and Calais only as a measure
of retaliation, and in subsequent naval wars operations of this kind
have been more and more carefully limited, till in the Crimean war our
cruisers were careful to abstain from doing further damage than was
involved in the confiscation or destruction of stores of arms and
provisions. The principles involved were carefully considered by the
military delegates of all the States of Europe at the Brussels
Conference of 1874, and their conclusions, which apply, I conceive,
_mutatis mutandis_, to operations conducted by naval forces against
places on land, are as follows:--
"ARTICLE 15.--Fortified places are alone liable to be
besieged. Towns, agglomerations of houses, or villages which
are open or undefended cannot be attacked or bombarded."
"ARTICLE 16.--But if a town, &c., be defended, the commander
of the attacking forces should, before commencing a
bombardment, and except in the case of surprise, do all in his
power to warn the authorities."
"ARTICLE 40.--As private property should be respected, the
enemy will demand from parishes or the inhabitants only such
payments and services as are connected with the necessities of
war generally acknowledged, in proportion to the resources of
the country."
"ARTICLE 41.--The enemy in levying contributions, whether as
equivalents for taxes or for payments which should be made in
kind, or as fines, will proceed, as far as possible, according
to the rules of the distribution and assessment of the taxes
in force in the occupied territory. Contributions can be
imposed only on the order and on the responsibility of the
general in chief."
"ARTICLE 42.--Requisitions shall be made only by the authority
of the commandant of the locality occupied."
These conclusions are substantially followed in the chapter on the
"Customs of War" contained in the _Manual of Military Law_ issued for
the use of officers by the British War Office.
The bombardment of an unfortified town would, I conceive, be lawful--(1)
as a punishment for disloyal conduct; (2) in extreme cases, as
retaliation for disloyal conduct elsewhere; (3) for the purpose of
quelling armed resistance (not as a punishment for resistance when
quelled); (4) in case of refusal of reasonable supplies requisitioned,
or of a reasonable money contribution in lieu of supplies. It would, I
conceive, be unlawful--(1) for the purpose of enforcing a fancy
contribution or ransom, such as we were told was exacted from Liverpool;
(2) by way of wanton injury to private property, such as was supposed to
have been caused in the Clyde and at Folkestone, and _a fortiori_ such
as would have resulted from the anticipated shelling during the
night-time of the south coast of the Isle of Wight.
2. Is it the case that international law is "all nonsense," and that
"when we are at war with an enemy he will do his best to injure us: he
will do so in what way he thinks proper, all treaties and all so-called
international law notwithstanding"? Are we, with Admiral Aube, to speak
of "cette monstrueuse association de mots: les droits de la guerre"? If
so, _cadit quæstio_, and a vast amount of labour has been wasted during
the last three centuries. I can only say that such a view of the future
is not in accordance with the teachings of the past. The body of
accepted usage, supplemented by special conventions, which is known as
international law, has, as a matter of fact, exercised, even in time of
war, a re staining influence on national conduct. This assertion might
be illustrated from the discussions which have arisen during recent wars
with reference to the Geneva Conventions to the treatment of the wounded
and the St. Petersburg declaration against the use of explosive bullets.
The binding obligation of these instruments, which would doubtless be
classed by your correspondent with the fleet among "old-fashioned
treaties, protocols, and other diplomatic documents," has never been
doubted, while each party has eagerly endeavoured to disprove alleged
infractions of them.
The naval manoeuvres have doubtless taught many lessons of practical
seamanship. They will have done good service of another sort if they
have brought to the attention of responsible statesmen such questions as
those with which I have attempted to deal. It is essential that the
country should know the precise extent of the risks to which our
seaboard towns will be exposed in time of war, and it is desirable that
our naval forces should be warned against any course of action, in their
conduct of mimic warfare, which could be cited against us, in case we
should ever have to complain of similar action on the part of a real
enemy.
Your obedient servant,
T. E. HOLLAND.
Oxford, August 18 (1888).
THE NAVAL MANOEUVRES
Sir,--In my first letter I called attention to certain operations of the
_Spider_ and her consorts which seemed to be inspired by no principle
beyond that of doing unlimited mischief to the enemy's seaboard. In a
second letter I endeavoured to distinguish between the mischief which
would and that which would not be regarded as permissible in civilised
warfare. The correspondence which has subsequently appeared in your
columns has made sufficiently clear the opposition between the view
which seems to find favour just now in naval circles and the principles
of international law, as I have attempted to define them. The question
between my critics and myself is, in effect, whether the mediæval or the
modern view as to the treatment of private property is to prevail.
According to the former, all such property is liable to be seized or
destroyed, in default of a "Brandschatz," or ransom. According to the
latter, it is inviolable, subject only to certain well-defined
exceptions, among which reasonable requisitions of supplies would be
recognised, while demands of money contributions, as such, would not be
recognised.
The evidence in favour of the modern view being what I have stated it to
be is, indeed, overwhelming; but I should like to call special attention
to the _Manuel de Droit International à l'Usage des Officiers de l'Armée
de Terre_, issued by the French Government, as going even further than
the Brussels Conference in the restrictions which it imposes upon the
levying of requisitions and contributions. The Duke of Wellington, who
used to be thought an authority in these matters, wrote in 1844, with
reference to a pamphlet in which the Prince de Joinville had advocated
depredations on the English coasts:--
"What but the inordinate desire of popularity could have
induced a man in his station to write and publish an
invitation and provocation to war, to be carried on in a
manner such as has been disclaimed by the civilised portions
of mankind?"
The naval historian, Mr. Younge, in commenting on the burning of Paita,
in Chili, as far back as 1871, for non-compliance with a demand for a
money contribution (ultimately reduced to a requisition of provisions
for the ships), speaks of it as "worthy only of the most lawless pirate
or buccaneer, ... as a singular proof of how completely the principles
of civilised warfare were conceived to be confined to Europe."
Such exceptional acts as the burning of Paita, or the bombardment of
Valparaiso, mentioned by Mr. Herries, will, of course, occur from time
to time. My position is that they are so far stigmatised as barbarous by
public opinion that their perpetration in civilised warfare may be
regarded as improbable; in other words, that they are forbidden by
international law.
It is a further question whether the rules of international law on this
point are to be changed or disregarded in future. Do we expect, and are
we desirous, that future wars shall be conducted in accordance with
buccaneering precedent, or with what has hitherto been the general
practice of the nineteenth century? Your naval correspondents incline to
revert to buccaneering and thus to the introduction into naval coast
operations of a rigour long unknown to the operations of military forces
on land; but they do so with a difference. Lord Charles Beresford
(writing early in the controversy) asserts the permissibility of
ransoming and destroying, without any qualifying expressions; while
Admiral de Horsey would apparently only ask "rich" towns for
contributions, insisting also that a contribution must be "reasonable,"
and expressly repudiating any claim to do "wanton injury to property of
poor communities, and still less to individuals." In the light of these
concessions, I venture to claim Admiral de Horsey's concurrence in my
condemnation of most of the doings mentioned in my first letter,
although on the whole he ranges himself on the side of the advocates of
what I maintain to be a change in the existing law of war. Whether or no
the existing law needs revision is a question for politicians and for
military and naval experts. It is within my province only to express a
hope that the contradiction between existing law and new military
necessities (if, indeed, such contradiction exists) will not be solved
by a repudiation of all law as "nonsense"; and, further, that, if a
change of law is to be effected, it will be done with due deliberation
and under a sense of responsibility. It should be remembered that
operations conducted with the apparent approval of the highest naval
authorities, and letters in _The Times_ from distinguished admirals, are
in truth the stuff that public opinion, and in particular that
department of public opinion known as "international law," is made of.
The ignorance, by the by, which certain of my critics have displayed of
the nature and claims of international law is not a little surprising.
Some seem to identify it with treaties; others with "Vattel." Several,
having become aware that it is not law of the kind which is enforced by
a policeman or a County Court bailiff, have hastened, much exhilarated,
to give the world the benefit of their discovery. Most of them are under
the impression that it has been concocted by "bookworms," "jurists,"
"professors," or other "theorists," instead of, as is the fact, mainly
by statesmen, diplomatists, prize courts, generals and admirals. This
is, however, a wide field, into which I must not stray. I have even
avoided the pleasant by-paths of disquisition on contraband,
privateering, and the Declaration of Paris generally, into which some of
your correspondents have courteously invited me. I fear we are as yet
far from having disposed of the comparatively simple question as to the
operations which may be properly undertaken by a naval squadron against
an undefended seaboard.
I am, your obedient servant,
T. E. HOLLAND.
Llanfairfechan, August 27 (1888).
NAVAL BOMBARDMENTS OF UNFORTIFIED PLACES
Sir,--The protest reported to have been lodged by the Russian Government
against the bombardment by the Japanese fleet of a quarantine station on
the island of San-shan-tao, apart from questions of fact, as to which we
have as yet no reliable information, recalls attention to a question of
international law of no slight importance--viz. under what, if any,
circumstances it is permissible for a naval force to bombard an "open"
coast town.
In the first place, it may be hardly necessary to point out the
irrelevancy of the reference, alleged to have been made in the Russian
Note, to "Article 25 of The Hague Convention." The Convention and the
_Règlement_ annexed to it are, of course, exclusively applicable to "la
guerre sur terre." Not only, however, would any mention of a naval
bombardment have been out of place in that _Règlement_, but a proposal
to bring such action within the scope of its 25th Article, which
prohibits "the attack or bombardment of towns, villages, habitations, or
buildings which are not defended," was expressly negatived by the
Conference of The Hague. It became abundantly clear, during the
discussion of this proposal, that the only chance of an agreement being
arrived at was that any allusion to maritime warfare should be carefully
avoided. It was further ultimately admitted, even by the advocates of
the proposal, that the considerations applicable to bombardments by an
army and by a naval force respectively are not identical. It was, for
instance, urged that an army has means other than those which may alone
be available to a fleet for obtaining from an open town absolutely
needful supplies. The Hague Conference, therefore, left the matter where
it found it, recording, however, among its "pious wishes" (_voeux_)
one to the effect "that the proposal to regulate the question of the
bombardment of ports, towns, and villages by a naval force should be
referred for examination to a future conference."
The topic is not a new one. You, Sir, allowed me to raise it in your
columns with reference to the naval manoeuvres of 1888, when a
controversy ensued which disclosed the existence of a considerable
amount of naval opinion in favour of practices which I ventured to think
in contravention of international law. It was also thoroughly debated in
1896 at the Venice meeting of the Institut de Droit International upon a
report drafted by myself, as chairman of a committee appointed a year
previously. This report lays down that the restrictions placed by
international law upon bombardments on land apply also to those effected
from the sea, except that such operations are lawful for a naval force
when undertaken with a view to (1) obtaining supplies of which it is in
need; (2) destroying munitions of war or warships which may be in a
port; (3) punishing, by way of reprisal, violations by the enemy of the
laws of war. Bombardments for the purpose of exacting a ransom or of
putting pressure upon the hostile Power by injury to peaceful
individuals or their property were to be unlawful. The views of the
committee were, in substance, adopted by the Institut, with the omission
only of the paragraph allowing bombardment by way of reprisals.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, April 2 (1904).
The "Hague Conference" and "Hague Convention" to which
reference was made in the last of these letters were, of
course, those of 1899.
For the action taken by the Institut de Droit International in
1895 and 1896, on the initiative of the present writer, see the
_Annuaire de l'Institut_, t. xiv p. 295, t. xv. pp. 145-151,
309, 317; and his _Studies in International Law_, pp. 106-111.
See also, at p. 104 of the same work, an opinion given by him
to the Chevalier Tindal as to the liability of The Hague to be
bombarded.
The later growth of opinion has been in accordance with the
views maintained by the writer of these letters, and with the
_Rapport_ drafted by him for the Institut. The Hague Conference
of 1899, though unable to discuss the subject, had registered a
_væu_ "that the proposal to regulate the question of the
bombardment of ports, towns and villages by a naval force may
be referred for examination to a future Conference." See _Parl.
Paper, Miscell._ No. 1 (1889), pp. 139, 146, 162, 165, 258,
283. At the Conference of 1907 a Convention, No. ix., was
accordingly signed and generally ratified, notably by Germany
and Great Britain, Art. 1 of which prohibits "the bombardment
by naval forces of ports towns, villages, houses, or buildings
which are not defended," Germany, France, Great Britain and
Japan dissenting from the second paragraph of this article,
which explains that a place is not to be considered to be
defended merely because it is protected by submarine
contact-mines. Bombardment is, however, permitted, by Art. 2,
of places which are, in fact, military or naval bases, and, by
Arts. 3 and 4, of places which refuse to comply with reasonable
requisitions for food needed by the fleet, though not for
refusal of money contributions. The _Acte Final_ of the
Conference further registers a _væu_ that "the Powers should,
in all cases, apply, as far as possible, to war at sea the
principles of the Convention concerning the laws and customs of
war on land." (_Parl. Paper, Miscell._ No. 1 (1908), p. 30.)
This Convention, No. iv. of 1907, in Art. 25 of the _Règlement_
annexed to it, lays down that "the attack or bombardment, by
whatsoever means, of towns, villages, habitations, or buildings
which are not defended is prohibited."
The British Government had, in 1907, so far departed from the
Admiralty views of 1888 as to instruct their delegates to the
Conference of that year to the effect that "the Government
consider that the objection, on humanitarian grounds, to the
bombardment of unfortified towns is too strong to justify a
resort to that measure, even though it may be permissible under
the abstract doctrines of international law [?]. They wish it,
however, to be clearly understood that any general prohibition
of such practice must not be held to apply to such operations
as the bombardment of towns or places used as bases or
storehouses of naval or military equipment or supply, or ports
containing fighting ships, and that the landing of troops, or
anything partaking of the character of a military or naval
operation, is also not covered."
It is hardly necessary to chronicle the indignation aroused by
the raids upon undefended coast towns carried out by German
cruisers during the war of 1914, in violation of modern
International Law and notwithstanding the German ratification
of Convention No. ix. of 1907.
* * * * *
SECTION 15
_Belligerent Reprisals_
REPRISALS
Sir,--The controversy as to the legitimacy of the recent attack on
Freiburg tends to stray into irrelevancies. If the attack was made upon
barracks or troop trains no one would surely criticise what is of
everyday occurrence, although not unlikely to cause incidentally death
or injury to innocent persons. There seems, however, to be no reason for
supposing that such military objects were in view, or that our
aeroplanes were instructed to confine their activity, as far as
possible, to the attainment of such objects. We must assume, for any
useful discussion of the question raised, that the operation was
deliberately intended to result in injury to the property and persons of
civilian inhabitants, not, of course, by way of vengeance, but by way of
reprisal--_i.e._ with the practical object of inducing the enemy to
abstain in the future from his habitually practised illegal barbarities.
Such reprisals, as is to-day so well explained by your correspondent
"Jurist," are no violations of international law. Objections might, of
course, be made to them as unlikely to produce their hoped-for effect,
or as repugnant to our feelings of humanity or honour. They are not
illegal.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 4 (1917).
REPRISALS
Sir,--If my friend Sir Edward Clarke will glance again at my letter of
Monday, he will, I think, cease to be surprised that it contains no
answer to his censure from an ethical standpoint of our treatment of
Freiburg. My object was merely to indicate the desirability of keeping
the question whether acts of the kind are in violation of international
law (which I answered in the negative) distinct from questions, which I
catalogued, as to their practical inutility, with which some of your
correspondents have occupied themselves, or their repugnancy to feelings
of honour and humanity with which Sir Edward has dealt exclusively. Any
discussion of political expediency or of high morals would have been
beside my purpose.
It is curious that Sir Herbert Stephen should to-day speak of my letter
of the 7th as a defence of the aerial bombardment of Freiburg. It
neither attacked nor defended the bombardment, but, solely in the
interests of clear thinking, indicated the desirability of keeping
distinct the three points of view from which the topic may be regarded,
viz.: (1) of international law; (2) of practical utility; (3) of
morality and honour.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 9 (1917).
* * * * *
SECTION 16
_Peace_
UNDESIRABLE PEACE TALK
Sir,--There has been more than enough of premature discussion by groups
of well-meaning amateurs, not unfrequently wirepulled by influences
hostile to this country, with reference to the terms of the treaty of
peace by which the world-war now raging will be brought to a close.
Movements of the kind have culminated in the action of a body rejoicing
in the somewhat cumbrous title of the "International Central
Organisation for a Durable Peace," which is inviting members of about
fifty societies, of very varying degrees of competence, to a
cosmopolitan meeting, to be held at Berne in December next. Lest the
unwary should be beguiled into having anything to do with the plausible
offer made to them that they should, there and then, assist in compiling
"a scientific dossier, containing material that will be of vast
importance to the diplomats who may be chosen to participate in the
peace congress itself," it may be worth while to call attention to the
composition of the executive committee by which the invitations are
issued, and to its "minimum programme."
Of the members of this committee (of thirteen), on which Great Britain
is represented only by Mr. Lowes Dickenson (mistakenly described as a
Cambridge Professor), and America only by Mrs. Andrews, of Boston, the
best known are Professors Lammasch, of Vienna, and Schücking, of
Marburg. The "minimum programme" demands, _inter alia_, "equal rights
for all nations in the colonies, &c.," of the Powers; submission of all
disputes to "pacific procedure," joint action by the Powers against any
one of them resorting to military measures, rather than to such
procedure; and that "the right of prize shall be abolished, and the
freedom of the seas shall be guaranteed." The _provenance_ of this
"minimum programme" is sufficiently obvious. What is likely to be the
character of such a "maximum programme" as will doubtless be aimed at by
the proposed gathering?
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, October 16 (1915).
CHAPTER VII
THE RIGHTS AND DUTIES OF NEUTRALS
SECTION 1
_The Criterion of Neutral Conduct_
The main object of the first of the following letters was to
assert, as against any possible misunderstanding of phraseology
attributed to a great international lawyer (since lost to
science and to his friends by his sudden death on June 20,
1909), the authority by which alone neutral rights and duties
are defined.
The letter also touches upon the limit of time which a neutral
Power is bound to place upon the stay in its ports of
belligerent ships of war; a topic more fully discussed in
Section 4.
PROFESSOR DE MARTENS ON THE SITUATION
Sir,--The name of my distinguished friend, M. de Martens, carries so
much weight that I hope you will allow me at once to say that I am
convinced that to-day's telegraphic report of some communication made by
him to the St. Petersburg newspapers fails to convey an accurate account
of the views which he has thus expressed.
On matters of fact it would appear that he is no better informed than
are most of us in this country; and under matters of fact may be
included the breaches of neutrality which he is represented as
counter-charging against the Japanese. It is exclusively with the views
on questions of law which are attributed to Professor de Martens that I
am now concerned. He is unquestionably right in saying, as I pointed out
in a recent letter, that the hard-and-fast rule, fixing 24 hours as the
limit, under ordinary circumstances, of the stay of a belligerent
warship in neutral waters, is not yet universally accepted as a rule of
international law; and, in particular, is not adopted by France.
But what of the further _dictum_ attributed to Professor de Martens, to
the effect that "each country is its own judge as regards the discharge
of its duties as a neutral"? This statement would be a superfluous
truism if it meant merely that each country, when neutral, must, in the
first instance, decide for itself what courses of action are demanded
from it under the circumstances. The words may, however, be read as
meaning that the decision of the neutral country, as to the propriety of
its conduct, is final, and not to be questioned by other Powers. An
assertion to this effect would obviously be the negation of the whole
system of international law, of which Professor de Martens is so great a
master, resting, as that system does, not on individual caprice, but
upon the agreement of nations in restraint of the caprice of any one of
them. The last word, with reference to the propriety of the conduct of
any given State, rests, of course, not with that State; but with its
neighbours. "Securus indicat orbis terrarum." Any Power which fails in
the discharge, to the best of its ability, of a generally recognised
duty, is likely to find that self-satisfaction is no safeguard against
unpleasant consequences. Professor de Martens would, I am certain,
endorse this statement.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 12 (1905).
NEUTRALS AND THE LAWS OF WAR
Sir,--The interesting address by Sir Edward Carson reported in your
issue of yesterday will remind many of us of our regret that President
Wilson, in Notes complaining of injuries sustained by American citizens,
dwelt so slightly upon the violations of international law by which
those injuries were brought about.
Sir Edward seems, however, to have made use of certain expressions which
might be taken to imply a view of neutral responsibility which can
hardly be accepted. The United States were warned in the address that
they will not "by a mere Note maintain the obligations which are put
upon them, as parties to international law, which are to prevent
breaches of civilisation and to mitigate the horrors of war." Neutrals
were spoken of as "the executives of international law," and as alone
standing "behind the conventions" (for humanising warfare). "Abolish,"
we were told, "the power of neutrals, and you have abolished
international law itself."
Is this so? The contract into which a State enters with other States, by
adopting the customary laws of war and by ratifying express Conventions
dealing with the same subject, obliges it, while remaining neutral, to
submit to certain inconveniences resulting from the war, and, when
belligerent, to abstain from certain modes of carrying on hostilities.
It is assuredly no term of the contract that the State in question shall
sit in judgment upon its co-contractors and forcibly intervene in _rebus
inter alios actis_. Its hands are absolutely free. It may remain a
quiescent spectator of evil, or, if strong enough and indignant with the
wrongdoing, may endeavour to abate the mischief by remonstrance, and, in
the last resort, by taking sides against the offender. Let us hope that
at the present crisis the United States may see their way to choosing
the better part.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 28 (1915).
* * * * *
SECTION 2
_The Duties of Neutral States, and the Liabilities of Neutral
Individuals, distinguished_
The duties of neutral States have been classified by the
present writer under the heads, of "Abstention," "Prevention,"
and "Acquiescence." (_Transactions of the British Academy_,
vol. ii, p. 55; reproduced in the _Revue de Droit
International_, the _Revista de Derecho International_, and the
_Marine Rundschau_.) In the three letters which follow, an
attempt is made to point out the confusion which has resulted
from failure to distinguish between the two last-mentioned
heads of neutral duty; on the one hand, namely, the cases in
which a neutral government is bound itself to come forward and
take steps to prevent certain classes of action on the part of
belligerents, or of its own subjects, e.g. the overstay in its
ports of belligerent fleets, or the export from its shores of
ships of war for belligerent use; and, on the other hand, the
cases in which the neutral government is bound only to
passively acquiesce in interference by belligerents with the
commerce of such of its subjects as may choose, at their own
risk and peril, to engage in carriage of contraband, breach of
blockade, and the like.
I. A neutral State is bound to prevent its territory from
becoming, in any way, a "base of operations" for either
belligerent. Of the various obligations thus arising, the
following letters deal with the duty of the State (1) to
prevent the departure from its ports of vessels carrying coal
intended to supply directly the needs of a belligerent fleet;
and (2) to prevent the reception accorded in its ports to
belligerent warships from being such as will unduly facilitate
their subsequent operations. It is pointed out that the rule
adopted by the United States and this country, as well as by
some others, when neutral, by which the stay of belligerent
warships is limited to twenty-four hours, has not been adopted
by the nations of the European continent. The attempt made at
The Hague Conference of 1907 to secure the general acceptance
of this rule was unsuccessful; and Convention No. xiii. of that
year, not yet ratified by Great Britain, which deals with this
subject, merely lays down, in Art. 12, that "_In the absence of
special provisions to the contrary in the legislation of a
neutral Power_, belligerent warships are not permitted to
remain in the ports, roadsteads, or territorial waters of the
said Power for more than twenty-four hours, except in the cases
covered by this Convention." Art. 27 obliges the contracting
Powers to "communicate to each other in due course all laws,
proclamations, and other enactments, regulating in their
respective countries the _Status_ of belligerent warships in
their ports laid waters."
II. A neutral State is not bound to prevent such assistance
being rendered by its subjects to either belligerent as is
involved in, e.g. blockade-running or carriage of contraband;
but merely to acquiesce in the loss and inconvenience which may
in consequence be inflicted by the belligerents upon persons so
acting. In order to explain this statement, it became necessary
to say much as to the true character of "carriage of
contraband" (although this topic is more specifically dealt
with in the letters contained in Section 5), and to point out
that such carriage is neither a breach of international law nor
forbidden by the law of England. For the same reason, it seemed
desirable to criticise some of the clauses now usually inserted
in British Proclamations of Neutrality.
The view here maintained commended itself to the Institut de
Droit International, at its Cambridge and Venice sessions,
1895, 1896, as against the efforts of MM Kleen and Brusa to
impose on States a duty of preventing carriage of contraband by
its subjects (_Annuaire_, t. xiv. p. 191, t. xv. p. 205). It
has now received formal expression in The Hague Convention No.
x. of 1907, Art. 7 of which lays down that "a neutral Power is
_not_ bound to prevent the export or transit, for the use of
either belligerent, of arms, ammunition, or, in general, of
anything which could be of use to an army or fleet."
CONTRABAND OF WAR
Sir,--As a good deal of discussion is evidently about to take place as
to the articles which may be properly treated as contraband of war, and,
in particular, as to coal being properly so treated, I venture to think
that it may be desirable to reduce this topic (a sufficiently large one)
to its true dimensions by distinguishing it from other topics with which
it is too liable to be confused.
Articles are "contraband of war" which a belligerent is justified in
intercepting while in course of carriage to his enemy, although such
carriage is being effected by a neutral vessel. Whether any given
article should be treated as contraband is, in the first instance,
entirely a question for the belligerent Government and its Prize Court.
A neutral Government has no right to complain, of hardships which may
thus be incurred by vessels sailing under its flag, but is bound to
acquiesce in the views maintained by the belligerent Government and its
Courts, unless these views involve, in the language employed by Lord
Granville in 1861, "a flagrant violation of international law." This is
the beginning and end of the doctrine of contraband. A neutral
Government has none other than this passive duty of acquiescence. Its
neutrality would not be compromised by the shipment from its shores, and
the carriage by its merchantmen, of any quantity of cannon, rifles, and
gunpowder.
Widely different from the above are the following three topics, into the
consideration of which discussions upon contraband occasionally
diverge:--
1. The international duty of the neutral Government not to allow its
territory to become a base of belligerent operations: e.g. by the
organisation on its shores of an expedition, such as that which in 1828
sailed from Plymouth in the interest of Dona Maria; by the despatch from
its harbours for belligerent use of anything so closely resembling an
expedition as a fully equipped ship of war (as was argued in the case of
the _Alabama_); by the use of its ports by belligerent ships of war for
the reception of munitions of war, or, except under strict limitations,
for the renewal of their stock of coal; or by such an employment of its
colliers as was alleged during the Franco-Prussian war to have
implicated British merchantmen in the hostile operations of the French
fleet in the North Sea. The use of the term "contraband" with reference
to the failure of a neutral State to prevent occurrences of this kind is
purely misleading.
2. The powers conferred upon a Government by legislation of restraining
its subjects from intermeddling in a war in which the Government takes
no part. Of such legislation our Foreign Enlistment Act is a striking
example. The large powers conferred by it have no commensurable relation
to the duties which attach to the position of neutrality. Its effect is
to enable the Government to prohibit and punish, from abundant caution,
many acts on the part of its subjects for which it would incur no
international liability. It does empower the Government to prevent the
use of its territory as a base: e.g. by aid directly rendered thence
to a belligerent fleet; but it, of course, gives no right of
interference with the export or carriage of articles which may be
treated as contraband.
3. The powers conferred upon a Government by such legislation as section
150 of the Customs Consolidation Act; 1853, now reproduced in a later
enactment, of forbidding at any time, by Order in Council, the export of
articles useful in war. The power thus given has no relation to
international duty, and is mainly intended to be exercised, in the way
of self-protection, when Great Britain is, or is likely to be, engaged
in war. The object of the enactment is to enable the Government to
retain in the country articles of which we may ourselves be in need, or
to prevent them from reaching the hands of our enemies. The articles
enumerated--e.g. arms, ammunition, marine engines, &c.--are, neither
in the Act of 1853 nor in the Order in Council of the following year,
described as "contraband of war."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 5 (1904).
COAL FOR THE RUSSIAN FLEET
Sir,--The use of coal for belligerent purposes is, of course, of
comparatively modern date, and it is hardly surprising to find that the
mercantile community, as would appear from your marine insurance article
of this morning, does not clearly distinguish between the different
classes of questions to which such use may give rise. There is indeed a
widely prevalent confusion, even in quarters which ought to be better
informed, between two topics which it is essential to keep
separate--viz. the shipment of contraband, and the use of neutral
territory as a base for belligerent operations.
A neutral Government (our own at the present moment) occupies a very
different position with reference to these two classes of acts. With
reference to the former, its international duty (as also its national
policy) is merely one of acquiescence. It is bound to stand aside, and
make no claim to protect from the recognised consequences of their acts
such of its subjects as are engaged in carriage of contraband. So far as
the neutral Government is concerned, its subjects may carry even cannon
and gunpowder to a belligerent port, while the belligerent, on the other
hand, who is injured by the trade may take all necessary stops to
suppress it.
Such is the compromise which long experience has shown to be both
reasonable and expedient between the, in themselves irreconcilable,
claims of neutral and belligerent States. So far, it has remained
unshaken by the arguments of theorists, such as the Swedish diplomatist
M. Kleen, who would impose upon neutral Governments the duty of
preventing the export of contraband by their subjects. A British trader
may, therefore, at his own proper risk, despatch as many thousand tons
of coal as he chooses, just as he may despatch any quantity of rifles or
bayonets, to Vladivostok or to Nagasaki.
It by no means follows that British shipowners may charter their vessels
"for such purposes as following the Russian fleet with coal supplies."
Lord Lansdowne's recent letter to Messrs. Woods, Tylor, and Brown is
explicit to the effect that such conduct is "not permissible." Lord
Lansdowne naturally confined himself to answering the question which had
been addressed by those gentlemen to the Foreign Office; but the reason
for his answer is not far to seek. The unlawfulness of chartering
British vessels for the purpose above mentioned is wholly unconnected
with the doctrine of contraband, but is a consequence of the
international duty, which if incumbent on every neutral State, of seeing
that its territory is not made a base of belligerent operations. The
question was thoroughly threshed out as long ago as 1870, when Mr.
Gladstone said in the House Of Commons that the Government had adopted
the opinion of the law officers:
"That if colliers are chartered for the purpose of attending
the fleet of a belligerent and supplying it with coal, to
enable it to pursue its hostile operations, such colliers
would, to all practical purposes, become store-ships to the
fleet, and would be liable, if within reach, to the operation
of the English law under the (old) Foreign Enlistment Act."
British colliers attendant on a Russian fleet would be so undeniably
aiding and abetting the operations of that fleet as to give just cause
of complaint against us to the Government of Japan. The British shipper
of coal to a belligerent fleet at sea, besides thus laying his
Government open to a charge of neglect of an international duty, lays
himself open to criminal proceedings under the Foreign Enlistment Act of
1870. By section 8 (3) and (4) of that Act "any person within H.M.
Dominions" who (subject to certain exceptions) equips or despatches any
ship, with intent, or knowledge, that the same will be employed in the
military or naval service of a foreign State, at war with any friendly
State, is liable to fine or imprisonment, and to the forfeiture of the
ship. By section 30, "naval service" covers "user as a store-ship," and
"equipping" covers furnishing a ship with "stores or any other thing
which is used in or about a ship for the purpose of adapting her for
naval service." Our Government has, therefore, ample powers for
restraining, in this respect, the use of its territory as a base. It has
no power, had it the wish (except for its own protection, under a
different statute), to restrain the export of contraband of war.
It would tend to clearness of thought if the term "contraband" were
never employed in discussions with reference to prohibition of the
supply of coal to a belligerent fleet at sea.
Your obedient servant,
T. E. HOLLAND.
Oxford, November 7 (1904).
GERMAN WAR MATERIAL FOR TURKEY
Sir,--The _Cologne Gazette_ rightly treats as incredible the rumour,
mentioned by your Sofia Correspondent, that a trainload of munitions of
war had been despatched by the German Government for the use of Turkey,
while admitting that such a consignment may very likely have been
forwarded from private German workshops.
It has long been settled international law that a neutral Government,
while, on the one hand, it is precluded from itself supplying munitions
to a belligerent, is, on the other hand, not bound to prevent private
individuals from so acting. The latter half of this rule has now
received written expression in Art. 7 of The Hague Convention No. v. of
1907, which deals with "Neutral Powers and Persons in War on Land."
The only fault to be found with the paragraph in the _Cologne Gazette_
quoted by your Berlin Correspondent, supposing it to be correctly
transcribed, would be that it seems to imply that the above-mentioned
Art. 7 legitimatises the supply of war material to belligerents by
"neutral States." It is, however, obvious from the rest of the paragraph
that the _Gazette_ is not really under that impression.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 24 (1911).
* * * * *
SECTION 3
_Neutrality Proclamations_
The criticisms directed against the Proclamation of 1904, in
the first two letters which follow, have produced some
improvement in Proclamations of later date. See the last two
letters of this section. See also Appendix A in F.E. Smith and
N.W. Sibley's _International Law in the Russo-Chinese War_
(1905), devoted to a consideration of those criticisms.
THE BRITISH PROCLAMATION OF NEUTRALITY
Sir,--You were good enough to insert in your issue of November 9 some
observations which I had addressed to you upon the essential difference
between carriage of contraband, which takes place at the risk of the
neutral shipowner, and use of neutral territory as a base for
belligerent operations, an act which may implicate the neutral Power
internationally, while also rendering the shipper liable to penal
proceedings on the part of his own Government. I am gratified, to find
that the views thus expressed by me are in exact accordance with those
set forth by Lord Lansdowne in his reply of November 25 to the Chamber
of Shipping of the United Kingdom. Perhaps you will allow me to say
something further upon the same subject, suggested by several letters
which appear in your paper of this morning. I am especially desirous of
emphasising the proposition that carriage of contraband is no offence,
either against international law or against the law of England.
1. The rule of international law upon the subject may, I think, be
expressed as follows: "A belligerent is entitled to capture a neutral
ship engaged in carrying contraband of war to his enemy, to confiscate
the contraband cargo, and, in some cases, to confiscate the ship also,
without thereby giving to, the Power to whose subjects the property in
question belongs any ground for complaint." Or, to vary the phrase, "a
neutral Power is bound to acquiesce in losses inflicted by a belligerent
upon such of its subjects as are engaged in adding to the military
resources of the enemy of that belligerent." This is the rule to which
the nations have consented, as a compromise between the right of the
neutral State that its subjects should carry on their trade without
interruption, and the right of the belligerent State to prevent that
trade from bringing an accession of strength to his enemy. International
law here, as always, deals with relations between States, and has
nothing to do with the contraband trader, except in so far as it
deprives him of the protection of his Government. If authority were
needed for what is here advanced, it might be found in Mr. Justice
Story's judgment in the _Santissima Trinidad_, in President Pierce's
message of 1854, and in the statement by the French Government in 1898,
with reference to the case of the _Fram_, that "the neutral State is not
required to prevent the sending of arms and ammunition by its subjects."
2. Neither is carriage of contraband any offence against the law of
England; as may be learnt, by any one who is in doubt as to the
statement, from the lucid language of Lord Westbury in _Ex parte
Chavasse_ (34 L.J., Bkry., 17). And this brings me to the gist of this
letter. I have long thought that the form of the Proclamation of
Neutrality now in use in this country much needs reconsideration and
redrafting. The clauses of the Proclamation which are set out by Mr.
Gibson Bowles in your issue of this morning rightly announce that every
person engaging in breach of blockade or carriage of contraband "will be
justly liable to hostile capture and to the penalties denounced by the
law of nations in that behalf, and will in no wise obtain protection
from us against such capture or such penalties." So far, so good. But
the Proclamation also speaks of such acts as those just mentioned as
being done "in contempt of this our Royal Proclamation, in derogation of
their duty as subjects of a neutral Power in a war between other Powers,
or in violation or contravention of the law of nations in that behalf."
It proceeds to say that all persons "who may misconduct themselves in
the premises ... will incur our high displeasure for such misconduct." I
venture to submit that all these last-quoted phrases are of the nature
of misleading rhetoric, and should be eliminated from a statement the
effective purport of which is to warn British subjects of the treatment
to which certain courses of conduct will expose them at the hands of
belligerents, and to inform them that the British Government will not
protect them against such treatment. The reason why our Government will
abstain from interference is, not that such courses of action are
offences either against international or English law, but that it has no
right to so interfere; having become a party to a rule of international
law, under which a neutral Government waives the right, which it would
otherwise possess, to protect the trade of its subjects from
molestation.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 28 (1904).
THE BRITISH PROCLAMATION OF NEUTRALITY
Sir,--Enquiries which have reached me with reference to the observations
which I recently addressed to you upon the British Proclamation of
Neutrality induce me to think that some account of the development of
the text of the proclamation now in use may be of interest to your
readers. The proclamations with which I am acquainted conform to one or
other of two main types, each of which has its history.
1. The earlier proclamations merely call attention to the English law
against enlistments, &c., for foreign service; and command obedience to
the law, upon pain of the penalties thereby inflicted, "and of his
Majesty's high displeasure." In the proclamation of 1817, the tacit
reference is doubtless to certain Acts of George II, which, having been
passed for a very different purpose, and having proved inadequate in
their new application, were repealed by the Foreign Enlistment Act of
1819. This is the Act to which reference is made in the proclamations of
1823 and 1825; in the former of which we first get a recital of
neutrality; while in the latter the clause enjoining all subjects
strictly to observe the duties of neutrality and to respect the exercise
of belligerent rights first makes its appearance.
2. The proclamation of 1859 is of a very different character, bearing
traces of the influence of the ideas which had inspired the action of
President Washington in 1793. While carrying on the old, it presents
several new features. British subjects are enjoined to abstain from
violating, not only "the laws and statutes of the realm," but also (for
the first time) "the law of nations." They are also (for the first time)
warned that, if any of them "shall presume, in contempt of this our
Royal Proclamation, and of our high displeasure, to do any acts in
derogation of their duty as subjects of a neutral Sovereign, ... or in
violation of the law of nations, ... as, more especially," by breach of
blockade, or carriage of contraband, &c., they will "rightfully incur,
and be justly liable to, hostile capture, and to the penalties denounced
by the law of nations in that behalf"; and notice is (for the first
time) given that those "who may misconduct themselves in the premises
will do so at their peril, and of their own wrong; and that they will in
no wise obtain any protection from Us against such capture, or such
penalties as aforesaid, but will, on the contrary, incur Our high
displeasure by such misconduct."
The proclamations of 1861 and February and March 1866 complicate
matters, by making the warning clause as to blockade and contraband
apply also to the statutory offences of enlistment, &c.; but the
proclamation of June, 1866, gets rid of this complication by returning
to the formula of 1859, which has been also followed in 1870, 1877,
1898, and in the present year.
The formula as it now stands, after the process of growth already
described, may be said to consist of seven parts--viz. (1) a recital
of neutrality; (2) a command to subjects to observe a strict neutrality,
and to abstain from contravention of the laws of the realm or the law of
nations in relation thereto; (3) a recital of the Foreign Enlistment Act
of 1870; (4) a command that the statute be obeyed, upon pain of the
penalties thereby imposed, "and of Our high displeasure"; (5) a warning
to observe the duties of neutrality, and to respect the exercise of
belligerent rights; (6) a further warning to those who, in contempt of
the proclamation "and of Our high displeasure," may do any acts "in
derogation of neutral duty, or in violation of the law of nations,"
especially by breach of blockade, carriage of contraband, &c., that they
will be liable to capture "and to the penalties denounced by the law of
nations"; (7) a notification that persons so misconducting themselves
"will in no wise obtain any protection from Us," but will, "on the
contrary, incur Our high displeasure by such misconduct."
The question which I have ventured to raise is whether the _textus
receptus_, built up, as it has been, by successive accretions, is
sufficiently in accordance with the facts to which it purports to call
the attention of British subjects to be properly submitted to His
Majesty for signature. I would suggest for consideration: 1. Whether the
phrases commanding obedience, on pain of His Majesty's "high
displeasure," and the term "misconduct," should not be used only with
reference to offences recognised as such by the law of England. 2.
Whether such condensed, and therefore incorrect, though very commonly
employed, expressions as imply that breach of blockade and carriage of
contraband are "in violation of the law of nations," and are liable to
"the penalties denounced by the law of nations," should not be replaced
by expressions more scientifically correct. The law of nations neither
prohibits the acts in question nor prescribes penalties to be incurred
by the doers of them. What it really does is to define the measures to
which a belligerent may resort for the suppression of such acts, without
laying himself open to remonstrance from the neutral Government to which
the traders implicated owe allegiance.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 5 (1904).
THE BRITISH PROCLAMATION OF NEUTRALITY
Sir,--I am glad that Mr. Gibson Bowles has called attention to certain
respects in which the Proclamation of Neutrality issued by our
Government on the 3rd of the present month differs from that issued on
February 11, 1904.
In two letters addressed to you with reference to the Proclamation of
that year, I ventured to point out what appeared to me to be its
defects, alike from a scientific and from a practical point of view. The
present Proclamation has slightly minimised these defects, but, as a
whole, remains open to the objections which I then raised. I have no
wish to repeat in detail the contents of my letters of 1904, especially
as they may be now found in my _Letters upon War and Neutrality_,
published in 1909, pp. 95 and 98, but am unwilling not to take this
opportunity once more to urge the desirability of redrafting the
document in question.
The Proclamation just issued still answers to my description of that of
1904, as consisting of seven parts--viz.: (1) A recital of neutrality;
(2) a command to subjects to observe a strict neutrality, and to abstain
from contravention of the laws of the realm or the Law of Nations in
relation thereto; (3) a recital of the Foreign Enlistment Act, 1870; (4)
a command that the statute be obeyed, upon pain of the penalties thereby
imposed, and of "Our high displeasure"; (5) a warning to observe the
duties of neutrality and to respect the exercise of belligerent rights;
(6) a further warning that any persons presuming, in contempt of the
Proclamation, to do acts in derogation of their duty as subjects of a
neutral Power, or of the Law of Nations, will incur the penalties
denounced by such law; (7) a notice that persons so misconducting
themselves will obtain no protection from their Sovereign.
With the phraseology of No. 1, reciting British neutrality, and Nos.
2-5, dealing with the duties of British subjects under the Foreign
Enlistment Act of 1870, and constituting the bulk of the Proclamation,
little serious fault can be found. It is well that such persons should
be warned of the penalties which they may incur, including the Royal
displeasure.
The remaining two clauses relate, however, to matters of a totally
different character from those previously mentioned, and care should
therefore have been taken, but has not been taken, to make this
perfectly clear. I would further remark upon these clauses: (1) That I
agree with Mr. Bowles in regretting the omission here of the specific
mention made in 1904 of "breach of blockade," "carriage of contraband,"
&c., as specimens of the acts undoubtedly contemplated in these two
clauses; (2) that it is a mistake to describe acts of this kind as being
in derogation of "the duty of subjects of a neutral Power," or "in
violation of the Law of Nations," or as "liable to the penalties
denounced by such law." Carriage of contraband, and acts of the same
class, are notoriously not condemned by English law, neither are they,
in any proper sense, breaches of the Law of Nations, which, speaking
scientifically, never deals with individuals, as such, but only with the
rights and duties of States _inter se_. What the Law of Nations really
does is, as I said in 1904, "to define the measures to which a
belligerent may resort for the suppression of such acts, without laying
himself open to remonstrance from the neutral Government to which the
traders implicated owe allegiance"; (3) that on the other hand, I am
glad to find that, in accordance with my suggestion, while it continues
very properly to be stated that persons doing the acts under discussion
"will in no wise obtain any protection from Us against such capture,
&c.," the further statement that such persons "will, on the contrary,
incur Our high displeasure by such misconduct," has now been with equal
propriety omitted.
I am, Sir, your obedient servant,
T. E. HOLLAND.
The Athenæum, October 9 (1911).
THE PROCLAMATION OF NEUTRALITY
Sir,--May I be allowed to point out that two questions arise upon the
recent British Proclamation of Neutrality which were not, as they should
have been, in the House of Commons last night, kept entirely distinct?
The Government has surely done right in now omitting, as I suggested in
1904, with reference to certain classes of acts which are prohibited
neither by English nor by International Law, a phrase announcing that
the doers of them would incur the King's "high displeasure"; while
retaining the warning that doers of such acts must be prepared for
consequences from which their own Government will not attempt to shield
them.
On the other hand, our Government has surely erred in not specifying, as
in previous Proclamations, the sort of acts to which this warning
relates--viz., to acts such as carriage of contraband, enemy service,
and breach of blockade, which differ wholly in character from those
violations of the Foreign Enlistment Act against which the bulk of the
Proclamation is directed. As the Proclamation now stands, no clear
transition is marked between breaches of English law and the unspecified
acts which, though perfectly legal, will forfeit for the doers of them
any claim to British protection from the consequences involved. Traders
are left to find out as best they may the meaning of the general words
"any acts in derogation of their duty as subjects of a neutral Power."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, October 31 (1911).
* * * * *
SECTION 4
_Neutral Hospitality_
The Hague Convention of 1907, No. xiii., not yet ratified by
Great Britain, suggests in Art. 12, with reference to the
question here raised, that "à défaut d'autres dispositions
spéciales de la législation de la Puissance neutre, il est
interdit aux navires de guerre des belligérants de demeurer
dans les ports et rades ou dans les eaux territoriales de la
dite Puissance pendant plus de 24 heures sauf dans les cas
prévues par la présente Convention."
BELLIGERENT FLEETS IN NEUTRAL WATERS
Sir,--A novel question as to belligerent responsibilities would be
suggested for solution if, as seems to be reported in Paris, Admiral
Rozhdestvensky over-stayed his welcome in the waters of Madagascar,
although ordered to leave them by his own Government in compliance with
"pressing representations" on the part of the Government of France.
A much larger question is, however, involved in the discussion which has
arisen as to the alleged neglect by France to prevent the use of her
Cochin-Chinese waters by the Russians as a base of operations against
Japan. We are as yet in the dark as to what is actually occurring in
those waters, and are, perhaps, for that very reason in a better
position for endeavouring to ascertain what are the obligations imposed
on a neutral in such a case by international law.
It is admitted on all hands that a neutral Power is bound not to permit
the "asylum" which she may grant to ships of war to be so abused as to
render her waters a "base of operations" for the belligerent to which
those ships belong. Beyond this, international law speaks at present
with an uncertain voice, leaving to each Power to resort to such
measures in detail as may be necessary to ensure the due performance of
a duty which, as expressed in general terms, is universally recognised.
The rule enforced since 1862 by Great Britain for this purpose limits
the stay of a belligerent warship, under ordinary circumstances, to a
period of twenty-four hours; and the same provision will be found in the
neutrality proclamations issued last year by, e.g. the United States,
Egypt, China, Denmark, Sweden and Norway. So by Japan and Russia in
1898. This rule, convenient and reasonable as it is, is not yet a rule
of international law; as Lord Percy has had occasion to point out, in
replying to a question addressed to him in the House of Commons. The
proclamations of most of the Continental Powers do not commit their
respective Governments to any period of time, and the material clauses
of the French circular, to which most attention will be directed at the
present time, merely provide as follows:--
"(1) En aucun cas, un belligérant ne peut faire usage d'un
port Français, ou appartenant à un État protégé, dans un but
de guerre, &c. (2) La durée du séjour dans nos ports de
belligérants, non accompagnés d'une prise, n'a été limitée
par aucune disposition spéciale; mais pour être autorisés à y
séjourner, ils sont tenus de se conformer aux conditions
ordinaires de la neutralité, qui peuvent se résumer ainsi
qu'il suit:--(_a_) ... (_b_) Les dits navires ne peuvent, _à
l'aide de ressources puisées à terre_, augmenter leur
matériel de guerre, renforcer leurs équipages, ni faire des
enrôlements volontaires, même parmi leurs nationaux. (_c_)
Ils doivent s'abstenir de toute enquête sur les forces,
l'emplacement ou les ressources de leurs ennemis, ne pas
appareiller brusquement pour poursuivre ceux qui leur
seraient signalés; en un mot, s'abstenir de faire du lieu de
leur résidence la base d'une opération quelconque contre
l'ennemi. (3) Il ne peut être fourni à un belligérant que les
vivres, denrées, et moyens de réparations nécessaires à la
subsistence de son équipage ou à la sécurité de sa
navigation."
Under the twenty-four hours rule, the duty of the neutral Government is
clear. Under the French rules, all must evidently turn upon the wisdom
and _bonne volonté_ of the officials on the spot, and of the home
Government, so far as it is in touch with them. We have no reason to
suppose that the qualities in question will not characterise the conduct
of the French at the present moment. There can, however, be no doubt
that a better definition of the mode in which a neutral Power should
prevent abusive use of the asylum afforded by its ports and waters is
urgently required. The point is one which must prominently engage the
attention of the special conference upon the rights and duties of
neutrals, for which a wish was expressed by The Hague Conference of
1899, and, more recently, by President Roosevelt.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, April 20 (1905).
THE APPAM
Sir,--It is satisfactory to learn that the United States Neutrality
Board has decided adversely to the contention that the _Appam_ is a
German ship of war. Her treatment as a prize would then, _prima facie_,
seem to be governed by Art. 21 of The Hague Convention, No. xiii., which
provides for her being released, together with her officers and crew,
while the prize crew is to be interned. This Convention has been duly
ratified both by Germany and by the United States. Its non-ratification
by Great Britain is, I conceive, irrelevant.
But Germany contends that the situation is governed by Art. 19, the text
of which has been several times set out in your columns, of the old
Convention of 1799. This may startle those who are acquainted with what
occurred at The Hague in 1907, and I have seen no reference to what must
be the gist of the German argument on the point. They no doubt argue
that the old Convention remains unrepealed by No. xiii. of The Hague,
because the latter Convention is of no effect, in pursuance of its
common form Art. 28, to the effect that:--"The provisions of the present
Convention do not apply except between contracting Powers, and then only
if all the belligerents are parties to the Convention" (which is by no
means the case).
Your obedient servant,
T. E. HOLLAND.
Oxford, February 4 (1916).
Certain reservations on ratification do not affect Arts. 21 or
22.
The State Department ruled that the case did not fall within
the protecting clauses of the Treaty of 1799, which granted
asylum only to ships of war accompanying prizes, whereas the
_Appam_ was herself a prize. Proceedings by the owners in the
local Federal Court for possession of the ship resulted in a
decision in their favour, against which the Germans are
appealing in the Supreme Court. They do not seem to have raised
the objection, mentioned in the letter, as to the applicability
of Convention viii.
* * * * *
SECTION 5
_Carriage of Contraband. (Absolute and Conditional Contraband:
Continuous Voyages: Unqualified Captors: The Declaration of London)_
The letters included in the preceding sections 2 and 3 touched
incidentally upon carriage of contraband, in relation to other
departments of the law affecting neutrals. The eight letters
which follow, suggested respectively by the Spanish-American,
the Boer, and the Russo-Japanese wars, deal exclusively with
this topic, which seems likely to be henceforth governed no
longer only by customary and judge-made law, but largely also
by written rules, such as those suggested by the unratified
Declaration of London of 1909.
(_Absolute and Conditional Contraband_)
The divergence which has so long existed between Anglo-American
and Continental views upon contraband was very noticeable at
the commencement of the war of 1898, which gave occasion to the
letter which immediately follows. While the Spanish Decree of
April 23 set out only one list of contraband goods, the United
States Instructions of June 20 recognised two lists--viz. of
"absolute" and of "conditional" contraband, including under the
latter head "coal when destined for a naval station, a port of
call, or a ship or ships of the enemy; materials for the
construction of railways or telegraphs, and money, when such
materials or money are destined for an enemy's forces,
provisions, when destined for an enemy's ship or ships, for a
place besieged."
An answer was thus supplied to the question suggested in this
letter, as to articles _ancipitis usus_.
CONTRABAND OF WAR
Sir,--I fear that the mercantile community will hardly profit so much as
the managers of the Atlas Steamship Company seem to expect by the
information contained in their letter which you print this morning. It
was, indeed, unlikely that the courteous reply of the Assistant
Secretary of State at Washington to the enquiry addressed to him by the
New York agents of the company would contain a declaration of the policy
of the United States with reference to contraband of war. The threefold
classification of "merchandise" (not of "contraband") quoted in the
reply occurs, in the judgment of the Supreme Court in the well-known
case of the _Peterhoff_ (5 Wallace, 58), but it is substantially that of
Grotius, and has long been accepted in this country and in the United
States, while the Continent is, generally speaking, inclined to deny the
existence of "contraband by accident," and to recognise only such a
restricted list of contraband as was contained in the Spanish decree of
April 24 last.
The questions upon which shippers are really desirous of information
(which they are, however, perhaps not likely to obtain, otherwise than
from decisions of prize Courts) are of a less elementary character. They
would like to know what articles _ancipitis usus_ ("used for purposes of
war or peace according to circumstances") will be treated by the United
States as contraband, and with what penalty the carriage of such
articles will be visited--_i.e._ whether by confiscation or merely by
pre-emption.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 9 (1898).
The four letters which next follow also relate to the two
classes of contraband goods, with especial reference to the
character attributed to foodstuffs, coal and cotton.
On foodstuffs, see the _Report of the Royal Commission on the
Supply of Food, &c., in Time of War_, 1905. _Cf._ also
_infra._, pp. 174, 176, 177. They were placed by the unratified
Declaration of London, Art. 24, in the class of conditional
contraband; as is also coal. By Art. 28 of the Declaration, raw
cotton was enumerated among the articles which cannot be
declared contraband of war.
The suggestion in the letter of February 20, 1904, that certain
words quoted from the Japanese instructions had been
mistransmitted or misquoted was borne out by the Regulations
governing captures at sea, issued on March 15, 1904, Art. 14 of
which announces that certain goods are contraband "in case they
are destined to the enemy's army or navy, or in case they are
destined to the enemy's territory, and from the landing place
it can be inferred that they are intended for military
purposes."
The letters of March 10 and 15, 1905, will sufficiently explain
themselves. The accuracy of the statements contained in them
was vouched for by Baron Suyematsu, in a letter which appeared
in _The Times_ for March 16, to the effect that: "In Japan the
matters relating to the organisation and procedure of the prize
court, and the matters relating to prize, contraband goods,
&c., are regulated by two separate sets of laws.... The
so-called prize Court law of August 20, 1894, and amendment
dated March 1, 1904, which your correspondent refers to, are
the provisions relating to the former matters. The rules
regulating the latter matters--viz. prize, contraband goods,
&c., are not comprised in them. The rules which relate to the
latter matters, as existing at present, are consolidated and
comprised in an enactment which was issued on March 7, 1904....
Under the circumstances I can only repeat what Professor
Holland says ... in other words, I fully concur with the views
taken by the Professor."
The distinction between articles which are "absolutely
contraband," those which are "conditionally contraband," and
those which are incapable of being declared contraband was
expressly adopted in Arts. 22, 24, and 28 of the unratified
Declaration of London of 1909, as to which, see the comment at
the end of this section, as also the whole of Section 10.
IS COAL CONTRABAND OF WAR?
Sir,--This question has now been answered, in unmistakable terms, on
behalf of this country by Lord Lansdowne in his reply, which you printed
yesterday, to Messrs. Powley, Thomas, and Co., and on behalf of Japan by
the proclamation which appears in _The Times_ of to-day. Both of these
documents set forth the old British doctrine, now fully adopted in the
United States, and beginning to win its way on the Continent of Europe,
that, besides articles which are absolutely contraband, other articles
_ancipitis usus_, and amongst them coal, may become so under certain
conditions. "When destined," says Lord Lansdowne, "for warlike as
opposed to industrial use." "When destined," says Japan, "for the
enemy's army or navy, or in such cases where, _being goods arriving, at
enemy's territory_, there is reason to believe that they are intended
for use of enemy's army or navy."
I may say that the words which I have italicised must, I think, have
been mistranslated or mistransmitted. Their intention is, doubtless,
substantially that which was more clearly expressed in the Japanese
proclamation of 1894 by the words: "Either the enemy's fleet at sea or a
hostile port used exclusively or mainly for naval or military
equipment."
A phrase in your issue of to-day with reference to the Cardiff coal
trade suggests that it may be worth while to touch upon the existence of
a widely-spread confusion between the grounds on which export of coal
may be prohibited by a neutral country and those which justify its
confiscation, although on board a neutral ship, by a belligerent. A
neutral State restrains, under certain circumstances, the export of
coal, not because coal is contraband, but because such export is
converting the neutral territory into a base of belligerent operations.
The question of contraband or no contraband only arises between the
neutral carrier and the belligerent when the latter claims to be
entitled to interfere with the trade of the former.
Since the rules applicable to the carriage of coal are, I venture to
think, equally applicable, to the carriage of foodstuffs, I may perhaps
be allowed to add a few words with reference to the letter addressed to
you a day or two ago by Sir Henry Bliss. I share his desire for some
explanation of the telegram which reached you on the 12th of this month
from British Columbia. One would like to know: (1) What is "the
Government," if any, which has instructed the Empress Line not to
forward foodstuffs to Japan; (2) whether the refusal relates to
foodstuffs generally, or only to those with a destination for warlike
use; (3) what is meant by the statement that "the steamers of the
Empress Line belong to the Naval Reserve"? I presume the meaning to be
that the line is subsidised with a view to the employment of the ships
of the company as British cruisers when Great Britain is at war. The
bearing of this fact upon the employment of the ships when Great Britain
is at peace is far from apparent. It is, of course, possible that the
Government contract with the company may have been so drawn, _ex
abundanti cautela_, as greatly to restrict what would otherwise have
been the legitimate trade of the company.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, February 20 (1904).
COTTON AS CONTRABAND OF WAR
Sir,--The text of the decision of the Court of Appeal at St. Petersburg
in the case of the _Calchas_ has at length reached this country, and we
are thus informed, upon the highest authority, though, perhaps, not in
the clearest language, of the meaning which is now to be placed upon the
Russian notification that cotton is contraband of war.
This notification, promulgated on April 21, 1904, was received with
general amazement, not diminished by an official gloss to the effect
that it "applied only to raw cotton suitable for the manufacture of
explosives, and not to yarn or tissues." It must be remembered that at
the date mentioned, and for some months afterwards, Russia stoutly
maintained that all the articles enumerated in her list of contraband of
February 28, 1904, and in the additions to that list, were "absolutely"
such; _i.e._ were confiscable if in course of carriage to any enemy's
port, irrespectively of the character of that port, or of the use to
which the articles would probably be put. It was only after much
correspondence, and the receipt of strong protests from Great Britain
and the United States, that Russia consented to recognise the well-known
distinction between "absolute" and "conditional" contraband; the latter
class consisting of articles useful in peace as well as for war, the
character of which must, therefore, depend upon whether they are, in
point of fact, destined for warlike or for peaceful uses. This
concession was made about the middle of September last, and it was then
agreed that provisions should be placed in the secondary category (as
was duly explained in the Petersburg judgment in the case of the
_Arabia_ on December 14) together with some other articles, among which
it seemed that raw cotton was not included.
The final decision in the _Calchas_ case marks a welcome change of
policy. Cotton has now followed foodstuffs into the category of
"conditional" contraband, and effect has so far been given to the
representations on the subject made by Mr. Hay in circular despatches of
June 10 and August 30, 1904, and by Sir Charles Hardinge, in a note
presented to Count Lamsdorff on October 9 of the same year.
The question had become a practical one in the case of the _Calchas_. On
July 25 this vessel, laden with, _inter alia_, nine tons of raw cotton
for Yokohama and Kobe, was seized by a Russian cruiser and carried into
Vladivostok, where, on September 18, the cotton, together with other
portions of her cargo, was condemned as absolutely contraband. The
reasons for repudiating this decision, and the notification to which it
gave effect, were not far to seek, and it may still be worth while to
insist upon them. As against Russia, it is well to recall that, from the
days of the Armed Neutralities onwards, her traditional policy has been
to favour a very restricted list of contraband; that when in 1877, as
again in 1900 and 1904, she included in it materials "servant de faire
sauter les obstacles," the examples given of such materials were things
so immediately fitted for warlike use as "les mines, les torpilles, la
dynamite," &c.; and that what is said as to "conditional contraband" by
her trusted adviser, Professor de Martens, in his _Droit International_,
t. iii (1887), pp. 351-354, can scarcely be reconciled with her recent
action.
But a still stronger argument against the inclusion of cotton in the
list of "absolute" contraband is that this is wholly without precedent.
It has, indeed, been alleged that cotton was declared to be "contraband"
by the United States in their Civil War. The Federal proclamations will,
however, be searched in vain for anything of the kind. The mistake is
due to an occasional loose employment of the term, as descriptive of
articles found by an invader in an enemy's territory, which, although
the property of private, and even neutral, individuals, happen to be so
useful for the purposes of the war as to be justly confiscated. That
this was so will appear from an attentive reading of the case of _Mrs.
Alexander's Cotton_, in 1861 (2 Wallace, 404), and of the arguments in
the claim made by Messrs. Maza and Larrache against the United States in
1886 (Foreign Relations of U.S., 1887). A similarly loose use of the
term was its application by General B.F. Butler to runaway slaves who
had been employed on military works--an application of which he
confessed himself "never very proud as a lawyer," though "as an
executive officer, much comforted with it." The phrase caught the
popular fancy, came to be applied to slaves generally, and was
immortalised in a song, long a favourite among negro children, the
refrain of which was "I'se a happy little contraband."
The decision of the Court of St. Petersburg in the case of the
_Calchas_, so far as it recognises the existence of a conditional class
of contraband, and that raw cotton, as _res ancipitis usus_, must be
treated in accordance with the rules applicable to goods belonging to
that class, has laid down an unimpeachable proposition of law. Whether
the view taken by the Court of the facts of the case, so far as they
relate to the cotton cargo, is equally satisfactory, is a different and
less important question, upon which I refrain from troubling you upon
the present occasion.
I am, Sir, your obedient servant,
T. E. HOLLAND.
P.S.--It may be worth while to add, for the benefit of those only who
care to be provided with a clue (not to be found in the judgment)
through the somewhat labyrinthine details of the question under
discussion, a summary of its history. The Russian rules as to contraband
are contained in several documents--viz. the "Regulations as to Naval
Prize" of 1895, Arts. 11-14; the "Admiralty Instructions" of 1900, Arts.
97, 98, and the appended "Special Declaration" as to the articles
considered to be contraband (partly modelled on the list of 1877); the
"Imperial Order" of February 28, 1904, rule 6 (this Order keeps alive
the rules of 1895 and 1900, except in so far as they are varied by it);
the "Order" of March 19, 1904, defining "food" and bringing machinery of
certain kinds into the list of contraband; the "Order," of April 21,
1904, bringing "raw cotton" into the list; and, lastly, the
"Instructions" of September 30 and October 28, 1904, recognising, in
effect, a class of "conditional" contraband, placing foodstuffs in this
class, as also, ultimately, other objects "capable of warlike use and
not specified in sections 1-9 of rule 6."
T. E. H.
Temple, July 1 (1905).
COTTON AS CONTRABAND
Sir,--Your correspondent "Judex" will rejoice, as I do, that cotton has
now been declared to be "absolute contraband." May I, however, suggest
that the topic should be discussed without any reference to the
fortunately unratified Declaration of London, that premature attempt to
codify the law of maritime warfare, claiming, misleadingly, that its
rules "correspond in substance with the generally recognised principles
of international law"?
It is surely regrettable that, by the Order in Council of August 20,
1914, our Government adopted the provisions of the Declaration "during
the present hostilities," and "subject to various additions and
modifications," the list of which has since been considerably extended.
This half-hearted course of action painfully recalls certain vicious
methods of legislation by reference, and was additionally uncalled for,
since, as has been shown by recent events, about two-thirds of the rules
laid down by the Declaration are inapplicable to modern warfare.
The straightforward announcement made by the United States in their Note
of January 25 is surely far preferable. It states in plain terms that,
"As the Declaration of London is not in force, the rules of
international law only apply. As to articles to be regarded as
contraband there is no general agreement between nations." In point of
fact, the hard-and-fast categories of neutral imports, suggested by the
threefold Grotian division, as set forth in the Declaration, are
unlikely ever to be generally accepted. Even Grotius is careful to limit
his proposals, and Bynkershoek, in commenting upon them, points out that
the test of contraband of the most noxious kind must be the, possibly
exceptional, importance of objects for hostile use; their being of use
also for non-hostile purposes being immaterial ("nec interesse an et
extra bellum usum praebeant"). The application of these remarks to the
case of cotton is sufficiently obvious.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August 23 (1915).
JAPANESE PRIZE LAW
Sir,--I hope you will allow me space for a few words with reference to
some statements occurring to-day in your Marine Insurance news which I
venture to think are of a misleading character.
Your Correspondent observes that--
"Although the Japanese are signatories to the Treaty of
Paris, it should not be forgotten that they haw a Prize Court
Law of their own (August 20, 1894), and are more likely to
follow its provisions, in dealing with the various captured
steamers, than the general principles of the Treaty of
Paris."
Upon this paragraph let me remark:--
1. The action of the Japanese is in full accordance with the letter and
spirit of all four articles of the Declaration of Paris. ("The Treaty of
Paris" has, of course, no bearing upon prize law.)
2. "The general principles" of that Declaration is a phrase which
conveys to me, I confess, no meaning.
3. The Japanese have, of course, a prize law of their own, borrowed, for
the most part, from our own Admiralty Manual of Prize Law. Neither the
British nor the Japanese instructions are in conflict with, or indeed
stand in any relation to, the Declaration of Paris.
4. The existing prize law of Japan was promulgated on March 7, 1904, not
on August 20, 1894.
Your Correspondent goes on to say that the Japanese definition of
contraband "is almost as sweeping as was the Russian definition, to
which the British Government took active objection last summer." So far
is this from being the case that the Japanese list is practically the
same as our own, both systems recognising the distinction between
"absolute" and "conditional" contraband, which, till the other day, was
ignored by Russia.
The Japanese rules as to the cases in which ships carrying contraband
may be confiscated are quite reasonable and in accordance with British
views. The third ground for confiscation mentioned by your Correspondent
does not occur in the instructions of 1904.
Ships violating a blockade are, of course, confiscable; but the Japanese
do not, as your Correspondent seems to have been informed, make the
existence of a blockade conditional upon its having been "notified to
the Consuls of all States in the blockaded port." Commanders are, no
doubt, instructed to notify the fact, "as far as possible, to the
competent authorities and the Consuls of the neutral Powers within the
circumference of the blockade"; but that is a very different thing.
I am, Sir, your obedient servant,
T. E. HOLLAND.
The Athenæum, March 10 (1905).
JAPANESE PRIZE LAW
Sir,--Let me assure your correspondent upon Marine Insurance that I have
been familiar, ever since its promulgation, with the Japanese prize law
of 1894, quoted by him as authority for statements made in your issue of
March 10, the misleading character of which I felt bound to point out in
a letter of the same date. All the topics mentioned by him on that
occasion, and to-day, are, however, regulated, not by that law, but by
notifications and instructions issued from time to time during 1904.
I make it my business not only to be authoritatively informed on such
matters, but also to see that my information is up to date.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 15 (1905).
_(Continuous Voyages)_
The opinion expressed in the letter which immediately follows,
that the American decisions, applying to carriage of contraband
the doctrine of "continuous voyages," seem to be "demanded by
the conditions of modern commerce, and might well be followed
by a British prize Court," was referred to by Lord Salisbury in
a despatch of January 10, 1900, to be communicated to Count von
Bülow, with reference to the seizure of _Bundesrath_. _Parl.
Papers_, Africa, No. 1 (1900), p. 19.
The distinction, drawn in the same letter, between "carriage of
contraband" and "enemy service," which has sometimes been lost
sight of, was established in the case of _Yangtsze Insurance
Association_ v. _Indemnity Mutual Marine Company_, [1908] K.B.
910, in which it was held by Bigham, J., that the transport of
military officers of a belligerent State, as passengers in a
neutral ship, is not a breach or a warranty against contraband
of war in a policy of marine insurance. The carriage of enemy
despatches will no longer be generally treated as "enemy
service" since The Hague Convention, No. xi. of 1907, ratified
by most of the Powers, including Great Britain, on November 27,
1909, by Art. 1 provides that, except in the case of breach of
blockade, "the postal correspondence of neutrals or
_belligerents_, whether of _an official_ or a private
character, found on board a _neutral_ or enemy ship on the High
Seas is inviolable."
The case of the _Allanton_, which gave occasion for the letter
of July 11, 1904, was as follows. This British ship left
Cardiff on February 24 of that year, with a cargo of coal to be
delivered either at Hong-Kong or Sasebo. On arrival at
Hong-Kong, she found orders to deliver at Sasebo, and, having
made delivery accordingly, was chartered by a Japanese company
at another Japanese port, to carry coal to a British firm at
Singapore. On her way thither, she was captured by a Russian
squadron and taken in to Vladivostok, where on June 24 she was
condemned by the prize Court for carriage of contraband. The
Court held, ignoring the rule that a vessel ceases to be _in
dilecto_ when she has "deposited" her contraband (since
affirmed by Art. 38 of the Declaration of London of 1909), that
she was liable in respect of her voyage to Sasebo; as also in
respect of the voyage on which she was captured, on the ground
that her real destination was at that time the Japanese fleet,
or some Japanese port. This decision was reversed, as to both
ship and cargo, by the Court of Appeal at St. Petersburg, on
October 22 of the same year.
The doctrine of "continuous voyages" was by the Declaration of
London, Art. 30, recognised in the case of "absolute," but by
Art. 35 was stated to be inapplicable to the case of
"conditional" contraband.
PRIZE LAW
Sir,--Questions of maritime international law which are likely to give
rise not only to forensic argument in the prize Courts which we have
established at Durban and at the Cape, but also to diplomatic
communications between Great Britain and neutral Governments, should
obviously be handled just now with a large measure of reserve. Lord
Rosebery has, however, in your columns called upon our Government to
define its policy with reference to foodstuffs as contraband of war,
while several other correspondents have touched upon, cognate topics.
You may perhaps therefore be disposed to allow one who is responsible
for the _Admiralty Manual of the Law of Prize_, to which reference has
been made by your correspondent "S.," to make a few statements as to
points upon which it may be desirable for the general reader to be in
possession of information accurate, one may venture to hope, as far as
it goes.
Of the four inconveniences to which neutral trading vessels are liable
in time of war, "blockade" may be left out of present consideration. You
can only blockade the ports of your enemy, and the South African
Republics have no port of their own. The three other inconveniences
must, however, all be endured--viz. prohibition to carry "contraband,"
prohibition to engage in "enemy service," and liability to be "visited
and searched" anywhere except within three miles of a neutral coast, in
order that it may be ascertained whether they are disregarding either of
these prohibitions, as to the meaning of which some explanation may not
be superfluous.
1. "Carriage of contraband" implies (1) that the goods carried are fit
for hostile use; (2) that they are on their way to a hostile
destination. Each of these requirements has given rise to wide
divergence of views and to a considerable literature. As to (1), while
Continental opinion and practice favour a hard-and-fast list of
contraband articles, comprising only such as are already suited, or can
readily be adapted, for use in operations of war, English and American
opinion and practice favour a longer list, and one capable of being from
time to time extended to meet the special exigencies of the war. In such
a list may figure even provisions, "under circumstances arising out of
the particular situation of the war," especially if "going with a highly
probable destination to military use"--Lord Stowell in the _Jonge
Margaretha_ (1 Rob. 188); _cf._ Story, J., in the _Commercen_ (1 Wheat.
382), the date and purport of which are, by the by, incorrectly given by
"S." It would be in accordance with our own previous practice and with
Lord Granville's despatches during the war between France and China in
1885, if we treated flour as contraband only when ear-marked as destined
for the use of enemy fleets, armies, or fortresses. Even in such cases
our practice has been not to confiscate the cargo, but merely to
exercise over it a right of "pre-emption," so as to deprive the enemy of
its use without doing more injury than can be helped to neutral
trade--as is explained by Lord Stowell in the _Haabet_ (2 Rob. 174). As
to (2), the rule was expressed by Lord Stowell to be that "goods going
to a neutral port cannot come under the description of contraband, all
goods going there being equally lawful"--_Imina_ (3 Rob. 167); but
innovations were made upon this rule during the American Civil War which
seem to be demanded by the conditions of modern commerce, and might well
be followed by a British prize Court. It was held that contraband goods,
although _bona fide_ on their way to a neutral port, might be condemned,
if intended afterwards to reach the enemy by another ship or even by
means of land carriage--_Bermuda_ (3 Wallace); _Peterhoff_ (5 Wallace).
A consignment to Lorenzo Marques, connected as is the town by only forty
miles of railway with the Transvaal frontier, would seem to be well
within the principles of the Civil War cases as to "continuous voyages."
2. The carriage by a neutral ship of enemy troops, or of even a few
military officers, as also of enemy despatches, is an "enemy service" of
so important a kind as to involve the confiscation of the vessel
concerned, a penalty which, under ordinary circumstances, is not imposed
upon carriage of "contraband" property so called. See Lord Stowell's
luminous judgments in _Orozembo_ (6 Rob. 430) and _Atalanta_ (_ib._
440). The alleged offence of the ship _Bundesrath_ would seem to be of
this description.
The questions, both of "contraband" and of "enemy service," with which
our prize Courts must before long have to deal, will be such as to
demand from the Judges a competent knowledge of the law of prize,
scrupulous fairness towards neutral claimants, and prompt penetration of
the Protean disguises which illicit trade so readily assumes in time of
war.
Your obedient servant,
T. E. HOLLAND.
Oxford, January 2 (1900).
THE _ALLANTON_ _(Continuous Voyage)_
Sir,--I venture to think that the letter which you print this morning
from my friend Dr. Baty, with reference to the steamship _Allanton_,
calls for a word of warning; unless, indeed, it is to be taken as merely
expressing the private opinion of the writer as to what would be a
desirable rule of law.
It would be disastrous if shipowners and insurers were to assume, that a
neutral vessel, if destined for a neutral port, is necessarily safe from
capture. Words at any rate capable of this construction may, no doubt,
be quoted from one of Lord Stowell's judgments, now more than a century
old; but many things have happened, notably the invention of railways,
since the days of that great Judge. The United States cases, decided in
the sixties (as Dr. Baty thinks, "on a demonstrably false analogy"), in
which certain ships were held to be engaged in the carriage of
contraband, although their destination was a neutral port, were
substantially approved of by Great Britain. Their principle wast adopted
by Italy, in the _Doelwijk_, in 1896, and was supported by Great Britain
in the correspondence upon this subject which took place with Germany in
1900. It was endorsed, after prolonged discussion, by the Institut de
Droit International in 1896.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, July 11 (1904).
_(Unqualified Captors)_
Among the objections raised by the British Government to the
capture by the Russian ship _Peterburg_ in the Red Sea, on July
13, 1904, of the P. and O. ss. _Malacca_, for carriage of
contraband were (1) that the so-called contraband consisted of
government ammunition for the use of the British fleet in
Chinese waters; and (2) what was more serious, that the
capturing vessel, which belonged to the Russian volunteer
fleet, after issuing from the Black Sea under the commercial
flag had subsequently, and without touching at any Russian
port, brought up guns from her hold, and had proceeded to
exercise belligerent rights under the Russian naval flag. In
consequence of the protest of the British Government, and to
close the incident, the _Malacca_ was released at Algiers,
after a purely formal examination, on July 27, and Russia
agreed to instruct the officers of her volunteer fleet not to
make any similar captures.
The question of the legitimacy of the transformation on the
high seas into a ship-of-war of a vessel which has previously
been sailing under the commercial flag was much discussed at
The Hague Conference of 1907, but without result. Opinions were
so much divided upon the point, that no mention of it is made
in Convention No. vii. of that year, ratified by Great Britain
on November 27, 1909, "as to the transformation of merchant
vessels into ships-of-war." At the session of the Institut de
Droit International held at Oxford in 1913, this question was
discussed, and rules relating to it will be found in Section 2
of the _Manuel des lois de la guerre maritime_, the drafting of
which occupied the whole of the session.
THE _ALLANTON_ _(Unqualified Captors)_
Sir,--The indignation caused by the treatment of the _Allanton_ is
natural, and will almost certainly prove to be well founded; but Mr.
Rae, in the letter which you print this morning, overstates a good case.
He asks that, "whatever steps are taken for the release of the
_Malacca_, equally strong steps should be taken for the release of the
_Allanton_"; and he can see no difference between the cases of the two
ships, except that the former is owned by a powerful company in the
habit of carrying British mails, while the latter is his private
property.
One would have supposed it to be notorious that the facts which
distinguish the one case from the other are, first, that the capture of
the _Malacca_ was effected by a vessel not entitled to exercise
belligerent rights; and, secondly, that Great Britain is prepared to
claim the incriminated cargo as belonging to the British Government.
Capture by an unqualified cruiser is so sufficient a ground for a claim
of restoration and compensation that, except perhaps as facilitating the
retreat of Russia from a false position, it would seem, to say the
least, superfluous to pray in aid any other reason for the cancellation
of an act unlawful _ab initio._
I have not noticed any statement as to the actual constitution of the
prize Court concerned in the condemnation of the _Allanton._ Under Rule
54 of the Russian Naval Regulations of 1895, a "Port Prize Court" must,
for a decree of confiscation, consist of six members, of whom three must
be officials of the Ministries of Marine, Justice, and Foreign Affairs
respectively. An "Admirals' Prize Court," for the same purpose, need
consist of only four members, all of whom are naval officers.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, July 25 (1904).
_(Note upon the Declaration of London)_
The British delegates to The Hague Conference of 1907 were
instructed that H.M. Government "are ready and willing for
their part, in lieu of endeavouring to frame new and more
satisfactory rules for the prevention of contraband trade in
the future, to abandon the principle of contraband of war
altogether, thus allowing the oversea trade in neutral vessels
between belligerents on the one hand and neutrals on the other,
to continue during war without any restriction," except with
reference to blockades. This proposal, fortunately, was not
accepted by the Conference, which was unable even to agree upon
lists of contraband articles, and recommended that the question
should be further considered by the Governments concerned,
_Parl. Paper, Miscell._ No. 1 (1908), p. 194.
This task was accordingly among those undertaken at the
Conference of Maritime Powers held in London in 1908-1909,
which resulted in a Declaration, Arts. 22-44 of which
constituted a fairly complete code of the law of contraband.
Reference has already been made, in comments upon letters
comprised in previous sections, to this Declaration, the
demerits and history of which are more fully dealt with in
section 10, _infra_, pp. 196-207.
* * * * *
SECTION 6
_Methods of Warfare as affecting Neutrals_
_(Mines)_
On the views expressed in the first of the two letters which
follow, as also in the writer's British Academy paper on
_Neutral Duties_, as translated in the _Marine Rundschau_, see
Professor von Martitz of Berlin, in the _Transactions_ of the
International Law Association, 1907. The Institut de Droit
International has for some years past had under its
consideration questions relating to mines, and has arrived at
conclusions which will be found in its _Annuaire_, t. xxi. p.
330, t. xxii. p. 344, t xxiii. p. 429, t. xxiv. pp. 286, 301.
The topic has also been dealt with in The Hague Convention, No.
viii. of 1907, ratified with a reservation, by Great Britain on
November 27, 1907. By Art. 1 it is forbidden "(1) to lay
unanchored automatic-contact mines, unless they are so
constructed as to become harmless one hour at most after he who
has laid them has lost control over them; (2) to lay anchored
automatic-contact mines which do not become harmless as soon as
they have broken loose from their moorings; (3) to employ
torpedoes which do not become harmless when they have missed
their mark." By Art. 2, (which is, however, not accepted by
France or Germany) it is forbidden "to lay automatic-contact
mines off the coast and ports of an enemy, with the sole object
of intercepting commercial navigation."
MINES IN THE OPEN SEA
Sir,--The question raised in your columns by Admiral do Horsey with
reference to facts as to which we are as yet imperfectly informed, well
illustrates the perpetually recurring conflict between belligerent and
neutral interests. They are, of course, irreconcilable, and the rights
of the respective parties can be defined only by way of compromise. It
is beyond doubt that the theoretically absolute right of neutral ships,
whether public or private, to pursue their ordinary routes over the high
sea in time of war, is limited by the right of the belligerents to fight
on those seas a naval battle, the scene of which can be approached by
such ships only at their proper risk and peril. In such a case the
neutral has ample warning of the danger to which he would be exposed did
he not alter his intended course. It would, however, be an entirely
different affair if he should find himself implicated in belligerent war
risks, of the existence of which it was impossible for him to be
informed, while pursuing his lawful business in waters over which no
nation pretends to exercise jurisdiction.
It is certain that no international usage sanctions the employment by
one belligerent against the other of mines, or other secret
contrivances, which would, without notice, render dangerous the
navigation of the high seas. No belligerent has ever asserted a right to
do anything of the kind; and it may be in the recollection of your
readers that strong disapproval was expressed of a design, erroneously
attributed to the United States a few years since, of effecting the
blockade of certain Cuban ports by torpedoes, instead of by a cruising
squadron. These, it was pointed out, would superadd to the risk of
capture and confiscation, to which a blockade-runner is admittedly
liable, the novel penalty of total destruction of the ship and all on
board.
It may be worth while to add, as bearing upon the question under
discussion, that there is a tendency in expert opinion towards allowing
the line between "territorial waters" and the "high seas" to be drawn at
a considerably greater distance than the old measurement of three miles
from the shore.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 23 (1904).
TERRITORIAL WATERS
Sir,--Most authorities would, I think, agree with Admiral de Horsey that
the line between "territorial waters" and "the high sea" is drawn by
international law, if drawn by it anywhere, at a distance of three miles
from low-water mark. In the first place, the ridiculously wide claims
made, on behalf of certain States, by mediæval jurists were cut down by
Grotius to so much water as can be controlled from the land. The Grotian
formula was then worked out by Bynkershoek with reference to the range
of cannon; and, finally, this somewhat variable test was before the end
of the eighteenth century, as we may see from the judgments of Lord
Stowell, superseded by the hard-and-fast rule of the three-mile limit,
which has since received ample recognition in treaties, legislation, and
judicial decisions.
The subordinate question, also touched upon by the Admiral, of the
character to be attributed to bays, the entrance to which exceeds six
miles in breadth, presents more difficulty than that relating to
strictly coastal waters. I will only say that the Privy Council, in _The
Direct U.S. Cable Co._ v. _Anglo-American Telegraph Co._ (L.R. 2 App.
Ca. 394), carefully avoided giving an opinion as to the international
law applicable to such bays, but decided the case before them, which had
arisen with reference to the Bay of Conception, in Newfoundland, on the
narrow ground that, as a British Court, they were bound by certain
assertions of jurisdiction made in British Acts of Parliament.
The three-mile distance has, no doubt, become inadequate in consequence
of the increased range of modern cannon, but no other can be substituted
for it without express agreement of the Powers. One can hardly admit the
view which has been maintained, e.g. by Professor de Martens, that the
distance shifts automatically in accordance with improvements in
artillery. The whole matter might well be included among the questions
relating to the rights and duties of neutrals, for the consideration of
which by a conference, to be called at an early date, a wish was
recorded by The Hague Conference, of 1899.
In the meantime it may be worth while to call attention to the view of
the subject taken by a specially qualified and representative body of
international experts. The Institut de Droit International, after
discussions and enquiries which had lasted for several years, adopted,
at their Paris meeting in 1894, the following resolutions, as a
statement of what, in the opinion of the Institut, would be reasonable
rules with reference to territorial waters (I cite only those bearing
upon the extent of such waters):--
"Art. 2.--La mer territoriale s'étend à six milles marins (60
au degré de latitude) de la laisse de basse marée sur tout
l'étendue des côtes. Art. 3.--Pour les baies, la mer
territoriale suit les sinuosités de la côte, sauf qu'elle
mesurée à partir d'une ligne droite tirée en travers de la
baie, dans la partie la plus rapprochée de l'ouverture vers
la mer, où l'écart entre les deux côtes de la baie est de
douze milles marins de largeur, à moins qu'un usage continu
et séculaire n'ait consacré une largeur plus grande. Art.
4.--En cas de guerre, l'état riverain neutre a le droit de
fixer, par la déclaration de neutralité, ou par notification
spéciale, sa zone neutre au dela de six milles, jusqu'à
portée du canon des côtes. Art. 5.--Tous les navires sans
distinction ont le droit de passage inoffensif par la mer
territoriale, sauf le droit des belligérants de règlementer
et, dans un but de défense, de barrer le passage dans la dite
mer pour tout navire, et sauf le droit de neutres de
règlementer le passage dans la dite mer pour les navires de
guerre de toutes nationalités." (_Annuaire de l'Institut_, t.
xiii. p. 329).
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, June 1 (1904).
A French decree, of October 18, 1912, accordingly extends, when
France is neutral, her territorial waters to a distance of six
miles (11 kilom.) from low-water mark.
_(Cable-cutting)_
With the letters which follow, compare the article by the
present writer on "Les cables sous-marins en temps de guerre,"
in the _Journal de Droit International Privé_, 1898, p. 648.
The topic of cable-cutting, as to which the Institut de Droit
International arrived in 1879 at the conclusions set out in the
first of these letters, was again taken into consideration by
the Institut in 1902: see the _Annuaire_ for that year, pp.
301-332.
The Hague Convention; No. iv. of 1907, provides, in Art. 54,
that "submarine cables connecting occupied territory with a
neutral territory shall not be destroyed or seized, unless in
case of absolute necessity. They must be restored, and
compensation must be arranged for them at the peace."
Convention No. v., by Art. 3, forbids belligerents (1) to
install on neutral territory a radio-telegraphic station, or
any other apparatus, for communicating with their land or sea
forces; (2) to employ such apparatus, established by them there
before the war, for purely military purposes. By Art. 5, a
neutral Power is bound to permit nothing of the sort.
SUBMARINE CABLES
Sir,--The possibility of giving some legal protection to submarine
cables has been carefully considered by the Institut de Droit
International. A committee was appointed in 1878 to consider the
subject, and the presentation of its report to the meeting at Brussels
in 1879 was followed by an interesting discussion (see the _Annuaire de
l'Institut_, 1879-80, pp. 351-394). The conclusions ultimately adopted
by the Institut were as follows:--
"1. It would be very useful if the various States would come
to an understanding to declare that destruction of, or injury
to, submarine cables in the high seas is an offence under the
Law of Nations, and to fix precisely the wrongful character
of the acts, and the appropriate penalties. With reference to
the last-mentioned point, the degree of uniformity attainable
must depend on the amount of difference between systems of
criminal legislation. The right of arresting offenders, or
those presumed to be such, might be given to the public
vessels of all nations, under conditions regulated by
treaties, but the right to try them should be reserved to the
national Courts of the vessel arrested.
"2. A submarine-telegraph cable uniting two neutral
territories is inviolable. It is desirable that, when
telegraphic communication must be interrupted in consequence
of war, a belligerent should confine himself to such measures
as are absolutely necessary to prevent the cable from being
used, and that such measures should be discontinued, or that
any damage caused by them, should be repaired as soon as the
cessation of hostilities may permit."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 23 (1881).
SUBMARINE CABLES IN TIME OF WAR
Sir,--I venture to think that the question which has been raised as to
the legitimacy of cable-cutting is not so insoluble as most of the
allusions to it might lead one to suppose. It is true that no light is
thrown upon it by the Convention of 1884, which relates exclusively to
time of peace, and was indeed signed by Lord Lyons, on behalf of Great
Britain, only with an express reservation to that effect. Nor are we
helped by the case to which attention was called in your columns some
time since by Messrs. Eyre and Spottiswoode. Their allusion was
doubtless to the _International_ (L.R. 3 A. and E. 321), which is
irrelevant to the present enquiry. The question is a new one, but,
though covered by no precedent, I cannot doubt that it is covered by
certain well-established principles of international law, which, it is
hardly necessary to remark, is no cut-and-dried system but a body of
rules founded upon, and moving with, the public opinion of nations.
That branch of international law which deals with the relations of
neutrals and belligerents is, of course, a compromise between what
Grotius calls the "belli rigor" and the "commerciorum libertas." The
terms of the compromise, originally suggested partly by equity, partly
by national interest, have been varied and re-defined, from time to
time, with reference to the same considerations. It is perhaps
reasonable that, in settling these terms, preponderant weight should
have been given to the requirements of belligerents, engaged possibly in
a life-and-death struggle. "Ius commerciorum æquum est," says Gentili;
"at hoc æquius, tuendæ salutis." There is accordingly no doubt that in
land warfare a belligerent may not only interrupt communications by
road, railway, post, or telegraph without giving any ground of complaint
to neutrals who may be thereby inconvenienced, but may also lay hands on
such neutral property--shipping, railway carriages, or telegraphic
plant--as may be essential to the conduct of his operations, making use
of and even destroying it, subject only to a duty to compensate the
owners. This he does in pursuance of the well-known "droit d'angarie,"
an extreme application of which occurred in 1871, when certain British
colliers were sunk in the Seine by the Prussians in order to prevent the
passage of French gunboats up the river. Count Bismarck undertook that
the owners of the ships should be indemnified, and Lord Granville did
not press for anything further. Such action, if it took place outside of
belligerent territory, would not be tolerated for a moment.
The application of these principles to the case of submarine cables
would appear to be, to a certain point at any rate, perfectly clear.
Telegraphic communication with the outside world may well be as
important to a State engaged in warfare as similar means of
communication between one point and another within its own territory.
Just as an invader would without scruple interrupt messages, and even
destroy telegraphic plant, on land, so may he thus act within the
enemy's territorial waters, or, perhaps, even so far from shore as he
could reasonably place a blockading squadron. It may be objected that a
belligerent has no right to prevent the access of neutral ships to
unblockaded portions of the enemy's coast on the ground that by carrying
diplomatic agents or despatches they are keeping up the communications
of his enemy with neutral Governments. But this indulgence rests on the
presumption that such official communications are "innocent," a
presumption obviously inapplicable to telegraphic messages
indiscriminately received in the course of business. It would seem,
therefore, to be as reasonable as it is in accordance with analogy, that
a belligerent should be allowed, within the territorial waters of his
enemy, to cut a cable, even though it may be neutral property, of which
the _terminus ad quem_ is enemy territory, subject only to a liability
to indemnify the neutral owners.
The cutting, elsewhere than in the enemy's waters, of a cable connecting
enemy with neutral territory receives no countenance from international
law. Still less permissible would be the cutting of a cable connecting
two neutral ports, although messages may pass through it which, by
previous and subsequent stages of transmission, may be useful to the
enemy.
Your obedient servant,
T. E. HOLLAND.
Oxford, May 21 (1897).
SUBMARINE CABLES IN TIME OF WAR
Sir,--Will you allow me to refer in a few words to the interesting
letters upon the subject of submarine cables which have been addressed
to you by Mr. Parsoné and Mr. Charles Bright? In asserting that "the
question as to the legitimacy of cable-cutting is covered by no
precedent," I had no intention of denying that belligerent interference
with cables had ever occurred. International precedents are made by
diplomatic action (or deliberate inaction) with reference to facts, not
by those facts themselves. To the best of my belief no case of
cable-cutting has ever been made matter of diplomatic representation,
and I understand Mr. Parsoné to admit that no claim in respect of damage
to cables was presented to the mixed Commission appointed under the
Convention of 1883 between Great Britain and Chile.
In the course of his able address upon "Belligerents and Neutrals,"
reported in your issue of this morning, I observe that Mr. Macdonell
suggests that the Institut de Droit International might usefully study
the question of cables in time of war. It may, therefore, be well to
state that this service hat already been rendered. The Institut, at its
Paris meeting in 1878, appointed a committee, of which M. Renault was
chairman, to consider the whole subject of the protection of cables,
both in peace and in war; and at its Brussels meeting, in 1879,
carefully discussed the exhaustive report of its committee and voted
certain "conclusions," notably the following:--
"Le câble télégraphique sous-marin qui unit deux territoires
neutres est inviolable.
"Il est à désirer, quand les communications télégraphiques
doivent cesser par suite de l'état de guerre, que l'on se
borne aux mesures strictement nécessaires pour empêcher
l'usage du cable, et qu'il soit mis fin à ces mesures, ou que
l'on en répare les consequences, aussitôt que le permettra la
cessation des hostilités."
It was in no small measure due to the initiative of the Institut that
diplomatic conferences were held at Paris, which in 1882 produced a
draft convention for the protection of cables, not restricted in its
operation to time of peace; and in 1884 the actual convention, which is
so restricted.
It may not be generally known that in 1864, before the difficulties of
the subject were thoroughly appreciated, a convention was signed, though
it never became operative, by which Brazil, Hayti, Italy, and Portugal
undertook to recognise the "neutrality" in time of war of a cable to be
laid by one Balestrini. So, in 1869, the United States were desirous of
concluding a general convention which should assimilate the destruction
of cables in the high seas to piracy, and should continue to be in force
in time of war. The Brussels conference of 1874 avoided any mention of
"câbles sous-marins."
The moral of all that has been written upon this subject is obviously
that drawn by Mr. Charles Bright--viz. "the urgent necessity of a
system of cables connecting the British Empire by direct and independent
means--_i.e._ without touching on foreign soil."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, June 3 (1897).
* * * * *
SECTION 7
_Destruction of Neutral Prizes_
A British ship, the _Knight Commander_, bound from New York to
Yokohama and Kobe, was stopped on July 23, 1904, by a Russian
cruiser, and as her cargo consisted largely of railway
material, was considered to be engaged in carriage of
contraband. Her crew and papers were taken on board the
cruiser, and she was sent to the bottom by fire from its guns.
The reasons officially given for this proceeding were that:
"The proximity of the enemy's port, the lack of coal on board
the vessel to enable her to be taken into a Russian port, and
the impossibility of supplying her with coal from one of the
Russian cruisers, owing to the high seas running at the time,
obliged the commander of the Russian cruiser to sink her."
The Russian Regulations as to Naval Prize, Art. 21, allowed a
commander "in exceptional cases, when the preservation of a
captured vessel appears impossible on account of her bad
condition or entire worthlessness, the danger of her recapture
by the enemy, or the great distance or blockade of ports, or
else on account of danger threatening the ship which has made
the capture, or the success of her operations," to burn or sink
the prize.
The Japanese Regulations, Art. 91, were to the same effect in
cases where the prize (1) cannot be navigated owing to her
being unseaworthy, or to dangerous seas; (2) is likely to be
recaptured by the enemy; (3) cannot be navigated without
depriving the ship-of-war of officers and men required for her
own safety.
The case of the _Knight Commander_ was the subject of comment,
on the 27th of the same month, in both Houses of Parliament. In
the House of Lords, Lord Lansdowne spoke of what had occurred
as "a very serious breach of international law," "an outrage,"
against which it had been considered "a duty to lodge a strong
protest." In the House of Commons, Mr. Balfour described it as
"entirely contrary to the accepted practice of civilised
nations." Similar language was used in Parliament on August 10,
when Mr. Gibson Bowles alluded to my letter of the 6th, in a
way which gave occasion for that of the 14th.
The _Knight Commander_ was condemned by the Prize Court at
Vladivostok on August 16, 1904, and the sentence was confirmed
on December 5, 1905, by the Court of Appeal at St. Petersburg,
which found it "impossible to agree that the destruction of a
neutral vessel is contrary to the principles of international
law." The Russian Government remained firm on the point, and in
1908 declined to submit the case to arbitration.
The Institut de Droit International in its _Code des Prises
maritimes_, voted in 1887, Art. 50 (not, be it observed,
professing to state the law as it is, but as it should be), had
taken a view in accordance with that maintained by the British
Government (_Annuaire_ for 1888, t. ix. p. 228; _cf. ib._ pp.
200, 201). (The _Manuel des lois de la guerre maritime_, voted
at Oxford in 1913, dealing exclusively with "les rapports entre
les belligérants," does not deal with the topic in question.)
It was, however, the opinion of the present writer, as will
appear from the following letters, that no rule of
international law, by which the sinking of even neutral prizes
was absolutely prohibited, could be shown to exist. He had
previously touched upon this question in his evidence before
the Royal Commission on the Supply of Food, &c., in Time of
War, on November, 4, 1903, and returned to it later in his
paper upon "The Duties of Neutrals," read to the British
Academy on April 12, 1905, _Transactions_, ii. p. 66. It was
reproduced in French, German, Belgian, and Spanish periodicals,
and was cited in the judgment of the St. Petersburg Court of
Appeal in the case of the _Knight Commander._
The subsequent history of the question, and, in particular, of
the rules suggested in Arts. 48-54 of the unratified
Declaration of London, may be claimed in favour of the
correctness of the opinion maintained in the letters.
RUSSIAN PRIZE LAW
Sir,--The neutral Powers have serious ground of complaint as to the mode
in which Russia is conducting operations at sea. It may, however, be
doubted whether public opinion is sufficiently well informed to be
capable of estimating the comparative gravity of the acts which are just
now attracting attention. Putting aside for the moment questions arising
out of the Straits Convention of 1856, as belonging to a somewhat
different order of ideas, we may take it that the topics most needing
careful consideration relate to removal of contraband from the ship that
is carrying it without taking her in for adjudication; interference with
mail steamers and their mail bags; perversely wrong decisions of Prize
Courts; confiscation of ships as well as of their contraband cargo;
destruction of prizes at sea; the list of contraband. Of these topics,
the two last mentioned are probably the most important, and on each of
these I will ask you to allow me to say a few words.
1. There is no doubt that by the Russian regulations of 1895, Art. 21;
and instructions of 1901, Art. 40, officers are empowered to destroy
their prizes at sea, no distinction being drawn between neutral and
enemy property, under such exceptional circumstances as the bad
condition or small value of the prize, risk of recapture, distance from
a Russian port, danger to the Imperial cruiser or to the success of her
operations. The instructions of 1901, it may be added, explain that an
officer "incurs no responsibility whatever" for so acting if the
captured vessel is really liable to confiscation and the special
circumstances imperatively demand her destruction. It is fair to say
that not dissimilar, though less stringent, instructions were issued by
France in 1870 and by the United States in 1898; also that, although the
French instructions expressly contemplate "l'établissement des
indemnités à attribuer aux neutres," a French prize Court in 1870
refused compensation to neutral owners for the loss of their property on
board of enemy ships burnt at sea.
The question, however, remains whether such regulations are in
accordance with the rules of international law. The statement of these
rules by Lord Stowell, who speaks of them as "clear in principle and
established in practice," may, I think, be summarised as follows: An
enemy's ship, after her crew has been placed in safety, may be
destroyed. Where there is any ground for believing that the ship, or any
part of her cargo, is neutral property, such action is justifiable only
in cases of "the gravest importance to the captor's own State," after
securing the ship's papers and subject to the right of neutral owners to
receive fall compensation (_Actaeon_, 2 Dods. 48; _Felicity, ib._ 381;
substantially followed by Dr. Lushington in the _Leucade_, Spinks, 221).
It is not the case, as is alleged by the _Novoe Vremya_, that any
British regulations "contain the same provisions as the Russian" on this
subject. On the contrary, the Admiralty Manual of 1888 allows
destruction of enemy vessels only; and goes so far in the direction of
liberality as to order the release, without ransom, of a neutral prize
which either from its condition, or from lack of a prize crew, cannot be
sent in for adjudication. The Japanese instructions of 1894 permit the
destruction of only enemy vessels; and Art. 50 of the carefully debated
"Code des prises" of the Institut de Droit International is to the same
effect. It may be worth while to add that the eminent Russian jurist, M.
de Martens, in his book on international law, published some twenty
years ago, in mentioning that the distance of her ports from the scenes
of naval operations often obliges Russia to sink her prizes, so that "ce
qui les lois maritimes de tous les états considèrent comme un moyen
auquel il n'y a lieu de recourir qu'à la dernière extrémité, se
transformera nécessairement pour nous en règle normale," foresaw that
"cette mesure d'un caractère général soulévera indubitablement contre
notre pays un mécontentement universel."
2. A far more important question is, I venture to think, raised by the
Russian list of contraband, sweeping, as it does, into the category of
"absolutely contraband" articles things such as provisions and coal, to
which a contraband character, in any sense of the term, has usually been
denied on the Continent, while Great Britain and the United States have
admitted them into the category of "conditional" contraband, only when
shown to be suitable and destined for the armed forces of the enemy, or
for the relief of a place besieged. Still more unwarrantable is the
Russian claim to interfere with the trade in raw cotton. Her prohibition
of this trade is wholly unprecedented, for the treatment of cotton
during the American Civil War will be found on examination to have no
bearing on the question under consideration. I touch to-day upon this
large subject only to express a hope that our Government, in concert, if
possible, with other neutral Governments, has communicated to that of
Russia, with reference to its list of prohibited articles, a protest in
language as unmistakable as that employed by our Foreign Office in 1885;
"I regret to have to inform you, M. l'Ambassadeur," wrote Lord
Granville, "that Her Majesty's Government feel compelled to take
exception to the proposed measure, as they cannot admit that,
consistently with the law and practice of nations, and with the rights
of neutrals, provisions in general can be treated as contraband of war."
A timely warning that a claim is inadmissible is surely preferable to
waiting till bad feeling has been aroused by the concrete application of
an objectionable doctrine.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August I (1904).
RUSSIAN PRIZE LAW
Sir,--From this hilltop I observe that, in the debate of Thursday last,
Mr. Gibson Bowles, alluding to a letter of mine which appeared in your
issue of August 6, complained that I "had not given the proper
reference" to Lord Stowell's judgments. Mr. Bowles seems to be unaware
that in referring to a decided case the page mentioned is, in the
absence of any indication to the contrary, invariably that on which the
report of the case commences. I may perhaps also be allowed to say that
he, in my opinion, misapprehends the effect of the passage quoted by him
from the _Felicity_, which decides only that, whatever may be the
justification for the destruction of a neutral prize, the neutral owner
is entitled, as against the captor, to full compensation for the loss
thereby sustained.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Eggishorn, Valais, Suisse, August 14 (1904).
RUSSIAN PRIZE LAW
Sir,--Mr. Gibson Bowles has, I find, addressed to you a letter in which
he attempts to controvert two statements of mine by the simple expedient
of omitting essential portions of each of them.
1. Mr. Bowles having revealed himself as unaware that the mode in which
I had cited a group of cases upon destruction of prizes was the correct
mode, I thought it well to provide him with the rudimentary information
that, "in referring to a decided case, the page, mentioned is, _in the
absence of any indication to the contrary_, invariably that on which the
report of the case commences." He replies that he has found appended to
a citation of a passage in a judgment the page in which this passage
occurs. May I refer him, for an explanation of this phenomenon, to the
words (now italicised) omitted in his quotation of my statement? It is,
of course, common enough, when the reference is obviously not to the
case as a whole but to an extract from it, thus to give a clue to the
extract, the formula then employed being frequently "_at_ page
so-and-so."
2. I had summarised the effect, as I conceive it, of the group of cases
above mentioned in the following terms: "Such action is justifiable only
in cases of the gravest importance to the captor's own State, _after
securing the ship's papers, and subject to the right of the neutral
owners to receive full compensation_." Here, again, while purporting to
quote me, Mr. Bowles omits the all-important words now italicised. I am,
however, maltreated in good company. Mr. Bowles represents Lord Stowell
as holding that destruction of neutral property cannot be justified,
even in cases of the gravest importance to the captor's own State. What
Lord Stowell actually says, in the very passage quoted by Mr. Bowles, is
that "to the neutral can only be justified, under any such
circumstances, by a full restitution in value." I would, suggest that
Mr. Bowles should find an opportunity for reading _in extenso_ the
reports of the _Actaeon_ (2 Dods. 48), and the _Felicity_ (_ib._ 881),
as also for re-reading the passage which occurs at p. 386 of the latter
case, before venturing further into the somewhat intricate
technicalities of prize law.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Eggishorn, Suisse, August 26 (1904).
THE SINKING OF NEUTRAL PRIZES
Sir,--In your St. Petersburg correspondence of yesterday I see that some
reference is made to what I have had occasion to say from time to time
upon the vexed question of the sinking of neutral vessels, and your
Correspondent thinks it "would be decidedly interesting" to know whether
I have really changed my opinion on the subject. Perhaps, therefore, I
may be allowed to state that my opinion on the subject has suffered no
change, and may be summarised as follows:--
1. There is no established rule of international law which absolutely
forbids, under any circumstances, the sinking of a neutral prize. A
_consensus gentium_ to this effect will hardly be alleged by those who
are aware that such sinking is permitted by the most recent prize
regulations of France, Russia, Japan, and the United States.
2. It is much to be desired that the practice should be, by future
international agreement, absolutely forbidden--- that the lenity of
British practice in this respect should become internationally
obligatory.
3. In the meantime, to adopt the language of the French instructions,
"On ne doit user de ce droit de destruction qu'avec plus la grande
réserve"; and it may well be that any given set of instructions (e.g.
the Russian) leaves on this point so large a discretion to commanders of
cruisers as to constitute an intolerable grievance.
4. In any case, the owner of neutral property, not proved to be good
prize, is entitled to the fullest compensation for his loss. In the
language of Lord Stowell:--
"The destruction of the property may have been a meritorious
act towards his own Government; but still the person to whom
the property belongs must not be a sufferer ... if the captor
has by the act of destruction conferred a benefit upon the
public, he must look to his own Government for his
indemnity."
It may be worth while to add that the published statements on the
subject for which I am responsible are contained in the _Admiralty
Manual of Prize Law_ of 1888 (where section 808 sets out the lenient
British instructions to commanders, without any implication that
instructions of a severer kind would have been inconsistent with
international law); in letters which appeared in your columns on August
6, 17, and 30, 1904; and in a paper on "Neutral Duties in a Maritime
War, as illustrated by recent events," read before the British Academy
in April last, a French translation of which is in circulation on the
Continent.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Temple, June 29 (1905).
The Russian circular of April 3, 1906, inviting the Powers to a
second Peace Conference, included amongst the topics for
discussion: "Destruction par force majeure des bâtiments de
commerce neutres arrêtés comme prises," and the British
delegates were instructed to urge the acceptance of what their
Government had maintained to be the existing rule on the
subject. The Conference of 1907 declined, however, to define
existing law, holding that its business was solely to consider
what should be the law in future. After long discussions, in
the course of which frequent reference was made to views
expressed by the present writer (see _Actes et Documents_, t.
iii. pp. 991-993, 1010, 1016, 1018, 1048, 1171), the Conference
failed to arrive at any conclusion as to the desirability of
prohibiting the destruction of neutral prizes, and confined
itself to the expression of a wish (_voeu_) that this, and
other unsettled points in the law of naval warfare, should be
dealt with by a subsequent Conference.
This question was, accordingly, one of those submitted to a
Conference of ten maritime Powers, which was convoked by Great
Britain in 1908, for reasons upon which something will be said
in the next section.
The question of sinking was fully debated in this Conference,
with the assistance of memoranda, in which the several Powers
represented explained their divergent views upon it, and of
reports prepared by committees specially appointed for the
purpose. It soon became apparent that the British proposal for
an absolute prohibition of the destruction of neutral prizes
had no chance of being accepted; while, on the other hand, it
was generally agreed that the practice is permissible only in
exceptional cases. (See _Parl. Paper, Miscell._ No. 5 (1909),
pp. 2-63, 99-102, 120, 189, 205, 215, 223, 248, 268-278, 323,
365.) Arts. 48-54 of the Declaration, signed by the delegates
to the Conference on February 26, 1909, but not ratified by
Great Britain, related to this question. After laying down, in
Art. 48, the general principle that "a neutral prize cannot be
destroyed by the captor, but should be taken into such port as
is proper for the legal decision of the rightfulness of the
capture" the Declaration proceeded, in Art. 49, to qualify this
principle by providing that "exceptionally, a neutral vessel
captured by a belligerent warship, which would be liable to
confiscation, may be destroyed, if obedience to Art. 48 might
compromise the safety of the warship, or the success of the
operations in which she is actually engaged."
* * * * *
SECTION 8
_An International Prize Court_
The forecast, incidentally attempted in the following letters,
of the general results likely to be arrived at by the second
Peace Conference, has been justified by the event. As much may
be claimed for the views maintained upon the topic with which
these letters were more specifically concerned. Instead of
letting loose the judges of the proposed International prize
Court to "make law," in accordance with what might happen to be
their notions of "the general principles of justice and
equity," a serious attempt has been made to supply them with a
Code of the law which they would be expected to administer.
Some account will be given at the end of this section of the
movement towards the establishment of an International Court of
Appeal in oases of prize.
AN INTERNATIONAL PRIZE COURT
SIR--The idea suggested by the question addressed on February 19 to the
Government by Mr. A. Herbert--viz. that the appeal in prize cases
should lie, not to a Court belonging to the belligerent from whose Court
of first instance the appeal is brought, but to an international
tribunal, has a plausible appearance of fairness, but involves many
preliminary questions which must not be lost sight of.
Prize Courts are, at present, Courts of enquiry, to which a belligerent
Government entrusts the duty of ascertaining whether the captures made
by its officers have been properly made, according to the views of
international law entertained by that Government. There exists, no
doubt, among Continental jurists, a considerable body of opinion in
favour of giving to Courts of Appeal, at any rate, in prize cases a
wholly different character. This opinion found its expression in Arts.
100-109 of the _Code des Prises maritimes_, finally adopted at its
Heidelberg meeting, in 1887, by the Institut de Droit International.
Art. 100 runs as follows:--
"Au début de chaque guerre, chacune des parties belligérantes
constitue un tribunal international d'appel en matière de
prises maritimes. Chacun de ces tribunaux est composé de cinq
membres, designés comme suit: L'état belligérant nommera
lui-même le président et un des membres. Il désignera en
outre trois états neutres, qui choisiront chacun un des trois
autres membres."
In the abstract, and supposing that a tribunal perfectly satisfactory
both to belligerents and neutrals could be constituted, whether
antecedently or _ad hoc_, there might be much to be said for the
proposal; subject, however, to one condition--viz. that an agreement
had been previously arrived at as to the law which the Court is to
apply. At the present time there exists, on many vital questions of
prize law, no such agreement. It will be sufficient to mention those
relating to the list of contraband, the distinction between "absolute"
and "conditional" contraband, the doctrine of "continuous voyages," the
right of sinking a neutral prize, the moment from which a vessel becomes
liable for breach of blockade.
Just as the _Alabama_ arbitration would have been impossible had not an
agreement been arrived at upon the principles in accordance with which
neutral duties as to the exit of ships of war were to be construed, so,
also, before an international Court can be empowered to decide questions
of prize, whether in the first instance or on appeal, it is
indispensable that the law to be applied on the points above mentioned,
and many others, should have been clearly defined and accepted, if not
generally, at least by all parties concerned. The moral which I would
venture to draw is, therefore, that although questions of fact, arising
out of capture of a prize, might sometimes be submitted to a tribunal of
arbitration, no case, involving rules of law as to which nations take
different views, could possibly be so submitted. One is glad, therefore,
to notice that the Prime Minister's reply to Mr. A. Herbert was of the
most guarded character. The settlement of the law of prize must
necessarily precede any general resort to an international prize Court;
and if the coming Hague Conference does no more than settle some of the
most pressing of these questions, it will have done much to promote the
cause of peace.
I am, your obedient servant,
T. E. HOLLAND.
Oxford, February 20 (1907).
A NEW PRIZE LAW
Sir,--The leading articles which you have recently published upon the
doings of the Peace Conference, as also the weighty letter addressed to
you by my eminent colleague, Professor Westlake, will have been welcomed
by many of your readers who are anxious that the vital importance of
some of the questions under discussion at The Hague should not be lost
sight of.
The Conference may now be congratulated upon having already given a
_quietus_ to several proposals for which, whether or not they may be
rightly described as Utopian, the time is admittedly not yet ripe. Such
has been the fate of the suggestions for the limitation of armaments,
and the exemption from capture of private property at sea. Such also,
there is every reason to hope, is the destiny which awaits the still
more objectionable proposals for rendering obligatory the resort to
arbitration, which by the Convention of 1899 was wisely left optional.
Should the labours of the delegates succeed in placing some restrictions
upon the employment of submarine mines, the bombardment of open coast
towns, and the conversion of merchant vessels into ships of war; in
making some slight improvements in each of the three Conventions of
1899; and in solving some of the more pressing questions as to the
rights and duties of neutrals, especially with reference to the
reception in their ports of belligerent warships, it will have more than
justified the hopes for its success which have been entertained by
persons conversant with the difficulty and complexity of the problems
involved.
But what shall we say of certain proposals for revolutionising the law
of prize, which still remain for consideration, notably for the
establishment of an international Court of Appeal, and for the abolition
of contraband? It can hardly be supposed that either suggestion will win
its way to acceptance.
1. The British scheme for an international Court of Appeal in prize
cases is, indeed, far preferable to the German; but the objections to
anything of the kind would seem to be, for the present, insuperable,
were it only for the reason which you allowed me to point out, some
months ago, _à propos_ of a question put in the House of Commons by Mr.
Arnold Herbert. As long as nations hold widely different views on many
points of prize law, it cannot be expected that they should agree
beforehand that, when belligerent, they will leave it to a board of
arbitrators to say which of several competing rules shall be applied to
any given case of capture, or to evolve out of their inner consciousness
a new rule, hitherto unknown to any national prize Court. It would seem
that the German advocates of the innovation claim in its favour the
authority of the Institut de Droit International. Permit me, therefore,
as one who has taken part in all the discussions of the Institut upon
the subject, to state that when it was first handled, at Zurich, in
1878, the difficulties in the way of an international Court were
insisted on by such men as Asser, Bernard, Bluntschli, Bulmerincq, and
Neumann, and the vote of a majority in its favour was coupled with one
which demanded the acceptance by treaty of a universally applicable
system of prize law. The drafting of such a system was accordingly the
main object of the _Code des Prises maritimes_, which, after occupying
several sessions of the Institut, was finally adopted by it, at
Heidelberg, in 1887. Only ten of the 122 sections of this Code deal with
an international Court of Appeal. A complete body of law, by which
States have agreed to be bound, must, one would think, necessarily
precede the establishment of a mixed Court by which that law is to be
interpreted.
2. While the several delegations are vying with one another in devising
new definitions of contraband, there would seem to be little likelihood
that the British proposal for its total abandonment will be seriously
entertained. Such a step could be justified, if at all, from the point
of view of national interest, only on the ground that it might possibly
throw increased difficulties in the way of an enemy desirous, even by
straining the existing law, of interfering with the supply of foodstuffs
to the British Islands. I propose, for the present, only to call
attention to the concluding paragraph of the British notice of motion on
this point, which would seem to imply much more than the abandonment of
contraband. The words in question, if indeed they are authentically
reported, are as follows: "Le droit de visite ne serait exercé que pour
constater le caractère neutre du bâtiment de commerce." Does this mean
that the visiting officer, as soon as he has ascertained from the ship's
papers that she is neutral property, is to make his bow and return to
the cruiser whence he came? If so, what has become of our existing right
to detain any vessel which has sailed for a blockaded port, or is
carrying, as a commercial venture, or even ignorantly, hostile troops or
despatches? No such definition as is proposed of an "auxiliary
ship-of-war" would safeguard the right in question, since a ship, to
come within that definition, must, it appears, be under the orders of a
belligerent fleet.
I would venture to suggest that the motto of a reformer of prize law
should be _festina lente._ The existing system is the fruit of practical
experience extending over several centuries, and, though it may need,
here and there, some readjustment to new conditions, brought about by
the substitution of steam for sails, is not one which can safely be
pulled to pieces in a couple of months. Let us leave something for
future Hague Conferences.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, July 24 (1907).
A NEW PRIZE LAW
Sir,--In a letter under the above heading, for which you were so good as
to find room in July last, I returned to the thesis which I had ventured
to maintain some months previously, _à propos_ of a question put in the
House of Commons. My contention was that the establishment of an
international prize Court, assuming it to be under any circumstances
desirable, should follow, not precede, a general international agreement
as to the law which the Court is to administer.
It would appear, from such imperfect information as intermittently
reaches Swiss mountain hotels, that a conviction of the truth of this
proposition is at length making way among the delegates to The Hague
Conference and among observers of its doings. In a recent number of the
_Courrier de la Conférence_, a publication which cannot be accused of
lukewarmness in the advocacy of proposals for the peaceful settlement of
international differences, I find an article entitled "Pas de Code
Naval, pas de Cour des Prises," to the effect that "l'acceptation de la
Cour des Prises est strictement conditionnelle à la rédaction du Code,
qu'elle aura à interpréter." Its decisions must otherwise be founded
upon the opinions of its Judges, "the majority of whom will belong to a
school which has never accepted what Great Britain looks upon as the
fundamental principles of naval warfare." One learns also from other
sources, that efforts are being made to arrive, by a series of
compromises, at some common understanding upon the points as to which
the differences of view between the Powers are most pronounced. It may,
however, be safely predicted that many years must elapse before any such
result will be achieved.
In the meantime, a very different solution of the difficulty has
commended itself to the partisans of the proposed Court. M. Renault, the
accomplished Reporter of the committee which deals in the first instance
with the subject, after stating that "sur beaucoup de points le droit de
la guerre maritime est encore incertain, et chaque État le formule au
gré de ses idées et de ses intérêts," lays down that, in accordance with
strict juridical reasoning, when international law is silent an
international Court should apply the law of the captor. He is,
nevertheless, prepared to recommend, as the spokesman of the committee,
that in such cases the Judges should decide "d'après les principes[C]
généraux de la justice et de l'équité"--a process which I had, less
complimentarily, described as "evolving new rules out of their inner
consciousness." The Court, in pursuance of this confessedly "hardie
solution," would be called upon to "faire le droit."
One may be permitted to hope that this proposal will not be accepted.
The beneficent action of English Judges in developing the common law of
England may possibly be cited in its favour; but the analogy is
delusive. The Courts of a given country in evolving new rules of law are
almost certain to do so in accordance with the views of public policy
generally entertained in that country. Should they act otherwise their
error can be promptly corrected by the national Legislature. Far
different would be the effect of the decision of an international Court,
in which, though it might run directly counter to British theory and
practice, Great Britain would have bound herself beforehand to
acquiesce. The only quasi-legislative body by which the _ratio
decidendi_ of such a decision could be disallowed would be an
international gathering in which British views might find scanty
support. The development of a system of national law by national Judges
offers no analogy to the working of an international Court, empowered,
at its free will and pleasure, to disregard the views of a sovereign
Power as to the proper rule to be applied in cases as to which
international law gives no guidance. In such cases the ultimate
adjustment of differences of view is the appropriate work, not of a law
Court, but of diplomacy.
It is hardly necessary to combat the notion that there already exists,
_in nubibus_, a complete system of prize law, which is in some
mysterious way accessible to Judges, and reveals to them the rule
applicable to each new case as it arises. This notion, so far as it is
prevalent, seems to have arisen from a mistaken reading of certain
_dicta_ of Lord Stowell, in which that great Judge, in his finest
eighteenth-century manner, insists that the law which it was his duty to
administer "has no locality" and "belongs to other nations as well as
our own." He was, of course, thinking of the rules of prize law upon
which the nations are agreed, not of the numerous questions upon which
no agreement exists, and was dealing with the difficult position of a
Judge who has to choose (as in the recent _Moray Firth_ case) between
obedience to such rules and obedience to the legislative, or
quasi-legislative, acts of his own Government.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Eggishorn, Suisse, September 16 (1907).
A NEW PRIZE LAW
Sir,--The speech of the Prime Minister at the Guildhall contains a
paragraph which will be read with a sense of relief by those who, like
myself, have all along viewed with surprise and apprehension The Hague
proposals for an international prize Court.
Sir H. Campbell-Bannerman admits that "it is desirable, and it may be
essential, that, before legislation can be undertaken to make such a
Court effective, the leading maritime nations should come to an
agreement as to the rules regarding some of the more important subjects
of warfare which are to be administered by the Court"; and his
subsequent eulogy of the Court presupposes that it is provided with "a
body of rules which has received the sanction of the great maritime
Powers." What is said as to the necessary postponement of any
legislation in the sense of The Hague Convention must, of course, apply
_a fortiori_ to the ratification of the Convention.
We have here, for the first time, an authoritative repudiation of the
notion that fifteen gentlemen of mixed nationality composing an
international prize Court, are to be let loose to "make law," in
accordance with what may happen to be their conceptions of "justice and
equity." It seems at last to be recognised that such a Court cannot be
set to work unless, and until, the great maritime Powers shall have come
to an agreement upon the rules of law which the Court is to administer.
I may add that it is surely too much to expect that the rules in
question will be discussed by the Powers, to use Sir H.
Campbell-Bannerman's phrase, "without any political _arrière pensêe._"
Compromise between opposing political interests must ever remain one of
the most important factors in the development of the law of nations.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 11 (1907).
Although the establishment of an International Prize Court of
Appeal was not one of the topics included in the programme of
the Russian invitation; to a second Peace Conference, no
objection was made to its being taken into consideration, when
proposals to that effect were made by the British and American
delegates to the Conference. The idea seems first to have been
suggested by Hübner, who proposed to confer jurisdiction in
cases of neutral prize on Courts composed of ministers or
consuls, accredited by neutrals to the belligerents, together
with commissioners appointed by the Sovereign of the captors or
of the country to which the prize has been brought, as also,
perhaps, "des personnes pleines de probité et de connaissances
dans tout ce qui concerne les Loix des Nations et les Traités
des Puissances modernes." The Court is to decide in accordance
with treaties, "ou, à leur défaut, la loi universelle des
nations." _De la Saisie des Bâtiments neutres_ (1759), ii. pp.
45-61. The Institut de Droit International, after discussions
extending over several years, accepted the principle of an
International Court of Appeal, though only in combination with
a complete scheme of prize law, in its _Code des Prises
maritimes_, completed in 1887, section 100.
At the Conference of 1907, the work of several committees, and
a masterly report by Professor Renault, _Parl. Papers_, No. iv.
(1908), p. 9, resulted in The Hague Convention, No. xii. of
that year, providing for the establishment of a mixed Court of
Appeal from national prize Courts.
According to Art. 7 of this Convention, in default of any
relevant treaty between the Governments of the litigant
parties, and of generally recognised rules of international law
bearing upon the question at issue, the Court is to decide "in
accordance with the general principles of justice and equity."
It seems, however, to have been soon perceived that the
proposal to institute a Court, unprovided with any fixed system
of law by which to decide the cases which might be brought
before it, could not well be entertained, and the Final Act of
the Conference accordingly expresses a wish that "the
preparation of a _Règlement_, relative to the laws and customs
of maritime war, may be mentioned in the programme of the next
Conference."
Thereupon, without waiting for the meeting of a third Hague
Conference, the British Government on February 27, 1908,
addressed a circular to the great maritime Powers, which, after
alluding to the impression gained "that the establishment of
the International Prize Court would not meet with general
acceptance so long as vagueness and uncertainty exist as to the
principles which the Court, in dealing with appeals brought
before it, would apply to questions of far-reaching importance,
affecting naval policy and practice," went on to propose that
another Conference should meet in London, in the autumn of the
same year, "with the object of arriving at an agreement as to
what are the generally recognised principles of international
law within the meaning of paragraph 2 of Article 7 of the
Convention, as to those matters wherein the practice of nations
has varied, and of then formulating the rules which, in the
absence of special treaty provisions applicable to a particular
case, the Court should observe in dealing with appeals brought
before it for decision.... It would be difficult, if not
impossible, for H.M. Government to carry the legislation
necessary to give effect to the Convention, unless they could
assure both Houses of the British Parliament that some more
definite understanding had been reached as to the rules by
which the new Tribunal should be governed."
In response to this invitation, delegates from ten principal
maritime States assembled at the Foreign Office on December 4,
1908, and after discussing the topics to which their attention
was directed, viz.: (1) Contraband; (2) Blockade; (3)
Continuous voyage; (4) Destruction of neutral prizes; (5)
Unneutral service; (6) Conversion of merchant vessels into
warships on the high seas; (7) Transfer to a neutral flag; (8)
Nationality or domicil, as the test of enemy property; signed
on February 26, 1909, the Declaration of London.
The Convention No. xii. of 1907 and the Declaration of London
of 1909 have alike failed to obtain ratification. _Cf._ now the
two immediately following sections, 9 and 10.
An ultimate Court of Appeal in cases of Prize seems now likely
to be provided by the "Permanent Court of International
Justice," proposed by the League of Nations in pursuance of
Art. 14 of the Treaty of Versailles. See also Art. 24 of the
Treaty. _Cf. supra_, p. 2.
* * * * *
SECTION 9
_The Naval Prize Bill_
The first two letters in this section contain the criticisms of
the Bill to which allusion is made in the first lines of a
letter of later date, q.v. _supra_, p. 36. On the rejection of
the Bill, see _ib._, note 1.
THE NAVAL PRIZE BILL
Sir--A paternal interest in the Naval Prize Bill may perhaps be thought
a sufficient excuse for the few remarks which I am about to make upon
it. The Bill owes its existence to a suggestion made by me, just ten
years ago, while engaged in bringing up to date for the Admiralty my
_Manual of Naval Prise Law_ of 1888. It was drafted by me, after
prolonged communications with Judges, Law Officers, and the Government
Departments concerned, so as not only to reproduce the provisions of
several "cross and cuffing" statutes dealing with the subject, but also
to exhibit them in a more logical order than is always to be met with in
Acts of Parliament.
The Bill was thought of sufficient importance to be mentioned on two
occasions in the King's Speech, and has been several times passed, after
careful consideration, by the House of Lords; but pressure of other
business has hitherto impeded its passage through the House of Commons.
It has now been reintroduced, this time in the Lower House, with an
imposing backing of Government support; primarily, no doubt, with a view
to facilitating the ratification of The Hague Convention for the
establishment of an International Prize Court of Appeal. For this
purpose, several pieces of new cloth have been sewn into the old
garment, and I may perhaps be allowed to call attention to three or four
points in which, on a first reading, the new clauses strike one as
needing reconsideration.
Tactical reasons have, no doubt, operated to induce the Government to
include in the Consolidation Bill the provisions for which statutory
authority must be obtained before it will be possible to ratify the
Convention; instead of first introducing a Bill having this sole object
in view, and afterwards, should this be passed, inserting the new law in
a reintroduced Consolidation Bill.
The course adopted necessitates an otherwise unnecessary preamble, and
the qualification of the new Part III. by the words "in the event of an
International Prize Court being established" (Clause 23). The reference,
by the by, in this clause to "the said Convention" is somewhat awkward,
no mention of any Convention having occurred previously, except in the
preamble of the Bill. Is not also the statutory approval given by this
clause, not only to the Convention of 1907 but also to "any Convention
amending the same," somewhat startling, as tending to exclude
Parliamentary criticism of such an amending Convention before its
ratification?
By Clause 9, the members of the Judicial Committee who are to be
nominated to act as the British Court of Appeal in cases of prize are to
be described by the novel title of "the Supreme Prize Court." Is not the
use made of the term "Supreme" in the Judicature Acts, as covering both
the High Court and the Court of Appeal, already sufficiently
unsatisfactory?
But the question which, of all others _saute aux yeux_, in reading the
new Part III., is whether the Convention is to be approved as it stands,
irrespectively of a general acceptance of the new Code of Prize Law
contained in the Declaration of London of 1909. The objections to Art. 7
of the Contention, providing that, in the absence of rules of
International Law generally recognised (and on many points of Prize Law
there are no such rules), the Court is to decide in accordance with
(what it may be pleased to consider) "the general principles of law and
equity," are well known. The purpose of the Declaration of London
(itself the subject of much difference of opinion) was to curtail this
licence of decision, by providing the Court with so much ascertained
Prize Law as to render action under the too-elastic phrase above quoted
almost inconceivable.
Is it too much of a counsel of perfection to suggest that the debatable
questions arising under the Convention of 1907 and the Declaration of
1909 should first be threshed out in discussions on a Bill dealing with
those questions only; and that the decision, if any, thus arrived at
should be subsequently inserted, freed from hypothesis, in the
Consolidation Bill which has so long awaited the leisure of the House of
Commons?
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, July 10 (1910).
THE NAVAL PRIZE BILL
Sir,--The Government has so far yielded to the representations of the
Opposition as to have refrained from forcing on Friday night a division
upon the Naval Prize Bill. Is it too much to hope that the Government
may even now withdraw altogether a measure so ill adapted to place
fairly before Parliament the question of the desirability of ratifying
two documents held by a large body of competent opinion to be certain,
if ratified, seriously to endanger the vital interests of the country?
The Bill, as I have already pointed out, as originally drawn, was a
careful consolidation of the law and procedure governing British Courts
of Prize. Into this has now been incongruously thrust a set of clauses
intended to give effect to a novel and highly controversial proposal for
the creation of an International Prize Court. About the Declaration of
London, alleged to contain a body of law which would adequately equip
such a Court for the performance of its duties, not a word is said in
the Bill; yet, should approval of the Bill be snatched by a purely party
majority, the intention of the Government is to proceed straightway to
the ratification both of the Prize Court Convention and the Declaration.
Whether they intend also to endeavour to obtain the ratification, as an
auxiliary Convention, of the lengthy covering commentary upon the
Declaration, supplied by the committee by which the Declaration was
drafted, does not yet appear. Of such a step I have already written that
it "would be calamitous should a practice be introduced of attempting to
cure the imperfect expression of a treaty by tacking on to it an equally
authoritative reasoned commentary. The result would be _obscurum per
obscurius_, a remedy worse than the disease."
The alternatives before Parliament on Monday next will be either, by
reading the Naval Prize Bill a second time, to bring about, in the teeth
of protests from those best qualified to express an independent opinion
upon the subject, the immediate ratification of the Convention and the
Declaration, or to ask that before, this momentous step is taken the
infinitely complex and delicate questions involved should be examined
and passed upon by a Commission of representative experts. Which shall
it be?
Your obedient servant,
T. E. HOLLAND.
Oxford, July I (1911).
_Cf._ a letter of July 7, 1911, _supra_, p. 36.
NAVAL PRIZE MONEY
Sir,--The existing enactments as to prize bounty are, it seems,
unsuitable to present conditions of naval warfare, and are accordingly
to be varied by a bill shortly to be introduced.
May I venture to recommend that the Bill should contain merely the
half-dozen clauses needed for this purpose, leaving untouched for
subsequent uncontroversial passage, the Naval Prize Consolidation with
Amendments Bill? This Bill, suggested and drafted by myself, in the
spacious times of peace, in consultation with the Admiralty and other
Government Departments, as also with the Judge of the Admiralty Division
and the Law Officers (including the present Lord Chancellor), was twice
mentioned in the King's Speech, and several times, after careful
consideration, passed by the House of Lords, but still awaits the
leisure of the Lower House. It deserved a better fate than to have been
used, in 1911, as a corpus vile for facilitating the ratification of the
Convention for an International Prize Court and of the Declaration of
London; receiving, most fortunately, as so perverted, its _coup de
grâce_ from the Lords. It should be passed as an artistic whole, apart
from any contentious matter, account having, of course, been taken of
recent legislation by which it may have been, here and there, affected.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 23 (1918).
* * * * *
SECTION 10
The Declaration of London
For incidental mentions of the Declaration in earlier sections
see _supra_, pp. 22, 36, 39, 55, 58, 80, 90, 92, 148, 149, 154,
155, 156, 158, 163, 164, 174, 181, 191, 193, 194, 195, 196.
See also my paper upon _Proposed Changes in the Law of Naval
Prize_, read to the British Academy on May 31, 1911,
_Transactions_, vol. v., of which a translation appeared in the
_Revue de Droit International_, N.S., t. xiii, pp. 336-355.
THE DECLARATION OF LONDON
Sir,--The questions put last night by Mr. M'Arthur need, perhaps, more
fully considered answers than they received from Mr. McKinnon Wood.
With reference to the first answer, it may be worth while to point out
that, in Art. 66 of the Declaration, the Powers undertake not only, as
in the passage quoted, "to give the necessary instructions to their
authorities and armed forces," but also "to take the measures which may
be proper for guaranteeing the application of the rules Contained in the
Declaration by their Courts, and, in particular, by their Courts of
Prize." The "authentic commentary" upon the article in M. Renault's
"Report" explains that the measures in question "may vary in different
countries, and may or may not require the intervention of the
Legislature."
The second answer lays down broadly that "the decisions of the British
Prize Courts are founded on International Law, and not on municipal
enactments." Our Prize Courts have, no doubt, on most points, decided in
accordance with International Law, in the sense of the principles
generally followed by civilised nations; but, on not a few points, in
accordance with the British view of what is, or ought to be,
International Law, in opposition to views persistently maintained by
other countries--e.g. with reference to the moment from which a
blockade-runner becomes liable to capture. The fact is that, whatever
grandiloquent language may have been judicially employed by Lord Stowell
in a contrary sense, it will now hardly be denied that a Prize Court
sits by national, not international, authority, and is bound to take the
view of International Law which, if any, is prescribed to it by the
constitutionally expressed will of its own Government.
The Declaration of London is in many ways a great achievement; but one
is glad to learn from Mr. McKinnon Wood's third answer that opportunity
will be given for discussing all important points in connexion with its
rules.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 30 (1909).
THE DECLARATION OF LONDON
Sir,--Both the Prize Court Convention of 1907 and its complement, the
London Declaration of 1909, stand greatly in need of full and
well-informed discussion before receiving the Parliamentary approval
which ought to be a condition precedent to the ratification of either of
them. It is well, therefore, that many Chambers of Commerce have called
the attention of Government to the detriment to British interest which
may in their opinion result from these agreements if ratified, although
the representations thus made exhibit, in some cases, so little
technical knowledge as to have been readily disposed of by the Foreign
Secretary. For the same reason, I welcome the letter from Mr. Gibson
Bowles, which appeared in _The Times_ of yesterday, although it contains
some statements the inaccuracy of which it may be desirable at once to
point out.
1. The Declaration of Paris is neither implicitly nor explicitly adopted
by the Declaration of London, "as a part of the common law of nations
which can no longer be disputed." The later makes no mention of the
earlier one, and M. Benault's _rapport_ (as to the interpretative
authority of which opinions may well differ) applies the words quoted,
not to the Paris Declaration as a whole, but to one only of its
articles. Mr. Bowles's statement that "the Declaration of London, if
adopted, would reaffirm, and its ratification would in effect, for the
first time ratify, the Declaration of Paris" cannot be supported.
2. Mr. Bowles asserts it to be "an unquestioned doctrine of the Law of
Nations that war abrogates and annuls treaty obligations between
belligerents." One would have supposed it to be common knowledge that
large classes of treaties are wholly unaffected by war. Such are, for
instance, what are called conventions _transitoires_, because their
effect is produced once for all, as in the case of cessions of
territory; and, notably, treaties entered into for the regulation of the
conduct of war, such as the Geneva Convention, many of The Hague
Conventions of 1907, and the Declaration of Paris itself, which Mr.
Bowles appears to think would _ipso facto_ cease to be obligatory
between its signatories on their becoming belligerent.
It is a pleasure to be able to agree with Mr. Bowles in his wish that
the Naval Prize Bill, if reintroduced, should be rejected, though I
would rather say "withdrawn." You have already allowed me (on July 10)
to point out that if the Convention and Declaration are to be
effectively discussed in Parliament they should be disentangled from
that Bill, into which the Convention, and, by implication, the
Declaration, have been incongruously thrust. This practically
non-contentious Consolidation Bill, after several times securing the
approval of the House of Lords, has hitherto for several years awaited
the leisure of the House of Commons, but was suddenly reintroduced last
Session, apparently as an unobtrusive vehicle for the new and highly
debatable matter contained in the two above-mentioned documents. May I
now repeat my suggestion that "the debatable questions arising under the
Convention of 1907 and the Declaration of 1909 should first be threshed
out in discussions on a Bill dealing with these questions only; and that
the decision, if any, thus arrived at should be subsequently inserted,
freed from hypothesis, in the Consolidation Bill"?
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 28 (1910).
THE DECLARATION OF LONDON
Sir,--I have read Professor Westlake's letters upon the Declaration of
London with the attention due to anything written by my very learned
friend, but, although myself opposed to the ratification alike of the
Prize Court Convention and of its complement, the Declaration, do not at
present wish to enter upon the demerits of either instrument.
There is, however, a preliminary question upon which, with your
permission, I should like to say a few words. My friend justly observes
that in dealing with the Declaration "the first necessity is to know
what it is that we have before us"; and he devotes his letter of January
31 to maintaining that the Declaration must be read as interpreted by
the explanations of it given to the full Conference by the Drafting
Committee, of which M. Renault was president. Professor Westlake
supports his opinion by a quotation from the reply of the Foreign Office
in November last to the Edinburgh Chamber of Commerce (_Miscell._ 1910,
No. 4, p. 21). I may mention that a similar reply had been given, a year
previously, by Mr. McKinnon Wood to a question in the House of Commons.
The source of these replies is doubtless to be found in a paragraph of
the Report, addressed on March 1, 1909, to Sir Edward Grey, of the
British Delegates to the London Conference, which runs as follows:--
"It should be borne in mind that, in accordance with the
principles and practice of Continental jurisprudence, such a
Report is considered an authoritative statement of the
meaning and intention of the instrument which it explains,
and that consequently foreign Governments and Courts, and no
doubt also the International Prize Court, will construe and
interpret the provisions of the Declaration by the light of
the Commentary given in the Report." (_Miscell._ 1909, No. 4,
p. 94.)
It is desirable to know upon what authority this statement rests. I am
aware of none. The nearest approach to an assertion of anything like it
occurred at The Hague Conference of 1899, when the "approval" accorded
to "the work of the Second Committee, as embodied in the articles voted
and in the interpretative Report which accompanies them" was alleged by
M. de Martens to amount to an acceptance of the Report "comme un
commentaire interprétatif authentique des articles votés." (_Miscell._
1899, No. 1, p. 165.) The drafting Report presented to the Geneva
Conference of 1906 is merely said to have been "adopted" (Actes, p.
286); and M. Renault's Report to the Conference of London was similarly
merely "accepted," although he presented it as containing
"Un commentaire précis, dégagé de tout controverse, qui,
devenu commentaire officiel par l'approbation de la
Conférence, soit de nature à guider les autorités diverses,
administratives, militaires, judiciaires, qui pourront avoir
à l'appliquer." (_Miscell._ 1909, No. 5, p. 344.)
It would seem that in each of these cases the adoption of the Report,
and even a suggestion or two for a change in its phraseology, amounted
to nothing more than an expression of opinion on the part of the
Delegates to the Conference that the Report contained explanations which
had satisfied themselves, and might satisfy their Governments, that the
Convention which they were about to forward to those Governments might
safely be accepted.
So far as Governments are concerned, the adoption of a Report by their
Delegates is _res inter alios acta_. An "authentic interpretation" of a
contract can be given only by the parties to it, who, in the case of a
treaty, are the States concerned. If these States desire to give to the
report of a drafting committee the force of an authentic interpretation
of their contract, they can surely do so only by something amounting to
a supplementary convention. Writers upon international law naturally
throw but little light upon questions to which the somewhat novel
practice of argumentative drafting Reports has given rise; but I may
cite Professor Ullmann, of Vienna, as saying:--
"Eine authentische Interpretation kann nur die durch
Kontrahenten selbst, in einem gemeinschaftlichen, ihren
Willen ausser Zweifel setzenden Acte (einem Nachtrags-oder
Erlauterungsvertrage), erfolgen" (Volkerrecht, p. 282);
and Professor Fiore, of Naples, to the effect that what is called
"authentic interpretation" is not
"interpretazione propriamente detta, ma una dichiarazione di
quello che fu gia concordato, o un nuovo trattato" (Diritto
Internazionale, ss. 1, 118);
and that
"il trattato non può essere interpretato che dalle stesse
Parti (_i.e._ Stati) contrahenti; e per la validità dell'
atto è indispensabile che la relativa convenzione di
interpretazione abbia gli stessi requisiti ... di ogni altra
convenzione tra Stato e Stato" (Il Dir. Int. Codif., § 816).
I would submit that such a Report as that which accompanies the
Declaration of London has no claim to the sort of interpretative
authority which has been attributed to it; nor is it desirable that the
requisite steps should be taken for giving it that authority. It would
be calamitous should a practice be introduced of attempting to cure the
imperfect expression of a treaty by tacking on to it an equally
authoritative reasoned commentary, likely, as in the present case, to be
enormously longer than the test to which it relates.
It is a wholly different question whether Governments or Courts would be
inclined to take notice of such a Report, among other facts antecedent
to a Convention, or Declaration, which they might be called upon to
construe. A British Court would not, I conceive, be so inclined. On the
probable inclinations of Continental Courts, and of an International
Prize Court, should one be instituted, further expert information would
seem to be called for.
The fact is that the vitally important questions of theory and practice
raised by the Convention and the Declaration need calmer and better
instructed discussion than they have yet received. Ought they not to be
referred to a Royal Commission, on which should be placed
representatives of the Navy and Merchant Service, of the corn trade, and
of the Colonies, together with international lawyers, in touch with the
views of their Continental colleagues?
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, February 16 (1911).
THE DECLARATION OF LONDON
Sir,--Professor Westlake, replying in _The Times_ of to-day to the
arguments by which I had endeavoured to show that the Report made to the
Conference of London has no pretensions to be treated as an authentic
interpretation of the Declaration prepared by the Conference, still
maintains that "the essential question will be, what the agreement was
that the Conference arrived at." I had maintained, on the contrary, that
the essential question will be, What is the agreement entered into by
the Powers, as evidenced by their ratifications? anything outside of the
ratified agreement being _res inter alios acta_. I should not be
justified in asking you to allow me to repeat the contents of my letter
of Monday last in support of this view. The pleadings are, I think,
exhausted. "Therefore let a jury come."
I should like, however, to point out that I did not, as my friend seems
to think, attribute the acceptance of the Report to the delegates
"singly." It was, no doubt accepted by all present without protest. My
colleague will, I am sure, pardon me if I add that I cannot concur in
his exegesis of my citations from Ullmann and Fiore.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, February 25 (1911).
THE DECLARATION OF LONDON
Sir,--It is satisfactory that so high an authority as Mr. Arthur Cohen
distinctly accedes to the view that the Declaration of London ought not
to be ratified as it stands. I should, however, be sorry were his
suggestion accepted that the Declaration and the argumentative report
which accompanies it might be ratified together. The result would be
_obscurum per obscurius_, a remedy worse than the disease.
I shall ask leave to add that, if Mr. Cohen will take the trouble to
look again at my letters of February 10 and 25, he will cease to suppose
it possible that in writing "the pleadings are, I think, exhausted,
&c.," I meant to convey that no further discussion of the merits or
demerits of the Declaration was required. On the contrary I expressly
limited myself to a consideration of the preliminary question, whether
interpretative authority would rightly be attributed to the report in
question, stating that, while opposed to the ratification alike of the
Prize Court Convention and of the Declaration, I did not, for the
present, wish to enter upon the demerits of either instrument; and ended
my first letter by suggesting the reference to a Royal Commission of
"the vitally important questions of theory and practice raised by the
Convention and the Declaration," as needing "calmer and better
instructed discussion than they have yet received."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 1 (1911).
THE DECLARATION OF LONDON
Sir,--After Tuesday's debate in the House of Lords it may be hoped that
not even "the man in the street" will suppose the Declaration of London
to be anything more than an objectionable draft, by which no country has
consented to be bound. Every day of the war makes more apparent our debt
to the House of Lords for having, four years ago, prevented the British
Government from ratifying either the International Prize Court
Convention or this Declaration, which, while misleadingly professing
that its provisions "correspond in substance with the generally
recognised principles of international law," contains, interspersed with
truisms familiar to all concerned with such matters, a good many
undesirable novelties.
This being so, it was surely unfortunate that our Government, with a
view apparently to saving time and trouble, decided, in the early days
of the war, to adopt the Declaration _en bloc_ as a statement of prize
law "during the present hostilities," subject, however, to "certain
additions and modifications"; to which it, of course, retained the power
of making additions. This power has been so freely exercised, and large
portions of the Declaration, not thereby affected, have proved to be so
inapplicable to modern conditions, as disclosed by the war, that the
document, so far from providing reliable guidance, is now a mere source
of hopeless confusion.
To put an end to this confusion, I venture to suggest that, in concert
with our Allies, the Declaration should be finally consigned to
oblivion. Either let its place be taken by some clear and simple
statement of unquestioned prize law, for the use of commanders and
officials (something like a confidential document in the drafting of
which I had a hand some years ago, but, of course, brought up to date),
or let established principles take care of themselves, certain doubtful
points only being dealt with, from time to time, by Orders in Council.
While heartily concurring in Lord Portsmouth's description of the
unratified "Declaration" as "rubbish," I regret that he seems to
relegate to the same category even those generally ratified "Hague
Conventions" which, as far as they go, mark a real advance upon
previously accepted rules. Still less acceptable is his advice to "sweep
away juridical niceties" in the conduct of hostilities. Did he intend
thus to describe the whole fabric of the rules by which international
law has endeavoured, with considerable success, to restrain barbarity in
warfare?
I must mention that this letter was written before seeing this morning
the letter of Mr. Gibson Bowles, my worthy ally in attacks upon the
Declaration.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 3 (1915).
THE DECLARATION OF LONDON
Sir,--You have allowed me, in a good many letters, to criticise the
Declaration of London, both in its original inception and in its
subsequent applications. Thanks to the House of Lords, the Declaration,
which erroneously professed to "correspond in substance with the
generally recognised principles of International Law," has remained
unratified, and therefore diplomatically of no effect.
Its admirers have, however, too long preserved it, perhaps _sub spe
rati_, in a state of suspended animation, using it by way of, as they
supposed, a convenient handbook of maritime law for the purposes of the
present war, though subject to such variations as might from time to
time be found convenient by the Allies. The mistake thus made soon
became apparent. The elaborate classification of contraband had to be at
once thrown overboard, and most of the remaining provisions of the
Declaration proved to be inapplicable to modern warfare.
In December last I accordingly wrote as follows:--
"To put an end to this confusion, I venture to suggest that,
in concert with our Allies, the Declaration should be finally
consigned to oblivion. Either let its place be taken by some
clear and simple statement of unquestioned prize law, for the
use of commanders and Officials, ... or established
principles take care of themselves, certain doubtful points
only being dealt with from time to time by Orders in
Council."
I need hardly say that to anyone holding the views thus expressed,
yesterday's Order in Council must be most satisfactory; getting rid, as
it does for good and all, of the unfortunate Declaration, leaving the
application of established principles to those acquainted with them and
promulgating authoritative guidance on specific novel questions.
I may perhaps add a word or two on the undesirability of describing as
"Declarations" documents which, being equipped with provisions for
ratification, although they may profess to set out old law, differ in no
respect from other conventions. Also, as to the need for greater caution
on the part of our representatives than has been shown by their
acceptance of various craftily suggested anti-British suggestions, such
as were several embodied in the Declaration in question, and notably
that of the notorious cl. 23 (_h_) of The Hague Convention iv., the
interpretation of which has exercised the ingenuity of the Foreign
Office and, more recently, of the Court of Appeal.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Brighton, July 9 (1916).
On July 7, 1916, an Order in Council was made, revoking all
Orders by which the provisions of the Declaration had been
adopted, or modified, for the duration of the war; stating the
intention of the Allies to exercise their belligerent rights at
sea in strict accordance with the law of nations; but dealing
specifically with certain doubtful points. The Order was
accompanied by a memorandum, drawn up by the British and French
Governments, explaining how their expectation that in the
Declaration they would find "a suitable digest of principles
and compendium of working rules" had not been realised. See
also Lord Robert Cecil in the House of Commons on August 23,
with reference to the Zamora case, [1916] 2 Ch. c. 77.
On misuses of the term "Declaration" _cf. supra_, pp. 90, 91,
92.
GERMANY WRONG AGAIN
Sir,--The new German Note handed on Thursday last to the representatives
of the neutral Powers supports its allegation that the four Allied
Powers "have trampled upon right and torn up the treaties on which it
was based" by the following statement:--
"Already in the first weeks of the war England had renounced
the Declaration of London, the contents of which her own
delegates had recognised as binding in international law."
It is surely notorious that the delegates of a Power, by agreeing to the
draft of a treaty, give to it no international validity, which results
only when the treaty has been ratified by their Government. The
Declaration of London has, most fortunately, never been ratified by the
Government of Great Britain.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, January 13 (1917).
INDEX
Absolute contraband. _See_ Contraband
Abstention, 129
Acquiescence, State duty of, 129, 130, 133, 136
_Actæon_, the, 176, 179
Acts of Parliament, 61, 63
Admiralty Manual of Prize Law, 156, 159, 192
Aerial warfare, 61
Air, opposite views as to rights over, 64, 65
Aircraft in war, 69
_Alabama_, the, 131, 183
_Alexander, Mrs., the cotton of_, 153
Alien enemies, civil disabilities of, 47, 49, 205
_Allanton_, the, 158, 161, 162, 163
_Ancipitis usus_, articles, 148
_Angarie, Droit d'_, 170
_Appam_, the, 146
_Arabia_, the, 152
Arbitration, 1-6, 184
treaties, general, 6, 7
treaties, limited, _ib._
cases fit for, 5
the Hague tribunal of, 5
Armaments, limitation of, 184
Armed civilians, 77
Neutralities, the, 83
Army, duties of, 77
Article 23 (h), 47, 49, 206, 207
restricting application, 146
Aspirations, 99
Assassination, 93
_Asturias_, the, 60
Asylum to belligerent warships, 129, 143
_Atalanta_, the, 160
Aube, Admiral, 116
Authentic interpretation, 107, 196, 199, 201, 205
Baden-Powell, Sir G., 81, 85, 87
Baker, Sir Sherston, 85
Balfour, Mr. A.J., 13, 15, 73, 74, 173
Balloons, projectiles from, 30, 62
Base of operations, neutral duty as to, 129, 134, 144, 145
Baty, Dr. T., 161
Bays, 166, 167
Belligerents, lawful, 73, 75, 76, 77, 78, 79
Beresford, Lord Charles, 118
_Bermuda_, the, 160
Bills criticised, 36-40, 47, 192
Birkenhead, Lord, 135
Bismarck, Prince, 170
Bliss, Sir H., 150
Blockade,
belligerent, 29, 83, 156
fictitious, 57, 59
pacific, 9-14, 17
Bluntschli's reply to Von Moltke, 26
Bombardment, 62
of open coast towns, 30, 62
from the air, 112, 123
Bondholders, foreign, vindication of rights of, 15
Bowles, Mr. Gibson, 54, 87, 89, 90, 92, 141, 173, 177, 178, 198
Brandschatz, 117
Brassard, effect of a, 79
Bright, Sir Charles, 171, 172
British Academy, author's paper at, 174
British Manual of Military Law, 74
Handbooks on War on Land, 75, 76
Brodrick, Mr., 75
_Brown_ v. _United States_, 45
Brusa, Prof., 130
Brussels Conference, the, of 1874, 68, 74, 77, 114, 172
Bullets,
expanding, 22, 94, 96
explosive, 22, 94, 95
in savage warfare, 94
_Bundesrath_, the, 29, 157, 160
Butler, General B.F., 153
Bynkershoek, 45, 71, 165, 166
Cable-cutting, 30, 168-173
Cables, submarine, 168
Campbell-Bannerman, Sir H., 189
Captors, unqualified, 71, 73, 162, 163
Carson, Sir Edward, 127
Cavell, Miss, case of, 79
_Calchas_, the, 151, 152, 153
Cecil, Lord Robert, 8, 207
Channel tunnel, 42
_Chavasse, ex parte_, 137
Civilians armed, position of, 77, 78, 79
Churchill, Mr. Winston, 106
Claims, competitive, 17
Clarke, Sir Edward, 124
Clode, Mr., 112
Closed localities, 50
Clothing, use of enemy, 75
Coal, 176
conditional contraband, 149
for belligerent fleet, 131, 134
Coast fishing vessels, 30
Codification of laws of war, 22, 23
Cohen, Mr. Arthur, 47, 203
Coltman, Mr., 85
Commencement of war, 41
_Commercen_, the, 159
Commissioning on the High Seas, 90
Commissions of enquiry, 4
Compromise, the, between belligerent and neutral rights, 133, 136, 164,
169
Conditional contraband. _See_ Contraband
Conduct of warfare between belligerents, 50
Conflict of Laws, 34, 35
Continuous voyages, 29, 157, 162, 183
"Contraband, a happy little," 153
Contraband of war,
what it is, 130, 134, 159, 175
absolute and conditional, 147, 151, 152, 154, 158
British proposal to abolish doctrine of, 163, 184, 185
coal, how far, 132, 134, 149, 176
cotton, how far, 151, 152, 177
food-stuffs, how far, 176, 185
Japanese rules as to, 149, 155, 156
misuse of the term, 134
no neutral duty to prohibit export of, 113, 140
Russian rules as to, 154, 176
the Declaration of London as to, 164
the two constituents of, 159
Contractual debts, 21
Contributions, 102, 118
Conventions. _See_ Geneva, Hague, &c.
and Legislation, 36
"transitoires," 198
Conversion. _See_ Transformation
Convoy, 31
Cotton, 177
as contraband, 149, 151, 152
Court of International Justice, a permanent, 2, 191
Criticism of Bills, 36-40, 192
Customs Consolidation Act, 1853, 132
Danger zone, a, 59
Dardanelles, closing of, 55, 58, 80, 90, 92
"Declaration," misuse of the term, 90, 92, 206
Declaration, the, of London, 22, 36, 39, 80, 92, 147, 149, 154, 155,
158, 161, 163, 164, 181, 191, 193-207
provisional adoption of, as modified, 154, 204
rejection of, 206, 207
Declaration, the, of Paris, 22, 26, 57, 59, 80, 81, 82, 83, 87, 89, 156,
198
accession to, of Spain and Mexico, 81, 86, 87, 88, 89, 91
Declaration, the, of St. Petersburg, 22, 27, 91, 95, 96, 97
von Moltke upon, 25
Declaration of war, 10, 41, 43
Declarations,
mistaken view as to their not needing ratification, 90, 91
the three, of the Hague in 1899. _See_ Hague
De Horsey, Admiral, 118, 164
De Joinville, Prince, 117
De Martens, Prof., 162, 166, 176, 200
Deposit of delict, 158
Despatches, enemy, 156, 158, 160
Destination, 8, 155, 156
Destruction of neutral prizes, 22, 173-181
Dickenson, Mr. Lowes, 125
_Direct U.S. Cable Co._ v. _Anglo-American Tel. Co._, 166
Disguise, 75, 76
Distinctive marks, 77, 79
_Doelwijk_, the, 161
Drago doctrine, the, 20
_Droit d'angarie_, the, 170
Dum-dum bullet. _See_ Bullets
_Durward_, the, 60
Embargo, 11
Enemy,
who is an ?, 401[E]
disabilities of, 47, 49, 206
goods in neutral bottoms, 83
in occupied territory, 102
merchant vessels at outbreak, 45, 49
property on land, 102
property at sea, 29, 104, 184
resident at outbreak, 44
service, 157, 158, 186
"Englishman's Home, An," the play, 77
Enquiry, international Commissions of, 1, 3, 4, 6
Evans, Sir Samuel, 70
False colours, 30, 43, 76
Fauchille, M., 47, 64, 65
_Felicity_, the, 164, 166, 167, 175, 177, 179
Fiore, Prof., 201
Fishing vessels, 31
Flag of truce, 76
Food-stuffs, 148, 174
how far contraband, 148, 176, 185
Food, Royal Commission on, 148, 174, 177
Foreign Enlistment Acts, the, 131, 134, 138, 139, 141, 143
Foreign Enlistment Bills, new, 39
Foreign soldiers, 45
Forster, Arnold-, Mr., 45
_Fox_, the, 176, 177
_Fram_, the, 137
_Francs-tireurs_, 79
"Freedom of the seas," 51, 97
French Government Manual for Land Warfare, 117
Friendly methods of settlement, 1
Gases, harmful, whether employment of, legitimate, 22, 96, 97
Geffken, Prof., 13
General principles of justice and equity, the, 187, 189, 190, 193
Geneva Convention Bill, 36
Geneva Conventions, the, 22, 34, 67, 98, 100
application of, to maritime warfare, 30, 98
Gentili, A., 170
Germany. _Cf._ Hague Conventions
proclamation by, of a danger zone, 59
wrong as to Declaration of London, 207
Giffen, Sir R., 13
Gladstone, Mr., 134
_Goeben_ and _Breslau_, the, 91
_Golden Rocket_, the, 85
Good offices, 1, 2, 3
Government authority, as a protection, 72
Government Bills and International Conventions, 36-40, 192, 195, 204
Granville, Lord, 82, 85, 131, 170, 177
Greek coast, blockade of, 13
Guerilla warfare, 73
Gundel, General de, 48
Grotius, 45, 148, 155, 166, 168, 169
_Haabet_, the, 160
Hague Conventions, the,
of 1889, 1, 2, 3, 6, 30, 61, 74, 75, 94, 102, 105, 107, 120, 184
of 1907, 1, 6
applicable only between contracting Powers, 69
No. i., 2, 3, 6
No. ii., 21, 22
No. iii., 22, 36, 44
No. iv., 22, 45, 60, 61, 67, 75, 76, 77, 96, 105, 107, 122, 168, 206
No. v., 22, 68, 75, 80, 90, 135, 168
No. vi., 22, 45, 70
No. vii., 22, 162
No. viii., 22, 45, 164
No. ix., 22, 68, 122
No. x., 22, 100, 130
No. xi., 22, 158
No. xii., 22, 36, 190, 194, 195, 197, 204
No. xiii., 22, 129, 143, 146
Hague Declarations, the, 22, 30, 61, 62, 63, 64, 96
Hague _Règlements_, the, as to war on land, 75, 76, 78, 93, 95, 100
Hague Tribunal, the, 5
reference to, not obligatory, 25
Haldane, Mr. R.B., 45
Hall, Mr. W.E., on pacific blockade, 13
Harcourt, Sir W., 74
Hardinge, Sir C., 152
Herbert, Mr. Arnold, 182, 184
Holland, Sir T.E., references to writings of, 8, 9, 20, 23, 35, 44, 47,
50, 52, 66, 75, 97, 113, 122, 164, 168, 180, 192, 196
Honour and vital interests clause, the, 4, 5, 6
Horses, wounded, 98, 100
Horsey, Adml., 118, 164, 166
Hostile assistance, 88, 157, 160, 186
Hübner, 190
_Ikaria_, the, 60
_Imina_, the, 160
Immediate effects of outbreak of war, the, 45
Institut de Droit International, the, 11, 12, 16, 23, 24, 30, 43, 44,
48, 63, 64, 65, 66, 68, 104, 105, 108, 121, 130, 162, 163, 164,
167, 168, 172, 174, 176, 182, 185, 190
its _Manuel des lois de la guerre maritime_, 163
its _Manuel des lois de la guerre sur terre_, 23, 24, 25, 27, 108
Instructions, national,
on laws of war on land, 75, 76
on laws of war at sea:
British, 156, 180
French, 179
Japanese, 148, 149, 150, 155, 156, 157, 173
Russian, 154, 173, 174, 176, 177, 179
United States, 179
_International_, the, 169
International Court of Appeal, an, 184
International Justice, a Permanent Court of, 2
International Law, the nature and authority of, 66, 67, 77, 86, 114,
115, 116, 119, 127, 169, 188
International Prize Court, proposal for an, 23, 181-191
Jackson, Colonel, 66, 68
James, Captain, 114
Jenks, Mr., 106, 108, 110
_Jonge Margaretha_, the, 159
Just cause of war, 83
"Justice and equity, general principles of," 187, 189, 190, 193
Kent, Chancellor, 45
Kleen, Mr., 130, 133
_Knight-Commander_, the, 173, 174
Kohler, Mr., 47
_Kowshing_, the case of the, 41, 43
"Kriegsbrauch," the, 68, 80
Lambermont, Baron, 77
Lammasch, Prof., 125
Lansdowne, Marquess of, 58, 133, 136, 149, 169, 173
Lawful belligerents, 69, 78
League of Nations, the, 1, 2, 7, 9, 191
Lehr, Prof., 102
_Leucade_, the, 176
Lincoln, President, 74
Lieber's Instructions, 74, 75
Localities closed to hostilities, 52
London, Conference of, 181, 190, 191
London, Declaration of, 22, 55, 58, 92, 181, 191, 193, 194, 195, 196-207
Lyons, Lord, 169
MacDonell, Prof., 172
McKenna, Mr., 78
Mahan, Admiral, 97
Mail steamers and bags, 30
_Malacca_, the case of the, 81, 162, 163
Mandates, 8
Manning, Mr., 45
Manual of military law, the British, 107
Manuals of warfare
on land, 105
at sea, 105
Manuel des Lois de la guerre maritime, the, of Institut, 23
Manual des Lois de la guerre sur terre, 23, 24, 174
_Marais, ex parte_, 106
Martens, de, Prof., 126
Martial law, 105-112
Maurice, Colonel, 42
_Mcomini and others_ v. _Governor &c. of Natal_, 107
Means of injuring, 94
Measures short of war, 1-21
Mediation. _See_ Good offices
Menam, blockade of the, 10
Mercantile Marine in war, 81, 84, 87
Merchant ships, visit of, 60
Militia, 77
_Minerva_, the, 91
Mines, 164
Moltke, von, on conduct of war, 24
Monroe doctrine, the, 17, 20
_Moray Firth_, the, 189
Morley, Lord, 58, 74
"Most favoured nation" clause, 17
_Möwe_, the, 70
"Murder," 70, 71, 72, 84
Mutiny Acts, the, 109
National Instructions, 75, 76
Naval bombardments of open coast towns, 30, 112, 123
Naval manoeuvres of 1888, the, 113, 123
Naval war code, a British, 30, 31, 32
Naval warfare, 22
Naval Prize (Consolidation) Bill, the, 36, 191-196, 198
object of, 194,195
rejection of, 196
Naval Prize money, 195
Neutral conduct, the criterion of, 125
Neutral duties, as classified by the author, 129
Neutral hospitality, 143
Neutral States and individuals, their liabilities distinguished, 129-135
Neutral territory, passage through, 90
Neutral trade, the four inconveniences, to, 159
Neutralisation, the term, 53, 54
Neutrality,
correlative to belligerency, 10, 16, 19
British proclamations of, 130, 135-143
Neutrals, methods of warfare affecting, 164-181
Non-combatants, 72, 74
_Novoe Vremya_, the, 176
Occupied territory,
right of the invader in, 80, 100
not yet occupied, 77
Oppenheim, Prof., 47
_Orozembo_, the, 160
"Ottoman Empire, ancient rule of the," 56
Pacific blockade, 10
Palmerston, Lord, 12
Panama Canal, the, 50
_Paquete Habana_, the, 30
Paris. _See_ Declaration of
Paris, Treaty of, 53, 54, 56, 81, 87, 89, 155
"Pas de Code Naval, pas de Cour des Prises," 187
Passage, 64, 90
Peace talk, 125
Peaceful settlement of disputes, the Conventions for,
of 1899, 2, 3, 6
of 1907, 2, 6
are non-obligatory, 173
Perels, Prof., 16
Permanent Court of International Justice, a, 191
_Peterburg_, the, 162
_Peterhoff_, the, 20, 149, 160
Petition of Right, the, 106, 108, 109
Pike, Mr., 98, 100
"Piracy," 70, 71, 84
Poison, 96
Pope's Note, the, 51
Port, enemy ships in, 49
_Porter_ v. _Freudenberg_, 49
Portsmouth, Lord, 205
Pourtugael, den Beer, Prof., 68
Pre-emption, 148
Prevention, State duties of, 129, 131
Prisoners of war, 45, 106, 107
liabilities of, 106
Private International Law, 34
Privateers, 81, 84
restrictions on, 82
commissioned liners are not, 70
Private property at sea, 184
Prize Court,
the Russian, 163
an international Court of Appeal, 23, 170-182
a settled prize law, must precede, 181, 183, 185, 190, 191, 193
a supreme, 181
Prize Law Consolidation Bill, 193, 194, 199
"Probable cause," 83
Proclamations of neutrality, the British, criticised, 135-143
"Professors," 119
Projectiles,
from balloons, 22, 30, 62
for diffusion of gases, 22, 96, 97
"Quasi-enemy," 12
Radiotelegraphic stations, 168
Rae, Mr., 162
Ratification, 203
Receipts, 102
_Règlements_, the Hague. _See_ Hague
Renault, Prof., 172, 187, 190, 196, 198, 199
Report of the force of (_see_ Authentic Interpretation)
Reprisals,
advantages of, 14, 19
how differing from war, 9, 12, 14, 19
opposite views as to, 16
species of, 12, 15, 19
United States, instructions as to, 29
belligerent, 97, 123
Requisitions, 102, 117
Restrictive clause, the, 69, 146
Retaliation, 97
Reward for, dead or alive, 93
_R._ v. _Eyre_, 110
Ridley, Sir E., 77
Roman Law terminology, 102
Roosevelt, Pres., 146
Rosebery, Lord, 158
Ross, Sir R., 78
Russian Prize Law, 162, 174, 176
Salisbury, Lord, 3, 15, 52, 54, 157
_Santissima Trinidad_, the, 137
Savage warfare, 94
_Savannah_, the, 85
Scott, Sir Walter, 77, 91
Scott, Sir William, 91
Search. _See_ Visit and Search
Second Peace Conference Conventions Bill, 37, 38, 39
Seely, Col., 63
Ship, a "mere moveable," 85
Shucking, Prof., 125
Siam, 10
Sinking. _See_ Destruction
Smith (Lord Birkenhead) and Sibley, on International Law in the
Russo-Japanese War, 135
_Spider_, the, 113, 117
Spies, 72
_Springbok_, the, 29
Stephen, Sir Herbert, 124
Stewart, Mr. C., 104
Story, J., 159
Stowell, Lord, 85, 159, 160, 161, 166, 175, 177, 178, 180, 197
Straits, 52, 56
Submarine cables, 168, 169, 171, 188
Submarines, 69
Suez Canal, the, 50, 51, 52, 54
Superfluous injury, 94, 95
Suyematsu, Baron, 149
Swettenham, Sir James, 79
Sydenham, Lord, 104
Takahashi, Prof., 43
Terminology, 33
Territorial waters, 165, 166, 167
Tindal, le Chevalier, 122
Tirpitz, Admiral von, 70
_Tocumaro_, the, 60[D]
Torpedoes, 164
Transformation into ships of war, 162
Treaties,
who are the parties to, 202, 207
effect of war on, 18, 198
Treaty, the Hay-Pauncefote, 50
Twenty-three (h) clause, the, 47, 206
Twenty-four hours rule, the, 127, 144, 145
Ullmann, Prof., 47, 106, 201
Unarmed merchantmen, 72, 73
Undefended towns, 30, 67, 68
Uniform, 75
United States
instructions for war on land, 23, 73, 107
naval war code, 23, 30, 31, 88
Naval War College, 8
ratification of Conventions, 75
views of, compared with British, 29, 31
Unqualified captors, 72, 73
Unratified Conventions, effect of, 40
Usufruct, 101
Vattel, 46, 119
Venezuela, 13, 18
Visit and search, 72, 83, 84, 159, 186
"Violations of law of nations," term misapplied, 140, 142
Voeux, 5, 99, 121, 122, 167, 180, 190
Volunteers, 77
War. _See_ Reprisals
Declaration of, 10, 41
legitimate object of, 25, 95
_sub modo_, 20, 55
written law of, 22
Washington, the Three Rules of, 86
Wellington, Duke of, 117
Westbury, Lord, 137
Westlake, Prof., 18, 41, 65, 183, 199, 202
Wilson, Pres., 72, 97, 127
Wolf, Mr., 58
Wood, Mackinnon, Mr., 196, 197, 200
Wounded and Sick. _See_ Geneva Conventions
horses, 98, 100
_Yangtsze Insurance Association_ v. _Indemnity Mutual Marine Company_,
157
Younge, Mr., 118
_Zamora_, the, 207
Zone, a danger, 59
Printed by SPOTTISWOODE, BALLANTYNE & CO. LTD.
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ALBERICUS GENTILIS, tradotto da Aurelio Saffi. Roma, Loescher, 1884.
THE BRUSSELS CONFERENCE OF 1874, and other diplomatic attempts to
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STUDIES IN INTERNATIONAL LAW. Oxford, Clarendon Press, 1898, 8vo. 10s.
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[Transcriber's Note: The spelling and usage of non-English words and
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[Note A: Printed _s'entiendrait_ in original.]
[Note B: Printed _ressasi_ in original.]
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