Front Page Titles (by Subject) Convention No. 11. Relative to certain restrictions on the exercise of the right of capture in maritime war. - The Hague Peace Conferences and Other International Conferences concerning the Laws and Usages of War
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Convention No. 11. Relative to certain restrictions on the exercise of the right of capture in maritime war. - 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. 11. Relative to certain restrictions on the exercise of the right of capture in maritime war.
Postal correspondence1 .The subject of the protection of postal correspondence did not appear in the Programme of the Conference or of the Questionnaire of the Fourth Committee. It was introduced by the German delegate (Herr Kriege) by way of a supplement to his draft proposition on contraband2 .
In the existing state of international law, apart from this Convention, the carriage of mails is not protected by any definite guarantees. Neutral mail packets are subject to visit and search, a right which was exercised during the Russo-Japanese war. During the Spanish-American war President McKinley stated in his proclamation of the 26th April, 1898, that “the voyages of mail steamers were not to be interfered with, except on the clearest grounds of suspicion of a violation of law in respect of contraband or blockade3 .” Great Britain observed a similar practice in regard to German mail boats during the Boer war. Besides the practice of granting immunities by some Powers to mail boats during war, Great Britain and the United States in 1848, and Great Britain and France in 1856 entered into treaties granting immunities to the mail steamers of the contracting Powers in case of war between them. Notwithstanding the growing practice there is no rule of international law granting immunity to enemy mail boats from attack and seizure, or excluding neutral mail boats from visit and search. The increase of postal communication, and the fact that so many interests, commercial and other, are based on the regular service of the mails, render it highly desirable to shelter it from the disturbance which might be caused by a maritime war. “It is hardly possible,” said Herr Kriege in support of his proposals, “that the belligerents who control the means of telegraphic and radio-telegraphic communication will have recourse to the use of the ordinary mail for official communications as to military operations. The advantage to be drawn by belligerents from the control of the postal service is not in proportion to the prejudicial effect which that control entails on legitimate-commerce.1 .” The principles of the German proposal to grant immunity to postal correspondence of neutrals or belligerents, whether of an official or private character and whether on board neutral or enemy ships, met with almost unanimous acceptance in the Committee, and the dissent of the Russian delegate was not renewed when the draft Convention came before the Conference. Russia, however, has not signed the Convention.
It will be noticed that the inviolability is granted to the correspondence and not to the vessel itself. It would have been the best guarantee for the uninterrupted service of the mails to have exempted all duly certified mail boats from visit and search, but the Conference was not prepared to go to that length; many of the largest mail boats are built for the special purpose of being converted into ships of war, and if not built for that purpose are capable of being used for many others of considerable value to belligerents. A vessel carrying mails still remains subject to all the laws and customs of maritime war. The only postal correspondence not covered by the immunity is that destined for or proceeding from a blockaded port. “Postal correspondence” is not intended, according to Herr Kriege, to include parcels sent by post (les colis postaux)2 .
The second Article provides that a mail ship is not to be searched except when absolutely necessary and then with all the consideration and speed possible, and by the first Article it is laid down that if the ship is seized the correspondence is to be forwarded with the least possible delay. The action of the Commander of the Smolensk on the 15th July, 1904, in taking from the German mail boat Prinz Heinrich a number of mail bags for examination, and then stopping the P. and O. steamer Persia and putting them on board for transmission to their destination, is strongly to be reprobated. The belligerent must make his own arrangements for transmission of mails when the mail boat is seized3 .
Chapter ii. Fishing boats4 , etc.The second chapter of this Convention deals with the exemption from capture of boats employed in coast fisheries or in petty local coasting trade (Art. 3), and vessels charged with religious, scientific or philanthropic missions (Art. 4).
In most states the exemption from capture of fishing boats engaged in coast fisheries has been recognised as a rule of law, but in Great Britain the exemption has never been considered as a right but as “a rule of courtesy only, and not of legal decision1 .” The United States in this matter followed the rule generally adopted in continental countries2 . Although, Great Britain does not recognise the immunity as one of law, there has not in recent years been any real difference in the practice of maritime countries. All are willing to spare fishing vessels so long as they are harmless. The reasons for the exemption given by Mr Hall, and repeated in similar words by M. Fromageot in his Report to the Conference on the 27th September, 1907, are that “it is indisputable that coasting fishery is the sole means of livelihood of a very large number of families as inoffensive as cultivators of the soil or mechanics, and that the seizure of boats, while inflicting extreme hardship on their owners, is as a measure of general application wholly ineffective against the hostile state3 .” The Committee, however, felt that the favour accorded must not become an obstacle to naval operations, and that it ceases to be justified whenever the fishermen take any part in hostilities.
Articles 3 and 4 of this Convention owe their origin to different sources. The Belgian delegate introduced a proposal for the immunity of fishing boats which was further elaborated by the Portuguese delegate; the Austro-Hungarian delegate proposed the inclusion of boats engaged in the local coasting trade, and the Italian delegate the inclusion of ships charged with religious, scientific or philanthropic missions (Art. 4)4 . As regards fishing boats the immunity only applies to those engaged in coast fisheries, a limitation which has generally been recognised in the past. It does not apply to deep sea fishing. “Nor has the exemption been extended to ships or vessels employed on the high seas in taking whales or seals, or cod or other fish which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce1 .” The Committee found it impossible to lay down any rules as regards the size of fishing boats, or to fix any limits as to tonnage, number of the crew or the class of boats used; these vary in different places, but are all considerations of importance in deciding whether a given vessel is one to which exemption is to be accorded. It was also found impossible to lay down any rules as to the mode of propulsion of such boats, as these also differ in different countries, some using sails, others oars, others steam or petrol motors and some sails and mechanical means of propulsion.
The term “coast fishery” is also left undefined. The British delegate (Sir Ernest Satow) pointed out that British fishermen have to go far beyond the limits of territorial waters and are often found in the Straits of Dover more than ten miles from land. The “coast” need not be that of the fishermen’s own country, it may be that of a third state in which there is a right or a custom of fishing,—the Portuguese delegate instanced the case of the fisheries off the coast of Morocco.
There is a similar indefiniteness in the term “petty local navigation” (petite navigation locale) to which the foregoing observations as to size and mode of propulsion of the boats apply. The term originally suggested by Admiral Haus (Austro-Hungary) was bateaux et barques affectés dans les eaux territoriales de quelques pays au service de l’économie rurale ou à celui du petit trafic local, which he stated was meant to include ships and boats of small dimension, used in the transport of agricultural produce or of persons along the coasts, or between the coast and adjacent islands or in archipelagoes2 . This Article does not appear to confer immunity from capture on coasting steamers such as those plying on the west coast of Scotland or the Norwegian fjords, nor the cross-channel boats between Great Britain and Ireland. The Portuguese naval delegate expressly stated that la petite navigation locale ne comprend pas le cabotage mais les bateaux qui transportent les produits de la pêche et ceux qui vise la proposition du Contre-Amiral Haus3 .
All the boats mentioned in the first paragraph of Article 3, together with the appliances, rigging, tackle and cargoes, are exempt from capture, but the exemption ceases as soon as they take any part directly or indirectly in hostilities.
Mindful of the Dogger Bank incident the Japanese delegate obtained the insertion of the third paragraph of Article 3 whereby the contracting Powers agree not to take advantage of the innocent character of the vessels in question to execute any ruses of war.
Vessels on scientific missions1 , etc.Article 4, exempting from capture vessels charged with religious, scientific or philanthropic missions, was introduced by the Italian delegate2 . Numerous instances of the exemption from capture of such vessels during the past 150 years may be cited: the French explorers Bougainville in 1766, and La Pérouse in 1785, Captain Cook in 1776, the Austrian cruiser Novara in 1859 were all exempt from seizure. The custom of granting immunities has now been converted into a definite rule of international law, but the conditions, although not mentioned in the Article, must be understood to be the same as those on which the immunities to fishing boats, etc. are granted, namely, abstention from all interference in hostilities.
Chapter iii. Immunity of crews of captured enemy merchantmen3 .Chapter iii. marks an important alteration in the law of maritime warfare. It is, apart from this Convention, a well-recognised rule of international law that the officers and crews of captured enemy merchantmen are prisoners of war4 . The practice was justified on the ground that it deprived the enemy of men who might render service on board ships which might be used as transports or for purposes of supply, or in the fighting navy. The rule was generally applied without regard to the nationality of the persons captured.
The subject was not mentioned in the Programme of Count Benckendorff, but was introduced in the Fourth Committee by the British delegate, who proposed to exempt from capture sailors who are nationals of neutral countries serving on board captured enemy merchantmen5 . The Belgian delegate proposed to extend this immunity to nationals of the enemy, and this extension was accepted by Sir Ernest Satow on behalf of Great Britain. The combined proposal was then sent to the Drafting Committee, when a proposal to make the distinction which appears in Article 5 between the officers and crew who are nationals of a neutral state was accepted by the British delegate. It had at first been proposed to require from all an undertaking in writing not to serve on an enemy ship during the continuance of the war; the Convention only requires this in the case of officers who are nationals of a neutral state. The crew are to be liberated without giving any such undertaking. But in the case of the captain, officers and members of the crew, being nationals of the enemy state, they are not to be made prisoners of war if they promise in writing not to engage, during the hostilities, in any service having relation to the operations of war (Article 6). This was stated by the Reporter (M. Fromageot) to include both service on board a ship of war as well as in the arsenals or land army or any other military or naval service.
The names of all persons who retain their liberty under Articles 5 and 6 are to be notified by the captor to the other belligerent who is forbidden knowingly to employ such persons (Article 7).
The provisions of the foregoing Articles only apply to the crews of ships who have not either directly or indirectly taken part in hostilities (Article 8). The question whether a ship is engaged in a purely commercial undertaking or participating in hostilities is a question of fact on which the Convention makes no attempt to lay down any definite rule.
Signatory Powers.All the Powers represented at the Conference have signed this Convention except China, Montenegro, Nicaragua and Russia.
The Convention makes a definite and important change in a long established rule of international law, and confirms other usages which had been almost universally observed in regard to a class of persons who take no part in hostilities, who are for the most part poor men, and whose imprisonment while inflicting extreme hardship on their families did not afford a corresponding gain to their captors. The distinction between combatants and non-combatants which has for many years been recognised in the case of land warfare has now become recognised also in naval warfare. This Convention, which curiously enough deals with matters none of which were mentioned in the Russian Programme, is the most important result of the labours of the Fourth Committee.
Establishment of an International Prize Court.
[2 ]La Deux. Confér. T. iii. pp. 860, 1173.
[3 ]E. J. Benton, International Law and Diplomacy of the Spanish American War, p. 131.
[1 ]La Deux. Confér. T. iii. p. 861.
[2 ]Ibid. p. 1122.
[3 ]T. J. Lawrence, War and Neutrality, pp. 195-7.
[1 ]See Lord Stowell’s judgment in The Young Jacob and Joanna (1 Rob. Rep. 20).
[2 ]The most recent United States decision is The Paquette Habana (175 U. S. Reports, p. 677, and 189 U. S. Reports, p. 453, J. B. Scott’s Leading Cases, p. 19, when the majority of the Court held that “At the present day, by the general consent of the civilised nations of the world, and independently of any express treaty or public act, it is an established rule of international law that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war.” A minority of the Court dissented on the ground that a rule of maritime law to which Great Britain did not assent could not be regarded as universal trading . Mr Choate in his speech at the Meeting of the Fourth Committee on 7th August, 1907, drew the attention of the Committee to Mr Justice Gray’s judgment from which he read extracts (La Deux. Confér. T. iii. p. 913).
[3 ]Int. Law, p. 451.
[4 ]La Deux. Confér. T. iii. p. 1177.
[1 ]See judgment of Mr Justice Gray in The Paquette Habana and The Lola (Scott’s Leading Cases, p. 20).
[2 ]La Deux. Confér. T. iii. p. 1178.
[3 ]Ibid. p. 970.
[2 ]La Deux. Confér. T. iii. p. 1180.
[4 ]W. E. Hall, Int. Law, p. 407; T. J. Lawrence, Int. Law, § 171; J. Westlake, War, p. 130.
[5 ]La Deux. Confér. T. iii. p. 1174.
[P. 403, note 2, line 9,]for “universal trading” read “universally binding.”
Parl. Papers, Misc. No. 4 (1908), p. 217; La Deux. Confér. T. i. p. 266; T. iii. pp. 921, 1121, 1127, 1173; Livre Jaune, p. 98; Weissbuch, p. 12; L. A. Atherley-Jones, Commerce in War, p. 301; Simeon E. Baldwin, Eleventh Convention of the Hague Conference, 1907, Am. Journ. of Int. Law, Vol. ii. p. 307; Bonfils-Fauchille, Droit int. public (5th ed.), § 1354; C. Dupuis, Le Droit de la guerre maritime, p. 177; W. E. Hall, Int. Law, p. 675; A. S. Hershey, International Law, etc. p. 153; H. Taylor, Public International Law, § 668; T. J. Lawrence, International Problems, p. 118; Idem, International Law, p. 627; Idem, War and Neutrality, etc. Chap. ix.; E. Lémonon, La seconde Conférence de la Paix, p. 698; L. Oppenheim, Int. Law, Vol. ii. § 191; J. Westlake, War, pp. 265, 308; The Panama (176 U.S. Rep. 535), J. B. Scott, Leading Cases, p. 788.
Parl. Papers, Misc. No. 4 (1908), p. 220; La Deux. Confér. T. i. p. 269; T. iii. pp. 896, 909, 916, 967, 980, 987, 1000, 1131, 1143, 1177, 1179; Simeon E. Baldwin, op. cit. p. 309; Bonfils-Fauchille, Droit international, § 1350; C. Dupuis, Le droit de la guerre maritime, § 153; W. E. Hall, Int. Law, p. 449; T. E. Holland, Naval Prize Law, § 36; T. J. Lawrence, Int. Law, § 105; E. Lémonon, La seconde Conférence, p. 702; L. Oppenheim, Int. Law, Vol. ii. §§ 186, 187; J. Westlake, War, pp. 133, 138, 310; The Paquette Habana, The Lola (J. B. Scott’s Leading Cases, p. 19).
C. Dupuis, Le droit de la guerre maritime, § 152; T. J. Lawrence, Int. Law, § 205; L. Oppenheim, Int. Law, Vol. ii. § 186; J. Westlake, War, p. 138. For a case which occurred during the Russo-Japanese war see S. Takahashi, International Law applied to the Russo-Japanese War, p. 353.
Parl. Papers, Misc. No. 4 (1908), p. 218; La Deux. Confér. T. i. p. 267; T. iii. pp. 916, 958, 975, 986, 1174-5; E. Lémonon, op. cit. p. 710; J. Westlake, War, p. 309.