_Peace_
UNDESIRABLE PEACE TALK
Sir,--There has been more than enough of premature discussion by groups
of well-meaning amateurs, not unfrequently wirepulled by influences
hostile to this country, with reference to the terms of the treaty of
peace by which the world-war now raging will be brought to a close.
Movements of the kind have culminated in the action of a body rejoicing
in the somewhat cumbrous title of the "International Central
Organisation for a Durable Peace," which is inviting members of about
fifty societies, of very varying degrees of competence, to a
cosmopolitan meeting, to be held at Berne in December next. Lest the
unwary should be beguiled into having anything to do with the plausible
offer made to them that they should, there and then, assist in compiling
"a scientific dossier, containing material that will be of vast
importance to the diplomats who may be chosen to participate in the
peace congress itself," it may be worth while to call attention to the
composition of the executive committee by which the invitations are
issued, and to its "minimum programme."
Of the members of this committee (of thirteen), on which Great Britain
is represented only by Mr. Lowes Dickenson (mistakenly described as a
Cambridge Professor), and America only by Mrs. Andrews, of Boston, the
best known are Professors Lammasch, of Vienna, and Schücking, of
Marburg. The "minimum programme" demands, _inter alia_, "equal rights
for all nations in the colonies, &c.," of the Powers; submission of all
disputes to "pacific procedure," joint action by the Powers against any
one of them resorting to military measures, rather than to such
procedure; and that "the right of prize shall be abolished, and the
freedom of the seas shall be guaranteed." The _provenance_ of this
"minimum programme" is sufficiently obvious. What is likely to be the
character of such a "maximum programme" as will doubtless be aimed at by
the proposed gathering?
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, October 16 (1915).
CHAPTER VII
THE RIGHTS AND DUTIES OF NEUTRALS
SECTION 1
_The Criterion of Neutral Conduct_
The main object of the first of the following letters was to
assert, as against any possible misunderstanding of phraseology
attributed to a great international lawyer (since lost to
science and to his friends by his sudden death on June 20,
1909), the authority by which alone neutral rights and duties
are defined.
The letter also touches upon the limit of time which a neutral
Power is bound to place upon the stay in its ports of
belligerent ships of war; a topic more fully discussed in
Section 4.
PROFESSOR DE MARTENS ON THE SITUATION
Sir,--The name of my distinguished friend, M. de Martens, carries so
much weight that I hope you will allow me at once to say that I am
convinced that to-day's telegraphic report of some communication made by
him to the St. Petersburg newspapers fails to convey an accurate account
of the views which he has thus expressed.
On matters of fact it would appear that he is no better informed than
are most of us in this country; and under matters of fact may be
included the breaches of neutrality which he is represented as
counter-charging against the Japanese. It is exclusively with the views
on questions of law which are attributed to Professor de Martens that I
am now concerned. He is unquestionably right in saying, as I pointed out
in a recent letter, that the hard-and-fast rule, fixing 24 hours as the
limit, under ordinary circumstances, of the stay of a belligerent
warship in neutral waters, is not yet universally accepted as a rule of
international law; and, in particular, is not adopted by France.
But what of the further _dictum_ attributed to Professor de Martens, to
the effect that "each country is its own judge as regards the discharge
of its duties as a neutral"? This statement would be a superfluous
truism if it meant merely that each country, when neutral, must, in the
first instance, decide for itself what courses of action are demanded
from it under the circumstances. The words may, however, be read as
meaning that the decision of the neutral country, as to the propriety of
its conduct, is final, and not to be questioned by other Powers. An
assertion to this effect would obviously be the negation of the whole
system of international law, of which Professor de Martens is so great a
master, resting, as that system does, not on individual caprice, but
upon the agreement of nations in restraint of the caprice of any one of
them. The last word, with reference to the propriety of the conduct of
any given State, rests, of course, not with that State; but with its
neighbours. "Securus indicat orbis terrarum." Any Power which fails in
the discharge, to the best of its ability, of a generally recognised
duty, is likely to find that self-satisfaction is no safeguard against
unpleasant consequences. Professor de Martens would, I am certain,
endorse this statement.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 12 (1905).
NEUTRALS AND THE LAWS OF WAR
Sir,--The interesting address by Sir Edward Carson reported in your
issue of yesterday will remind many of us of our regret that President
Wilson, in Notes complaining of injuries sustained by American citizens,
dwelt so slightly upon the violations of international law by which
those injuries were brought about.
Sir Edward seems, however, to have made use of certain expressions which
might be taken to imply a view of neutral responsibility which can
hardly be accepted. The United States were warned in the address that
they will not "by a mere Note maintain the obligations which are put
upon them, as parties to international law, which are to prevent
breaches of civilisation and to mitigate the horrors of war." Neutrals
were spoken of as "the executives of international law," and as alone
standing "behind the conventions" (for humanising warfare). "Abolish,"
we were told, "the power of neutrals, and you have abolished
international law itself."
Is this so? The contract into which a State enters with other States, by
adopting the customary laws of war and by ratifying express Conventions
dealing with the same subject, obliges it, while remaining neutral, to
submit to certain inconveniences resulting from the war, and, when
belligerent, to abstain from certain modes of carrying on hostilities.
It is assuredly no term of the contract that the State in question shall
sit in judgment upon its co-contractors and forcibly intervene in _rebus
inter alios actis_. Its hands are absolutely free. It may remain a
quiescent spectator of evil, or, if strong enough and indignant with the
wrongdoing, may endeavour to abate the mischief by remonstrance, and, in
the last resort, by taking sides against the offender. Let us hope that
at the present crisis the United States may see their way to choosing
the better part.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 28 (1915).
* * * * *
SECTION 2
_The Duties of Neutral States, and the Liabilities of Neutral
Individuals, distinguished_
The duties of neutral States have been classified by the
present writer under the heads, of "Abstention," "Prevention,"
and "Acquiescence." (_Transactions of the British Academy_,
vol. ii, p. 55; reproduced in the _Revue de Droit
International_, the _Revista de Derecho International_, and the
_Marine Rundschau_.) In the three letters which follow, an
attempt is made to point out the confusion which has resulted
from failure to distinguish between the two last-mentioned
heads of neutral duty; on the one hand, namely, the cases in
which a neutral government is bound itself to come forward and
take steps to prevent certain classes of action on the part of
belligerents, or of its own subjects, e.g. the overstay in its
ports of belligerent fleets, or the export from its shores of
ships of war for belligerent use; and, on the other hand, the
cases in which the neutral government is bound only to
passively acquiesce in interference by belligerents with the
commerce of such of its subjects as may choose, at their own
risk and peril, to engage in carriage of contraband, breach of
blockade, and the like.
I. A neutral State is bound to prevent its territory from
becoming, in any way, a "base of operations" for either
belligerent. Of the various obligations thus arising, the
following letters deal with the duty of the State (1) to
prevent the departure from its ports of vessels carrying coal
intended to supply directly the needs of a belligerent fleet;
and (2) to prevent the reception accorded in its ports to
belligerent warships from being such as will unduly facilitate
their subsequent operations. It is pointed out that the rule
adopted by the United States and this country, as well as by
some others, when neutral, by which the stay of belligerent
warships is limited to twenty-four hours, has not been adopted
by the nations of the European continent. The attempt made at
The Hague Conference of 1907 to secure the general acceptance
of this rule was unsuccessful; and Convention No. xiii. of that
year, not yet ratified by Great Britain, which deals with this
subject, merely lays down, in Art. 12, that "_In the absence of
special provisions to the contrary in the legislation of a
neutral Power_, belligerent warships are not permitted to
remain in the ports, roadsteads, or territorial waters of the
said Power for more than twenty-four hours, except in the cases
covered by this Convention." Art. 27 obliges the contracting
Powers to "communicate to each other in due course all laws,
proclamations, and other enactments, regulating in their
respective countries the _Status_ of belligerent warships in
their ports laid waters."
II. A neutral State is not bound to prevent such assistance
being rendered by its subjects to either belligerent as is
involved in, e.g. blockade-running or carriage of contraband;
but merely to acquiesce in the loss and inconvenience which may
in consequence be inflicted by the belligerents upon persons so
acting. In order to explain this statement, it became necessary
to say much as to the true character of "carriage of
contraband" (although this topic is more specifically dealt
with in the letters contained in Section 5), and to point out
that such carriage is neither a breach of international law nor
forbidden by the law of England. For the same reason, it seemed
desirable to criticise some of the clauses now usually inserted
in British Proclamations of Neutrality.
The view here maintained commended itself to the Institut de
Droit International, at its Cambridge and Venice sessions,
1895, 1896, as against the efforts of MM Kleen and Brusa to
impose on States a duty of preventing carriage of contraband by
its subjects (_Annuaire_, t. xiv. p. 191, t. xv. p. 205). It
has now received formal expression in The Hague Convention No.
x. of 1907, Art. 7 of which lays down that "a neutral Power is
_not_ bound to prevent the export or transit, for the use of
either belligerent, of arms, ammunition, or, in general, of
anything which could be of use to an army or fleet."
CONTRABAND OF WAR
Sir,--As a good deal of discussion is evidently about to take place as
to the articles which may be properly treated as contraband of war, and,
in particular, as to coal being properly so treated, I venture to think
that it may be desirable to reduce this topic (a sufficiently large one)
to its true dimensions by distinguishing it from other topics with which
it is too liable to be confused.
Articles are "contraband of war" which a belligerent is justified in
intercepting while in course of carriage to his enemy, although such
carriage is being effected by a neutral vessel. Whether any given
article should be treated as contraband is, in the first instance,
entirely a question for the belligerent Government and its Prize Court.
A neutral Government has no right to complain, of hardships which may
thus be incurred by vessels sailing under its flag, but is bound to
acquiesce in the views maintained by the belligerent Government and its
Courts, unless these views involve, in the language employed by Lord
Granville in 1861, "a flagrant violation of international law." This is
the beginning and end of the doctrine of contraband. A neutral
Government has none other than this passive duty of acquiescence. Its
neutrality would not be compromised by the shipment from its shores, and
the carriage by its merchantmen, of any quantity of cannon, rifles, and
gunpowder.
Widely different from the above are the following three topics, into the
consideration of which discussions upon contraband occasionally
diverge:--
1. The international duty of the neutral Government not to allow its
territory to become a base of belligerent operations: e.g. by the
organisation on its shores of an expedition, such as that which in 1828
sailed from Plymouth in the interest of Dona Maria; by the despatch from
its harbours for belligerent use of anything so closely resembling an
expedition as a fully equipped ship of war (as was argued in the case of
the _Alabama_); by the use of its ports by belligerent ships of war for
the reception of munitions of war, or, except under strict limitations,
for the renewal of their stock of coal; or by such an employment of its
colliers as was alleged during the Franco-Prussian war to have
implicated British merchantmen in the hostile operations of the French
fleet in the North Sea. The use of the term "contraband" with reference
to the failure of a neutral State to prevent occurrences of this kind is
purely misleading.
2. The powers conferred upon a Government by legislation of restraining
its subjects from intermeddling in a war in which the Government takes
no part. Of such legislation our Foreign Enlistment Act is a striking
example. The large powers conferred by it have no commensurable relation
to the duties which attach to the position of neutrality. Its effect is
to enable the Government to prohibit and punish, from abundant caution,
many acts on the part of its subjects for which it would incur no
international liability. It does empower the Government to prevent the
use of its territory as a base: e.g. by aid directly rendered thence
to a belligerent fleet; but it, of course, gives no right of
interference with the export or carriage of articles which may be
treated as contraband.
3. The powers conferred upon a Government by such legislation as section
150 of the Customs Consolidation Act; 1853, now reproduced in a later
enactment, of forbidding at any time, by Order in Council, the export of
articles useful in war. The power thus given has no relation to
international duty, and is mainly intended to be exercised, in the way
of self-protection, when Great Britain is, or is likely to be, engaged
in war. The object of the enactment is to enable the Government to
retain in the country articles of which we may ourselves be in need, or
to prevent them from reaching the hands of our enemies. The articles
enumerated--e.g. arms, ammunition, marine engines, &c.--are, neither
in the Act of 1853 nor in the Order in Council of the following year,
described as "contraband of war."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 5 (1904).
COAL FOR THE RUSSIAN FLEET
Sir,--The use of coal for belligerent purposes is, of course, of
comparatively modern date, and it is hardly surprising to find that the
mercantile community, as would appear from your marine insurance article
of this morning, does not clearly distinguish between the different
classes of questions to which such use may give rise. There is indeed a
widely prevalent confusion, even in quarters which ought to be better
informed, between two topics which it is essential to keep
separate--viz. the shipment of contraband, and the use of neutral
territory as a base for belligerent operations.
A neutral Government (our own at the present moment) occupies a very
different position with reference to these two classes of acts. With
reference to the former, its international duty (as also its national
policy) is merely one of acquiescence. It is bound to stand aside, and
make no claim to protect from the recognised consequences of their acts
such of its subjects as are engaged in carriage of contraband. So far as
the neutral Government is concerned, its subjects may carry even cannon
and gunpowder to a belligerent port, while the belligerent, on the other
hand, who is injured by the trade may take all necessary stops to
suppress it.
Such is the compromise which long experience has shown to be both
reasonable and expedient between the, in themselves irreconcilable,
claims of neutral and belligerent States. So far, it has remained
unshaken by the arguments of theorists, such as the Swedish diplomatist
M. Kleen, who would impose upon neutral Governments the duty of
preventing the export of contraband by their subjects. A British trader
may, therefore, at his own proper risk, despatch as many thousand tons
of coal as he chooses, just as he may despatch any quantity of rifles or
bayonets, to Vladivostok or to Nagasaki.
It by no means follows that British shipowners may charter their vessels
"for such purposes as following the Russian fleet with coal supplies."
Lord Lansdowne's recent letter to Messrs. Woods, Tylor, and Brown is
explicit to the effect that such conduct is "not permissible." Lord
Lansdowne naturally confined himself to answering the question which had
been addressed by those gentlemen to the Foreign Office; but the reason
for his answer is not far to seek. The unlawfulness of chartering
British vessels for the purpose above mentioned is wholly unconnected
with the doctrine of contraband, but is a consequence of the
international duty, which if incumbent on every neutral State, of seeing
that its territory is not made a base of belligerent operations. The
question was thoroughly threshed out as long ago as 1870, when Mr.
Gladstone said in the House Of Commons that the Government had adopted
the opinion of the law officers:
"That if colliers are chartered for the purpose of attending
the fleet of a belligerent and supplying it with coal, to
enable it to pursue its hostile operations, such colliers
would, to all practical purposes, become store-ships to the
fleet, and would be liable, if within reach, to the operation
of the English law under the (old) Foreign Enlistment Act."
British colliers attendant on a Russian fleet would be so undeniably
aiding and abetting the operations of that fleet as to give just cause
of complaint against us to the Government of Japan. The British shipper
of coal to a belligerent fleet at sea, besides thus laying his
Government open to a charge of neglect of an international duty, lays
himself open to criminal proceedings under the Foreign Enlistment Act of
1870. By section 8 (3) and (4) of that Act "any person within H.M.
Dominions" who (subject to certain exceptions) equips or despatches any
ship, with intent, or knowledge, that the same will be employed in the
military or naval service of a foreign State, at war with any friendly
State, is liable to fine or imprisonment, and to the forfeiture of the
ship. By section 30, "naval service" covers "user as a store-ship," and
"equipping" covers furnishing a ship with "stores or any other thing
which is used in or about a ship for the purpose of adapting her for
naval service." Our Government has, therefore, ample powers for
restraining, in this respect, the use of its territory as a base. It has
no power, had it the wish (except for its own protection, under a
different statute), to restrain the export of contraband of war.
It would tend to clearness of thought if the term "contraband" were
never employed in discussions with reference to prohibition of the
supply of coal to a belligerent fleet at sea.
Your obedient servant,
T. E. HOLLAND.
Oxford, November 7 (1904).
GERMAN WAR MATERIAL FOR TURKEY
Sir,--The _Cologne Gazette_ rightly treats as incredible the rumour,
mentioned by your Sofia Correspondent, that a trainload of munitions of
war had been despatched by the German Government for the use of Turkey,
while admitting that such a consignment may very likely have been
forwarded from private German workshops.
It has long been settled international law that a neutral Government,
while, on the one hand, it is precluded from itself supplying munitions
to a belligerent, is, on the other hand, not bound to prevent private
individuals from so acting. The latter half of this rule has now
received written expression in Art. 7 of The Hague Convention No. v. of
1907, which deals with "Neutral Powers and Persons in War on Land."
The only fault to be found with the paragraph in the _Cologne Gazette_
quoted by your Berlin Correspondent, supposing it to be correctly
transcribed, would be that it seems to imply that the above-mentioned
Art. 7 legitimatises the supply of war material to belligerents by
"neutral States." It is, however, obvious from the rest of the paragraph
that the _Gazette_ is not really under that impression.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 24 (1911).
* * * * *
SECTION 3
_Neutrality Proclamations_
The criticisms directed against the Proclamation of 1904, in
the first two letters which follow, have produced some
improvement in Proclamations of later date. See the last two
letters of this section. See also Appendix A in F.E. Smith and
N.W. Sibley's _International Law in the Russo-Chinese War_
(1905), devoted to a consideration of those criticisms.
THE BRITISH PROCLAMATION OF NEUTRALITY
Sir,--You were good enough to insert in your issue of November 9 some
observations which I had addressed to you upon the essential difference
between carriage of contraband, which takes place at the risk of the
neutral shipowner, and use of neutral territory as a base for
belligerent operations, an act which may implicate the neutral Power
internationally, while also rendering the shipper liable to penal
proceedings on the part of his own Government. I am gratified, to find
that the views thus expressed by me are in exact accordance with those
set forth by Lord Lansdowne in his reply of November 25 to the Chamber
of Shipping of the United Kingdom. Perhaps you will allow me to say
something further upon the same subject, suggested by several letters
which appear in your paper of this morning. I am especially desirous of
emphasising the proposition that carriage of contraband is no offence,
either against international law or against the law of England.
1. The rule of international law upon the subject may, I think, be
expressed as follows: "A belligerent is entitled to capture a neutral
ship engaged in carrying contraband of war to his enemy, to confiscate
the contraband cargo, and, in some cases, to confiscate the ship also,
without thereby giving to, the Power to whose subjects the property in
question belongs any ground for complaint." Or, to vary the phrase, "a
neutral Power is bound to acquiesce in losses inflicted by a belligerent
upon such of its subjects as are engaged in adding to the military
resources of the enemy of that belligerent." This is the rule to which
the nations have consented, as a compromise between the right of the
neutral State that its subjects should carry on their trade without
interruption, and the right of the belligerent State to prevent that
trade from bringing an accession of strength to his enemy. International
law here, as always, deals with relations between States, and has
nothing to do with the contraband trader, except in so far as it
deprives him of the protection of his Government. If authority were
needed for what is here advanced, it might be found in Mr. Justice
Story's judgment in the _Santissima Trinidad_, in President Pierce's
message of 1854, and in the statement by the French Government in 1898,
with reference to the case of the _Fram_, that "the neutral State is not
required to prevent the sending of arms and ammunition by its subjects."
2. Neither is carriage of contraband any offence against the law of
England; as may be learnt, by any one who is in doubt as to the
statement, from the lucid language of Lord Westbury in _Ex parte
Chavasse_ (34 L.J., Bkry., 17). And this brings me to the gist of this
letter. I have long thought that the form of the Proclamation of
Neutrality now in use in this country much needs reconsideration and
redrafting. The clauses of the Proclamation which are set out by Mr.
Gibson Bowles in your issue of this morning rightly announce that every
person engaging in breach of blockade or carriage of contraband "will be
justly liable to hostile capture and to the penalties denounced by the
law of nations in that behalf, and will in no wise obtain protection
from us against such capture or such penalties." So far, so good. But
the Proclamation also speaks of such acts as those just mentioned as
being done "in contempt of this our Royal Proclamation, in derogation of
their duty as subjects of a neutral Power in a war between other Powers,
or in violation or contravention of the law of nations in that behalf."
It proceeds to say that all persons "who may misconduct themselves in
the premises ... will incur our high displeasure for such misconduct." I
venture to submit that all these last-quoted phrases are of the nature
of misleading rhetoric, and should be eliminated from a statement the
effective purport of which is to warn British subjects of the treatment
to which certain courses of conduct will expose them at the hands of
belligerents, and to inform them that the British Government will not
protect them against such treatment. The reason why our Government will
abstain from interference is, not that such courses of action are
offences either against international or English law, but that it has no
right to so interfere; having become a party to a rule of international
law, under which a neutral Government waives the right, which it would
otherwise possess, to protect the trade of its subjects from
molestation.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 28 (1904).
THE BRITISH PROCLAMATION OF NEUTRALITY
Sir,--Enquiries which have reached me with reference to the observations
which I recently addressed to you upon the British Proclamation of
Neutrality induce me to think that some account of the development of
the text of the proclamation now in use may be of interest to your
readers. The proclamations with which I am acquainted conform to one or
other of two main types, each of which has its history.
1. The earlier proclamations merely call attention to the English law
against enlistments, &c., for foreign service; and command obedience to
the law, upon pain of the penalties thereby inflicted, "and of his
Majesty's high displeasure." In the proclamation of 1817, the tacit
reference is doubtless to certain Acts of George II, which, having been
passed for a very different purpose, and having proved inadequate in
their new application, were repealed by the Foreign Enlistment Act of
1819. This is the Act to which reference is made in the proclamations of
1823 and 1825; in the former of which we first get a recital of
neutrality; while in the latter the clause enjoining all subjects
strictly to observe the duties of neutrality and to respect the exercise
of belligerent rights first makes its appearance.
2. The proclamation of 1859 is of a very different character, bearing
traces of the influence of the ideas which had inspired the action of
President Washington in 1793. While carrying on the old, it presents
several new features. British subjects are enjoined to abstain from
violating, not only "the laws and statutes of the realm," but also (for
the first time) "the law of nations." They are also (for the first time)
warned that, if any of them "shall presume, in contempt of this our
Royal Proclamation, and of our high displeasure, to do any acts in
derogation of their duty as subjects of a neutral Sovereign, ... or in
violation of the law of nations, ... as, more especially," by breach of
blockade, or carriage of contraband, &c., they will "rightfully incur,
and be justly liable to, hostile capture, and to the penalties denounced
by the law of nations in that behalf"; and notice is (for the first
time) given that those "who may misconduct themselves in the premises
will do so at their peril, and of their own wrong; and that they will in
no wise obtain any protection from Us against such capture, or such
penalties as aforesaid, but will, on the contrary, incur Our high
displeasure by such misconduct."
The proclamations of 1861 and February and March 1866 complicate
matters, by making the warning clause as to blockade and contraband
apply also to the statutory offences of enlistment, &c.; but the
proclamation of June, 1866, gets rid of this complication by returning
to the formula of 1859, which has been also followed in 1870, 1877,
1898, and in the present year.
The formula as it now stands, after the process of growth already
described, may be said to consist of seven parts--viz. (1) a recital
of neutrality; (2) a command to subjects to observe a strict neutrality,
and to abstain from contravention of the laws of the realm or the law of
nations in relation thereto; (3) a recital of the Foreign Enlistment Act
of 1870; (4) a command that the statute be obeyed, upon pain of the
penalties thereby imposed, "and of Our high displeasure"; (5) a warning
to observe the duties of neutrality, and to respect the exercise of
belligerent rights; (6) a further warning to those who, in contempt of
the proclamation "and of Our high displeasure," may do any acts "in
derogation of neutral duty, or in violation of the law of nations,"
especially by breach of blockade, carriage of contraband, &c., that they
will be liable to capture "and to the penalties denounced by the law of
nations"; (7) a notification that persons so misconducting themselves
"will in no wise obtain any protection from Us," but will, "on the
contrary, incur Our high displeasure by such misconduct."
The question which I have ventured to raise is whether the _textus
receptus_, built up, as it has been, by successive accretions, is
sufficiently in accordance with the facts to which it purports to call
the attention of British subjects to be properly submitted to His
Majesty for signature. I would suggest for consideration: 1. Whether the
phrases commanding obedience, on pain of His Majesty's "high
displeasure," and the term "misconduct," should not be used only with
reference to offences recognised as such by the law of England. 2.
Whether such condensed, and therefore incorrect, though very commonly
employed, expressions as imply that breach of blockade and carriage of
contraband are "in violation of the law of nations," and are liable to
"the penalties denounced by the law of nations," should not be replaced
by expressions more scientifically correct. The law of nations neither
prohibits the acts in question nor prescribes penalties to be incurred
by the doers of them. What it really does is to define the measures to
which a belligerent may resort for the suppression of such acts, without
laying himself open to remonstrance from the neutral Government to which
the traders implicated owe allegiance.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 5 (1904).
THE BRITISH PROCLAMATION OF NEUTRALITY
Sir,--I am glad that Mr. Gibson Bowles has called attention to certain
respects in which the Proclamation of Neutrality issued by our
Government on the 3rd of the present month differs from that issued on
February 11, 1904.
In two letters addressed to you with reference to the Proclamation of
that year, I ventured to point out what appeared to me to be its
defects, alike from a scientific and from a practical point of view. The
present Proclamation has slightly minimised these defects, but, as a
whole, remains open to the objections which I then raised. I have no
wish to repeat in detail the contents of my letters of 1904, especially
as they may be now found in my _Letters upon War and Neutrality_,
published in 1909, pp. 95 and 98, but am unwilling not to take this
opportunity once more to urge the desirability of redrafting the
document in question.
The Proclamation just issued still answers to my description of that of
1904, as consisting of seven parts--viz.: (1) A recital of neutrality;
(2) a command to subjects to observe a strict neutrality, and to abstain
from contravention of the laws of the realm or the Law of Nations in
relation thereto; (3) a recital of the Foreign Enlistment Act, 1870; (4)
a command that the statute be obeyed, upon pain of the penalties thereby
imposed, and of "Our high displeasure"; (5) a warning to observe the
duties of neutrality and to respect the exercise of belligerent rights;
(6) a further warning that any persons presuming, in contempt of the
Proclamation, to do acts in derogation of their duty as subjects of a
neutral Power, or of the Law of Nations, will incur the penalties
denounced by such law; (7) a notice that persons so misconducting
themselves will obtain no protection from their Sovereign.
With the phraseology of No. 1, reciting British neutrality, and Nos.
2-5, dealing with the duties of British subjects under the Foreign
Enlistment Act of 1870, and constituting the bulk of the Proclamation,
little serious fault can be found. It is well that such persons should
be warned of the penalties which they may incur, including the Royal
displeasure.
The remaining two clauses relate, however, to matters of a totally
different character from those previously mentioned, and care should
therefore have been taken, but has not been taken, to make this
perfectly clear. I would further remark upon these clauses: (1) That I
agree with Mr. Bowles in regretting the omission here of the specific
mention made in 1904 of "breach of blockade," "carriage of contraband,"
&c., as specimens of the acts undoubtedly contemplated in these two
clauses; (2) that it is a mistake to describe acts of this kind as being
in derogation of "the duty of subjects of a neutral Power," or "in
violation of the Law of Nations," or as "liable to the penalties
denounced by such law." Carriage of contraband, and acts of the same
class, are notoriously not condemned by English law, neither are they,
in any proper sense, breaches of the Law of Nations, which, speaking
scientifically, never deals with individuals, as such, but only with the
rights and duties of States _inter se_. What the Law of Nations really
does is, as I said in 1904, "to define the measures to which a
belligerent may resort for the suppression of such acts, without laying
himself open to remonstrance from the neutral Government to which the
traders implicated owe allegiance"; (3) that on the other hand, I am
glad to find that, in accordance with my suggestion, while it continues
very properly to be stated that persons doing the acts under discussion
"will in no wise obtain any protection from Us against such capture,
&c.," the further statement that such persons "will, on the contrary,
incur Our high displeasure by such misconduct," has now been with equal
propriety omitted.
I am, Sir, your obedient servant,
T. E. HOLLAND.
The Athenæum, October 9 (1911).
THE PROCLAMATION OF NEUTRALITY
Sir,--May I be allowed to point out that two questions arise upon the
recent British Proclamation of Neutrality which were not, as they should
have been, in the House of Commons last night, kept entirely distinct?
The Government has surely done right in now omitting, as I suggested in
1904, with reference to certain classes of acts which are prohibited
neither by English nor by International Law, a phrase announcing that
the doers of them would incur the King's "high displeasure"; while
retaining the warning that doers of such acts must be prepared for
consequences from which their own Government will not attempt to shield
them.
On the other hand, our Government has surely erred in not specifying, as
in previous Proclamations, the sort of acts to which this warning
relates--viz., to acts such as carriage of contraband, enemy service,
and breach of blockade, which differ wholly in character from those
violations of the Foreign Enlistment Act against which the bulk of the
Proclamation is directed. As the Proclamation now stands, no clear
transition is marked between breaches of English law and the unspecified
acts which, though perfectly legal, will forfeit for the doers of them
any claim to British protection from the consequences involved. Traders
are left to find out as best they may the meaning of the general words
"any acts in derogation of their duty as subjects of a neutral Power."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, October 31 (1911).
* * * * *
SECTION 4
_Neutral Hospitality_
The Hague Convention of 1907, No. xiii., not yet ratified by
Great Britain, suggests in Art. 12, with reference to the
question here raised, that "à défaut d'autres dispositions
spéciales de la législation de la Puissance neutre, il est
interdit aux navires de guerre des belligérants de demeurer
dans les ports et rades ou dans les eaux territoriales de la
dite Puissance pendant plus de 24 heures sauf dans les cas
prévues par la présente Convention."
BELLIGERENT FLEETS IN NEUTRAL WATERS
Sir,--A novel question as to belligerent responsibilities would be
suggested for solution if, as seems to be reported in Paris, Admiral
Rozhdestvensky over-stayed his welcome in the waters of Madagascar,
although ordered to leave them by his own Government in compliance with
"pressing representations" on the part of the Government of France.
A much larger question is, however, involved in the discussion which has
arisen as to the alleged neglect by France to prevent the use of her
Cochin-Chinese waters by the Russians as a base of operations against
Japan. We are as yet in the dark as to what is actually occurring in
those waters, and are, perhaps, for that very reason in a better
position for endeavouring to ascertain what are the obligations imposed
on a neutral in such a case by international law.
It is admitted on all hands that a neutral Power is bound not to permit
the "asylum" which she may grant to ships of war to be so abused as to
render her waters a "base of operations" for the belligerent to which
those ships belong. Beyond this, international law speaks at present
with an uncertain voice, leaving to each Power to resort to such
measures in detail as may be necessary to ensure the due performance of
a duty which, as expressed in general terms, is universally recognised.
The rule enforced since 1862 by Great Britain for this purpose limits
the stay of a belligerent warship, under ordinary circumstances, to a
period of twenty-four hours; and the same provision will be found in the
neutrality proclamations issued last year by, e.g. the United States,
Egypt, China, Denmark, Sweden and Norway. So by Japan and Russia in
1898. This rule, convenient and reasonable as it is, is not yet a rule
of international law; as Lord Percy has had occasion to point out, in
replying to a question addressed to him in the House of Commons. The
proclamations of most of the Continental Powers do not commit their
respective Governments to any period of time, and the material clauses
of the French circular, to which most attention will be directed at the
present time, merely provide as follows:--
"(1) En aucun cas, un belligérant ne peut faire usage d'un
port Français, ou appartenant à un État protégé, dans un but
de guerre, &c. (2) La durée du séjour dans nos ports de
belligérants, non accompagnés d'une prise, n'a été limitée
par aucune disposition spéciale; mais pour être autorisés à y
séjourner, ils sont tenus de se conformer aux conditions
ordinaires de la neutralité, qui peuvent se résumer ainsi
qu'il suit:--(_a_) ... (_b_) Les dits navires ne peuvent, _à
l'aide de ressources puisées à terre_, augmenter leur
matériel de guerre, renforcer leurs équipages, ni faire des
enrôlements volontaires, même parmi leurs nationaux. (_c_)
Ils doivent s'abstenir de toute enquête sur les forces,
l'emplacement ou les ressources de leurs ennemis, ne pas
appareiller brusquement pour poursuivre ceux qui leur
seraient signalés; en un mot, s'abstenir de faire du lieu de
leur résidence la base d'une opération quelconque contre
l'ennemi. (3) Il ne peut être fourni à un belligérant que les
vivres, denrées, et moyens de réparations nécessaires à la
subsistence de son équipage ou à la sécurité de sa
navigation."
Under the twenty-four hours rule, the duty of the neutral Government is
clear. Under the French rules, all must evidently turn upon the wisdom
and _bonne volonté_ of the officials on the spot, and of the home
Government, so far as it is in touch with them. We have no reason to
suppose that the qualities in question will not characterise the conduct
of the French at the present moment. There can, however, be no doubt
that a better definition of the mode in which a neutral Power should
prevent abusive use of the asylum afforded by its ports and waters is
urgently required. The point is one which must prominently engage the
attention of the special conference upon the rights and duties of
neutrals, for which a wish was expressed by The Hague Conference of
1899, and, more recently, by President Roosevelt.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, April 20 (1905).
THE APPAM
Sir,--It is satisfactory to learn that the United States Neutrality
Board has decided adversely to the contention that the _Appam_ is a
German ship of war. Her treatment as a prize would then, _prima facie_,
seem to be governed by Art. 21 of The Hague Convention, No. xiii., which
provides for her being released, together with her officers and crew,
while the prize crew is to be interned. This Convention has been duly
ratified both by Germany and by the United States. Its non-ratification
by Great Britain is, I conceive, irrelevant.
But Germany contends that the situation is governed by Art. 19, the text
of which has been several times set out in your columns, of the old
Convention of 1799. This may startle those who are acquainted with what
occurred at The Hague in 1907, and I have seen no reference to what must
be the gist of the German argument on the point. They no doubt argue
that the old Convention remains unrepealed by No. xiii. of The Hague,
because the latter Convention is of no effect, in pursuance of its
common form Art. 28, to the effect that:--"The provisions of the present
Convention do not apply except between contracting Powers, and then only
if all the belligerents are parties to the Convention" (which is by no
means the case).
Your obedient servant,
T. E. HOLLAND.
Oxford, February 4 (1916).
Certain reservations on ratification do not affect Arts. 21 or
22.
The State Department ruled that the case did not fall within
the protecting clauses of the Treaty of 1799, which granted
asylum only to ships of war accompanying prizes, whereas the
_Appam_ was herself a prize. Proceedings by the owners in the
local Federal Court for possession of the ship resulted in a
decision in their favour, against which the Germans are
appealing in the Supreme Court. They do not seem to have raised
the objection, mentioned in the letter, as to the applicability
of Convention viii.
* * * * *
SECTION 5
_Carriage of Contraband. (Absolute and Conditional Contraband:
Continuous Voyages: Unqualified Captors: The Declaration of London)_
The letters included in the preceding sections 2 and 3 touched
incidentally upon carriage of contraband, in relation to other
departments of the law affecting neutrals. The eight letters
which follow, suggested respectively by the Spanish-American,
the Boer, and the Russo-Japanese wars, deal exclusively with
this topic, which seems likely to be henceforth governed no
longer only by customary and judge-made law, but largely also
by written rules, such as those suggested by the unratified
Declaration of London of 1909.
(_Absolute and Conditional Contraband_)
The divergence which has so long existed between Anglo-American
and Continental views upon contraband was very noticeable at
the commencement of the war of 1898, which gave occasion to the
letter which immediately follows. While the Spanish Decree of
April 23 set out only one list of contraband goods, the United
States Instructions of June 20 recognised two lists--viz. of
"absolute" and of "conditional" contraband, including under the
latter head "coal when destined for a naval station, a port of
call, or a ship or ships of the enemy; materials for the
construction of railways or telegraphs, and money, when such
materials or money are destined for an enemy's forces,
provisions, when destined for an enemy's ship or ships, for a
place besieged."
An answer was thus supplied to the question suggested in this
letter, as to articles _ancipitis usus_.
CONTRABAND OF WAR
Sir,--I fear that the mercantile community will hardly profit so much as
the managers of the Atlas Steamship Company seem to expect by the
information contained in their letter which you print this morning. It
was, indeed, unlikely that the courteous reply of the Assistant
Secretary of State at Washington to the enquiry addressed to him by the
New York agents of the company would contain a declaration of the policy
of the United States with reference to contraband of war. The threefold
classification of "merchandise" (not of "contraband") quoted in the
reply occurs, in the judgment of the Supreme Court in the well-known
case of the _Peterhoff_ (5 Wallace, 58), but it is substantially that of
Grotius, and has long been accepted in this country and in the United
States, while the Continent is, generally speaking, inclined to deny the
existence of "contraband by accident," and to recognise only such a
restricted list of contraband as was contained in the Spanish decree of
April 24 last.
The questions upon which shippers are really desirous of information
(which they are, however, perhaps not likely to obtain, otherwise than
from decisions of prize Courts) are of a less elementary character. They
would like to know what articles _ancipitis usus_ ("used for purposes of
war or peace according to circumstances") will be treated by the United
States as contraband, and with what penalty the carriage of such
articles will be visited--_i.e._ whether by confiscation or merely by
pre-emption.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 9 (1898).
The four letters which next follow also relate to the two
classes of contraband goods, with especial reference to the
character attributed to foodstuffs, coal and cotton.
On foodstuffs, see the _Report of the Royal Commission on the
Supply of Food, &c., in Time of War_, 1905. _Cf._ also
_infra._, pp. 174, 176, 177. They were placed by the unratified
Declaration of London, Art. 24, in the class of conditional
contraband; as is also coal. By Art. 28 of the Declaration, raw
cotton was enumerated among the articles which cannot be
declared contraband of war.
The suggestion in the letter of February 20, 1904, that certain
words quoted from the Japanese instructions had been
mistransmitted or misquoted was borne out by the Regulations
governing captures at sea, issued on March 15, 1904, Art. 14 of
which announces that certain goods are contraband "in case they
are destined to the enemy's army or navy, or in case they are
destined to the enemy's territory, and from the landing place
it can be inferred that they are intended for military
purposes."
The letters of March 10 and 15, 1905, will sufficiently explain
themselves. The accuracy of the statements contained in them
was vouched for by Baron Suyematsu, in a letter which appeared
in _The Times_ for March 16, to the effect that: "In Japan the
matters relating to the organisation and procedure of the prize
court, and the matters relating to prize, contraband goods,
&c., are regulated by two separate sets of laws.... The
so-called prize Court law of August 20, 1894, and amendment
dated March 1, 1904, which your correspondent refers to, are
the provisions relating to the former matters. The rules
regulating the latter matters--viz. prize, contraband goods,
&c., are not comprised in them. The rules which relate to the
latter matters, as existing at present, are consolidated and
comprised in an enactment which was issued on March 7, 1904....
Under the circumstances I can only repeat what Professor
Holland says ... in other words, I fully concur with the views
taken by the Professor."
The distinction between articles which are "absolutely
contraband," those which are "conditionally contraband," and
those which are incapable of being declared contraband was
expressly adopted in Arts. 22, 24, and 28 of the unratified
Declaration of London of 1909, as to which, see the comment at
the end of this section, as also the whole of Section 10.
IS COAL CONTRABAND OF WAR?
Sir,--This question has now been answered, in unmistakable terms, on
behalf of this country by Lord Lansdowne in his reply, which you printed
yesterday, to Messrs. Powley, Thomas, and Co., and on behalf of Japan by
the proclamation which appears in _The Times_ of to-day. Both of these
documents set forth the old British doctrine, now fully adopted in the
United States, and beginning to win its way on the Continent of Europe,
that, besides articles which are absolutely contraband, other articles
_ancipitis usus_, and amongst them coal, may become so under certain
conditions. "When destined," says Lord Lansdowne, "for warlike as
opposed to industrial use." "When destined," says Japan, "for the
enemy's army or navy, or in such cases where, _being goods arriving, at
enemy's territory_, there is reason to believe that they are intended
for use of enemy's army or navy."
I may say that the words which I have italicised must, I think, have
been mistranslated or mistransmitted. Their intention is, doubtless,
substantially that which was more clearly expressed in the Japanese
proclamation of 1894 by the words: "Either the enemy's fleet at sea or a
hostile port used exclusively or mainly for naval or military
equipment."
A phrase in your issue of to-day with reference to the Cardiff coal
trade suggests that it may be worth while to touch upon the existence of
a widely-spread confusion between the grounds on which export of coal
may be prohibited by a neutral country and those which justify its
confiscation, although on board a neutral ship, by a belligerent. A
neutral State restrains, under certain circumstances, the export of
coal, not because coal is contraband, but because such export is
converting the neutral territory into a base of belligerent operations.
The question of contraband or no contraband only arises between the
neutral carrier and the belligerent when the latter claims to be
entitled to interfere with the trade of the former.
Since the rules applicable to the carriage of coal are, I venture to
think, equally applicable, to the carriage of foodstuffs, I may perhaps
be allowed to add a few words with reference to the letter addressed to
you a day or two ago by Sir Henry Bliss. I share his desire for some
explanation of the telegram which reached you on the 12th of this month
from British Columbia. One would like to know: (1) What is "the
Government," if any, which has instructed the Empress Line not to
forward foodstuffs to Japan; (2) whether the refusal relates to
foodstuffs generally, or only to those with a destination for warlike
use; (3) what is meant by the statement that "the steamers of the
Empress Line belong to the Naval Reserve"? I presume the meaning to be
that the line is subsidised with a view to the employment of the ships
of the company as British cruisers when Great Britain is at war. The
bearing of this fact upon the employment of the ships when Great Britain
is at peace is far from apparent. It is, of course, possible that the
Government contract with the company may have been so drawn, _ex
abundanti cautela_, as greatly to restrict what would otherwise have
been the legitimate trade of the company.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, February 20 (1904).
COTTON AS CONTRABAND OF WAR
Sir,--The text of the decision of the Court of Appeal at St. Petersburg
in the case of the _Calchas_ has at length reached this country, and we
are thus informed, upon the highest authority, though, perhaps, not in
the clearest language, of the meaning which is now to be placed upon the
Russian notification that cotton is contraband of war.
This notification, promulgated on April 21, 1904, was received with
general amazement, not diminished by an official gloss to the effect
that it "applied only to raw cotton suitable for the manufacture of
explosives, and not to yarn or tissues." It must be remembered that at
the date mentioned, and for some months afterwards, Russia stoutly
maintained that all the articles enumerated in her list of contraband of
February 28, 1904, and in the additions to that list, were "absolutely"
such; _i.e._ were confiscable if in course of carriage to any enemy's
port, irrespectively of the character of that port, or of the use to
which the articles would probably be put. It was only after much
correspondence, and the receipt of strong protests from Great Britain
and the United States, that Russia consented to recognise the well-known
distinction between "absolute" and "conditional" contraband; the latter
class consisting of articles useful in peace as well as for war, the
character of which must, therefore, depend upon whether they are, in
point of fact, destined for warlike or for peaceful uses. This
concession was made about the middle of September last, and it was then
agreed that provisions should be placed in the secondary category (as
was duly explained in the Petersburg judgment in the case of the
_Arabia_ on December 14) together with some other articles, among which
it seemed that raw cotton was not included.
The final decision in the _Calchas_ case marks a welcome change of
policy. Cotton has now followed foodstuffs into the category of
"conditional" contraband, and effect has so far been given to the
representations on the subject made by Mr. Hay in circular despatches of
June 10 and August 30, 1904, and by Sir Charles Hardinge, in a note
presented to Count Lamsdorff on October 9 of the same year.
The question had become a practical one in the case of the _Calchas_. On
July 25 this vessel, laden with, _inter alia_, nine tons of raw cotton
for Yokohama and Kobe, was seized by a Russian cruiser and carried into
Vladivostok, where, on September 18, the cotton, together with other
portions of her cargo, was condemned as absolutely contraband. The
reasons for repudiating this decision, and the notification to which it
gave effect, were not far to seek, and it may still be worth while to
insist upon them. As against Russia, it is well to recall that, from the
days of the Armed Neutralities onwards, her traditional policy has been
to favour a very restricted list of contraband; that when in 1877, as
again in 1900 and 1904, she included in it materials "servant de faire
sauter les obstacles," the examples given of such materials were things
so immediately fitted for warlike use as "les mines, les torpilles, la
dynamite," &c.; and that what is said as to "conditional contraband" by
her trusted adviser, Professor de Martens, in his _Droit International_,
t. iii (1887), pp. 351-354, can scarcely be reconciled with her recent
action.
But a still stronger argument against the inclusion of cotton in the
list of "absolute" contraband is that this is wholly without precedent.
It has, indeed, been alleged that cotton was declared to be "contraband"
by the United States in their Civil War. The Federal proclamations will,
however, be searched in vain for anything of the kind. The mistake is
due to an occasional loose employment of the term, as descriptive of
articles found by an invader in an enemy's territory, which, although
the property of private, and even neutral, individuals, happen to be so
useful for the purposes of the war as to be justly confiscated. That
this was so will appear from an attentive reading of the case of _Mrs.
Alexander's Cotton_, in 1861 (2 Wallace, 404), and of the arguments in
the claim made by Messrs. Maza and Larrache against the United States in
1886 (Foreign Relations of U.S., 1887). A similarly loose use of the
term was its application by General B.F. Butler to runaway slaves who
had been employed on military works--an application of which he
confessed himself "never very proud as a lawyer," though "as an
executive officer, much comforted with it." The phrase caught the
popular fancy, came to be applied to slaves generally, and was
immortalised in a song, long a favourite among negro children, the
refrain of which was "I'se a happy little contraband."
The decision of the Court of St. Petersburg in the case of the
_Calchas_, so far as it recognises the existence of a conditional class
of contraband, and that raw cotton, as _res ancipitis usus_, must be
treated in accordance with the rules applicable to goods belonging to
that class, has laid down an unimpeachable proposition of law. Whether
the view taken by the Court of the facts of the case, so far as they
relate to the cotton cargo, is equally satisfactory, is a different and
less important question, upon which I refrain from troubling you upon
the present occasion.
I am, Sir, your obedient servant,
T. E. HOLLAND.
P.S.--It may be worth while to add, for the benefit of those only who
care to be provided with a clue (not to be found in the judgment)
through the somewhat labyrinthine details of the question under
discussion, a summary of its history. The Russian rules as to contraband
are contained in several documents--viz. the "Regulations as to Naval
Prize" of 1895, Arts. 11-14; the "Admiralty Instructions" of 1900, Arts.
97, 98, and the appended "Special Declaration" as to the articles
considered to be contraband (partly modelled on the list of 1877); the
"Imperial Order" of February 28, 1904, rule 6 (this Order keeps alive
the rules of 1895 and 1900, except in so far as they are varied by it);
the "Order" of March 19, 1904, defining "food" and bringing machinery of
certain kinds into the list of contraband; the "Order," of April 21,
1904, bringing "raw cotton" into the list; and, lastly, the
"Instructions" of September 30 and October 28, 1904, recognising, in
effect, a class of "conditional" contraband, placing foodstuffs in this
class, as also, ultimately, other objects "capable of warlike use and
not specified in sections 1-9 of rule 6."
T. E. H.
Temple, July 1 (1905).
COTTON AS CONTRABAND
Sir,--Your correspondent "Judex" will rejoice, as I do, that cotton has
now been declared to be "absolute contraband." May I, however, suggest
that the topic should be discussed without any reference to the
fortunately unratified Declaration of London, that premature attempt to
codify the law of maritime warfare, claiming, misleadingly, that its
rules "correspond in substance with the generally recognised principles
of international law"?
It is surely regrettable that, by the Order in Council of August 20,
1914, our Government adopted the provisions of the Declaration "during
the present hostilities," and "subject to various additions and
modifications," the list of which has since been considerably extended.
This half-hearted course of action painfully recalls certain vicious
methods of legislation by reference, and was additionally uncalled for,
since, as has been shown by recent events, about two-thirds of the rules
laid down by the Declaration are inapplicable to modern warfare.
The straightforward announcement made by the United States in their Note
of January 25 is surely far preferable. It states in plain terms that,
"As the Declaration of London is not in force, the rules of
international law only apply. As to articles to be regarded as
contraband there is no general agreement between nations." In point of
fact, the hard-and-fast categories of neutral imports, suggested by the
threefold Grotian division, as set forth in the Declaration, are
unlikely ever to be generally accepted. Even Grotius is careful to limit
his proposals, and Bynkershoek, in commenting upon them, points out that
the test of contraband of the most noxious kind must be the, possibly
exceptional, importance of objects for hostile use; their being of use
also for non-hostile purposes being immaterial ("nec interesse an et
extra bellum usum praebeant"). The application of these remarks to the
case of cotton is sufficiently obvious.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August 23 (1915).
JAPANESE PRIZE LAW
Sir,--I hope you will allow me space for a few words with reference to
some statements occurring to-day in your Marine Insurance news which I
venture to think are of a misleading character.
Your Correspondent observes that--
"Although the Japanese are signatories to the Treaty of
Paris, it should not be forgotten that they haw a Prize Court
Law of their own (August 20, 1894), and are more likely to
follow its provisions, in dealing with the various captured
steamers, than the general principles of the Treaty of
Paris."
Upon this paragraph let me remark:--
1. The action of the Japanese is in full accordance with the letter and
spirit of all four articles of the Declaration of Paris. ("The Treaty of
Paris" has, of course, no bearing upon prize law.)
2. "The general principles" of that Declaration is a phrase which
conveys to me, I confess, no meaning.
3. The Japanese have, of course, a prize law of their own, borrowed, for
the most part, from our own Admiralty Manual of Prize Law. Neither the
British nor the Japanese instructions are in conflict with, or indeed
stand in any relation to, the Declaration of Paris.
4. The existing prize law of Japan was promulgated on March 7, 1904, not
on August 20, 1894.
Your Correspondent goes on to say that the Japanese definition of
contraband "is almost as sweeping as was the Russian definition, to
which the British Government took active objection last summer." So far
is this from being the case that the Japanese list is practically the
same as our own, both systems recognising the distinction between
"absolute" and "conditional" contraband, which, till the other day, was
ignored by Russia.
The Japanese rules as to the cases in which ships carrying contraband
may be confiscated are quite reasonable and in accordance with British
views. The third ground for confiscation mentioned by your Correspondent
does not occur in the instructions of 1904.
Ships violating a blockade are, of course, confiscable; but the Japanese
do not, as your Correspondent seems to have been informed, make the
existence of a blockade conditional upon its having been "notified to
the Consuls of all States in the blockaded port." Commanders are, no
doubt, instructed to notify the fact, "as far as possible, to the
competent authorities and the Consuls of the neutral Powers within the
circumference of the blockade"; but that is a very different thing.
I am, Sir, your obedient servant,
T. E. HOLLAND.
The Athenæum, March 10 (1905).
JAPANESE PRIZE LAW
Sir,--Let me assure your correspondent upon Marine Insurance that I have
been familiar, ever since its promulgation, with the Japanese prize law
of 1894, quoted by him as authority for statements made in your issue of
March 10, the misleading character of which I felt bound to point out in
a letter of the same date. All the topics mentioned by him on that
occasion, and to-day, are, however, regulated, not by that law, but by
notifications and instructions issued from time to time during 1904.
I make it my business not only to be authoritatively informed on such
matters, but also to see that my information is up to date.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 15 (1905).
_(Continuous Voyages)_
The opinion expressed in the letter which immediately follows,
that the American decisions, applying to carriage of contraband
the doctrine of "continuous voyages," seem to be "demanded by
the conditions of modern commerce, and might well be followed
by a British prize Court," was referred to by Lord Salisbury in
a despatch of January 10, 1900, to be communicated to Count von
Bülow, with reference to the seizure of _Bundesrath_. _Parl.
Papers_, Africa, No. 1 (1900), p. 19.
The distinction, drawn in the same letter, between "carriage of
contraband" and "enemy service," which has sometimes been lost
sight of, was established in the case of _Yangtsze Insurance
Association_ v. _Indemnity Mutual Marine Company_, [1908] K.B.
910, in which it was held by Bigham, J., that the transport of
military officers of a belligerent State, as passengers in a
neutral ship, is not a breach or a warranty against contraband
of war in a policy of marine insurance. The carriage of enemy
despatches will no longer be generally treated as "enemy
service" since The Hague Convention, No. xi. of 1907, ratified
by most of the Powers, including Great Britain, on November 27,
1909, by Art. 1 provides that, except in the case of breach of
blockade, "the postal correspondence of neutrals or
_belligerents_, whether of _an official_ or a private
character, found on board a _neutral_ or enemy ship on the High
Seas is inviolable."
The case of the _Allanton_, which gave occasion for the letter
of July 11, 1904, was as follows. This British ship left
Cardiff on February 24 of that year, with a cargo of coal to be
delivered either at Hong-Kong or Sasebo. On arrival at
Hong-Kong, she found orders to deliver at Sasebo, and, having
made delivery accordingly, was chartered by a Japanese company
at another Japanese port, to carry coal to a British firm at
Singapore. On her way thither, she was captured by a Russian
squadron and taken in to Vladivostok, where on June 24 she was
condemned by the prize Court for carriage of contraband. The
Court held, ignoring the rule that a vessel ceases to be _in
dilecto_ when she has "deposited" her contraband (since
affirmed by Art. 38 of the Declaration of London of 1909), that
she was liable in respect of her voyage to Sasebo; as also in
respect of the voyage on which she was captured, on the ground
that her real destination was at that time the Japanese fleet,
or some Japanese port. This decision was reversed, as to both
ship and cargo, by the Court of Appeal at St. Petersburg, on
October 22 of the same year.
The doctrine of "continuous voyages" was by the Declaration of
London, Art. 30, recognised in the case of "absolute," but by
Art. 35 was stated to be inapplicable to the case of
"conditional" contraband.
PRIZE LAW
Sir,--Questions of maritime international law which are likely to give
rise not only to forensic argument in the prize Courts which we have
established at Durban and at the Cape, but also to diplomatic
communications between Great Britain and neutral Governments, should
obviously be handled just now with a large measure of reserve. Lord
Rosebery has, however, in your columns called upon our Government to
define its policy with reference to foodstuffs as contraband of war,
while several other correspondents have touched upon, cognate topics.
You may perhaps therefore be disposed to allow one who is responsible
for the _Admiralty Manual of the Law of Prize_, to which reference has
been made by your correspondent "S.," to make a few statements as to
points upon which it may be desirable for the general reader to be in
possession of information accurate, one may venture to hope, as far as
it goes.
Of the four inconveniences to which neutral trading vessels are liable
in time of war, "blockade" may be left out of present consideration. You
can only blockade the ports of your enemy, and the South African
Republics have no port of their own. The three other inconveniences
must, however, all be endured--viz. prohibition to carry "contraband,"
prohibition to engage in "enemy service," and liability to be "visited
and searched" anywhere except within three miles of a neutral coast, in
order that it may be ascertained whether they are disregarding either of
these prohibitions, as to the meaning of which some explanation may not
be superfluous.
1. "Carriage of contraband" implies (1) that the goods carried are fit
for hostile use; (2) that they are on their way to a hostile
destination. Each of these requirements has given rise to wide
divergence of views and to a considerable literature. As to (1), while
Continental opinion and practice favour a hard-and-fast list of
contraband articles, comprising only such as are already suited, or can
readily be adapted, for use in operations of war, English and American
opinion and practice favour a longer list, and one capable of being from
time to time extended to meet the special exigencies of the war. In such
a list may figure even provisions, "under circumstances arising out of
the particular situation of the war," especially if "going with a highly
probable destination to military use"--Lord Stowell in the _Jonge
Margaretha_ (1 Rob. 188); _cf._ Story, J., in the _Commercen_ (1 Wheat.
382), the date and purport of which are, by the by, incorrectly given by
"S." It would be in accordance with our own previous practice and with
Lord Granville's despatches during the war between France and China in
1885, if we treated flour as contraband only when ear-marked as destined
for the use of enemy fleets, armies, or fortresses. Even in such cases
our practice has been not to confiscate the cargo, but merely to
exercise over it a right of "pre-emption," so as to deprive the enemy of
its use without doing more injury than can be helped to neutral
trade--as is explained by Lord Stowell in the _Haabet_ (2 Rob. 174). As
to (2), the rule was expressed by Lord Stowell to be that "goods going
to a neutral port cannot come under the description of contraband, all
goods going there being equally lawful"--_Imina_ (3 Rob. 167); but
innovations were made upon this rule during the American Civil War which
seem to be demanded by the conditions of modern commerce, and might well
be followed by a British prize Court. It was held that contraband goods,
although _bona fide_ on their way to a neutral port, might be condemned,
if intended afterwards to reach the enemy by another ship or even by
means of land carriage--_Bermuda_ (3 Wallace); _Peterhoff_ (5 Wallace).
A consignment to Lorenzo Marques, connected as is the town by only forty
miles of railway with the Transvaal frontier, would seem to be well
within the principles of the Civil War cases as to "continuous voyages."
2. The carriage by a neutral ship of enemy troops, or of even a few
military officers, as also of enemy despatches, is an "enemy service" of
so important a kind as to involve the confiscation of the vessel
concerned, a penalty which, under ordinary circumstances, is not imposed
upon carriage of "contraband" property so called. See Lord Stowell's
luminous judgments in _Orozembo_ (6 Rob. 430) and _Atalanta_ (_ib._
440). The alleged offence of the ship _Bundesrath_ would seem to be of
this description.
The questions, both of "contraband" and of "enemy service," with which
our prize Courts must before long have to deal, will be such as to
demand from the Judges a competent knowledge of the law of prize,
scrupulous fairness towards neutral claimants, and prompt penetration of
the Protean disguises which illicit trade so readily assumes in time of
war.
Your obedient servant,
T. E. HOLLAND.
Oxford, January 2 (1900).
THE _ALLANTON_ _(Continuous Voyage)_
Sir,--I venture to think that the letter which you print this morning
from my friend Dr. Baty, with reference to the steamship _Allanton_,
calls for a word of warning; unless, indeed, it is to be taken as merely
expressing the private opinion of the writer as to what would be a
desirable rule of law.
It would be disastrous if shipowners and insurers were to assume, that a
neutral vessel, if destined for a neutral port, is necessarily safe from
capture. Words at any rate capable of this construction may, no doubt,
be quoted from one of Lord Stowell's judgments, now more than a century
old; but many things have happened, notably the invention of railways,
since the days of that great Judge. The United States cases, decided in
the sixties (as Dr. Baty thinks, "on a demonstrably false analogy"), in
which certain ships were held to be engaged in the carriage of
contraband, although their destination was a neutral port, were
substantially approved of by Great Britain. Their principle wast adopted
by Italy, in the _Doelwijk_, in 1896, and was supported by Great Britain
in the correspondence upon this subject which took place with Germany in
1900. It was endorsed, after prolonged discussion, by the Institut de
Droit International in 1896.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, July 11 (1904).
_(Unqualified Captors)_
Among the objections raised by the British Government to the
capture by the Russian ship _Peterburg_ in the Red Sea, on July
13, 1904, of the P. and O. ss. _Malacca_, for carriage of
contraband were (1) that the so-called contraband consisted of
government ammunition for the use of the British fleet in
Chinese waters; and (2) what was more serious, that the
capturing vessel, which belonged to the Russian volunteer
fleet, after issuing from the Black Sea under the commercial
flag had subsequently, and without touching at any Russian
port, brought up guns from her hold, and had proceeded to
exercise belligerent rights under the Russian naval flag. In
consequence of the protest of the British Government, and to
close the incident, the _Malacca_ was released at Algiers,
after a purely formal examination, on July 27, and Russia
agreed to instruct the officers of her volunteer fleet not to
make any similar captures.
The question of the legitimacy of the transformation on the
high seas into a ship-of-war of a vessel which has previously
been sailing under the commercial flag was much discussed at
The Hague Conference of 1907, but without result. Opinions were
so much divided upon the point, that no mention of it is made
in Convention No. vii. of that year, ratified by Great Britain
on November 27, 1909, "as to the transformation of merchant
vessels into ships-of-war." At the session of the Institut de
Droit International held at Oxford in 1913, this question was
discussed, and rules relating to it will be found in Section 2
of the _Manuel des lois de la guerre maritime_, the drafting of
which occupied the whole of the session.
THE _ALLANTON_ _(Unqualified Captors)_
Sir,--The indignation caused by the treatment of the _Allanton_ is
natural, and will almost certainly prove to be well founded; but Mr.
Rae, in the letter which you print this morning, overstates a good case.
He asks that, "whatever steps are taken for the release of the
_Malacca_, equally strong steps should be taken for the release of the
_Allanton_"; and he can see no difference between the cases of the two
ships, except that the former is owned by a powerful company in the
habit of carrying British mails, while the latter is his private
property.
One would have supposed it to be notorious that the facts which
distinguish the one case from the other are, first, that the capture of
the _Malacca_ was effected by a vessel not entitled to exercise
belligerent rights; and, secondly, that Great Britain is prepared to
claim the incriminated cargo as belonging to the British Government.
Capture by an unqualified cruiser is so sufficient a ground for a claim
of restoration and compensation that, except perhaps as facilitating the
retreat of Russia from a false position, it would seem, to say the
least, superfluous to pray in aid any other reason for the cancellation
of an act unlawful _ab initio._
I have not noticed any statement as to the actual constitution of the
prize Court concerned in the condemnation of the _Allanton._ Under Rule
54 of the Russian Naval Regulations of 1895, a "Port Prize Court" must,
for a decree of confiscation, consist of six members, of whom three must
be officials of the Ministries of Marine, Justice, and Foreign Affairs
respectively. An "Admirals' Prize Court," for the same purpose, need
consist of only four members, all of whom are naval officers.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, July 25 (1904).
_(Note upon the Declaration of London)_
The British delegates to The Hague Conference of 1907 were
instructed that H.M. Government "are ready and willing for
their part, in lieu of endeavouring to frame new and more
satisfactory rules for the prevention of contraband trade in
the future, to abandon the principle of contraband of war
altogether, thus allowing the oversea trade in neutral vessels
between belligerents on the one hand and neutrals on the other,
to continue during war without any restriction," except with
reference to blockades. This proposal, fortunately, was not
accepted by the Conference, which was unable even to agree upon
lists of contraband articles, and recommended that the question
should be further considered by the Governments concerned,
_Parl. Paper, Miscell._ No. 1 (1908), p. 194.
This task was accordingly among those undertaken at the
Conference of Maritime Powers held in London in 1908-1909,
which resulted in a Declaration, Arts. 22-44 of which
constituted a fairly complete code of the law of contraband.
Reference has already been made, in comments upon letters
comprised in previous sections, to this Declaration, the
demerits and history of which are more fully dealt with in
section 10, _infra_, pp. 196-207.
* * * * *
SECTION 6
_Methods of Warfare as affecting Neutrals_
_(Mines)_
On the views expressed in the first of the two letters which
follow, as also in the writer's British Academy paper on
_Neutral Duties_, as translated in the _Marine Rundschau_, see
Professor von Martitz of Berlin, in the _Transactions_ of the
International Law Association, 1907. The Institut de Droit
International has for some years past had under its
consideration questions relating to mines, and has arrived at
conclusions which will be found in its _Annuaire_, t. xxi. p.
330, t. xxii. p. 344, t xxiii. p. 429, t. xxiv. pp. 286, 301.
The topic has also been dealt with in The Hague Convention, No.
viii. of 1907, ratified with a reservation, by Great Britain on
November 27, 1907. By Art. 1 it is forbidden "(1) to lay
unanchored automatic-contact mines, unless they are so
constructed as to become harmless one hour at most after he who
has laid them has lost control over them; (2) to lay anchored
automatic-contact mines which do not become harmless as soon as
they have broken loose from their moorings; (3) to employ
torpedoes which do not become harmless when they have missed
their mark." By Art. 2, (which is, however, not accepted by
France or Germany) it is forbidden "to lay automatic-contact
mines off the coast and ports of an enemy, with the sole object
of intercepting commercial navigation."
MINES IN THE OPEN SEA
Sir,--The question raised in your columns by Admiral do Horsey with
reference to facts as to which we are as yet imperfectly informed, well
illustrates the perpetually recurring conflict between belligerent and
neutral interests. They are, of course, irreconcilable, and the rights
of the respective parties can be defined only by way of compromise. It
is beyond doubt that the theoretically absolute right of neutral ships,
whether public or private, to pursue their ordinary routes over the high
sea in time of war, is limited by the right of the belligerents to fight
on those seas a naval battle, the scene of which can be approached by
such ships only at their proper risk and peril. In such a case the
neutral has ample warning of the danger to which he would be exposed did
he not alter his intended course. It would, however, be an entirely
different affair if he should find himself implicated in belligerent war
risks, of the existence of which it was impossible for him to be
informed, while pursuing his lawful business in waters over which no
nation pretends to exercise jurisdiction.
It is certain that no international usage sanctions the employment by
one belligerent against the other of mines, or other secret
contrivances, which would, without notice, render dangerous the
navigation of the high seas. No belligerent has ever asserted a right to
do anything of the kind; and it may be in the recollection of your
readers that strong disapproval was expressed of a design, erroneously
attributed to the United States a few years since, of effecting the
blockade of certain Cuban ports by torpedoes, instead of by a cruising
squadron. These, it was pointed out, would superadd to the risk of
capture and confiscation, to which a blockade-runner is admittedly
liable, the novel penalty of total destruction of the ship and all on
board.
It may be worth while to add, as bearing upon the question under
discussion, that there is a tendency in expert opinion towards allowing
the line between "territorial waters" and the "high seas" to be drawn at
a considerably greater distance than the old measurement of three miles
from the shore.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 23 (1904).
TERRITORIAL WATERS
Sir,--Most authorities would, I think, agree with Admiral de Horsey that
the line between "territorial waters" and "the high sea" is drawn by
international law, if drawn by it anywhere, at a distance of three miles
from low-water mark. In the first place, the ridiculously wide claims
made, on behalf of certain States, by mediæval jurists were cut down by
Grotius to so much water as can be controlled from the land. The Grotian
formula was then worked out by Bynkershoek with reference to the range
of cannon; and, finally, this somewhat variable test was before the end
of the eighteenth century, as we may see from the judgments of Lord
Stowell, superseded by the hard-and-fast rule of the three-mile limit,
which has since received ample recognition in treaties, legislation, and
judicial decisions.
The subordinate question, also touched upon by the Admiral, of the
character to be attributed to bays, the entrance to which exceeds six
miles in breadth, presents more difficulty than that relating to
strictly coastal waters. I will only say that the Privy Council, in _The
Direct U.S. Cable Co._ v. _Anglo-American Telegraph Co._ (L.R. 2 App.
Ca. 394), carefully avoided giving an opinion as to the international
law applicable to such bays, but decided the case before them, which had
arisen with reference to the Bay of Conception, in Newfoundland, on the
narrow ground that, as a British Court, they were bound by certain
assertions of jurisdiction made in British Acts of Parliament.
The three-mile distance has, no doubt, become inadequate in consequence
of the increased range of modern cannon, but no other can be substituted
for it without express agreement of the Powers. One can hardly admit the
view which has been maintained, e.g. by Professor de Martens, that the
distance shifts automatically in accordance with improvements in
artillery. The whole matter might well be included among the questions
relating to the rights and duties of neutrals, for the consideration of
which by a conference, to be called at an early date, a wish was
recorded by The Hague Conference, of 1899.
In the meantime it may be worth while to call attention to the view of
the subject taken by a specially qualified and representative body of
international experts. The Institut de Droit International, after
discussions and enquiries which had lasted for several years, adopted,
at their Paris meeting in 1894, the following resolutions, as a
statement of what, in the opinion of the Institut, would be reasonable
rules with reference to territorial waters (I cite only those bearing
upon the extent of such waters):--
"Art. 2.--La mer territoriale s'étend à six milles marins (60
au degré de latitude) de la laisse de basse marée sur tout
l'étendue des côtes. Art. 3.--Pour les baies, la mer
territoriale suit les sinuosités de la côte, sauf qu'elle
mesurée à partir d'une ligne droite tirée en travers de la
baie, dans la partie la plus rapprochée de l'ouverture vers
la mer, où l'écart entre les deux côtes de la baie est de
douze milles marins de largeur, à moins qu'un usage continu
et séculaire n'ait consacré une largeur plus grande. Art.
4.--En cas de guerre, l'état riverain neutre a le droit de
fixer, par la déclaration de neutralité, ou par notification
spéciale, sa zone neutre au dela de six milles, jusqu'à
portée du canon des côtes. Art. 5.--Tous les navires sans
distinction ont le droit de passage inoffensif par la mer
territoriale, sauf le droit des belligérants de règlementer
et, dans un but de défense, de barrer le passage dans la dite
mer pour tout navire, et sauf le droit de neutres de
règlementer le passage dans la dite mer pour les navires de
guerre de toutes nationalités." (_Annuaire de l'Institut_, t.
xiii. p. 329).
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, June 1 (1904).
A French decree, of October 18, 1912, accordingly extends, when
France is neutral, her territorial waters to a distance of six
miles (11 kilom.) from low-water mark.
_(Cable-cutting)_
With the letters which follow, compare the article by the
present writer on "Les cables sous-marins en temps de guerre,"
in the _Journal de Droit International Privé_, 1898, p. 648.
The topic of cable-cutting, as to which the Institut de Droit
International arrived in 1879 at the conclusions set out in the
first of these letters, was again taken into consideration by
the Institut in 1902: see the _Annuaire_ for that year, pp.
301-332.
The Hague Convention; No. iv. of 1907, provides, in Art. 54,
that "submarine cables connecting occupied territory with a
neutral territory shall not be destroyed or seized, unless in
case of absolute necessity. They must be restored, and
compensation must be arranged for them at the peace."
Convention No. v., by Art. 3, forbids belligerents (1) to
install on neutral territory a radio-telegraphic station, or
any other apparatus, for communicating with their land or sea
forces; (2) to employ such apparatus, established by them there
before the war, for purely military purposes. By Art. 5, a
neutral Power is bound to permit nothing of the sort.
SUBMARINE CABLES
Sir,--The possibility of giving some legal protection to submarine
cables has been carefully considered by the Institut de Droit
International. A committee was appointed in 1878 to consider the
subject, and the presentation of its report to the meeting at Brussels
in 1879 was followed by an interesting discussion (see the _Annuaire de
l'Institut_, 1879-80, pp. 351-394). The conclusions ultimately adopted
by the Institut were as follows:--
"1. It would be very useful if the various States would come
to an understanding to declare that destruction of, or injury
to, submarine cables in the high seas is an offence under the
Law of Nations, and to fix precisely the wrongful character
of the acts, and the appropriate penalties. With reference to
the last-mentioned point, the degree of uniformity attainable
must depend on the amount of difference between systems of
criminal legislation. The right of arresting offenders, or
those presumed to be such, might be given to the public
vessels of all nations, under conditions regulated by
treaties, but the right to try them should be reserved to the
national Courts of the vessel arrested.
"2. A submarine-telegraph cable uniting two neutral
territories is inviolable. It is desirable that, when
telegraphic communication must be interrupted in consequence
of war, a belligerent should confine himself to such measures
as are absolutely necessary to prevent the cable from being
used, and that such measures should be discontinued, or that
any damage caused by them, should be repaired as soon as the
cessation of hostilities may permit."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 23 (1881).
SUBMARINE CABLES IN TIME OF WAR
Sir,--I venture to think that the question which has been raised as to
the legitimacy of cable-cutting is not so insoluble as most of the
allusions to it might lead one to suppose. It is true that no light is
thrown upon it by the Convention of 1884, which relates exclusively to
time of peace, and was indeed signed by Lord Lyons, on behalf of Great
Britain, only with an express reservation to that effect. Nor are we
helped by the case to which attention was called in your columns some
time since by Messrs. Eyre and Spottiswoode. Their allusion was
doubtless to the _International_ (L.R. 3 A. and E. 321), which is
irrelevant to the present enquiry. The question is a new one, but,
though covered by no precedent, I cannot doubt that it is covered by
certain well-established principles of international law, which, it is
hardly necessary to remark, is no cut-and-dried system but a body of
rules founded upon, and moving with, the public opinion of nations.
That branch of international law which deals with the relations of
neutrals and belligerents is, of course, a compromise between what
Grotius calls the "belli rigor" and the "commerciorum libertas." The
terms of the compromise, originally suggested partly by equity, partly
by national interest, have been varied and re-defined, from time to
time, with reference to the same considerations. It is perhaps
reasonable that, in settling these terms, preponderant weight should
have been given to the requirements of belligerents, engaged possibly in
a life-and-death struggle. "Ius commerciorum æquum est," says Gentili;
"at hoc æquius, tuendæ salutis." There is accordingly no doubt that in
land warfare a belligerent may not only interrupt communications by
road, railway, post, or telegraph without giving any ground of complaint
to neutrals who may be thereby inconvenienced, but may also lay hands on
such neutral property--shipping, railway carriages, or telegraphic
plant--as may be essential to the conduct of his operations, making use
of and even destroying it, subject only to a duty to compensate the
owners. This he does in pursuance of the well-known "droit d'angarie,"
an extreme application of which occurred in 1871, when certain British
colliers were sunk in the Seine by the Prussians in order to prevent the
passage of French gunboats up the river. Count Bismarck undertook that
the owners of the ships should be indemnified, and Lord Granville did
not press for anything further. Such action, if it took place outside of
belligerent territory, would not be tolerated for a moment.
The application of these principles to the case of submarine cables
would appear to be, to a certain point at any rate, perfectly clear.
Telegraphic communication with the outside world may well be as
important to a State engaged in warfare as similar means of
communication between one point and another within its own territory.
Just as an invader would without scruple interrupt messages, and even
destroy telegraphic plant, on land, so may he thus act within the
enemy's territorial waters, or, perhaps, even so far from shore as he
could reasonably place a blockading squadron. It may be objected that a
belligerent has no right to prevent the access of neutral ships to
unblockaded portions of the enemy's coast on the ground that by carrying
diplomatic agents or despatches they are keeping up the communications
of his enemy with neutral Governments. But this indulgence rests on the
presumption that such official communications are "innocent," a
presumption obviously inapplicable to telegraphic messages
indiscriminately received in the course of business. It would seem,
therefore, to be as reasonable as it is in accordance with analogy, that
a belligerent should be allowed, within the territorial waters of his
enemy, to cut a cable, even though it may be neutral property, of which
the _terminus ad quem_ is enemy territory, subject only to a liability
to indemnify the neutral owners.
The cutting, elsewhere than in the enemy's waters, of a cable connecting
enemy with neutral territory receives no countenance from international
law. Still less permissible would be the cutting of a cable connecting
two neutral ports, although messages may pass through it which, by
previous and subsequent stages of transmission, may be useful to the
enemy.
Your obedient servant,
T. E. HOLLAND.
Oxford, May 21 (1897).
SUBMARINE CABLES IN TIME OF WAR
Sir,--Will you allow me to refer in a few words to the interesting
letters upon the subject of submarine cables which have been addressed
to you by Mr. Parsoné and Mr. Charles Bright? In asserting that "the
question as to the legitimacy of cable-cutting is covered by no
precedent," I had no intention of denying that belligerent interference
with cables had ever occurred. International precedents are made by
diplomatic action (or deliberate inaction) with reference to facts, not
by those facts themselves. To the best of my belief no case of
cable-cutting has ever been made matter of diplomatic representation,
and I understand Mr. Parsoné to admit that no claim in respect of damage
to cables was presented to the mixed Commission appointed under the
Convention of 1883 between Great Britain and Chile.
In the course of his able address upon "Belligerents and Neutrals,"
reported in your issue of this morning, I observe that Mr. Macdonell
suggests that the Institut de Droit International might usefully study
the question of cables in time of war. It may, therefore, be well to
state that this service hat already been rendered. The Institut, at its
Paris meeting in 1878, appointed a committee, of which M. Renault was
chairman, to consider the whole subject of the protection of cables,
both in peace and in war; and at its Brussels meeting, in 1879,
carefully discussed the exhaustive report of its committee and voted
certain "conclusions," notably the following:--
"Le câble télégraphique sous-marin qui unit deux territoires
neutres est inviolable.
"Il est à désirer, quand les communications télégraphiques
doivent cesser par suite de l'état de guerre, que l'on se
borne aux mesures strictement nécessaires pour empêcher
l'usage du cable, et qu'il soit mis fin à ces mesures, ou que
l'on en répare les consequences, aussitôt que le permettra la
cessation des hostilités."
It was in no small measure due to the initiative of the Institut that
diplomatic conferences were held at Paris, which in 1882 produced a
draft convention for the protection of cables, not restricted in its
operation to time of peace; and in 1884 the actual convention, which is
so restricted.
It may not be generally known that in 1864, before the difficulties of
the subject were thoroughly appreciated, a convention was signed, though
it never became operative, by which Brazil, Hayti, Italy, and Portugal
undertook to recognise the "neutrality" in time of war of a cable to be
laid by one Balestrini. So, in 1869, the United States were desirous of
concluding a general convention which should assimilate the destruction
of cables in the high seas to piracy, and should continue to be in force
in time of war. The Brussels conference of 1874 avoided any mention of
"câbles sous-marins."
The moral of all that has been written upon this subject is obviously
that drawn by Mr. Charles Bright--viz. "the urgent necessity of a
system of cables connecting the British Empire by direct and independent
means--_i.e._ without touching on foreign soil."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, June 3 (1897).
* * * * *
SECTION 7
_Destruction of Neutral Prizes_
A British ship, the _Knight Commander_, bound from New York to
Yokohama and Kobe, was stopped on July 23, 1904, by a Russian
cruiser, and as her cargo consisted largely of railway
material, was considered to be engaged in carriage of
contraband. Her crew and papers were taken on board the
cruiser, and she was sent to the bottom by fire from its guns.
The reasons officially given for this proceeding were that:
"The proximity of the enemy's port, the lack of coal on board
the vessel to enable her to be taken into a Russian port, and
the impossibility of supplying her with coal from one of the
Russian cruisers, owing to the high seas running at the time,
obliged the commander of the Russian cruiser to sink her."
The Russian Regulations as to Naval Prize, Art. 21, allowed a
commander "in exceptional cases, when the preservation of a
captured vessel appears impossible on account of her bad
condition or entire worthlessness, the danger of her recapture
by the enemy, or the great distance or blockade of ports, or
else on account of danger threatening the ship which has made
the capture, or the success of her operations," to burn or sink
the prize.
The Japanese Regulations, Art. 91, were to the same effect in
cases where the prize (1) cannot be navigated owing to her
being unseaworthy, or to dangerous seas; (2) is likely to be
recaptured by the enemy; (3) cannot be navigated without
depriving the ship-of-war of officers and men required for her
own safety.
The case of the _Knight Commander_ was the subject of comment,
on the 27th of the same month, in both Houses of Parliament. In
the House of Lords, Lord Lansdowne spoke of what had occurred
as "a very serious breach of international law," "an outrage,"
against which it had been considered "a duty to lodge a strong
protest." In the House of Commons, Mr. Balfour described it as
"entirely contrary to the accepted practice of civilised
nations." Similar language was used in Parliament on August 10,
when Mr. Gibson Bowles alluded to my letter of the 6th, in a
way which gave occasion for that of the 14th.
The _Knight Commander_ was condemned by the Prize Court at
Vladivostok on August 16, 1904, and the sentence was confirmed
on December 5, 1905, by the Court of Appeal at St. Petersburg,
which found it "impossible to agree that the destruction of a
neutral vessel is contrary to the principles of international
law." The Russian Government remained firm on the point, and in
1908 declined to submit the case to arbitration.
The Institut de Droit International in its _Code des Prises
maritimes_, voted in 1887, Art. 50 (not, be it observed,
professing to state the law as it is, but as it should be), had
taken a view in accordance with that maintained by the British
Government (_Annuaire_ for 1888, t. ix. p. 228; _cf. ib._ pp.
200, 201). (The _Manuel des lois de la guerre maritime_, voted
at Oxford in 1913, dealing exclusively with "les rapports entre
les belligérants," does not deal with the topic in question.)
It was, however, the opinion of the present writer, as will
appear from the following letters, that no rule of
international law, by which the sinking of even neutral prizes
was absolutely prohibited, could be shown to exist. He had
previously touched upon this question in his evidence before
the Royal Commission on the Supply of Food, &c., in Time of
War, on November, 4, 1903, and returned to it later in his
paper upon "The Duties of Neutrals," read to the British
Academy on April 12, 1905, _Transactions_, ii. p. 66. It was
reproduced in French, German, Belgian, and Spanish periodicals,
and was cited in the judgment of the St. Petersburg Court of
Appeal in the case of the _Knight Commander._
The subsequent history of the question, and, in particular, of
the rules suggested in Arts. 48-54 of the unratified
Declaration of London, may be claimed in favour of the
correctness of the opinion maintained in the letters.
RUSSIAN PRIZE LAW