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Convention No. 7. Convention relative to the conversion of merchant-ships into war-ships 1 . - A. Pearce Higgins, The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War 
The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War. Texts of Conventions with Commentaries, by A. Pearce Higgins, LL.D. (Cambridge University Press, 1909).
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Convention No. 7. Convention relative to the conversion of merchant-ships into war-ships1 .
Privateering and Volunteer Navies.It is suggested that this Convention should be entitled “A Convention to secure the observance of the Declaration of Paris in regard to privateering2 .” Privateering was abolished as between the signatory Powers to the Declaration of Paris. Nearly all the civilised states of the world have become parties to this Declaration, but in many continental states opinions have been expressed that accession to the Declaration was far from being advantageous, and the creation of Volunteer Navies in some states has raised delicate questions as to the evasion of the Declaration.Prussian proposals in 1870. Prussia in 1870 decided to address an appeal to all German sailors and shipowners, inviting them to put their resources and ships at the disposal of their country. Volunteer ships were to be placed under naval discipline during the war. Officers and crew were to enter for the duration of the war into the Navy of the Confederation, to wear its uniform and marks of rank, and swear to the articles of war; they were to be entitled to pensions like regular members of the Navy. Officers were to receive Commissions of their rank and in case of meritorious service permanent Commissions were promised. The vessels were to fly the war-flag of the North German Confederation. Large premiums were offered for the destruction of enemy ships1 . France protested, but the British Law Officers when consulted by the Government gave their opinion that there were substantial differences between the Volunteer Navy sanctioned by the Prussian Government and the system which it was the object of the Declaration of Paris to suppress. Prussia had announced her intention not to capture private property at sea, but as France would not agree to this proposal the Prussian offer was withdrawn, and with it the formation of a Volunteer Navy was abandoned. But the incident was far-reaching in its influence. Russian Volunteer Navy. In 1877-8 relations between Great Britain and Russia were strained; there was for a time every prospect of war breaking out. The Russian Fleet was small, and the mercantile marine insignificant. A patriotic association was formed with the object of raising money and buying fast ships to act as auxiliaries to the Imperial Navy. The vessels purchased were to be placed under the command of the officers of the Navy, and the crews to be subjected to military discipline. This institution still exists, and is subsidised by the Government. The commander of the ship and at least one other officer hold the Imperial Commission, and their crews receive training so as to enable them to perform the duties allotted to crews of men of war. In time of peace they carry the merchant flag and are usually engaged in ordinary mercantile traffic, though many of the vessels are also employed by the state as transport-ships2 .
French Auxiliary Cruisers.In France some of the mail-boats are commanded by officers of the Navy. The companies receive a subsidy from the state, and they are constructed on plans sanctioned by the French Admiralty. On the outbreak of war they are to be incorporated into the regular Navy1 .
British.Great Britain in 1887 entered into arrangements with several of the great Navigation Steamship Companies, such as the Cunard, White Star, Peninsular and Oriental, etc. In return for an annual subsidy the companies undertake to sell or charter to the Government certain fast vessels at a fixed price and on short notice, and to build new ships on plans approved by the Admiralty. Half the crews are to be engaged from the Royal Naval Reserve, and the Admiralty has the right of placing on board fittings and arrangements to facilitate their speedy conversion into ships of war2 .
The United States in 1892 entered into similar agreements with American companies and in the Spanish-American War of 1898 they made use of these vessels3 .
The arrangements made by these Powers in regard to their incorporation into the regular navy vary, but where they are placed under the command of the regular Naval Authorities of the state, and carry the national flag of the State Navy and are commanded by duly commissioned officers, and the crews wear a distinctive uniform and observe the laws of war, there is no doubt that they are entitled to treatment as regular belligerents4 . It was however desirable, as is stated in the preamble to this Convention, “in view of the incorporation in time of war of merchant-ships in the fighting fleet, to define the conditions subject to which this operation may be effected.” The immediate cause of the insertion of the subject in the Programme of the Conference5 was an incident which occurred during the Russo-Japanese War.The Peterburg and Smolensk. Two vessels, the Peterburg and Smolensk, belonging to the Russian Volunteer Navy stationed in the Black Sea, on the 4th and 6th July, 1904, passed through the Bosphorus and Dardanelles flying the flag of the Russian mercantile marine. These Straits are under the Treaties of Paris, London and Berlin closed to vessels of war. The vessels also passed through the Suez Canal under the same flag. “The Peterburg certainly, and possibly the Smolensk also, engaged pilots for the Red Sea as a vessel of commerce1 .” When in the Red Sea they hoisted the flag of the Imperial Navy, and the Peterburg captured the Malacca, a P. and O. Mail Boat. Ultimately after strong protests by the British Government these vessels were ordered to haul down the flag of the Imperial Navy and to cease to act as cruisers, and Russia agreed that all vessels captured by them should be restored.
The Problems for the Conference.The first question mentioned in the Programme of the Fourth Committee was that of the conversion of merchant-ships into ships of war2 , and M. de Martens, the President, framed his questionnaire in the following terms:
(1) Is it admitted by practice and the laws of states that belligerent states can convert merchant-ships into ships of war?
(2) In cases of conversion of merchant-ships into ships of war, what are the legal conditions which belligerent states ought to observe?
From the sketch already given there was no doubt as to the answer which the Committee would give to the first question. The laws of various states make provision for the incorporation into their navies of merchant-ships under varying conditions. The terms on which such vessels are to be obtained are matters to be settled by municipal law. But international law is concerned with the question as to what conditions are to be observed so that private vessels may become entitled to all the privileges and subject to the restrictions imposed by neutrals on ships of war2 . The questions which the Committee discussed were five in number. (1) Can merchant-ships be converted into ships of war? (2) What is a ship of war? (3) Where can conversion take place? (4) How long does the conversion last? (5) What regulations shall be applied to merchant-ships converted into ships of war?
The terms of the Convention.No difficulty was occasioned in giving an affirmative answer to the first question; very little also was occasioned in framing the regulations to be applied to such vessels, and any doubt which may have been raised as to the re-introduction of privateering under the guise of volunteer fleets has been effectually dispelled by the acceptance of the six rules embodied in this Convention—“Privateering is and remains abolished.” The converted merchant-ship in order to be entitled to the status of a ship of war must be under the direct control and responsibility of the state converting it (Art. 1), and must notify its character by external marks such as the use of the flag of the State Navy (Art. 2). Its commander must be in the service of the state and duly commissioned, and his name must appear on the official list of officers of the state (Art. 3). The proposal that he must be in personal possession of his commission and of papers showing the regular conversion of the vessel was rejected. The crew must be subject to military discipline (Art. 4). The ship must in its operations conform to the laws and customs of war (Art. 5). This was objected to by the United States Delegation as constituting an invidious distinction as regards certain vessels bought and regularly commissioned in time of peace as forming part of the United States Navy. M. Renault, however, pointed out that the Article was in complete harmony with Article 1 of the Regulations on the laws and customs of war on land. Lastly the conversion of the merchant-ship must be notified publicly as soon as possible (Art. 6). The question of the duration of the conversion does not appear to be touched by this Article. These Articles embody the general principles which had been accepted by states, and except for the points raised on Articles 3 and 5 were accepted without discussion. The Convention does not go very far, but it may be welcomed as a beginning of a set of written rules on the subject. The other questions discussed were found to be insoluble.
Unsolved problems.Lord Reay desired to go to the root of the whole matter at the beginning. The legality of the conversion of merchant-ships into “ships of war” was not doubted, but the fundamental question, which, acting on the instructions of the British Government1 , he sought to have settled was—what is a ship of war? The difficulty is not peculiar to this question, but is equally important as regards the meaning to be attributed to the exemption from capture provided for in Article 5 of the previous Convention by which “merchant-ships whose construction indicates that they are intended for conversion into war-ships” in an enemy port at the outbreak of war remain liable to capture2 . What is a ship of war? A modern navy to be effective must contain more than battle-ships, fast cruisers, torpedo-boats and destroyers and submarines. If a fleet is to remain for any length of time at sea, especially if its state does not possess a large number of coaling stations within the area of its operations, it needs a whole auxiliary fleet of colliers, repairing ships, supply ships, despatch vessels, transports for the carriage of men, ammunition, etc. The following proposition introduced by Lord Reay was framed to meet modern conditions. “There are two classes of ships of war: (A) fighting ships (vaisseaux de combat), (B) auxiliary ships (vaisseaux auxiliaires).” He proposed to assimilate to the status of the fighting ships of the Navy the auxiliary ships used for any purpose of the fleet. Objection was taken to this on the ground that the principles of “unneutral service” were involved, and that this subject was not included in the Programme of the Conference; Lord Reay subsequently withdrew his proposed definition1 . The question of the length of the period of the conversion of merchant-ships is important in this connection and this point was also discussed in connection with the place of conversion.Where may conversion take place, and how long does it last? Lord Reay, having abandoned the attempt to include auxiliary ships under the head of ships of war, developed his proposals in regard to Class A “fighting ships” which were defined as: “Every ship flying a recognised flag, armed at the expense of the state for attacking the enemy and the officers and crews of which are duly authorised for the purpose by the Government to which they belong. It shall not be lawful for a ship to be invested with this character save before its departure from a national port, nor to be divested of it, save after return to a national port2 .” (a) Conversion in national ports. It was urged in support of this view that for a neutral to allow the conversion to take place in one of its ports would be an infraction of its neutrality, and for a belligerent to make the change within neutral waters would be a breach by a belligerent of his duties to a neutral, and that vessels so converted did not acquire the character of a regular ship of war3 . Against conversion on the high seas Lord Reay urged that as ships of war were accorded rights of search of neutral vessels, a neutral has the right to know what ships are authorised to exercise this right. If it be permitted to all ships which have left a neutral port as merchantmen to suddenly appear in a new character (and as the Japanese delegate pointed out the converse case would be equally possible) “regrettable incidents” would be occasioned, complications in regard to breach of neutrality laws would occur and an intolerable situation would be created. The Dutch delegate supported the proposition to limit conversion to national ports. The United States and Japanese delegates also concurred with the addition of “ports or territorial waters in the naval or military occupation” of the Power making the conversion.
(b) Conversion on the high seas.The delegates of Germany, Russia and France opposed these proposals and contended that such conversion was permissible on the high seas. They urged that there was no existing rule of international law against it, that as the laws of many states allowed the private property of nationals to be employed for operations of war, such states could exercise this right within territories under their jurisdiction and also on the high seas which are subject to the jurisdiction of no one Power. A prize captured from the enemy on the high seas, and suitable for conversion, could at once be turned into a ship of war by placing her under the command of an officer of the capturing ship and transferring to her a crew, and if this is ex hypothesi allowable, it is equally allowable for a ship of war meeting a merchantman of its own state on the high seas to make a conversion in a similar manner. M. Renault (France) agreed that conversion must not take place in neutral ports or territorial waters but otherwise he supported the German and Russian point of view.
(c) The Italian compromise.The Italian delegate (Count Tornielli), as on other occasions, endeavoured to bring about a compromise between the opposing views of Germany and Great Britain; he moved “That ships which leave the territorial waters of their country after the opening of hostilities cannot change their character either on the high seas or in the territorial waters of another state1 .” M. Fusinato (Italy) in supporting this proposal pointed out that it would be a serious matter for a merchant-ship which had enjoyed the right of entry of a neutral port to be able to take advantage of its commercial character there and immediately on reaching the high seas to throw it off. Such a proceeding was nothing less than an abuse of neutral hospitality. The Italian proposition thus accepted the Russo-German view only to the extent of allowing the conversion of merchant-ships on the high seas in case they had left the territorial waters of their own state before the outbreak of war. The Mexican delegate supported the Italian proposition. The debates on these points were renewed in the Comité d’Examen and finally a division on the Italian proposition was taken with the result that 9 states voted for (Great Britain, the United States, Belgium, Brazil, Italy, Japan, Norway, Holland and Sweden) and 7 against (Germany, Austria, Argentine, Chili, France, Russia and Servia)2 . Problem left unsolved. The vote was indecisive and the preamble records that “whereas the contracting Powers have been unable to come to an agreement on the question whether the conversion of a merchant-ship into a war-ship may take place upon the high seas, it is understood that the question of the place where such conversion is effected remains outside the scope of this agreement1 .”
The really important question was therefore left undecided. A similar fate befell the attempt to settle the period of duration of the conversion. The Austro-Hungarian delegate proposed that a ship once converted could not be re-converted until the termination of the war; this was supported by the Mexican delegate. The Austrian proposal was meant to prevent the not impossible case of a converted merchantman which had entered a neutral port as a ship of war, leaving and returning in a few hours having divested herself of her character on the high seas, for as was pointed out by the Japanese delegate if conversion on the high seas is allowed, it would be equally possible for the act of re-conversion or divestment of the public character to take place there also. Lord Reay’s proposition allowed the character of the converted ship to be divested only in a national port. As no agreement had been reached as to the place of conversion the Committee decided to leave this question in its present (uncertain) position2 .
In this case, as in so many other questions discussed at the Conference, the conflict of political interests was found to be too acute to allow of a settlement of a problem which, if it is allowed to remain in its present extremely unsatisfactory condition, will be certain on the outbreak of a naval war to bring about strained relations between the states which hold such divergent views. Every principle of the law of neutrality demands that the conversion of merchant-ships in neutral waters should be recognised as illegal; but there was not absolute unanimity even on this. The British proposal started with an endeavour to obtain the acceptance of such a definition of ship of war as would “prove sufficient to prevent the issue by any Power of letters of marque” (British Instructions). The Articles agreed to by the Conference have formulated principles which will have this effect. The Italian proposal was one which, while being wholly consistent with principle, allowed for the exceptional case of “convertible” vessels which were on the high seas at the outbreak of war. This proposal, embodying the British, Japanese and American views, would have allowed the conversion of merchant-ships only in the national ports and territorial waters of the converting Power or in ports and territorial waters occupied by it. Conversion on the high seas would have been prohibited in the case of all ships leaving their national ports after the outbreak of war, but allowed in the case of those which left a port before the outbreak of war. If these proposals, and the Austrian proposition that conversion when once effected should continue for the duration of the war, had been added to the rules adopted by the Conference, a valuable and important addition would have been made to the Law of Nations. Neutral rights, wholly ignored by the Russo-German proposals, would have been safeguarded, and belligerents would have avoided the friction with neutrals which must inevitably take place so long as the present uncertainty exists.
Signatory Powers.This Convention has been signed by all Powers mentioned in the Final Act except the United States of America (which has not acceded to the Declaration of Paris), China, Dominica, Nicaragua, and Uruguay. Turkey signed under a general reservation which was made by her delegate at the Seventh Plenary Meeting of the Conference on the 27th Sept. 1907 and which is applicable to all the Conventions recommended to the Conference by the Fourth Committee1 .
The Conference of London2 .The subject of the conversion of merchant vessels into war-ships on the high seas was examined at the Naval Conference which sat in London during December, 1908, and January and February, 1909. The conflicting views which were so strongly marked at the Hague recurred at that Conference. Similar arguments to those adduced at the Hague were again advanced by the delegates of the different states, but though all were agreed that it would be a great advantage to put an end to an uncertainty, all attempts to bring about an understanding were unsuccessful. States claiming an unrestricted right of conversion on the high seas “refused to make any concessions or to abate one jot from the claim to the absolutely unfettered exercise of the right which its advocates vindicate as a rule forming part of the existing law of nations3 .” The British Delegation declined to admit the right.
At one point of the proceedings it appeared possible to come to an agreement on the subject of re-conversion, so as to prevent a “war-ship (generally a recently converted merchant vessel) doffing its character so as to be able to revictual or refit in a neutral port without being bound by the restrictions imposed on war-ships.” The delicate position of a neutral state in such circumstances was admitted. “Agreement might perhaps have been reached on this proposal, but it seemed very difficult to deal with this secondary aspect of a question which there was no hope of settling as a whole.......The question of conversion on the high seas and that of re-conversion therefore remain open1 .”
Automatic Submarine Contact Mines.
[1 ]Parl. Papers, Misc. No. 4 (1908), pp. 47, 183; La Deux. Confér. T. i. pp. 232, 239; Livre Jaune, p. 97; Weissbuch, p. 10; L. A. Atherley-Jones, Commerce in War, pp. 538-543; Sir T. Barclay, Problems, etc. p. 204; Bonfils-Fauchille, Droit international (5th ed.), § 1395; F. Despagnet, Droit international, §§ 641-3; C. Dupuis, Le droit de la guerre maritime, Chap. iii. § 2; W. E. Hall, Inter. Law, p. 527; Halleck, International Law (4th ed.), Vol. ii. p. 136; A. S. Hershey, International law and diplomacy of the Russo-Japanese War, Chap. v.; T. J. Lawrence, International Law, § 224; Idem, International Problems, etc. p. 125; Idem, War and Neutrality, Chap. ix.; A. de Lapradelle, La guerre maritime, etc. Revue des deux Mondes (1 Aug. 1908); E. Lémonon, La seconde Conférence, p. 611; J. B. Moore, Digest of Int. Law, Vol. vii. p. 542; L. Oppenheim, Int. Law, Vol. ii. § 84; F. E. Smith and N. W. Sibley, International Law, etc. Chap. ii.; J. Westlake, War, p. 304; G. G. Wilson, Conversion of merchant ships, etc., Am. Journ. of Int. Law, Vol. ii. p. 271.
[2 ]G. G. Wilson, op. cit. p. 272.
[1 ]See W. E. Hall, op. cit. p. 527; T. J. Lawrence, Int. Law, § 224; C. Dupuis, op. cit. §§ 82-4. For official details of the Prussian-proposals see Geffcken in 4 Holtzendorff, Handbuch des Völkerrechts, p. 560 (quoting from Staatsarchiv, Vol. xx. No. 4345).
[2 ]T. J. Lawrence, Int. Law, § 224; C. Dupuis, op. cit. § 85.
[1 ]C. Dupuis, op. cit. p. 114; W. E. Hall, Int. Law, p. 529.
[2 ]T. J. Lawrence, Int. Law, § 224; Parl. Papers, 1887, Subvention of Merchant Steamers for State purposes.
[3 ]Sir T. Barclay, Problems, etc. p. 294.
[4 ]F. Despagnet, Droit inter. § 643; C. Dupuis, op. cit. § 84; Guihéneue, La marine auxiliaire.
[5 ]See Count Benckendorff’s Circular, ante, p. 54.
[1 ]T. J. Lawrence, War and Neutrality, p. 205; for the career of these vessels and an examination of the legality of their proceedings, see pp. 205-217 of this work . See also Smith and Sibley, op. cit. Chap. ii.; A. S. Hershey, International Law, etc. Chap. v.; Halleck, International Law (4th ed.), Vol. ii. p. 137.
[2 ]Parl. Papers, Misc. No. 4 (1908), p. 183; La Deux. Confér. T. i. p. 240; Idem, T. iii. p. 745.
[1 ]See Instructions in Appendix.
[2 ]See ante, p. 306.
[1 ]See La Deux. Confér. T. iii. pp. 847, 917.
[2 ]La Deux. Confér. T. iii. p. 822.
[3 ]See The Santissima Trinidad (7 Wheaton, 283, J. B. Scott, Leading Cases, p. 701), The Gran Para (7 Wheaton, 471).
[1 ]La Deux. Confér. T. iii. pp. 824, 1136.
[2 ]Idem, T. i. p. 243, note 2.
[1 ]The late Professor M. Bernard was of opinion “that a vessel may be built, equipped, armed, commissioned and employed as a cruiser, without even having entered a port of the nation under whose flag she sails. Whether it is just or expedient for all nations that this should be prohibited, is an open question: at present it is not prohibited” (British Neutrality p. 401). Sir William Harcourt was of opinion that for all reasons it is wise to discourage such a practice as that of granting commissions to vessels on the high seas, by which such vessels become at once raised to the position of lawful belligerent cruisers. (See quotation from Memorandum on the Report of the Neutrality Laws Commission cited by T. Baty, Some questions in the Law of Neutrality, Journ. of the Soc. of Comparative Legislation (New Series), No. xiv. p. 216.
[2 ]La Deux. Confér. T. i. p. 243; Idem, T. iii. p. 1014.
[1 ]La Deux. Confér. T. i. p. 235.
[3 ]Idem, No. 4, p. 101 (Report of British Delegation).
[1 ]Parl. Papers, Misc. No. 4 (1909), p. 35 (Report of M. Renault).
[P. 315, note 1, second line,]cancel “of this work.”
Parl. Papers, Misc. No. 4 (1909), pp. 10, 35, 101; No. 5, p. 340.