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).
* * * * *