in which Russia is conducting operations at sea. It may, however, be
doubted whether public opinion is sufficiently well informed to be
capable of estimating the comparative gravity of the acts which are just
now attracting attention. Putting aside for the moment questions arising
out of the Straits Convention of 1856, as belonging to a somewhat
different order of ideas, we may take it that the topics most needing
careful consideration relate to removal of contraband from the ship that
is carrying it without taking her in for adjudication; interference with
mail steamers and their mail bags; perversely wrong decisions of Prize
Courts; confiscation of ships as well as of their contraband cargo;
destruction of prizes at sea; the list of contraband. Of these topics,
the two last mentioned are probably the most important, and on each of
these I will ask you to allow me to say a few words.
1. There is no doubt that by the Russian regulations of 1895, Art. 21;
and instructions of 1901, Art. 40, officers are empowered to destroy
their prizes at sea, no distinction being drawn between neutral and
enemy property, under such exceptional circumstances as the bad
condition or small value of the prize, risk of recapture, distance from
a Russian port, danger to the Imperial cruiser or to the success of her
operations. The instructions of 1901, it may be added, explain that an
officer "incurs no responsibility whatever" for so acting if the
captured vessel is really liable to confiscation and the special
circumstances imperatively demand her destruction. It is fair to say
that not dissimilar, though less stringent, instructions were issued by
France in 1870 and by the United States in 1898; also that, although the
French instructions expressly contemplate "l'établissement des
indemnités à attribuer aux neutres," a French prize Court in 1870
refused compensation to neutral owners for the loss of their property on
board of enemy ships burnt at sea.
The question, however, remains whether such regulations are in
accordance with the rules of international law. The statement of these
rules by Lord Stowell, who speaks of them as "clear in principle and
established in practice," may, I think, be summarised as follows: An
enemy's ship, after her crew has been placed in safety, may be
destroyed. Where there is any ground for believing that the ship, or any
part of her cargo, is neutral property, such action is justifiable only
in cases of "the gravest importance to the captor's own State," after
securing the ship's papers and subject to the right of neutral owners to
receive fall compensation (_Actaeon_, 2 Dods. 48; _Felicity, ib._ 381;
substantially followed by Dr. Lushington in the _Leucade_, Spinks, 221).
It is not the case, as is alleged by the _Novoe Vremya_, that any
British regulations "contain the same provisions as the Russian" on this
subject. On the contrary, the Admiralty Manual of 1888 allows
destruction of enemy vessels only; and goes so far in the direction of
liberality as to order the release, without ransom, of a neutral prize
which either from its condition, or from lack of a prize crew, cannot be
sent in for adjudication. The Japanese instructions of 1894 permit the
destruction of only enemy vessels; and Art. 50 of the carefully debated
"Code des prises" of the Institut de Droit International is to the same
effect. It may be worth while to add that the eminent Russian jurist, M.
de Martens, in his book on international law, published some twenty
years ago, in mentioning that the distance of her ports from the scenes
of naval operations often obliges Russia to sink her prizes, so that "ce
qui les lois maritimes de tous les états considèrent comme un moyen
auquel il n'y a lieu de recourir qu'à la dernière extrémité, se
transformera nécessairement pour nous en règle normale," foresaw that
"cette mesure d'un caractère général soulévera indubitablement contre
notre pays un mécontentement universel."
2. A far more important question is, I venture to think, raised by the
Russian list of contraband, sweeping, as it does, into the category of
"absolutely contraband" articles things such as provisions and coal, to
which a contraband character, in any sense of the term, has usually been
denied on the Continent, while Great Britain and the United States have
admitted them into the category of "conditional" contraband, only when
shown to be suitable and destined for the armed forces of the enemy, or
for the relief of a place besieged. Still more unwarrantable is the
Russian claim to interfere with the trade in raw cotton. Her prohibition
of this trade is wholly unprecedented, for the treatment of cotton
during the American Civil War will be found on examination to have no
bearing on the question under consideration. I touch to-day upon this
large subject only to express a hope that our Government, in concert, if
possible, with other neutral Governments, has communicated to that of
Russia, with reference to its list of prohibited articles, a protest in
language as unmistakable as that employed by our Foreign Office in 1885;
"I regret to have to inform you, M. l'Ambassadeur," wrote Lord
Granville, "that Her Majesty's Government feel compelled to take
exception to the proposed measure, as they cannot admit that,
consistently with the law and practice of nations, and with the rights
of neutrals, provisions in general can be treated as contraband of war."
A timely warning that a claim is inadmissible is surely preferable to
waiting till bad feeling has been aroused by the concrete application of
an objectionable doctrine.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August I (1904).
RUSSIAN PRIZE LAW
Sir,--From this hilltop I observe that, in the debate of Thursday last,
Mr. Gibson Bowles, alluding to a letter of mine which appeared in your
issue of August 6, complained that I "had not given the proper
reference" to Lord Stowell's judgments. Mr. Bowles seems to be unaware
that in referring to a decided case the page mentioned is, in the
absence of any indication to the contrary, invariably that on which the
report of the case commences. I may perhaps also be allowed to say that
he, in my opinion, misapprehends the effect of the passage quoted by him
from the _Felicity_, which decides only that, whatever may be the
justification for the destruction of a neutral prize, the neutral owner
is entitled, as against the captor, to full compensation for the loss
thereby sustained.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Eggishorn, Valais, Suisse, August 14 (1904).
RUSSIAN PRIZE LAW
Sir,--Mr. Gibson Bowles has, I find, addressed to you a letter in which
he attempts to controvert two statements of mine by the simple expedient
of omitting essential portions of each of them.
1. Mr. Bowles having revealed himself as unaware that the mode in which
I had cited a group of cases upon destruction of prizes was the correct
mode, I thought it well to provide him with the rudimentary information
that, "in referring to a decided case, the page, mentioned is, _in the
absence of any indication to the contrary_, invariably that on which the
report of the case commences." He replies that he has found appended to
a citation of a passage in a judgment the page in which this passage
occurs. May I refer him, for an explanation of this phenomenon, to the
words (now italicised) omitted in his quotation of my statement? It is,
of course, common enough, when the reference is obviously not to the
case as a whole but to an extract from it, thus to give a clue to the
extract, the formula then employed being frequently "_at_ page
so-and-so."
2. I had summarised the effect, as I conceive it, of the group of cases
above mentioned in the following terms: "Such action is justifiable only
in cases of the gravest importance to the captor's own State, _after
securing the ship's papers, and subject to the right of the neutral
owners to receive full compensation_." Here, again, while purporting to
quote me, Mr. Bowles omits the all-important words now italicised. I am,
however, maltreated in good company. Mr. Bowles represents Lord Stowell
as holding that destruction of neutral property cannot be justified,
even in cases of the gravest importance to the captor's own State. What
Lord Stowell actually says, in the very passage quoted by Mr. Bowles, is
that "to the neutral can only be justified, under any such
circumstances, by a full restitution in value." I would, suggest that
Mr. Bowles should find an opportunity for reading _in extenso_ the
reports of the _Actaeon_ (2 Dods. 48), and the _Felicity_ (_ib._ 881),
as also for re-reading the passage which occurs at p. 386 of the latter
case, before venturing further into the somewhat intricate
technicalities of prize law.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Eggishorn, Suisse, August 26 (1904).
THE SINKING OF NEUTRAL PRIZES
Sir,--In your St. Petersburg correspondence of yesterday I see that some
reference is made to what I have had occasion to say from time to time
upon the vexed question of the sinking of neutral vessels, and your
Correspondent thinks it "would be decidedly interesting" to know whether
I have really changed my opinion on the subject. Perhaps, therefore, I
may be allowed to state that my opinion on the subject has suffered no
change, and may be summarised as follows:--
1. There is no established rule of international law which absolutely
forbids, under any circumstances, the sinking of a neutral prize. A
_consensus gentium_ to this effect will hardly be alleged by those who
are aware that such sinking is permitted by the most recent prize
regulations of France, Russia, Japan, and the United States.
2. It is much to be desired that the practice should be, by future
international agreement, absolutely forbidden--- that the lenity of
British practice in this respect should become internationally
obligatory.
3. In the meantime, to adopt the language of the French instructions,
"On ne doit user de ce droit de destruction qu'avec plus la grande
réserve"; and it may well be that any given set of instructions (e.g.
the Russian) leaves on this point so large a discretion to commanders of
cruisers as to constitute an intolerable grievance.
4. In any case, the owner of neutral property, not proved to be good
prize, is entitled to the fullest compensation for his loss. In the
language of Lord Stowell:--
"The destruction of the property may have been a meritorious
act towards his own Government; but still the person to whom
the property belongs must not be a sufferer ... if the captor
has by the act of destruction conferred a benefit upon the
public, he must look to his own Government for his
indemnity."
It may be worth while to add that the published statements on the
subject for which I am responsible are contained in the _Admiralty
Manual of Prize Law_ of 1888 (where section 808 sets out the lenient
British instructions to commanders, without any implication that
instructions of a severer kind would have been inconsistent with
international law); in letters which appeared in your columns on August
6, 17, and 30, 1904; and in a paper on "Neutral Duties in a Maritime
War, as illustrated by recent events," read before the British Academy
in April last, a French translation of which is in circulation on the
Continent.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Temple, June 29 (1905).
The Russian circular of April 3, 1906, inviting the Powers to a
second Peace Conference, included amongst the topics for
discussion: "Destruction par force majeure des bâtiments de
commerce neutres arrêtés comme prises," and the British
delegates were instructed to urge the acceptance of what their
Government had maintained to be the existing rule on the
subject. The Conference of 1907 declined, however, to define
existing law, holding that its business was solely to consider
what should be the law in future. After long discussions, in
the course of which frequent reference was made to views
expressed by the present writer (see _Actes et Documents_, t.
iii. pp. 991-993, 1010, 1016, 1018, 1048, 1171), the Conference
failed to arrive at any conclusion as to the desirability of
prohibiting the destruction of neutral prizes, and confined
itself to the expression of a wish (_voeu_) that this, and
other unsettled points in the law of naval warfare, should be
dealt with by a subsequent Conference.
This question was, accordingly, one of those submitted to a
Conference of ten maritime Powers, which was convoked by Great
Britain in 1908, for reasons upon which something will be said
in the next section.
The question of sinking was fully debated in this Conference,
with the assistance of memoranda, in which the several Powers
represented explained their divergent views upon it, and of
reports prepared by committees specially appointed for the
purpose. It soon became apparent that the British proposal for
an absolute prohibition of the destruction of neutral prizes
had no chance of being accepted; while, on the other hand, it
was generally agreed that the practice is permissible only in
exceptional cases. (See _Parl. Paper, Miscell._ No. 5 (1909),
pp. 2-63, 99-102, 120, 189, 205, 215, 223, 248, 268-278, 323,
365.) Arts. 48-54 of the Declaration, signed by the delegates
to the Conference on February 26, 1909, but not ratified by
Great Britain, related to this question. After laying down, in
Art. 48, the general principle that "a neutral prize cannot be
destroyed by the captor, but should be taken into such port as
is proper for the legal decision of the rightfulness of the
capture" the Declaration proceeded, in Art. 49, to qualify this
principle by providing that "exceptionally, a neutral vessel
captured by a belligerent warship, which would be liable to
confiscation, may be destroyed, if obedience to Art. 48 might
compromise the safety of the warship, or the success of the
operations in which she is actually engaged."
* * * * *
SECTION 8
_An International Prize Court_
The forecast, incidentally attempted in the following letters,
of the general results likely to be arrived at by the second
Peace Conference, has been justified by the event. As much may
be claimed for the views maintained upon the topic with which
these letters were more specifically concerned. Instead of
letting loose the judges of the proposed International prize
Court to "make law," in accordance with what might happen to be
their notions of "the general principles of justice and
equity," a serious attempt has been made to supply them with a
Code of the law which they would be expected to administer.
Some account will be given at the end of this section of the
movement towards the establishment of an International Court of
Appeal in oases of prize.
AN INTERNATIONAL PRIZE COURT
SIR--The idea suggested by the question addressed on February 19 to the
Government by Mr. A. Herbert--viz. that the appeal in prize cases
should lie, not to a Court belonging to the belligerent from whose Court
of first instance the appeal is brought, but to an international
tribunal, has a plausible appearance of fairness, but involves many
preliminary questions which must not be lost sight of.
Prize Courts are, at present, Courts of enquiry, to which a belligerent
Government entrusts the duty of ascertaining whether the captures made
by its officers have been properly made, according to the views of
international law entertained by that Government. There exists, no
doubt, among Continental jurists, a considerable body of opinion in
favour of giving to Courts of Appeal, at any rate, in prize cases a
wholly different character. This opinion found its expression in Arts.
100-109 of the _Code des Prises maritimes_, finally adopted at its
Heidelberg meeting, in 1887, by the Institut de Droit International.
Art. 100 runs as follows:--
"Au début de chaque guerre, chacune des parties belligérantes
constitue un tribunal international d'appel en matière de
prises maritimes. Chacun de ces tribunaux est composé de cinq
membres, designés comme suit: L'état belligérant nommera
lui-même le président et un des membres. Il désignera en
outre trois états neutres, qui choisiront chacun un des trois
autres membres."
In the abstract, and supposing that a tribunal perfectly satisfactory
both to belligerents and neutrals could be constituted, whether
antecedently or _ad hoc_, there might be much to be said for the
proposal; subject, however, to one condition--viz. that an agreement
had been previously arrived at as to the law which the Court is to
apply. At the present time there exists, on many vital questions of
prize law, no such agreement. It will be sufficient to mention those
relating to the list of contraband, the distinction between "absolute"
and "conditional" contraband, the doctrine of "continuous voyages," the
right of sinking a neutral prize, the moment from which a vessel becomes
liable for breach of blockade.
Just as the _Alabama_ arbitration would have been impossible had not an
agreement been arrived at upon the principles in accordance with which
neutral duties as to the exit of ships of war were to be construed, so,
also, before an international Court can be empowered to decide questions
of prize, whether in the first instance or on appeal, it is
indispensable that the law to be applied on the points above mentioned,
and many others, should have been clearly defined and accepted, if not
generally, at least by all parties concerned. The moral which I would
venture to draw is, therefore, that although questions of fact, arising
out of capture of a prize, might sometimes be submitted to a tribunal of
arbitration, no case, involving rules of law as to which nations take
different views, could possibly be so submitted. One is glad, therefore,
to notice that the Prime Minister's reply to Mr. A. Herbert was of the
most guarded character. The settlement of the law of prize must
necessarily precede any general resort to an international prize Court;
and if the coming Hague Conference does no more than settle some of the
most pressing of these questions, it will have done much to promote the
cause of peace.
I am, your obedient servant,
T. E. HOLLAND.
Oxford, February 20 (1907).
A NEW PRIZE LAW
Sir,--The leading articles which you have recently published upon the
doings of the Peace Conference, as also the weighty letter addressed to
you by my eminent colleague, Professor Westlake, will have been welcomed
by many of your readers who are anxious that the vital importance of
some of the questions under discussion at The Hague should not be lost
sight of.
The Conference may now be congratulated upon having already given a
_quietus_ to several proposals for which, whether or not they may be
rightly described as Utopian, the time is admittedly not yet ripe. Such
has been the fate of the suggestions for the limitation of armaments,
and the exemption from capture of private property at sea. Such also,
there is every reason to hope, is the destiny which awaits the still
more objectionable proposals for rendering obligatory the resort to
arbitration, which by the Convention of 1899 was wisely left optional.
Should the labours of the delegates succeed in placing some restrictions
upon the employment of submarine mines, the bombardment of open coast
towns, and the conversion of merchant vessels into ships of war; in
making some slight improvements in each of the three Conventions of
1899; and in solving some of the more pressing questions as to the
rights and duties of neutrals, especially with reference to the
reception in their ports of belligerent warships, it will have more than
justified the hopes for its success which have been entertained by
persons conversant with the difficulty and complexity of the problems
involved.
But what shall we say of certain proposals for revolutionising the law
of prize, which still remain for consideration, notably for the
establishment of an international Court of Appeal, and for the abolition
of contraband? It can hardly be supposed that either suggestion will win
its way to acceptance.
1. The British scheme for an international Court of Appeal in prize
cases is, indeed, far preferable to the German; but the objections to
anything of the kind would seem to be, for the present, insuperable,
were it only for the reason which you allowed me to point out, some
months ago, _à propos_ of a question put in the House of Commons by Mr.
Arnold Herbert. As long as nations hold widely different views on many
points of prize law, it cannot be expected that they should agree
beforehand that, when belligerent, they will leave it to a board of
arbitrators to say which of several competing rules shall be applied to
any given case of capture, or to evolve out of their inner consciousness
a new rule, hitherto unknown to any national prize Court. It would seem
that the German advocates of the innovation claim in its favour the
authority of the Institut de Droit International. Permit me, therefore,
as one who has taken part in all the discussions of the Institut upon
the subject, to state that when it was first handled, at Zurich, in
1878, the difficulties in the way of an international Court were
insisted on by such men as Asser, Bernard, Bluntschli, Bulmerincq, and
Neumann, and the vote of a majority in its favour was coupled with one
which demanded the acceptance by treaty of a universally applicable
system of prize law. The drafting of such a system was accordingly the
main object of the _Code des Prises maritimes_, which, after occupying
several sessions of the Institut, was finally adopted by it, at
Heidelberg, in 1887. Only ten of the 122 sections of this Code deal with
an international Court of Appeal. A complete body of law, by which
States have agreed to be bound, must, one would think, necessarily
precede the establishment of a mixed Court by which that law is to be
interpreted.
2. While the several delegations are vying with one another in devising
new definitions of contraband, there would seem to be little likelihood
that the British proposal for its total abandonment will be seriously
entertained. Such a step could be justified, if at all, from the point
of view of national interest, only on the ground that it might possibly
throw increased difficulties in the way of an enemy desirous, even by
straining the existing law, of interfering with the supply of foodstuffs
to the British Islands. I propose, for the present, only to call
attention to the concluding paragraph of the British notice of motion on
this point, which would seem to imply much more than the abandonment of
contraband. The words in question, if indeed they are authentically
reported, are as follows: "Le droit de visite ne serait exercé que pour
constater le caractère neutre du bâtiment de commerce." Does this mean
that the visiting officer, as soon as he has ascertained from the ship's
papers that she is neutral property, is to make his bow and return to
the cruiser whence he came? If so, what has become of our existing right
to detain any vessel which has sailed for a blockaded port, or is
carrying, as a commercial venture, or even ignorantly, hostile troops or
despatches? No such definition as is proposed of an "auxiliary
ship-of-war" would safeguard the right in question, since a ship, to
come within that definition, must, it appears, be under the orders of a
belligerent fleet.
I would venture to suggest that the motto of a reformer of prize law
should be _festina lente._ The existing system is the fruit of practical
experience extending over several centuries, and, though it may need,
here and there, some readjustment to new conditions, brought about by
the substitution of steam for sails, is not one which can safely be
pulled to pieces in a couple of months. Let us leave something for
future Hague Conferences.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, July 24 (1907).
A NEW PRIZE LAW
Sir,--In a letter under the above heading, for which you were so good as
to find room in July last, I returned to the thesis which I had ventured
to maintain some months previously, _à propos_ of a question put in the
House of Commons. My contention was that the establishment of an
international prize Court, assuming it to be under any circumstances
desirable, should follow, not precede, a general international agreement
as to the law which the Court is to administer.
It would appear, from such imperfect information as intermittently
reaches Swiss mountain hotels, that a conviction of the truth of this
proposition is at length making way among the delegates to The Hague
Conference and among observers of its doings. In a recent number of the
_Courrier de la Conférence_, a publication which cannot be accused of
lukewarmness in the advocacy of proposals for the peaceful settlement of
international differences, I find an article entitled "Pas de Code
Naval, pas de Cour des Prises," to the effect that "l'acceptation de la
Cour des Prises est strictement conditionnelle à la rédaction du Code,
qu'elle aura à interpréter." Its decisions must otherwise be founded
upon the opinions of its Judges, "the majority of whom will belong to a
school which has never accepted what Great Britain looks upon as the
fundamental principles of naval warfare." One learns also from other
sources, that efforts are being made to arrive, by a series of
compromises, at some common understanding upon the points as to which
the differences of view between the Powers are most pronounced. It may,
however, be safely predicted that many years must elapse before any such
result will be achieved.
In the meantime, a very different solution of the difficulty has
commended itself to the partisans of the proposed Court. M. Renault, the
accomplished Reporter of the committee which deals in the first instance
with the subject, after stating that "sur beaucoup de points le droit de
la guerre maritime est encore incertain, et chaque État le formule au
gré de ses idées et de ses intérêts," lays down that, in accordance with
strict juridical reasoning, when international law is silent an
international Court should apply the law of the captor. He is,
nevertheless, prepared to recommend, as the spokesman of the committee,
that in such cases the Judges should decide "d'après les principes[C]
généraux de la justice et de l'équité"--a process which I had, less
complimentarily, described as "evolving new rules out of their inner
consciousness." The Court, in pursuance of this confessedly "hardie
solution," would be called upon to "faire le droit."
One may be permitted to hope that this proposal will not be accepted.
The beneficent action of English Judges in developing the common law of
England may possibly be cited in its favour; but the analogy is
delusive. The Courts of a given country in evolving new rules of law are
almost certain to do so in accordance with the views of public policy
generally entertained in that country. Should they act otherwise their
error can be promptly corrected by the national Legislature. Far
different would be the effect of the decision of an international Court,
in which, though it might run directly counter to British theory and
practice, Great Britain would have bound herself beforehand to
acquiesce. The only quasi-legislative body by which the _ratio
decidendi_ of such a decision could be disallowed would be an
international gathering in which British views might find scanty
support. The development of a system of national law by national Judges
offers no analogy to the working of an international Court, empowered,
at its free will and pleasure, to disregard the views of a sovereign
Power as to the proper rule to be applied in cases as to which
international law gives no guidance. In such cases the ultimate
adjustment of differences of view is the appropriate work, not of a law
Court, but of diplomacy.
It is hardly necessary to combat the notion that there already exists,
_in nubibus_, a complete system of prize law, which is in some
mysterious way accessible to Judges, and reveals to them the rule
applicable to each new case as it arises. This notion, so far as it is
prevalent, seems to have arisen from a mistaken reading of certain
_dicta_ of Lord Stowell, in which that great Judge, in his finest
eighteenth-century manner, insists that the law which it was his duty to
administer "has no locality" and "belongs to other nations as well as
our own." He was, of course, thinking of the rules of prize law upon
which the nations are agreed, not of the numerous questions upon which
no agreement exists, and was dealing with the difficult position of a
Judge who has to choose (as in the recent _Moray Firth_ case) between
obedience to such rules and obedience to the legislative, or
quasi-legislative, acts of his own Government.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Eggishorn, Suisse, September 16 (1907).
A NEW PRIZE LAW
Sir,--The speech of the Prime Minister at the Guildhall contains a
paragraph which will be read with a sense of relief by those who, like
myself, have all along viewed with surprise and apprehension The Hague
proposals for an international prize Court.
Sir H. Campbell-Bannerman admits that "it is desirable, and it may be
essential, that, before legislation can be undertaken to make such a
Court effective, the leading maritime nations should come to an
agreement as to the rules regarding some of the more important subjects
of warfare which are to be administered by the Court"; and his
subsequent eulogy of the Court presupposes that it is provided with "a
body of rules which has received the sanction of the great maritime
Powers." What is said as to the necessary postponement of any
legislation in the sense of The Hague Convention must, of course, apply
_a fortiori_ to the ratification of the Convention.
We have here, for the first time, an authoritative repudiation of the
notion that fifteen gentlemen of mixed nationality composing an
international prize Court, are to be let loose to "make law," in
accordance with what may happen to be their conceptions of "justice and
equity." It seems at last to be recognised that such a Court cannot be
set to work unless, and until, the great maritime Powers shall have come
to an agreement upon the rules of law which the Court is to administer.
I may add that it is surely too much to expect that the rules in
question will be discussed by the Powers, to use Sir H.
Campbell-Bannerman's phrase, "without any political _arrière pensêe._"
Compromise between opposing political interests must ever remain one of
the most important factors in the development of the law of nations.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 11 (1907).
Although the establishment of an International Prize Court of
Appeal was not one of the topics included in the programme of
the Russian invitation; to a second Peace Conference, no
objection was made to its being taken into consideration, when
proposals to that effect were made by the British and American
delegates to the Conference. The idea seems first to have been
suggested by Hübner, who proposed to confer jurisdiction in
cases of neutral prize on Courts composed of ministers or
consuls, accredited by neutrals to the belligerents, together
with commissioners appointed by the Sovereign of the captors or
of the country to which the prize has been brought, as also,
perhaps, "des personnes pleines de probité et de connaissances
dans tout ce qui concerne les Loix des Nations et les Traités
des Puissances modernes." The Court is to decide in accordance
with treaties, "ou, à leur défaut, la loi universelle des
nations." _De la Saisie des Bâtiments neutres_ (1759), ii. pp.
45-61. The Institut de Droit International, after discussions
extending over several years, accepted the principle of an
International Court of Appeal, though only in combination with
a complete scheme of prize law, in its _Code des Prises
maritimes_, completed in 1887, section 100.
At the Conference of 1907, the work of several committees, and
a masterly report by Professor Renault, _Parl. Papers_, No. iv.
(1908), p. 9, resulted in The Hague Convention, No. xii. of
that year, providing for the establishment of a mixed Court of
Appeal from national prize Courts.
According to Art. 7 of this Convention, in default of any
relevant treaty between the Governments of the litigant
parties, and of generally recognised rules of international law
bearing upon the question at issue, the Court is to decide "in
accordance with the general principles of justice and equity."
It seems, however, to have been soon perceived that the
proposal to institute a Court, unprovided with any fixed system
of law by which to decide the cases which might be brought
before it, could not well be entertained, and the Final Act of
the Conference accordingly expresses a wish that "the
preparation of a _Règlement_, relative to the laws and customs
of maritime war, may be mentioned in the programme of the next
Conference."
Thereupon, without waiting for the meeting of a third Hague
Conference, the British Government on February 27, 1908,
addressed a circular to the great maritime Powers, which, after
alluding to the impression gained "that the establishment of
the International Prize Court would not meet with general
acceptance so long as vagueness and uncertainty exist as to the
principles which the Court, in dealing with appeals brought
before it, would apply to questions of far-reaching importance,
affecting naval policy and practice," went on to propose that
another Conference should meet in London, in the autumn of the
same year, "with the object of arriving at an agreement as to
what are the generally recognised principles of international
law within the meaning of paragraph 2 of Article 7 of the
Convention, as to those matters wherein the practice of nations
has varied, and of then formulating the rules which, in the
absence of special treaty provisions applicable to a particular
case, the Court should observe in dealing with appeals brought
before it for decision.... It would be difficult, if not
impossible, for H.M. Government to carry the legislation
necessary to give effect to the Convention, unless they could
assure both Houses of the British Parliament that some more
definite understanding had been reached as to the rules by
which the new Tribunal should be governed."
In response to this invitation, delegates from ten principal
maritime States assembled at the Foreign Office on December 4,
1908, and after discussing the topics to which their attention
was directed, viz.: (1) Contraband; (2) Blockade; (3)
Continuous voyage; (4) Destruction of neutral prizes; (5)
Unneutral service; (6) Conversion of merchant vessels into
warships on the high seas; (7) Transfer to a neutral flag; (8)
Nationality or domicil, as the test of enemy property; signed
on February 26, 1909, the Declaration of London.
The Convention No. xii. of 1907 and the Declaration of London
of 1909 have alike failed to obtain ratification. _Cf._ now the
two immediately following sections, 9 and 10.
An ultimate Court of Appeal in cases of Prize seems now likely
to be provided by the "Permanent Court of International
Justice," proposed by the League of Nations in pursuance of
Art. 14 of the Treaty of Versailles. See also Art. 24 of the
Treaty. _Cf. supra_, p. 2.
* * * * *
SECTION 9
_The Naval Prize Bill_
The first two letters in this section contain the criticisms of
the Bill to which allusion is made in the first lines of a
letter of later date, q.v. _supra_, p. 36. On the rejection of
the Bill, see _ib._, note 1.
THE NAVAL PRIZE BILL
Sir--A paternal interest in the Naval Prize Bill may perhaps be thought
a sufficient excuse for the few remarks which I am about to make upon
it. The Bill owes its existence to a suggestion made by me, just ten
years ago, while engaged in bringing up to date for the Admiralty my
_Manual of Naval Prise Law_ of 1888. It was drafted by me, after
prolonged communications with Judges, Law Officers, and the Government
Departments concerned, so as not only to reproduce the provisions of
several "cross and cuffing" statutes dealing with the subject, but also
to exhibit them in a more logical order than is always to be met with in
Acts of Parliament.
The Bill was thought of sufficient importance to be mentioned on two
occasions in the King's Speech, and has been several times passed, after
careful consideration, by the House of Lords; but pressure of other
business has hitherto impeded its passage through the House of Commons.
It has now been reintroduced, this time in the Lower House, with an
imposing backing of Government support; primarily, no doubt, with a view
to facilitating the ratification of The Hague Convention for the
establishment of an International Prize Court of Appeal. For this
purpose, several pieces of new cloth have been sewn into the old
garment, and I may perhaps be allowed to call attention to three or four
points in which, on a first reading, the new clauses strike one as
needing reconsideration.
Tactical reasons have, no doubt, operated to induce the Government to
include in the Consolidation Bill the provisions for which statutory
authority must be obtained before it will be possible to ratify the
Convention; instead of first introducing a Bill having this sole object
in view, and afterwards, should this be passed, inserting the new law in
a reintroduced Consolidation Bill.
The course adopted necessitates an otherwise unnecessary preamble, and
the qualification of the new Part III. by the words "in the event of an
International Prize Court being established" (Clause 23). The reference,
by the by, in this clause to "the said Convention" is somewhat awkward,
no mention of any Convention having occurred previously, except in the
preamble of the Bill. Is not also the statutory approval given by this
clause, not only to the Convention of 1907 but also to "any Convention
amending the same," somewhat startling, as tending to exclude
Parliamentary criticism of such an amending Convention before its
ratification?
By Clause 9, the members of the Judicial Committee who are to be
nominated to act as the British Court of Appeal in cases of prize are to
be described by the novel title of "the Supreme Prize Court." Is not the
use made of the term "Supreme" in the Judicature Acts, as covering both
the High Court and the Court of Appeal, already sufficiently
unsatisfactory?
But the question which, of all others _saute aux yeux_, in reading the
new Part III., is whether the Convention is to be approved as it stands,
irrespectively of a general acceptance of the new Code of Prize Law
contained in the Declaration of London of 1909. The objections to Art. 7
of the Contention, providing that, in the absence of rules of
International Law generally recognised (and on many points of Prize Law
there are no such rules), the Court is to decide in accordance with
(what it may be pleased to consider) "the general principles of law and
equity," are well known. The purpose of the Declaration of London
(itself the subject of much difference of opinion) was to curtail this
licence of decision, by providing the Court with so much ascertained
Prize Law as to render action under the too-elastic phrase above quoted
almost inconceivable.
Is it too much of a counsel of perfection to suggest that the debatable
questions arising under the Convention of 1907 and the Declaration of
1909 should first be threshed out in discussions on a Bill dealing with
those questions only; and that the decision, if any, thus arrived at
should be subsequently inserted, freed from hypothesis, in the
Consolidation Bill which has so long awaited the leisure of the House of
Commons?
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, July 10 (1910).
THE NAVAL PRIZE BILL
Sir,--The Government has so far yielded to the representations of the
Opposition as to have refrained from forcing on Friday night a division
upon the Naval Prize Bill. Is it too much to hope that the Government
may even now withdraw altogether a measure so ill adapted to place
fairly before Parliament the question of the desirability of ratifying
two documents held by a large body of competent opinion to be certain,
if ratified, seriously to endanger the vital interests of the country?
The Bill, as I have already pointed out, as originally drawn, was a
careful consolidation of the law and procedure governing British Courts
of Prize. Into this has now been incongruously thrust a set of clauses
intended to give effect to a novel and highly controversial proposal for
the creation of an International Prize Court. About the Declaration of
London, alleged to contain a body of law which would adequately equip
such a Court for the performance of its duties, not a word is said in
the Bill; yet, should approval of the Bill be snatched by a purely party
majority, the intention of the Government is to proceed straightway to
the ratification both of the Prize Court Convention and the Declaration.
Whether they intend also to endeavour to obtain the ratification, as an
auxiliary Convention, of the lengthy covering commentary upon the
Declaration, supplied by the committee by which the Declaration was
drafted, does not yet appear. Of such a step I have already written that
it "would be calamitous should a practice be introduced of attempting to
cure the imperfect expression of a treaty by tacking on to it an equally
authoritative reasoned commentary. The result would be _obscurum per
obscurius_, a remedy worse than the disease."
The alternatives before Parliament on Monday next will be either, by
reading the Naval Prize Bill a second time, to bring about, in the teeth
of protests from those best qualified to express an independent opinion
upon the subject, the immediate ratification of the Convention and the
Declaration, or to ask that before, this momentous step is taken the
infinitely complex and delicate questions involved should be examined
and passed upon by a Commission of representative experts. Which shall
it be?
Your obedient servant,
T. E. HOLLAND.
Oxford, July I (1911).
_Cf._ a letter of July 7, 1911, _supra_, p. 36.
NAVAL PRIZE MONEY
Sir,--The existing enactments as to prize bounty are, it seems,
unsuitable to present conditions of naval warfare, and are accordingly
to be varied by a bill shortly to be introduced.
May I venture to recommend that the Bill should contain merely the
half-dozen clauses needed for this purpose, leaving untouched for
subsequent uncontroversial passage, the Naval Prize Consolidation with
Amendments Bill? This Bill, suggested and drafted by myself, in the
spacious times of peace, in consultation with the Admiralty and other
Government Departments, as also with the Judge of the Admiralty Division
and the Law Officers (including the present Lord Chancellor), was twice
mentioned in the King's Speech, and several times, after careful
consideration, passed by the House of Lords, but still awaits the
leisure of the Lower House. It deserved a better fate than to have been
used, in 1911, as a corpus vile for facilitating the ratification of the
Convention for an International Prize Court and of the Declaration of
London; receiving, most fortunately, as so perverted, its _coup de
grâce_ from the Lords. It should be passed as an artistic whole, apart
from any contentious matter, account having, of course, been taken of
recent legislation by which it may have been, here and there, affected.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 23 (1918).
* * * * *
SECTION 10
The Declaration of London
For incidental mentions of the Declaration in earlier sections
see _supra_, pp. 22, 36, 39, 55, 58, 80, 90, 92, 148, 149, 154,
155, 156, 158, 163, 164, 174, 181, 191, 193, 194, 195, 196.
See also my paper upon _Proposed Changes in the Law of Naval
Prize_, read to the British Academy on May 31, 1911,
_Transactions_, vol. v., of which a translation appeared in the
_Revue de Droit International_, N.S., t. xiii, pp. 336-355.
THE DECLARATION OF LONDON
Sir,--The questions put last night by Mr. M'Arthur need, perhaps, more
fully considered answers than they received from Mr. McKinnon Wood.
With reference to the first answer, it may be worth while to point out
that, in Art. 66 of the Declaration, the Powers undertake not only, as
in the passage quoted, "to give the necessary instructions to their
authorities and armed forces," but also "to take the measures which may
be proper for guaranteeing the application of the rules Contained in the
Declaration by their Courts, and, in particular, by their Courts of
Prize." The "authentic commentary" upon the article in M. Renault's
"Report" explains that the measures in question "may vary in different
countries, and may or may not require the intervention of the
Legislature."
The second answer lays down broadly that "the decisions of the British
Prize Courts are founded on International Law, and not on municipal
enactments." Our Prize Courts have, no doubt, on most points, decided in
accordance with International Law, in the sense of the principles
generally followed by civilised nations; but, on not a few points, in
accordance with the British view of what is, or ought to be,
International Law, in opposition to views persistently maintained by
other countries--e.g. with reference to the moment from which a
blockade-runner becomes liable to capture. The fact is that, whatever
grandiloquent language may have been judicially employed by Lord Stowell
in a contrary sense, it will now hardly be denied that a Prize Court
sits by national, not international, authority, and is bound to take the
view of International Law which, if any, is prescribed to it by the
constitutionally expressed will of its own Government.
The Declaration of London is in many ways a great achievement; but one
is glad to learn from Mr. McKinnon Wood's third answer that opportunity
will be given for discussing all important points in connexion with its
rules.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 30 (1909).
THE DECLARATION OF LONDON
Sir,--Both the Prize Court Convention of 1907 and its complement, the
London Declaration of 1909, stand greatly in need of full and
well-informed discussion before receiving the Parliamentary approval
which ought to be a condition precedent to the ratification of either of
them. It is well, therefore, that many Chambers of Commerce have called
the attention of Government to the detriment to British interest which
may in their opinion result from these agreements if ratified, although
the representations thus made exhibit, in some cases, so little
technical knowledge as to have been readily disposed of by the Foreign
Secretary. For the same reason, I welcome the letter from Mr. Gibson
Bowles, which appeared in _The Times_ of yesterday, although it contains
some statements the inaccuracy of which it may be desirable at once to
point out.
1. The Declaration of Paris is neither implicitly nor explicitly adopted
by the Declaration of London, "as a part of the common law of nations
which can no longer be disputed." The later makes no mention of the
earlier one, and M. Benault's _rapport_ (as to the interpretative
authority of which opinions may well differ) applies the words quoted,
not to the Paris Declaration as a whole, but to one only of its
articles. Mr. Bowles's statement that "the Declaration of London, if
adopted, would reaffirm, and its ratification would in effect, for the
first time ratify, the Declaration of Paris" cannot be supported.
2. Mr. Bowles asserts it to be "an unquestioned doctrine of the Law of
Nations that war abrogates and annuls treaty obligations between
belligerents." One would have supposed it to be common knowledge that
large classes of treaties are wholly unaffected by war. Such are, for
instance, what are called conventions _transitoires_, because their
effect is produced once for all, as in the case of cessions of
territory; and, notably, treaties entered into for the regulation of the
conduct of war, such as the Geneva Convention, many of The Hague
Conventions of 1907, and the Declaration of Paris itself, which Mr.
Bowles appears to think would _ipso facto_ cease to be obligatory
between its signatories on their becoming belligerent.
It is a pleasure to be able to agree with Mr. Bowles in his wish that
the Naval Prize Bill, if reintroduced, should be rejected, though I
would rather say "withdrawn." You have already allowed me (on July 10)
to point out that if the Convention and Declaration are to be
effectively discussed in Parliament they should be disentangled from
that Bill, into which the Convention, and, by implication, the
Declaration, have been incongruously thrust. This practically
non-contentious Consolidation Bill, after several times securing the
approval of the House of Lords, has hitherto for several years awaited
the leisure of the House of Commons, but was suddenly reintroduced last
Session, apparently as an unobtrusive vehicle for the new and highly
debatable matter contained in the two above-mentioned documents. May I
now repeat my suggestion that "the debatable questions arising under the
Convention of 1907 and the Declaration of 1909 should first be threshed
out in discussions on a Bill dealing with these questions only; and that
the decision, if any, thus arrived at should be subsequently inserted,
freed from hypothesis, in the Consolidation Bill"?
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 28 (1910).
THE DECLARATION OF LONDON
Sir,--I have read Professor Westlake's letters upon the Declaration of
London with the attention due to anything written by my very learned
friend, but, although myself opposed to the ratification alike of the
Prize Court Convention and of its complement, the Declaration, do not at
present wish to enter upon the demerits of either instrument.
There is, however, a preliminary question upon which, with your
permission, I should like to say a few words. My friend justly observes
that in dealing with the Declaration "the first necessity is to know
what it is that we have before us"; and he devotes his letter of January
31 to maintaining that the Declaration must be read as interpreted by
the explanations of it given to the full Conference by the Drafting
Committee, of which M. Renault was president. Professor Westlake
supports his opinion by a quotation from the reply of the Foreign Office
in November last to the Edinburgh Chamber of Commerce (_Miscell._ 1910,
No. 4, p. 21). I may mention that a similar reply had been given, a year
previously, by Mr. McKinnon Wood to a question in the House of Commons.
The source of these replies is doubtless to be found in a paragraph of
the Report, addressed on March 1, 1909, to Sir Edward Grey, of the
British Delegates to the London Conference, which runs as follows:--
"It should be borne in mind that, in accordance with the
principles and practice of Continental jurisprudence, such a
Report is considered an authoritative statement of the
meaning and intention of the instrument which it explains,
and that consequently foreign Governments and Courts, and no
doubt also the International Prize Court, will construe and
interpret the provisions of the Declaration by the light of
the Commentary given in the Report." (_Miscell._ 1909, No. 4,
p. 94.)
It is desirable to know upon what authority this statement rests. I am
aware of none. The nearest approach to an assertion of anything like it
occurred at The Hague Conference of 1899, when the "approval" accorded
to "the work of the Second Committee, as embodied in the articles voted
and in the interpretative Report which accompanies them" was alleged by
M. de Martens to amount to an acceptance of the Report "comme un
commentaire interprétatif authentique des articles votés." (_Miscell._
1899, No. 1, p. 165.) The drafting Report presented to the Geneva
Conference of 1906 is merely said to have been "adopted" (Actes, p.
286); and M. Renault's Report to the Conference of London was similarly
merely "accepted," although he presented it as containing
"Un commentaire précis, dégagé de tout controverse, qui,
devenu commentaire officiel par l'approbation de la
Conférence, soit de nature à guider les autorités diverses,
administratives, militaires, judiciaires, qui pourront avoir
à l'appliquer." (_Miscell._ 1909, No. 5, p. 344.)
It would seem that in each of these cases the adoption of the Report,
and even a suggestion or two for a change in its phraseology, amounted
to nothing more than an expression of opinion on the part of the
Delegates to the Conference that the Report contained explanations which
had satisfied themselves, and might satisfy their Governments, that the
Convention which they were about to forward to those Governments might
safely be accepted.
So far as Governments are concerned, the adoption of a Report by their
Delegates is _res inter alios acta_. An "authentic interpretation" of a
contract can be given only by the parties to it, who, in the case of a
treaty, are the States concerned. If these States desire to give to the
report of a drafting committee the force of an authentic interpretation
of their contract, they can surely do so only by something amounting to
a supplementary convention. Writers upon international law naturally
throw but little light upon questions to which the somewhat novel
practice of argumentative drafting Reports has given rise; but I may
cite Professor Ullmann, of Vienna, as saying:--
"Eine authentische Interpretation kann nur die durch
Kontrahenten selbst, in einem gemeinschaftlichen, ihren
Willen ausser Zweifel setzenden Acte (einem Nachtrags-oder
Erlauterungsvertrage), erfolgen" (Volkerrecht, p. 282);
and Professor Fiore, of Naples, to the effect that what is called
"authentic interpretation" is not
"interpretazione propriamente detta, ma una dichiarazione di
quello che fu gia concordato, o un nuovo trattato" (Diritto
Internazionale, ss. 1, 118);
and that
"il trattato non può essere interpretato che dalle stesse
Parti (_i.e._ Stati) contrahenti; e per la validità dell'
atto è indispensabile che la relativa convenzione di
interpretazione abbia gli stessi requisiti ... di ogni altra
convenzione tra Stato e Stato" (Il Dir. Int. Codif., § 816).
I would submit that such a Report as that which accompanies the
Declaration of London has no claim to the sort of interpretative
authority which has been attributed to it; nor is it desirable that the
requisite steps should be taken for giving it that authority. It would
be calamitous should a practice be introduced of attempting to cure the
imperfect expression of a treaty by tacking on to it an equally
authoritative reasoned commentary, likely, as in the present case, to be
enormously longer than the test to which it relates.
It is a wholly different question whether Governments or Courts would be
inclined to take notice of such a Report, among other facts antecedent
to a Convention, or Declaration, which they might be called upon to
construe. A British Court would not, I conceive, be so inclined. On the
probable inclinations of Continental Courts, and of an International
Prize Court, should one be instituted, further expert information would
seem to be called for.
The fact is that the vitally important questions of theory and practice
raised by the Convention and the Declaration need calmer and better
instructed discussion than they have yet received. Ought they not to be
referred to a Royal Commission, on which should be placed
representatives of the Navy and Merchant Service, of the corn trade, and
of the Colonies, together with international lawyers, in touch with the
views of their Continental colleagues?
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, February 16 (1911).
THE DECLARATION OF LONDON
Sir,--Professor Westlake, replying in _The Times_ of to-day to the
arguments by which I had endeavoured to show that the Report made to the
Conference of London has no pretensions to be treated as an authentic
interpretation of the Declaration prepared by the Conference, still
maintains that "the essential question will be, what the agreement was
that the Conference arrived at." I had maintained, on the contrary, that
the essential question will be, What is the agreement entered into by
the Powers, as evidenced by their ratifications? anything outside of the
ratified agreement being _res inter alios acta_. I should not be
justified in asking you to allow me to repeat the contents of my letter
of Monday last in support of this view. The pleadings are, I think,
exhausted. "Therefore let a jury come."
I should like, however, to point out that I did not, as my friend seems
to think, attribute the acceptance of the Report to the delegates
"singly." It was, no doubt accepted by all present without protest. My
colleague will, I am sure, pardon me if I add that I cannot concur in
his exegesis of my citations from Ullmann and Fiore.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, February 25 (1911).
THE DECLARATION OF LONDON
Sir,--It is satisfactory that so high an authority as Mr. Arthur Cohen
distinctly accedes to the view that the Declaration of London ought not
to be ratified as it stands. I should, however, be sorry were his
suggestion accepted that the Declaration and the argumentative report
which accompanies it might be ratified together. The result would be
_obscurum per obscurius_, a remedy worse than the disease.
I shall ask leave to add that, if Mr. Cohen will take the trouble to
look again at my letters of February 10 and 25, he will cease to suppose
it possible that in writing "the pleadings are, I think, exhausted,
&c.," I meant to convey that no further discussion of the merits or
demerits of the Declaration was required. On the contrary I expressly
limited myself to a consideration of the preliminary question, whether
interpretative authority would rightly be attributed to the report in
question, stating that, while opposed to the ratification alike of the
Prize Court Convention and of the Declaration, I did not, for the
present, wish to enter upon the demerits of either instrument; and ended
my first letter by suggesting the reference to a Royal Commission of
"the vitally important questions of theory and practice raised by the
Convention and the Declaration," as needing "calmer and better
instructed discussion than they have yet received."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 1 (1911).
THE DECLARATION OF LONDON
Sir,--After Tuesday's debate in the House of Lords it may be hoped that
not even "the man in the street" will suppose the Declaration of London
to be anything more than an objectionable draft, by which no country has
consented to be bound. Every day of the war makes more apparent our debt
to the House of Lords for having, four years ago, prevented the British
Government from ratifying either the International Prize Court
Convention or this Declaration, which, while misleadingly professing
that its provisions "correspond in substance with the generally
recognised principles of international law," contains, interspersed with
truisms familiar to all concerned with such matters, a good many
undesirable novelties.
This being so, it was surely unfortunate that our Government, with a
view apparently to saving time and trouble, decided, in the early days
of the war, to adopt the Declaration _en bloc_ as a statement of prize
law "during the present hostilities," subject, however, to "certain
additions and modifications"; to which it, of course, retained the power
of making additions. This power has been so freely exercised, and large
portions of the Declaration, not thereby affected, have proved to be so
inapplicable to modern conditions, as disclosed by the war, that the
document, so far from providing reliable guidance, is now a mere source
of hopeless confusion.
To put an end to this confusion, I venture to suggest that, in concert
with our Allies, the Declaration should be finally consigned to
oblivion. Either let its place be taken by some clear and simple
statement of unquestioned prize law, for the use of commanders and
officials (something like a confidential document in the drafting of
which I had a hand some years ago, but, of course, brought up to date),
or let established principles take care of themselves, certain doubtful
points only being dealt with, from time to time, by Orders in Council.
While heartily concurring in Lord Portsmouth's description of the
unratified "Declaration" as "rubbish," I regret that he seems to
relegate to the same category even those generally ratified "Hague
Conventions" which, as far as they go, mark a real advance upon
previously accepted rules. Still less acceptable is his advice to "sweep
away juridical niceties" in the conduct of hostilities. Did he intend
thus to describe the whole fabric of the rules by which international
law has endeavoured, with considerable success, to restrain barbarity in
warfare?
I must mention that this letter was written before seeing this morning
the letter of Mr. Gibson Bowles, my worthy ally in attacks upon the
Declaration.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 3 (1915).
THE DECLARATION OF LONDON
Sir,--You have allowed me, in a good many letters, to criticise the
Declaration of London, both in its original inception and in its
subsequent applications. Thanks to the House of Lords, the Declaration,
which erroneously professed to "correspond in substance with the
generally recognised principles of International Law," has remained
unratified, and therefore diplomatically of no effect.
Its admirers have, however, too long preserved it, perhaps _sub spe
rati_, in a state of suspended animation, using it by way of, as they
supposed, a convenient handbook of maritime law for the purposes of the
present war, though subject to such variations as might from time to
time be found convenient by the Allies. The mistake thus made soon
became apparent. The elaborate classification of contraband had to be at
once thrown overboard, and most of the remaining provisions of the
Declaration proved to be inapplicable to modern warfare.
In December last I accordingly wrote as follows:--
"To put an end to this confusion, I venture to suggest that,
in concert with our Allies, the Declaration should be finally
consigned to oblivion. Either let its place be taken by some
clear and simple statement of unquestioned prize law, for the
use of commanders and Officials, ... or established
principles take care of themselves, certain doubtful points
only being dealt with from time to time by Orders in
Council."
I need hardly say that to anyone holding the views thus expressed,
yesterday's Order in Council must be most satisfactory; getting rid, as
it does for good and all, of the unfortunate Declaration, leaving the
application of established principles to those acquainted with them and
promulgating authoritative guidance on specific novel questions.
I may perhaps add a word or two on the undesirability of describing as
"Declarations" documents which, being equipped with provisions for
ratification, although they may profess to set out old law, differ in no
respect from other conventions. Also, as to the need for greater caution
on the part of our representatives than has been shown by their
acceptance of various craftily suggested anti-British suggestions, such
as were several embodied in the Declaration in question, and notably
that of the notorious cl. 23 (_h_) of The Hague Convention iv., the
interpretation of which has exercised the ingenuity of the Foreign
Office and, more recently, of the Court of Appeal.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Brighton, July 9 (1916).
On July 7, 1916, an Order in Council was made, revoking all
Orders by which the provisions of the Declaration had been
adopted, or modified, for the duration of the war; stating the
intention of the Allies to exercise their belligerent rights at
sea in strict accordance with the law of nations; but dealing
specifically with certain doubtful points. The Order was
accompanied by a memorandum, drawn up by the British and French
Governments, explaining how their expectation that in the
Declaration they would find "a suitable digest of principles
and compendium of working rules" had not been realised. See
also Lord Robert Cecil in the House of Commons on August 23,
with reference to the Zamora case, [1916] 2 Ch. c. 77.
On misuses of the term "Declaration" _cf. supra_, pp. 90, 91,
92.
GERMANY WRONG AGAIN
Sir,--The new German Note handed on Thursday last to the representatives
of the neutral Powers supports its allegation that the four Allied
Powers "have trampled upon right and torn up the treaties on which it
was based" by the following statement:--
"Already in the first weeks of the war England had renounced
the Declaration of London, the contents of which her own
delegates had recognised as binding in international law."
It is surely notorious that the delegates of a Power, by agreeing to the
draft of a treaty, give to it no international validity, which results
only when the treaty has been ratified by their Government. The
Declaration of London has, most fortunately, never been ratified by the
Government of Great Britain.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, January 13 (1917).
INDEX
Absolute contraband. _See_ Contraband
Abstention, 129
Acquiescence, State duty of, 129, 130, 133, 136
_Actæon_, the, 176, 179
Acts of Parliament, 61, 63
Admiralty Manual of Prize Law, 156, 159, 192
Aerial warfare, 61
Air, opposite views as to rights over, 64, 65
Aircraft in war, 69
_Alabama_, the, 131, 183
_Alexander, Mrs., the cotton of_, 153
Alien enemies, civil disabilities of, 47, 49, 205
_Allanton_, the, 158, 161, 162, 163
_Ancipitis usus_, articles, 148
_Angarie, Droit d'_, 170
_Appam_, the, 146
_Arabia_, the, 152
Arbitration, 1-6, 184
treaties, general, 6, 7
treaties, limited, _ib._
cases fit for, 5
the Hague tribunal of, 5
Armaments, limitation of, 184
Armed civilians, 77
Neutralities, the, 83
Army, duties of, 77
Article 23 (h), 47, 49, 206, 207
restricting application, 146
Aspirations, 99
Assassination, 93
_Asturias_, the, 60
Asylum to belligerent warships, 129, 143
_Atalanta_, the, 160
Aube, Admiral, 116
Authentic interpretation, 107, 196, 199, 201, 205
Baden-Powell, Sir G., 81, 85, 87
Baker, Sir Sherston, 85
Balfour, Mr. A.J., 13, 15, 73, 74, 173
Balloons, projectiles from, 30, 62
Base of operations, neutral duty as to, 129, 134, 144, 145
Baty, Dr. T., 161
Bays, 166, 167
Belligerents, lawful, 73, 75, 76, 77, 78, 79
Beresford, Lord Charles, 118
_Bermuda_, the, 160
Bills criticised, 36-40, 47, 192
Birkenhead, Lord, 135
Bismarck, Prince, 170
Bliss, Sir H., 150
Blockade,
belligerent, 29, 83, 156
fictitious, 57, 59
pacific, 9-14, 17
Bluntschli's reply to Von Moltke, 26
Bombardment, 62
of open coast towns, 30, 62
from the air, 112, 123
Bondholders, foreign, vindication of rights of, 15
Bowles, Mr. Gibson, 54, 87, 89, 90, 92, 141, 173, 177, 178, 198
Brandschatz, 117
Brassard, effect of a, 79
Bright, Sir Charles, 171, 172
British Academy, author's paper at, 174
British Manual of Military Law, 74
Handbooks on War on Land, 75, 76
Brodrick, Mr., 75
_Brown_ v. _United States_, 45
Brusa, Prof., 130
Brussels Conference, the, of 1874, 68, 74, 77, 114, 172
Bullets,
expanding, 22, 94, 96
explosive, 22, 94, 95
in savage warfare, 94
_Bundesrath_, the, 29, 157, 160
Butler, General B.F., 153
Bynkershoek, 45, 71, 165, 166
Cable-cutting, 30, 168-173
Cables, submarine, 168
Campbell-Bannerman, Sir H., 189
Captors, unqualified, 71, 73, 162, 163
Carson, Sir Edward, 127
Cavell, Miss, case of, 79
_Calchas_, the, 151, 152, 153
Cecil, Lord Robert, 8, 207
Channel tunnel, 42
_Chavasse, ex parte_, 137
Civilians armed, position of, 77, 78, 79
Churchill, Mr. Winston, 106
Claims, competitive, 17
Clarke, Sir Edward, 124
Clode, Mr., 112
Closed localities, 50
Clothing, use of enemy, 75
Coal, 176
conditional contraband, 149
for belligerent fleet, 131, 134
Coast fishing vessels, 30
Codification of laws of war, 22, 23
Cohen, Mr. Arthur, 47, 203
Coltman, Mr., 85
Commencement of war, 41
_Commercen_, the, 159
Commissioning on the High Seas, 90
Commissions of enquiry, 4
Compromise, the, between belligerent and neutral rights, 133, 136, 164,
169
Conditional contraband. _See_ Contraband
Conduct of warfare between belligerents, 50
Conflict of Laws, 34, 35
Continuous voyages, 29, 157, 162, 183
"Contraband, a happy little," 153
Contraband of war,
what it is, 130, 134, 159, 175
absolute and conditional, 147, 151, 152, 154, 158
British proposal to abolish doctrine of, 163, 184, 185
coal, how far, 132, 134, 149, 176
cotton, how far, 151, 152, 177
food-stuffs, how far, 176, 185
Japanese rules as to, 149, 155, 156
misuse of the term, 134
no neutral duty to prohibit export of, 113, 140
Russian rules as to, 154, 176
the Declaration of London as to, 164
the two constituents of, 159
Contractual debts, 21
Contributions, 102, 118
Conventions. _See_ Geneva, Hague, &c.
and Legislation, 36
"transitoires," 198
Conversion. _See_ Transformation
Convoy, 31
Cotton, 177
as contraband, 149, 151, 152
Court of International Justice, a permanent, 2, 191
Criticism of Bills, 36-40, 192
Customs Consolidation Act, 1853, 132
Danger zone, a, 59
Dardanelles, closing of, 55, 58, 80, 90, 92
"Declaration," misuse of the term, 90, 92, 206
Declaration, the, of London, 22, 36, 39, 80, 92, 147, 149, 154, 155,
158, 161, 163, 164, 181, 191, 193-207
provisional adoption of, as modified, 154, 204
rejection of, 206, 207
Declaration, the, of Paris, 22, 26, 57, 59, 80, 81, 82, 83, 87, 89, 156,
198
accession to, of Spain and Mexico, 81, 86, 87, 88, 89, 91
Declaration, the, of St. Petersburg, 22, 27, 91, 95, 96, 97
von Moltke upon, 25
Declaration of war, 10, 41, 43
Declarations,
mistaken view as to their not needing ratification, 90, 91
the three, of the Hague in 1899. _See_ Hague
De Horsey, Admiral, 118, 164
De Joinville, Prince, 117
De Martens, Prof., 162, 166, 176, 200
Deposit of delict, 158
Despatches, enemy, 156, 158, 160
Destination, 8, 155, 156
Destruction of neutral prizes, 22, 173-181
Dickenson, Mr. Lowes, 125
_Direct U.S. Cable Co._ v. _Anglo-American Tel. Co._, 166
Disguise, 75, 76
Distinctive marks, 77, 79
_Doelwijk_, the, 161
Drago doctrine, the, 20
_Droit d'angarie_, the, 170
Dum-dum bullet. _See_ Bullets
_Durward_, the, 60
Embargo, 11
Enemy,
who is an ?, 401[E]
disabilities of, 47, 49, 206
goods in neutral bottoms, 83
in occupied territory, 102
merchant vessels at outbreak, 45, 49
property on land, 102
property at sea, 29, 104, 184
resident at outbreak, 44
service, 157, 158, 186
"Englishman's Home, An," the play, 77
Enquiry, international Commissions of, 1, 3, 4, 6
Evans, Sir Samuel, 70
False colours, 30, 43, 76
Fauchille, M., 47, 64, 65
_Felicity_, the, 164, 166, 167, 175, 177, 179
Fiore, Prof., 201
Fishing vessels, 31
Flag of truce, 76
Food-stuffs, 148, 174
how far contraband, 148, 176, 185
Food, Royal Commission on, 148, 174, 177
Foreign Enlistment Acts, the, 131, 134, 138, 139, 141, 143
Foreign Enlistment Bills, new, 39
Foreign soldiers, 45
Forster, Arnold-, Mr., 45
_Fox_, the, 176, 177
_Fram_, the, 137
_Francs-tireurs_, 79
"Freedom of the seas," 51, 97
French Government Manual for Land Warfare, 117
Friendly methods of settlement, 1
Gases, harmful, whether employment of, legitimate, 22, 96, 97
Geffken, Prof., 13
General principles of justice and equity, the, 187, 189, 190, 193
Geneva Convention Bill, 36
Geneva Conventions, the, 22, 34, 67, 98, 100
application of, to maritime warfare, 30, 98
Gentili, A., 170
Germany. _Cf._ Hague Conventions
proclamation by, of a danger zone, 59
wrong as to Declaration of London, 207
Giffen, Sir R., 13
Gladstone, Mr., 134
_Goeben_ and _Breslau_, the, 91
_Golden Rocket_, the, 85
Good offices, 1, 2, 3
Government authority, as a protection, 72
Government Bills and International Conventions, 36-40, 192, 195, 204
Granville, Lord, 82, 85, 131, 170, 177
Greek coast, blockade of, 13
Guerilla warfare, 73
Gundel, General de, 48
Grotius, 45, 148, 155, 166, 168, 169
_Haabet_, the, 160
Hague Conventions, the,
of 1889, 1, 2, 3, 6, 30, 61, 74, 75, 94, 102, 105, 107, 120, 184
of 1907, 1, 6
applicable only between contracting Powers, 69
No. i., 2, 3, 6
No. ii., 21, 22
No. iii., 22, 36, 44
No. iv., 22, 45, 60, 61, 67, 75, 76, 77, 96, 105, 107, 122, 168, 206
No. v., 22, 68, 75, 80, 90, 135, 168
No. vi., 22, 45, 70
No. vii., 22, 162
No. viii., 22, 45, 164
No. ix., 22, 68, 122
No. x., 22, 100, 130
No. xi., 22, 158
No. xii., 22, 36, 190, 194, 195, 197, 204
No. xiii., 22, 129, 143, 146
Hague Declarations, the, 22, 30, 61, 62, 63, 64, 96
Hague _Règlements_, the, as to war on land, 75, 76, 78, 93, 95, 100
Hague Tribunal, the, 5
reference to, not obligatory, 25
Haldane, Mr. R.B., 45
Hall, Mr. W.E., on pacific blockade, 13
Harcourt, Sir W., 74
Hardinge, Sir C., 152
Herbert, Mr. Arnold, 182, 184
Holland, Sir T.E., references to writings of, 8, 9, 20, 23, 35, 44, 47,
50, 52, 66, 75, 97, 113, 122, 164, 168, 180, 192, 196
Honour and vital interests clause, the, 4, 5, 6
Horses, wounded, 98, 100
Horsey, Adml., 118, 164, 166
Hostile assistance, 88, 157, 160, 186
Hübner, 190
_Ikaria_, the, 60
_Imina_, the, 160
Immediate effects of outbreak of war, the, 45
Institut de Droit International, the, 11, 12, 16, 23, 24, 30, 43, 44,
48, 63, 64, 65, 66, 68, 104, 105, 108, 121, 130, 162, 163, 164,
167, 168, 172, 174, 176, 182, 185, 190
its _Manuel des lois de la guerre maritime_, 163
its _Manuel des lois de la guerre sur terre_, 23, 24, 25, 27, 108
Instructions, national,
on laws of war on land, 75, 76
on laws of war at sea:
British, 156, 180
French, 179
Japanese, 148, 149, 150, 155, 156, 157, 173
Russian, 154, 173, 174, 176, 177, 179
United States, 179
_International_, the, 169
International Court of Appeal, an, 184
International Justice, a Permanent Court of, 2
International Law, the nature and authority of, 66, 67, 77, 86, 114,
115, 116, 119, 127, 169, 188
International Prize Court, proposal for an, 23, 181-191
Jackson, Colonel, 66, 68
James, Captain, 114
Jenks, Mr., 106, 108, 110
_Jonge Margaretha_, the, 159
Just cause of war, 83
"Justice and equity, general principles of," 187, 189, 190, 193
Kent, Chancellor, 45
Kleen, Mr., 130, 133
_Knight-Commander_, the, 173, 174
Kohler, Mr., 47
_Kowshing_, the case of the, 41, 43
"Kriegsbrauch," the, 68, 80
Lambermont, Baron, 77
Lammasch, Prof., 125
Lansdowne, Marquess of, 58, 133, 136, 149, 169, 173
Lawful belligerents, 69, 78
League of Nations, the, 1, 2, 7, 9, 191
Lehr, Prof., 102
_Leucade_, the, 176
Lincoln, President, 74
Lieber's Instructions, 74, 75
Localities closed to hostilities, 52
London, Conference of, 181, 190, 191
London, Declaration of, 22, 55, 58, 92, 181, 191, 193, 194, 195, 196-207
Lyons, Lord, 169
MacDonell, Prof., 172
McKenna, Mr., 78
Mahan, Admiral, 97
Mail steamers and bags, 30
_Malacca_, the case of the, 81, 162, 163
Mandates, 8
Manning, Mr., 45
Manual of military law, the British, 107
Manuals of warfare
on land, 105
at sea, 105
Manuel des Lois de la guerre maritime, the, of Institut, 23
Manual des Lois de la guerre sur terre, 23, 24, 174
_Marais, ex parte_, 106
Martens, de, Prof., 126
Martial law, 105-112
Maurice, Colonel, 42
_Mcomini and others_ v. _Governor &c. of Natal_, 107
Means of injuring, 94
Measures short of war, 1-21
Mediation. _See_ Good offices
Menam, blockade of the, 10
Mercantile Marine in war, 81, 84, 87
Merchant ships, visit of, 60
Militia, 77
_Minerva_, the, 91
Mines, 164
Moltke, von, on conduct of war, 24
Monroe doctrine, the, 17, 20
_Moray Firth_, the, 189
Morley, Lord, 58, 74
"Most favoured nation" clause, 17
_Möwe_, the, 70
"Murder," 70, 71, 72, 84
Mutiny Acts, the, 109
National Instructions, 75, 76
Naval bombardments of open coast towns, 30, 112, 123
Naval manoeuvres of 1888, the, 113, 123
Naval war code, a British, 30, 31, 32
Naval warfare, 22
Naval Prize (Consolidation) Bill, the, 36, 191-196, 198
object of, 194,195
rejection of, 196
Naval Prize money, 195
Neutral conduct, the criterion of, 125
Neutral duties, as classified by the author, 129
Neutral hospitality, 143
Neutral States and individuals, their liabilities distinguished, 129-135
Neutral territory, passage through, 90
Neutral trade, the four inconveniences, to, 159
Neutralisation, the term, 53, 54
Neutrality,
correlative to belligerency, 10, 16, 19
British proclamations of, 130, 135-143
Neutrals, methods of warfare affecting, 164-181
Non-combatants, 72, 74
_Novoe Vremya_, the, 176
Occupied territory,
right of the invader in, 80, 100
not yet occupied, 77
Oppenheim, Prof., 47
_Orozembo_, the, 160
"Ottoman Empire, ancient rule of the," 56
Pacific blockade, 10
Palmerston, Lord, 12
Panama Canal, the, 50
_Paquete Habana_, the, 30
Paris. _See_ Declaration of
Paris, Treaty of, 53, 54, 56, 81, 87, 89, 155
"Pas de Code Naval, pas de Cour des Prises," 187
Passage, 64, 90
Peace talk, 125
Peaceful settlement of disputes, the Conventions for,
of 1899, 2, 3, 6
of 1907, 2, 6
are non-obligatory, 173
Perels, Prof., 16
Permanent Court of International Justice, a, 191
_Peterburg_, the, 162
_Peterhoff_, the, 20, 149, 160
Petition of Right, the, 106, 108, 109
Pike, Mr., 98, 100
"Piracy," 70, 71, 84
Poison, 96
Pope's Note, the, 51
Port, enemy ships in, 49
_Porter_ v. _Freudenberg_, 49
Portsmouth, Lord, 205
Pourtugael, den Beer, Prof., 68
Pre-emption, 148
Prevention, State duties of, 129, 131
Prisoners of war, 45, 106, 107
liabilities of, 106
Private International Law, 34
Privateers, 81, 84
restrictions on, 82
commissioned liners are not, 70
Private property at sea, 184
Prize Court,
the Russian, 163
an international Court of Appeal, 23, 170-182
a settled prize law, must precede, 181, 183, 185, 190, 191, 193
a supreme, 181
Prize Law Consolidation Bill, 193, 194, 199
"Probable cause," 83
Proclamations of neutrality, the British, criticised, 135-143
"Professors," 119
Projectiles,
from balloons, 22, 30, 62
for diffusion of gases, 22, 96, 97
"Quasi-enemy," 12
Radiotelegraphic stations, 168
Rae, Mr., 162
Ratification, 203
Receipts, 102
_Règlements_, the Hague. _See_ Hague
Renault, Prof., 172, 187, 190, 196, 198, 199
Report of the force of (_see_ Authentic Interpretation)
Reprisals,
advantages of, 14, 19
how differing from war, 9, 12, 14, 19
opposite views as to, 16
species of, 12, 15, 19
United States, instructions as to, 29
belligerent, 97, 123
Requisitions, 102, 117
Restrictive clause, the, 69, 146
Retaliation, 97
Reward for, dead or alive, 93
_R._ v. _Eyre_, 110
Ridley, Sir E., 77
Roman Law terminology, 102
Roosevelt, Pres., 146
Rosebery, Lord, 158
Ross, Sir R., 78
Russian Prize Law, 162, 174, 176
Salisbury, Lord, 3, 15, 52, 54, 157
_Santissima Trinidad_, the, 137
Savage warfare, 94
_Savannah_, the, 85
Scott, Sir Walter, 77, 91
Scott, Sir William, 91
Search. _See_ Visit and Search
Second Peace Conference Conventions Bill, 37, 38, 39
Seely, Col., 63
Ship, a "mere moveable," 85
Shucking, Prof., 125
Siam, 10
Sinking. _See_ Destruction
Smith (Lord Birkenhead) and Sibley, on International Law in the
Russo-Japanese War, 135
_Spider_, the, 113, 117
Spies, 72
_Springbok_, the, 29
Stephen, Sir Herbert, 124
Stewart, Mr. C., 104
Story, J., 159
Stowell, Lord, 85, 159, 160, 161, 166, 175, 177, 178, 180, 197
Straits, 52, 56
Submarine cables, 168, 169, 171, 188
Submarines, 69
Suez Canal, the, 50, 51, 52, 54
Superfluous injury, 94, 95
Suyematsu, Baron, 149
Swettenham, Sir James, 79
Sydenham, Lord, 104
Takahashi, Prof., 43
Terminology, 33
Territorial waters, 165, 166, 167
Tindal, le Chevalier, 122
Tirpitz, Admiral von, 70
_Tocumaro_, the, 60[D]
Torpedoes, 164
Transformation into ships of war, 162
Treaties,
who are the parties to, 202, 207
effect of war on, 18, 198
Treaty, the Hay-Pauncefote, 50
Twenty-three (h) clause, the, 47, 206
Twenty-four hours rule, the, 127, 144, 145
Ullmann, Prof., 47, 106, 201
Unarmed merchantmen, 72, 73
Undefended towns, 30, 67, 68
Uniform, 75
United States
instructions for war on land, 23, 73, 107
naval war code, 23, 30, 31, 88
Naval War College, 8
ratification of Conventions, 75
views of, compared with British, 29, 31
Unqualified captors, 72, 73
Unratified Conventions, effect of, 40
Usufruct, 101
Vattel, 46, 119
Venezuela, 13, 18
Visit and search, 72, 83, 84, 159, 186
"Violations of law of nations," term misapplied, 140, 142
Voeux, 5, 99, 121, 122, 167, 180, 190
Volunteers, 77
War. _See_ Reprisals
Declaration of, 10, 41
legitimate object of, 25, 95
_sub modo_, 20, 55
written law of, 22
Washington, the Three Rules of, 86
Wellington, Duke of, 117
Westbury, Lord, 137
Westlake, Prof., 18, 41, 65, 183, 199, 202
Wilson, Pres., 72, 97, 127
Wolf, Mr., 58
Wood, Mackinnon, Mr., 196, 197, 200
Wounded and Sick. _See_ Geneva Conventions
horses, 98, 100
_Yangtsze Insurance Association_ v. _Indemnity Mutual Marine Company_,
157
Younge, Mr., 118
_Zamora_, the, 207
Zone, a danger, 59
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[Transcriber's Note: The spelling and usage of non-English words and
characters is occasionally inconsistent throughout the work. This etext
preserves the usage in each instance as it appears in the printed book,
except in cases of probable error as noted below.]
[Note A: Printed _s'entiendrait_ in original.]
[Note B: Printed _ressasi_ in original.]
[Note C: Printed _principles_ in original.]
[Note D: Spelled _Tokomaru_ where it appears in the text.]
[Note E: Misprinted in original--intended page unknown.]