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General Report on the Declaration Presented to the Naval Conference on behalf of its Drafting Committee 1 . ( Translation 2 .) - 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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General Report on the Declaration Presented to the Naval Conference on behalf of its Drafting Committee1 .
Origin of Conference.On the 27th February, 1908, the British Government addressed a circular to various Powers3 inviting them to meet at a Conference with the object of reaching an agreement as to the definition of the generally recognized principles of international law in the sense of Article 7, paragraph 2, of the Convention signed at The Hague on the 18th October, 1907, for the establishment of an International Prize Court. This agreement appeared necessary to the British Government on account of certain divergences of view which had become apparent at the second Peace Conference in connection with the settlement of various important questions of international maritime law in time of war. The existence of these divergent views might, it seemed, render difficult the acceptance of the International Prize Court, as the power of this Court would be the more extended in proportion as the rules to be applied by it were more uncertain.
Programme suggested by British Government.The British Government suggested that the following questions might form the programme of the proposed Conference, and invited the Powers to express their views regarding them in preparatory Memoranda1 :
(a) Contraband, including the circumstances under which particular articles can be considered as contraband; the penalties for their carriage; the immunity of a ship from search when under convoy; and the rules with regard to compensation where vessels have been seized but have been found in fact only to be carrying innocent cargo;
(b) Blockade, including the questions as to the locality where seizure can be effected, and the notice that is necessary before a ship can be seized;
(c) The doctrine of continuous voyage in respect both of contraband and of blockade;
(d) The legality of the destruction of neutral vessels prior to their condemnation by a prize court;
(e) The rules as to neutral ships or persons rendering “unneutral service” (“assistance hostile”);
(f) The legality of the conversion of a merchant-vessel into a warship on the high seas;
(g) The rules as to the transfer of merchant-vessels from a belligerent to a neutral flag during or in contemplation of hostilities;
(h) The question whether the nationality or the domicile of the owner should be adopted as the dominant factor in deciding whether property is enemy property.
Bases of discussion at Conference.The invitations were accepted, and the Conference met on the 4th December last. The British Government had been so good as to assist its deliberations by presenting a collection of papers which quickly became known among us by the name of the Red Book, and which, after a short introduction, contains a “Statement of the views expressed by the Powers in their Memoranda, and observations intended to serve as a basis for the deliberations of the Conference.” These are the “bases of discussion” which served as a starting-point for the examination of the chief questions of existing international maritime law. The Conference could not but express its gratitude for this valuable preparatory work, which was of great assistance to it. It made it possible to observe, in the first place, that the divergences in the practices and doctrines of the different countries were perhaps less wide than was generally believed, that the essential ideas were often the same in all countries, and that the methods of application alone varied with traditions or prejudices, with permanent or accidental interests. It was, therefore, possible to extract a common element which it could be agreed to recommend for uniform application. This is the end to which the efforts of the different Delegations tended, and they vied with one another in their zeal in the search for the grounds of a common understanding. Their efforts were strenuous, as is shown by the prolonged discussions of the Conference, the Grand Committee, and the Examining Committees, and by the numerous proposals which were presented. Sailors, diplomatists, and jurists cordially co-operated in a work the description of which, rather than a final estimate of its essential value, is the object of this Report, as our impartiality might naturally be suspected.
The Declaration concerning the laws of naval warfare.The body of rules contained in the Declaration, which is the result of the deliberations of the Naval Conference, and which is to be entitled Declaration concerning the laws of naval war, answers well to the desire expressed by the British Government in its invitation of February 1908. The questions in the programme are all settled except two, with regard to which explanations will be given later. The solutions have been extracted from the various views or practices which prevail and represent what may be called the media sententia. They are not always in absolute agreement with the views peculiar to each country, but they shock the essential ideas of none. They must not be examined separately, but as a whole, otherwise there is a risk of the most serious misunderstandings. In fact, if one or more isolated rules are examined either from the belligerent or the neutral point of view, the reader may find that the interests with which he is especially concerned are jeopardized by the adoption of these rules. But they have another side. The work is one of compromise and mutual concessions. Is it, as a whole, a good one?
We confidently hope that those who study it seriously will answer that it is. The Declaration puts uniformity and certainty in the place of the diversity and obscurity from which international relations have too long suffered. The Conference has tried to reconcile in an equitable and practical way the rights of belligerents with those of neutral commerce; it consists of Powers whose conditions, from the political, economic, and geographical points of view, vary considerably. There is therefore reason to suppose that the rules on which these Powers have agreed take sufficient account of the different interests involved, and hence may be accepted without objection by all the others.
The Preamble.The Preamble of the Declaration summarizes the general ideas just set forth.
Having regard to the terms in which the British Government invited various Powers to meet in conference in order to arrive at an agreement as to what are the generally recognized rules of international law within the meaning of Article 7 of the Convention of the 18th October, 1907, relative to the establishment of an International Prize Court;
Recognizing all the advantages which an agreement as to the said rules would present in the unfortunate event of a naval war, both as regards peaceful commerce, and as regards the belligerents and their diplomatic relations with neutral Governments;
Having regard to the divergence often found in the methods by which it is sought to apply in practice the general principles of international law;
Animated by the desire to insure henceforward a greater measure of uniformity in this respect;
Hoping that a work so important to the common welfare will meet with general approval;
What is the scope of application of the rules thus laid down? They must be observed in the relations between the signatory parties, since those parties acknowledge them as principles of recognized international law and, besides, expressly bind themselves to secure the benefit of them for one another. The Signatory Powers who are or will be parties to the Convention establishing the International Prize Court will have, besides, an opportunity of having these rules applied to disputes in which they are concerned, whether the Court regards them as generally recognized rules, or takes account of the pledge given to observe them. It is moreover to be hoped that these rules will before long be accepted by the majority of States, who will recognize the advantage of substituting exact provisions for more or less indefinite usages which tend to give rise to controversy.
It has been said above that two points in the programme of the Conference were not decided.
Unsolved problems: (1) Conversion of merchant vessels into warships1 .1. The programme mentions under head (f): the legality of the conversion of a merchant vessel into a warship on the high seas. The conflicting views on this subject which became apparent at the Conference of The Hague in 1907, have recurred at the present Conference. It may be concluded, both from the statements in the Memoranda and from the discussion, that there is no generally accepted rule on this point, nor do there appear to be any precedents which can be adduced. Though the two opposite opinions were defended with great warmth, a lively desire for an understanding was expressed on all sides; everybody was at least agreed that it would be a great advantage to put an end to uncertainty. Serious efforts were made to do justice to the interests espoused by both sides, but these unfortunately failed. A subsidiary question dependent on the previous one, on which, at one moment, it appeared possible to come to an agreement, is that of reconversion. According to one proposal, it was to be laid down that “merchant vessels converted into warships cannot be reconverted into merchant vessels during the whole course of the war.” The rule was absolute and made no distinction as regards the place where reconversion could be effected; it was dictated by the idea that such conversion would always have disadvantages, would be productive of surprises, and lead to actual frauds. As unanimity in favour of this proposal was not forthcoming, a subsidiary one was brought forward, viz., “the conversion of a warship into a merchant vessel on the high seas is forbidden during the war.” The case had in view was that of a warship (generally a recently converted merchant vessel) doffing its character so as to be able freely to revictual or refit in a neutral port without being bound by the restrictions imposed on warships. Will not the position of the neutral State between two belligerents be delicate, and will not such State expose itself to reproach whether it treats the newly converted ship as a merchant vessel or as a warship? 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. This was the decisive reason for the rejection of all proposals.
The question of conversion on the high seas and that of reconversion therefore remain open.
(2) Enemy character of property.2. Under head (h), the British Programme mentions: the question whether the nationality or the domicile of the owner should be adopted as the dominant factor in deciding whether property is enemy property. This question was subjected to a searching examination by a special Committee, which had to acknowledge the uncertainty of actual practice; it was proposed to put an end to this by the following provisions:—
“The neutral or enemy character of goods found on board an enemy vessel is determined by the neutral or enemy nationality of their owner, or, if he is of no nationality or of double nationality (i.e. both neutral and enemy), by his domicile in a neutral or enemy country;
“Provided that goods belonging to a limited liability or joint stock company are considered as neutral or enemy according as the company has its headquarters in a neutral or enemy country.”
Unanimity not being forthcoming, these provisions remained without effect.
We now reach the explanation of the Declaration itself, on which we shall try, by summarizing the Reports already approved by the Conference, to give an exact and uncontroversial commentary; this, when it has become an official commentary by receiving the approval of the Conference, may serve as a guide to the different authorities—administrative, military, and judicial—who may be called on to apply it.
The Signatory Powers are agreed that the rules contained in the following Chapters correspond in substance with the generally recognized principles of international law.
This provision dominates all the rules which follow. Its spirit has been indicated in the general remarks to be found at the beginning of this Report. The purpose of the Conference has, above all, been to note, to define, and, where needful, to complete what might be considered as customary law.
Blockade in time of war1 .
Blockade is here regarded solely as an operation of war, and there is no intention of touching in any way on what is called pacific blockade.
Article 1. (See ante, p. 542.)Blockade, as an operation of war, can be directed by a belligerent only against his adversary. This very simple rule is laid down at the start, but its full scope is apparent only when it is read in connexion with Article 18.
Article 2. (See ante, p. 542.)The first condition necessary to render a blockade binding is that it should be effective. There has been universal agreement on this subject for a long time. As for the definition of an effective blockade, we thought that we had only to adopt the one to be found in the Declaration of Paris of the 16th April, 1856, which, conventionally, binds a great number of States, and is in fact accepted by the rest.
Article 3. (See ante, p. 542.)It is easily to be understood that difficulties often arise on the question whether a blockade is effective or not; opposing interests are at stake. The blockading belligerent wishes to economize his efforts, and neutrals desire their trade to be as little hampered as possible. Diplomatic protests have sometimes been made on this subject. The point may be a delicate one, because no absolute rule can be laid down as to the number and position of the blockading ships. All depends on matters of fact and geographical conditions. In one case a single ship will suffice to blockade a port as effectively as possible, whereas in another a whole fleet may not be enough really to prevent access to one or more ports declared to be blockaded. It is therefore essentially a question of fact, to be decided on the merits of each case, and not according to a formula drawn up beforehand. Who shall decide it? The judicial authority. This will be, in the first place, the national tribunal which is called on to pronounce as to the validity of the prize and which the vessel captured for breach of blockade can ask to declare the capture void, because the blockade, not being effective, was not binding. This resort has always existed; it may not always have given satisfaction to the Powers concerned, because they may have thought that the national tribunal was rather naturally led to consider effective the blockade declared to be so by its Government. But when the International Prize Court Convention comes into force, there will be an absolutely impartial tribunal, to which neutrals may apply, and which will decide whether, in a given case, the blockade was effective or not. The possibility of this resort, besides allowing certain injustices to be redressed, will most likely have a preventive effect, in that a Government will take care to establish its blockades in such a way that their effect cannot be annulled by decisions which would inflict on it a heavy loss. The full scope of Article 3 is thus seen when it is understood that the question with which it deals must be settled by a Court. The foregoing explanation is inserted in the Report at the request of the Committee, in order to remove all possibility of misunderstanding.
It is not enough for a blockade to be established: it must be maintained. It it is raised it may be re-established, but this requires the observance of the same formalities as though it were established for the first time.Article 4. (See ante, p. 542.) By tradition, a blockade is not regarded as raised when it is in consequence of stress of weather that the blockading forces are temporarily withdrawn. This is laid down in Article 4. It must be considered limitative in the sense that stress of weather is the only form of compulsion which can be alleged. If the blockading forces were withdrawn for any other reason, the blockade would be regarded as raised, and, if it were resumed, Articles 12 (last rule) and 13 would apply.
Article 5. (See ante, p. 542.)Blockade, as an operation of lawful warfare, must be respected by neutrals in so far as it really remains an operation of war which has the object of interrupting all commercial relations with the blockaded port. It may not be made the means of allowing a belligerent to favour the vessels of certain nations by letting them pass. This is the point of Article 5.
Article 6. (See ante, p. 542.)Does the prohibition which applies to all merchant vessels apply also to warships? No definite reply can be given. The commander of the blockading forces may think it useful to cut off all communication with the blockaded place, and refuse access to neutral warships; no rule is imposed on him. If he lets them in, it is as a matter of courtesy. If a rule has been drawn up merely to lay down this, it is in order that it may not be claimed that a blockade has ceased to be effective on account of leave granted to such and such neutral warships.
The blockading commander must act impartially, as stated in Article 5. Nevertheless, the mere fact that he has let a warship pass does not oblige him to let pass all neutral warships which may come. It is a question of judgment. The presence of a neutral warship in a blockaded port may not have the same consequences at all stages of the blockade, and the commander must be left free to judge whether he can be courteous without making any sacrifice of his military interests.
Article 7. (See ante, p. 542.)Distress can explain the entrance of a neutral vessel into a blockaded place, for instance, if she is in want of food or water, or needs immediate repairs. As soon as her distress is acknowledged by an authority of the blockading force, she may cross the line of blockade; it is not a favour which she has to ask of the humanity or courtesy of the blockading authority. The latter may deny the state of distress, but when once it is proved to exist, the consequence follows of itself. The vessel which has thus entered the blockaded port will not be obliged to remain there for the whole duration of the blockade; she may leave as soon as she is fit to do so, when she has obtained the food or water which she needs, or when she has been repaired. But the leave granted to her must not be made an excuse for commercial transactions; therefore she is forbidden to discharge or ship any cargo.
It is needless to say that a blockading squadron which insisted on preventing a vessel in distress from passing, might do so if she afforded her the help which she needed.
Article 8. (See ante, p. 543.)Independently of the condition prescribed by the Declaration of Paris that it must be effective, a blockade, to be binding, must be declared and notified. Article 8 confines itself to laying down the principle which is applied by the following Articles.
To remove all possibility of misunderstanding it is enough to define clearly the meaning of these two expressions, which will frequently be used. The declaration of blockade is the act of the competent authority (a Government or commander of a squadron) stating that a blockade is, or is about to be, established under conditions to be specified (Article 9). The notification is the fact of bringing the declaration of blockade to the knowledge of the neutral Powers or of certain authorities (Article 11).
These two things—declaration and notification—will in most cases be done previously to the enforcement of the rules of blockade, that is to say, to the real prohibition of passage. Nevertheless, as we shall see later, it is sometimes possible for passage to be forbidden by the very fact of the blockade which is brought to the knowledge of a vessel approaching a blockaded port by means of a notification which is special, whereas the notification which has just been defined, and which is spoken of in Article 11, is of a general character.
Article 9. (See ante, p. 543.)The declaration of blockade in most cases emanates from the belligerent Government itself. That Government may have left the commander of its naval forces free himself to declare a blockade according to the circumstances. There will not, perhaps, be as much reason as formerly to give this discretion, because of the ease and rapidity of communication. This, being merely an internal question, matters little.
The declaration of blockade must specify certain points which it is in the interest of neutrals to know, in order to be aware of the extent of their obligations. The moment from which it is forbidden to communicate with the blockaded place must be exactly known. It is important, as affecting the obligations both of the blockading Power and of neutrals, that there should be no uncertainty as to the places really blockaded. Finally, the custom has long been established of allowing neutral vessels which are in a blockaded port to leave it. This custom is here confirmed, in the sense that the blockading Power must allow a period within which vessels may leave; the length of this period is not fixed, because it clearly depends on very varying circumstances, but it is understood that the period should be reasonable.
Article 10. (See ante, p. 543.)The object of this article is to insure the observance of Article 9. Supposing the declaration of blockade contains statements which do not tally with the actual facts; it states that the blockade began, or will begin, on such a day, whereas, in fact, it only began several days later. Its geographical limits are inaccurately given; they are wider than those within which the blockading forces are operating. What shall be the sanction? The nullity of the declaration of blockade, which prevents it from being operative. If then, in such a case, a neutral vessel is captured for breach of blockade, she can refer to the nullity of the declaration of blockade as a plea for the nullity of the capture; if her plea is rejected by the national tribunal, she can appeal to the International Court.
To avoid misunderstandings, the significance of this provision must be noticed. The declaration states that the blockade begins on the 1st February, it really only begins on the 8th. It is needless to say that the declaration had no effect from the 1st to the 8th, because at that time there was no blockade at all; the declaration states a fact, but does not take the place of one. The rule goes further: the declaration shall not even be operative from the 8th onwards; it is definitely void, and another must be made.
There is no question here of cases where Article 9 is disregarded by neglect to allow neutral vessels in the blockaded port time to leave it. The sanction could not be the same. There is no reason to annul the declaration as regards neutral vessels wishing to enter the blockaded port. A special sanction is needed in that case, and it is provided by Article 16, paragraph 2.
Article 11. (See ante, p. 543.)A declaration of blockade is not valid unless notified. The observance of a rule can only be required by those who have the opportunity of knowing it.
Two notifications must be made:—
1. The first is addressed to neutral Powers by the belligerent Power, which communicates it to the Governments themselves or to their representatives accredited to it. The communication to the Governments will in most cases be made through the diplomatic agents; it might happen that a belligerent had no diplomatic relations with a neutral country; he will then address himself, ordinarily by telegraph, directly to the Government of that country. It is the duty of the neutral Governments advised of the declaration of blockade to take the necessary measures to dispatch the news to the different parts of their territory, especially their ports.
2. The second notification is made by the commander of the blockading force to the local authorities. These must inform, as soon as possible, the foreign Consuls residing at the blockaded place or on the blockaded coastline. These authorities would be responsible for the neglect of this obligation. Neutrals might suffer loss from the fact of not having been informed of the blockade in sufficient time.
Article 12. (See ante, p. 544.)Supposing a blockade is extended beyond its original limits: as regards the new part, it is a new blockade and, in consequence, the rules as to declaration and notification must be applied to it. The same is true in cases where a blockade is re-established after having been raised; the fact that a blockade has already existed in the same locality must not be taken into account.
Article 13. (See ante, p. 544.)If it is indispensable to know of the establishment of a blockade, it would at least be useful for the public to be told of its raising, since it puts an end to the restrictions imposed on the relations of neutrals with the blockaded port. It has therefore been thought fit to ask the Power which raises a blockade to make known the fact in the form in which it has notified the establishment of the blockade (Article 11). Only it must be observed that the sanction could not be the same in the two cases. To ensure the notification of the declaration of blockade there is a direct and adequate sanction: an unnotified blockade is not binding. In the case of the raising there can be no parallel to this. The public will really gain by the raising, even without being told of it officially. The blockading Power which did not notify the raising would expose itself to diplomatic remonstrances on the ground of the nonfulfilment of an international duty. This nonfulfilment will have more or less serious consequences, according to circumstances. Sometimes the raising of the blockade will really have become known at once, and official notification would add nothing to this effective publicity.
It is needless to add that only the voluntary raising of a blockade is here in question; if the blockading force has been driven off by the arrival of enemy forces, it cannot be held bound to make known its defeat, which its adversary will undertake to do without delay. Instead of raising a blockade, a belligerent may confine himself to restricting it; he only blockades one port instead of two. As regards the port which ceases to be included in the blockade, it is a case of voluntary raising, and consequently the same rule applies.
Article 14. (See ante, p. 544.)For a vessel to be liable to capture for breach of blockade, the first condition is that she must be aware of the blockade, because it is not just to punish some one for breaking a rule which he does not know. Nevertheless, there are circumstances in which, even in the absence of proof of actual knowledge, knowledge may be presumed, the right of rebutting this presumption being always reserved to the party concerned. (Article 15.)
Article 15. (See ante, p. 544.)A vessel has left a neutral port subsequently to the notification of the blockade made to the Powers to which the port belongs. Was this notification made in sufficient time, that is to say, so as to reach the port in question, where it had to be published by the port authorities? That is a question of fact to be examined. If it is settled affirmatively, it is natural to suppose that the vessel was aware of the blockade at the time of her departure. This presumption is not however absolute, and the right to adduce proof to the contrary is reserved. It is for the incriminated vessel to furnish it, by showing that circumstances existed which explain her ignorance.
Article 16. (See ante, p. 544.)A vessel is supposed to be approaching a blockaded port without its being possible to tell whether she knows or is presumed to know of the existence of the blockade; no notification in the sense of Article 11 has reached her. In that case a special notification is necessary in order that the vessel may be duly informed of the fact of the blockade. This notification is made to the vessel herself by an officer of one of the warships of the blockading force, and is entered on the vessel’s logbook. It may be made to the vessels of a convoyed fleet by a neutral warship through the commander of the convoy, who acknowledges receipt of it and takes the necessary measures to have the notification entered on the logbook of each vessel. The entry notes the time and place where it is made, and the names of the blockaded places. The vessel is prevented from passing, and the blockade is thus made binding for her, though not previously notified; this adverb is therefore omitted in Article 8. It cannot be admitted that a merchant vessel should claim to disregard a real blockade, and to break it for the sole reason that she was not personally aware of it. But, though she may be prevented from passing, she may only be captured when she tries to break blockade after receiving the notification. This special notification is seen to play a very small part, and must not be confused with the special notification absolutely insisted on by the practice of certain navies1 .
What has just been said refers to the vessel coming in. The vessel leaving the blockaded port must also be considered. If a regular notification of the blockade has been made to the local authorities (Article 11 (2)), the position is simple: the vessel is, or is presumed to be, aware of the blockade, and is therefore liable to capture in case she has not kept to the period for leaving allowed by the blockading Power. But it may happen that no declaration of blockade has been notified to the local authorities, or that that declaration has contained no mention of the period allowed for leaving, in spite of the rule prescribed by Article 9 (3). The sanction of the blockading Power’s offence is that the vessel must be allowed to go free. It is a strong sanction, which corresponds exactly with the nature of the offence committed, and will be the best means of preventing its commission.
It is needless to say that this provision only concerns vessels to which the period allowed for leaving would have been of use—that is to say, neutral vessels which were in the port at the time when the blockade was established; it has nothing to do with vessels which are in the port after having broken blockade.
The commander of the blockading squadron may always repair his omission or mistake, make a notification of the blockade to the local authorities, or complete that which he has already made.
As is seen from these explanations, the most ordinary case is assumed—that in which the absence of notification implies negligence on the part of the commander of the blockading forces. The situation is clearly altogether changed if the commander has done all in his power to make the notification, but has been prevented from doing so by lack of goodwill on the part of the local authorities, who have intercepted all communications from outside. In that case he cannot be forced to let pass vessels which wish to leave, and which, in the absence of the prescribed notification and of presumptive knowledge of the blockade, are in a position similar to that contemplated in Article 16, paragraph 1.
Article 17. (See ante, p. 545.)The other condition of the liability of a vessel to capture is that she should be found within the area of operations of the warships detailed to make the blockade effective; it is not enough that she should be on her way to the blockaded port.
As for what constitutes the area of operations, an explanation has been given which has been universally accepted, and is quoted here as furnishing the best commentary on the rule laid down by Article 17:—
“When a Government decides to undertake blockading operations against some part of the enemy coast it details a certain number of warships to take part in the blockade, and entrusts the command to an officer whose duty is to use them for the purpose of making the blockade effective. The commander of the naval force thus formed posts the ships at his disposal according to the line of the coast and the geographical position of the blockaded places, and instructs each ship as to the part which she has to play, and especially as to the zone which she is to watch. All the zones watched taken together, and so organized as to make the blockade effective, form the area of operations of the blockading naval force.
“The area of operations so constituted is intimately connected with the effectiveness of the blockade, and also with the number of ships employed on it.
“Cases may occur in which a single ship will be enough to keep a blockade effective,—for instance, at the entrance of a port, or at the mouth of a river with a small estuary, so long as circumstances allow the blockading ship to stay near enough to the entrance. In that case the area of operations is itself near the coast. But, on the other hand, if circumstances force her to remain far off, one ship may not be enough to secure effectiveness, and to maintain this she will then have to be supported by others. From this cause the area of operations becomes wider, and extends further from the coast. It may therefore vary with circumstances, and with the number of blockading ships, but it will always be limited by the condition that effectiveness must be assured.
“It does not seem possible to fix the limits of the area of operations in definite figures, any more than to fix beforehand and definitely the number of ships necessary to assure the effectiveness of any blockade. These points must be settled according to circumstances in each particular case of a blockade. This might perhaps be done at the time of making the declaration.
“It is clear that a blockade will not be established in the same way on a defenceless coast as on one possessing all modern means of defence. In the latter case there could be no question of enforcing a rule such as that which formerly required that ships should be stationary and sufficiently close to the blockaded places; the position would be too dangerous for the ships of the blockading force which, besides, now possess more powerful means of watching effectively a much wider zone than formerly.
“The area of operations of a blockading naval force may be rather wide, but as it depends on the number of ships contributing to the effectiveness of the blockade, and is always limited by the condition that it should be effective, it will never reach distant seas where merchant vessels sail which are, perhaps, making for the blockaded ports, but whose destination is contingent on the changes which circumstances may produce in the blockade during their voyage. To sum up, the idea of the area of operations joined with that of effectiveness, as we have tried to define it, that is to say, including the zone of operations of the blockading forces, allows the belligerent effectively to exercise the right of blockade which he admittedly possesses and, on the other hand, saves neutrals from exposure to the drawbacks of blockade at a great distance, while it leaves them free to run the risk which they knowingly incur by approaching points to which access is forbidden by the belligerent1 .”
Article 18. (See ante, p. 545.)This rule has been thought necessary the better to protect the commercial interests of neutral countries; it completes Article 1, according to which a blockade must not extend beyond the ports and coasts of the enemy, which implies that, as it is an operation of war, it must not be directed against a neutral port, in spite of the importance to a belligerent of the part played by that neutral port in supplying his adversary.
Article 19. (See ante, p. 545.)It is the true destination of the vessel which must be considered when a breach of blockade is in question, and not the ulterior destination of the cargo. Proof or presumption of the latter is therefore not enough to justify the capture, for breach of blockade, of a ship actually bound for an unblockaded port. But the cruiser might always prove that this destination to an unblockaded port is only apparent, and that in reality the immediate destination of the vessel is the blockaded port.
Article 20. (See ante, p. 545.)A vessel has left the blockaded port or has tried to enter it. Shall she remain indefinitely liable to capture? To reply by an absolute affirmative would be to go too far. This vessel must remain liable to capture so long as she is pursued by a ship of the blockading force; it would not be enough for her to be encountered by a cruiser of the blockading enemy which did not belong to the blockading squadron2 . The question whether or not the pursuit is abandoned is one of fact; it is not enough that the vessel should take refuge in a neutral port. The ship which is pursuing her can wait till she leaves it, so that the pursuit is necessarily suspended, but not abandoned. Capture is no longer possible when the blockade has been raised.
Article 21. (See ante, p. 545.)The vessel is condemned in all cases. The cargo is also condemned on principle, but the interested party is allowed to oppose a plea of good faith, that is to say, to prove that, when the goods were shipped, the shipper did not know and could not have known of the intention to break the blockade.
Contraband of war1 .
This chapter is one of the most, if not the most important, of the Declaration. It deals with a matter which has sometimes given rise to serious disputes between belligerents and neutrals. Therefore regulations to establish exactly the rights and duties of each have often been urgently called for. Peaceful trade may be grateful for the precision with which a subject of the highest importance to its interests is now for the first time treated.
The notion of contraband of war connotes two elements: it concerns objects of a certain kind and with a certain destination. Cannons, for instance, are carried in a neutral vessel. Are they contraband? That depends: if they are destined for a neutral Government,—no; if they are destined for an enemy Government,—yes. The trade in certain articles is by no means generally forbidden during war; it is the trade with the enemy in these articles which is illicit, and against which the belligerent to whose detriment it is carried on may protect himself by the measures allowed by international law.
Articles 22 and 24 enumerate the articles which may be contraband of war, and which are so in fact when they have a certain destination laid down in Articles 30 and 33. The traditional distinction between absolute and conditional contraband is maintained: Articles 22 and 30 refer to the former, and Articles 24 and 33 to the latter.
Article 22. (See ante, p. 546.)This list is that drawn up at the second Peace Conference by the Committee charged with the special study of the question of contraband1 . It was the result of mutual concessions, and it has not seemed wise to reopen discussion on this subject for the purpose either of cutting out or of adding articles.
The words de plein droit (without notice)2 imply that the provision becomes operative by the mere fact of the war, and that no declaration by the belligerents is necessary. Trade is already warned in time of peace.
Article 23. (See ante, p. 547.)Certain discoveries or inventions might make the list in Article 22 insufficient. An addition may be made to it on condition that it concerns articles exclusively used for war. This addition must be notified to the other Powers, which will take the necessary measures to inform their subjects of it. In theory the notification may be made in time of peace or of war. The former case will doubtless rarely occur, because a State which made such a notification might be suspected of meditating a war; it would, nevertheless, have the advantage of informing trade beforehand. There was no reason for making it impossible.
The right given to a Power to make an addition to the list by a mere declaration has been thought too wide. It should be noticed that this right does not involve the dangers supposed. In the first place, it is understood that the declaration is only operative for the Power which makes it, in the sense that the article added will only be contraband for it, as a belligerent; other States may, of course, also make a similar declaration. The addition may only refer to articles exclusively used for war; at present, it would be hard to mention any such articles which are not included in the list. The future is left free. If a Power claimed to add to the list of absolute contraband articles not exclusively used for war, it might expose itself to diplomatic remonstrances, because it would be disregarding an accepted rule. Besides, there would be an eventual resort to the International Prize Court. Suppose that the Court holds that the article mentioned in the declaration of absolute contraband is wrongly placed there because it is not exclusively used for war, but that it might have been included in a declaration of conditional contraband. Confiscation may then be justified if the capture was made in the conditions laid down for this kind of contraband (Articles 33—35) which differ from those enforced for absolute contraband (Article 30).
It had been suggested that, in the interest of neutral trade, a period should elapse between the notification and its enforcement. But that would be very damaging to the belligerent, whose object is precisely to protect himself, since, during that period, the trade in articles which he thinks dangerous would be free and the effect of his measure a failure. Account has been taken, in another form, of the considerations of equity which have been adduced (see Article 43).
Article 24. (See ante, p. 547.)On the expression de plein droit (without notice) the same remark must be made with regard to Article 221 . The articles enumerated are only conditional contraband if they have the destination specified in Article 33.
Foodstuffs include products necessary or useful for sustaining man, whether solid or liquid.
Paper money only includes inconvertible paper money, i.e. banknotes which may or not be legal tender. Bills of exchange and cheques are excluded.
Engines and boilers are included in (6).
Railway material includes fixtures (such as rails, sleepers, turntables, parts of bridges), and rolling stock (such as locomotives, carriages, and trucks).
Article 25. (See ante, p. 548.)This provision corresponds, as regards conditional contraband, to that in Article 23 as regards absolute contraband.
Article 26. (See ante, p. 548.)A belligerent may not wish to use the right to treat as contraband of war all the articles included in the above lists. It may suit him to add to conditional contraband an article included in absolute contraband or to declare free, so far as he is concerned, the trade in some article included in one class or the other. It is desirable that he should make known his intention on this subject, and he will probably do so in order to have the credit of the measure. If he does not do so, but confines himself to giving instructions to his cruisers, the vessels searched will be agreeably surprised if the searcher does not reproach them with carrying what they themselves consider contraband. Nothing can prevent a Power from making such a declaration in time of peace. See what is said as regards Article 23.
Article 27. (See ante, p. 549.)The existence of a so-called free list (Article 28) makes it useful thus to put on record that articles which cannot be used for purposes of war may not be declared contraband of war. It might have been thought that articles not included in that list might at least be declared conditional contraband.
Article 28. (See ante, p. 549.)To lessen the drawbacks of war as regards neutral trade it has been thought useful to draw up this so-called free list, but this does not mean, as has been explained above, that all articles outside it might be declared contraband of war.
The ores here referred to are the product of mines from which metals are derived.
There was a demand that dyestuffs should be included in (10), but this seemed too general, for there are materials from which colours are derived, such as coal, which also have other uses. Products only used for making colours enjoy the exemption.
“Articles de Paris,” an expression the meaning of which is universally understood, come under (15).
Article 29. (See ante, p. 550.)(16) refers to the hair of certain animals, such as pigs and wild boars. Carpets and mats come under household furniture and ornaments (17). The articles enumerated in Article 29 are also excluded from treatment as contraband, but for reasons different from those which have led to the inclusion of the list in Article 28.
Motives of humanity have exempted articles exclusively used to aid the sick and wounded, which, of course, include drugs and different medicines. This does not refer to hospital-ships, which enjoy special immunity under the convention of The Hague of the 18th October, 1907, but to ordinary merchant vessels, whose cargo includes articles of the kind mentioned. The cruiser has, however, the right, in case of urgent necessity, to requisition such articles for the needs of her crew or of the fleet to which she belongs, but they can only be requisitioned on payment of compensation. It must, however, be observed that this right of requisition may not be exercised in all cases. The articles in question must have the destination specified in Article 30, that is to say, an enemy destination. Otherwise, the ordinary law regains its sway; a belligerent could not have the right of requisition as regards neutral vessels on the high seas.
Articles intended for the use of the vessel, which might in themselves and by their nature, be contraband of war, may not be so treated,—for instance, arms intended for the defence of the vessel against pirates or for making signals. The same is true of articles intended for the use of the crew and passengers during the voyage; the crew here include all persons in the service of the vessel in general.
Destination of Contraband.—As has been said, the second element in the notion of contraband is destination. Great difficulties have arisen on this subject, which find expression in the theory of continuous voyage, so often attacked or adduced without a clear comprehension of its exact meaning1 . Cases must simply be considered on their merits so as to see how they can be settled without unnecessarily annoying neutrals or sacrificing the legitimate rights of belligerents.
In order to effect a compromise between conflicting theories and practices, absolute and conditional contraband have been differently treated in this connection.
Articles 30 to 32 refer to absolute, and Articles 33 to 36 to conditional, contraband.
Article 30. (See ante, p. 550.)The articles included in the list in Article 22 are absolute contraband when they are destined for territory belonging to or occupied by the enemy, or for his armed military or naval forces. These articles are liable to capture as soon as a final destination of this kind can be shown by the captor to exist. It is not, therefore, the destination of the vessel which is decisive, but that of the goods. It makes no difference if these goods are on board a vessel which is to discharge them in a neutral port; as soon as the captor is able to show that they are to be forwarded from there by land or sea to an enemy country, it is enough to justify the capture and subsequent condemnation of the cargo. The very principle of continuous voyage, as regards absolute contraband, is established by Article 30. The journey made by the goods is regarded as a whole.
Article 31. (See ante, p. 550.)As has been said, the obligation of proving that the contraband goods really have the destination specified in Article 30 rests with the captor. In certain cases proof of the destination specified in Article 31 is conclusive, that is to say, the proof may not be rebutted.
First Case.—The goods are documented for discharge in an enemy port, that is to say, according to the ship’s papers referring to those goods, they are to be discharged there. In this case there is a real admission of enemy destination on the part of the interested parties themselves.
Second Case.—The vessel is to touch at enemy ports only; or she is to touch at an enemy port before reaching the neutral port for which the goods are documented, so that although these goods, according to the papers referring to them, are to be discharged in a neutral port, the vessel carrying them is to touch at an enemy port before reaching that neutral port. They will be liable to capture, and the possibility of proving that their neutral destination is real and in accordance with the intentions of the parties interested is not admitted. The fact that, before reaching that destination, the vessel will touch at an enemy port, would occasion too great a risk for the belligerent whose cruiser searches the vessel. Even without assuming that there is intentional fraud, there might be a strong temptation for the master of the merchant vessel to discharge the contrabrand, for which he would get a good price, and for the local authorities to requisition the goods.
The same case arises where the vessel, before reaching the neutral port, is to join the armed forces of the enemy.
For the sake of simplicity, the provision only speaks of an enemy port, but it is understood that a port occupied by the enemy must be regarded as an enemy port, as follows from the general rule in Article 30.
Article 32. (See ante, p. 551.)The papers, therefore, are conclusive proof of the course of the vessel unless she is encountered in circumstances which show that their statements are not to be trusted. See also the explanations given as regards Article 35.
Article 33. (See ante, p. 551.)The rules for conditional contraband differ from those laid down for absolute contraband in two respects: (1) there is no question of destination for the enemy in general, but of destination for the use of his armed forces or government departments; (2) the doctrine of continuous voyage is excluded. Articles 33 and 34 refer to the first, and Article 35 to the second principle.
The articles included in the list of conditional contraband may serve for peaceful uses as well as for hostile purposes. If, from the circumstances, the peaceful purpose is clear, their capture is not justified; it is otherwise if a hostile purpose is to be assumed, as, for instance, in the case of foodstuffs destined for an enemy army or fleet, or of coal destined for an enemy fleet. In such a case there is clearly no room for doubt. But what is the solution when the articles are destined for the civil government departments of the enemy State? It may be money sent to a government department, for use in the payment of its official salaries, or rails sent to a department of public works. In these cases there is enemy destination which renders the goods liable in the first place to capture, and in the second to condemnation. The reasons for this are at once legal and practical. The State is one, although it necessarily acts through different departments. If a civil department may freely receive foodstuffs or money, that department is not the only gainer, but the entire State, including its military administration, gains also, since the general resources of the State are thereby increased. Further, the receipts of a civil department may be considered of greater use to the military administration and directly assigned to the latter. Money or foodstuffs really destined for a civil department may thus come to be used directly for the needs of the army. This possibility, which is always present, shows why destination for the departments of the enemy State is assimilated to that for its armed forces.
It is the departments of the State which are dependent on the central power that are in question, and not all the departments which may exist in the enemy State; local and municipal bodies, for instance, are not included, and articles destined for their use would not be contraband.
War may be waged in such circumstances that destination for the use of a civil department cannot be suspect, and consequently cannot make goods contraband. For instance, there is a war in Europe, and the colonies of the belligerent countries are not, in fact, affected by it. Foodstuffs or other articles in the list of conditional contraband destined for the use of the civil government of a colony would not be held to be contraband of war, because the considerations adduced above do not apply to their case; the resources of the civil government cannot be drawn on for the needs of the war. Gold, silver, or paper money are exceptions, because a sum of money can easily be sent from one end of the world to the other.
Article 34. (See ante, p. 551.)Contraband articles will not usually be directly addressed to the military authorities or to the government departments of the enemy State. Their true destination will be more or less concealed, and the captor must prove it in order to justify their capture. But it has been thought reasonable to set up presumptions based on the nature of the person to whom, or place for which, the articles are destined. It may be an enemy authority or a trader established in an enemy country who, as a matter of common knowledge, supplies the enemy Government with articles of the kind in question. It may be a fortified place belonging to the enemy or a place used as a base, whether of operations or of supply, for the armed forces of the enemy.
This general presumption may not be applied to the merchant vessel herself on her way to a fortified place, though she may in herself be conditional contraband, but only if her destination for the use of the armed forces or government departments of the enemy State is directly proved.
In the absence of the above presumptions, the destination is presumed to be innocent. That is the ordinary law, according to which the captor must prove the illicit character of the goods which he claims to capture.
Finally, all the presumptions thus set up in the interest of the captor or against him may be rebutted. The national tribunals, in the first place, and, in the second, the International Court, will exercise their judgment.
Article 35. (See ante, p. 552.)As has been said above, the doctrine of continuous voyage is excluded for conditional contraband, which is only liable to capture when it is to be discharged in an enemy port. As soon as the goods are documented for discharge in a neutral port they can no longer be contraband, and no examination will be made as to whether they are to be forwarded to the enemy by sea or land from that neutral port. It is here that the case of absolute contraband is essentially different.
The ship’s papers furnish complete proof as to the voyage on which the vessel is engaged and as to the place where the cargo is to be discharged; but this would not be so if the vessel were encountered clearly out of the course which she should follow according to her papers, and unable to give adequate reasons to justify such deviation.
This rule as to the proof furnished by the ship’s papers is intended to prevent claims frivolously raised by a cruiser and giving rise to unjustifiable captures. It must not be too literally interpreted, for that would make all frauds easy. Thus it does not hold good when the vessel is encountered at sea clearly out of the course which she ought to have followed, and unable to justify such deviation. The ship’s papers are then in contradiction with the true facts and lose all value as evidence; the cruiser will be free to decide according to the merits of the case. In the same way, a search of the vessel may reveal facts which irrefutably prove that her destination or the place where the goods are to be discharged is incorrectly entered in the ship’s papers. The commander of the cruiser is then free to judge of the circumstances and capture the vessel or not according to his judgment. To resume, the ship’s papers are proof, unless facts show their evidence to be false1 . This qualification of the value of the ship’s papers as proof seems self-evident and unworthy of special mention. The aim has been not to appear to weaken the force of the general rule, which forms a safeguard for neutral trade.
It does not follow that, because a single entry in the ship’s papers is shown to be false, their evidence loses its value as a whole. The entries which cannot be proved false retain their value.
Article 36. (See ante, p. 553.)The case contemplated is certainly rare, but has nevertheless arisen in recent wars. In the case of absolute contraband, there is no difficulty, since destination for the enemy may always be proved, whatever the route by which the goods are sent (Article 30). For conditional contraband the case is different, and an exception must be made to the general rule laid down in Article 35, paragraph 1, so as to allow the captor to prove that the suspected goods really have the special destination referred to in Article 33 without the possibility of being confronted by the objection that they were to be discharged in a neutral port.
Article 37. (See ante, p. 553.)The vessel may be captured for contraband during the whole of her voyage, provided that she is in waters where an act of war is lawful. The fact that she intends to touch at a port of call before reaching the enemy destination does not prevent capture, provided that destination in her particular case is proved in conformity with the rules laid down in Article 30 to 32 for absolute, and in Articles 33 to 35 for conditional contraband, subject to the exception provided for in Article 36.
Article 38. (See ante, p. 553.)A vessel is liable to capture for carrying contraband, but not for having done so.
Article 39. (See ante, p. 553.)This presents no difficulty.
Article 40. (See ante, p. 553.)It was universally admitted that in certain cases the condemnation of the contraband is not enough, and that the vessel herself should also be condemned, but opinions differed as to what these cases were. It was decided that the contraband must bear a certain proportion to the total cargo. But the question divides itself into two parts: (1) What shall be the proportion? The solution adopted is the mean between those proposed, which varied from a quarter to three quarters. (2) How shall this proportion be reckoned? Must the contraband form more than half the cargo in volume, weight, value, or freight? The adoption of a single fixed standard gives rise to theoretical objections, and also to practices intended to avoid condemnation of the vessel in spite of the importance of the cargo. If the standard of volume or weight is adopted, the master will ship innocent goods occupying space, or of weight, sufficient to exceed the contraband. A similar remark may be made as regards the standard of value or freight. The consequence is that, in order to justify condemnation, it is enough that the contraband should form more than half the cargo by any one of the above standards. This may seem harsh; but, on the one hand, any other system would make fraudulent calculations easy, and, on the other, the condemnation of the vessel may be said to be justified when the carriage of contraband formed an important part of her venture—a statement which applies to all the cases specified.
Article 41. (See ante, p. 554.)It is not just that, on the one hand, the carriage of more than a certain proportion of contraband should involve the condemnation of the vessel, while if the contraband forms less than this proportion, it alone is confiscated. This often involves no loss for the master, the freight of this contraband having been paid in advance. Does this not encourage trade in contraband, and ought not a certain penalty to be imposed for the carriage of a proportion of contraband less than that required to entail condemnation? A kind of fine was proposed which should bear a relation to the value of the contraband articles. Objections of various sorts were brought forward against this proposal, although the principle of the infliction of some kind of pecuniary loss for the carriage of contraband seemed justified. The same object was attained in another way by providing that the costs and expenses incurred by the captor in respect of the proceedings in the national prize court and of the custody of the vessel and of her cargo during the proceedings are to be paid by the vessel. The expenses of the custody of the vessel include in this case the keep of the captured vessel’s crew. It should be added that the loss to a vessel by being taken to a prize port and kept there is the most serious deterrent as regards the carriage of contraband.
Article 42. (See ante, p. 554.)The owner of the contraband is punished in the first place by the condemnation of his contraband property; and in the second by that of the goods, even if innocent, which he may possess on board the same vessel.
Article 43. (See ante, p. 554.)This provision is intended to spare neutrals who might in fact be carrying contraband, but against whom no charge could be made. This may arise in two cases. The first is that in which they are unaware of the outbreak of hostilities; the second is that in which, though aware of this, they do not know of the declaration of contraband made by a belligerent, in accordance with Articles 23 and 25, which is, as it happens, the one applicable to the whole or a part of the cargo. It would be unjust to capture the ship and condemn the contraband; on the other hand, the cruiser cannot be obliged to let go on to the enemy goods suitable for use in the war of which he may stand in urgent need. These opposing interests are reconciled by making condemnation conditional on the payment of compensation (see the convention of the 18th October, 1907, on the rules for enemy merchant vessels on the outbreak of hostilities, which expresses a similar idea.1 .
Article 44. (See ante, p. 555.)A neutral vessel is stopped for carrying contraband. She is not liable to condemnation, because the contraband does not reach the proportion specified in Article 40. She can nevertheless be taken to a prize port for judgment to be passed on the contraband. This right of the captor appears too wide in certain cases, if the importance of the contraband, possibly slight (for instance, a case of guns or revolvers), is compared with the heavy loss incurred by the vessel by being thus turned out of her course and detained during the time taken up by the proceedings. The question has, therefore, been asked whether the right of the neutral vessel to continue her voyage might not be admitted if the contraband articles were handed over to the captor, who, on his part, might only refuse to receive them for sufficient reasons, for instance, the rough state of the sea, which would make transhipment difficult or impossible, well-founded suspicions as to the amount of contraband which the merchant vessel is really carrying, the difficulty of stowing the articles on board the warship, &c. This proposal did not gain sufficient support. It was alleged to be impossible to impose such an obligation on the cruiser, for which this handing over of goods would almost always have drawbacks. If, by chance, it has none, the cruiser will not refuse it, because she herself will gain by not being turned out of her course by having to take the vessel to a port. The idea of an obligation having thus been excluded, it was decided to provide for the voluntarily handing over of the contraband, which, it is hoped, will be carried out whenever possible, to the great advantage of both parties. The formalities provided for are very simple and need no explanation.
There must be a judgment of a prize court as regards the goods thus handed over. For this purpose the captor must be furnished with the necessary papers. It may be supposed that there might be doubt as to the character of certain articles which the cruiser claims as contraband; the master of the merchant vessel contests this claim, but prefers to deliver them up so as to be at liberty to continue his voyage. This is merely a capture which has to be confirmed by the prize court.
The contraband delivered up by the merchant vessel may hamper the cruiser, which must be left free to destroy it at the moment of handing over or later.
Unneutral service1 .
In a general way, it may be said that the merchant vessel which violates neutrality, whether by carrying contraband of war or by breaking blockade, affords aid to the enemy, and it is on this ground that the belligerent whom she injures by her acts is justified in inflicting on her certain losses. But there are cases where such unneutral service bears a particularly distinctive character, and for such cases it has been thought necessary to make special provision. They have been divided into two classes according to the gravity of the act of which the neutral vessel is accused.
In the cases included in the first class (Article 45), the vessel is condemned, and receives the treatment of a vessel subject to condemnation for carrying contraband. This means that the vessel does not lose her neutral character and has a full claim to the rights enjoyed by neutral vessels; for instance, she may not be destroyed by the captor except under the conditions laid down for neutral vessels (Articles 48 et seqq.); the rule that the flag covers the goods applies to goods she carries on board.
In the more serious cases which belong to the second class (Article 46), the vessel is, again, condemned; but further, she is treated not only as a vessel subject to condemnation for carrying contraband, but as an enemy merchant vessel, which treatment entails certain consequences. The rule governing the destruction of neutral prizes does not apply to the vessel, and, as she has become an enemy vessel, it is no longer the second but the third rule of the Declaration of Paris which is applicable. The goods on board will be presumed to be enemy goods; neutrals will have the right to claim their property on establishing their neutrality (Article 59). It would, however, be going too far to say that the original neutral character of the vessel is completely lost, so that she should be treated as though she had always been an enemy vessel. The vessel may plead that the allegation made against her has no foundation in fact, that the act of which she is accused has not the character of unneutral service. She has, therefore, the right of appeal to the International Court in virtue of the provisions which protect neutral property.
Article 45. (See ante, p. 555.)The first case supposes passengers travelling as individuals; the case of a military detachment is dealt with hereafter. The case is that of individuals embodied in the armed military or naval forces of the enemy. There was some doubt as to the meaning of this word. Does it include those individuals only who are summoned to serve in virtue of the law of their country and who have really joined the corps to which they are to belong? Or does it also include such individuals from the moment when they are summoned, and before they join that corps? The question is of great practical importance. Supposing the case is one of individuals who are natives of a continental European country and are settled in America; these individuals have military obligations towards their country of origin; they have, for instance, to belong to the reserve of the active army of that country. Their country is at war and they sail to perform their service. Shall they be considered as embodied in the sense of the provision which we are discussing? If we judged by the municipal law of certain countries, we might argue that they should be so considered. But, apart from reasons of pure law, the contrary opinion has seemed more in accordance with practical necessity and has been accepted by all in a spirit of conciliation. It would be difficult, perhaps even impossible, without having recourse to vexatious measures to which neutral Governments would not submit, to pick out among the passengers in a vessel, those who are bound to perform military service and are on their way to do so.
The transmission of intelligence in the interest of the enemy is to be treated in the same way as the carriage of passengers embodied in his armed force. The reference to a vessel especially undertaking a voyage is intended to show that her usual service is not meant. She has been turned from her course; she has touched at a port which she does not ordinarily visit in order to embark the passengers in question. She need not be exclusively devoted to the service of the enemy; that case would come into the second class (Article 56 (4)).
In the two cases just mentioned the vessel has performed but a single service; she has been employed to carry certain people, or transmit certain intelligence; she is not continuously in the service of the enemy. In consequence she may be captured during the voyage on which she is performing the service which she has to render. Once that voyage is finished, all is over, in the sense that she may not be captured for having rendered the service in question. The principle is the same as that recognized in the case of contraband (Article 38).
The second case also falls under two heads.
There is, first, the carriage of a military detachment of the enemy, or that of one or more persons who during the voyage directly assist his operations, for instance, by signalling. If these people are soldiers or sailors in uniform there is no difficulty, the vessel is clearly liable to condemnation. If they are soldiers or sailors in mufti who might be mistaken for ordinary passengers, knowledge on the part of the master or owner is required, the character being assimilated to the latter. The rule is the same in the case of persons directly assisting the enemy during the voyage.
In these cases, if the vessel is condemned for unneutral service, the goods belonging to her owner are also liable to condemnation.
These provisions assume that the state of war was known to the vessel engaged in the operations specified; such knowledge is the reason and justification of her condemnation. The position is altogether different when the vessel is unaware of the outbreak of hostilities, so that she undertakes the service in ordinary circumstances. She may have learnt of the outbreak of hostilities while at sea, but have had no chance of landing the persons whom she was carrying. Condemnation would then be unjust, and the equitable rule adopted is in accordance with the provisions already accepted in other matters. If a vessel has left an enemy port subsequently to the outbreak of hostilities, or a neutral port after that outbreak has been notified to the Power to whom such port belongs, her knowledge of the existence of a state of war will be presumed.
The question here is merely one of preventing the condemnation of the vessel. The persons found on board her who belong to the armed forces of the enemy may be made prisoners of war by the cruiser.
Article 46. (See ante, p. 557.)The cases here contemplated1 are more serious than those in Article 45, which justifies the severer treatment inflicted on the vessel, as explained above.
First Case.—The vessel takes a direct part in the hostilities. This may take different forms. It is needless to say that, in an armed conflict, the vessel takes all the risks incidental thereto. We suppose her to have fallen into the power of the enemy whom she was fighting, and who is entitled to treat her as an enemy merchant vessel.
Second Case.—The vessel is under the orders or control of an agent placed on board by the enemy Government. His presence marks the relation in which she stands to the enemy. In other circumstances the vessel may also have relations with the enemy, but to be subject to condemnation she must come under the third head.
Third Case.—The whole vessel is chartered by the enemy Government, and is therefore entirely at its disposal; it can use her for different purposes more or less directly connected with the war, notably, as a transport; such is the position of colliers which accompany a belligerent fleet. There will often be a charter-party between the belligerent Government and the owner or master of the vessel, but all that is required is proof, and the fact that the whole vessel has in fact been chartered is enough, in whatever way it may be established.
Fourth Case.—The vessel is at the time exclusively devoted to the carriage of enemy troops or to the transmission of intelligence in the enemy’s interest. The case is different from those dealt with by Article 45, and the question is one of a service to which the ship is permanently devoted. The decision accordingly is that, so long as such service lasts, the vessel is liable to capture, even if, at the moment when an enemy cruiser searches her, she is engaged neither in the transport of troops nor in the transmission of intelligence.
As in the cases in Article 45 and for the same reasons, goods found on board belonging to the owner of the vessel are also liable to condemnation.
It was proposed to treat as an enemy merchant vessel a neutral vessel making, at the time, and with the sanction of the enemy Government, a voyage which she has only been permitted to make subsequently to the outbreak of hostilities or during the two preceding months1 . This rule would be enforced notably on neutral merchant vessels admitted by a belligerent to a service reserved in time of peace to the national marine of that belligerent—for instance, to the coasting trade. Several Delegations formally rejected this proposal, so that the question thus raised remains an open one2 .
Article 47. (See ante, p. 557.)Individuals embodied in the armed military or naval forces of a belligerent may be on board a neutral merchant vessel when she is searched. If the vessel is subject to condemnation, the cruiser will capture her and take her to one of her own ports with the persons on board. Clearly the soldiers or sailors of the enemy State will not be set free, but will be treated as prisoners of war. Perhaps the case will not be one for the capture of the ship—for instance, because the master was unaware of the status of an individual who had come on board as an ordinary passenger. Must the soldier or soldiers on board the vessel be set free? That does not appear admissible. The belligerent cruiser cannot be compelled to set free active enemies who are physically in her power and are more dangerous than this or that contraband article. She must naturally proceed with great discretion, and must act on her own responsibility in requiring the surrender of these individuals, but the right to do so is hers; it has therefore been thought necessary to explain the point.
Destruction of neutral prizes1 .
The destruction of neutral prizes was a subject comprised in the programme of the second Peace Conference, and on that occasion no settlement was reached. It reappeared in the programme of the present Conference, and this time agreement has been found possible. Such a result, which bears witness to the sincere desire of all parties to arrive at an understanding, is a matter for congratulation. It has been shown once more that conflicting hard-and-fast rules do not always correspond to things as they are, and that if there be readiness to descend to particulars, and to arrive at the precise way in which the rules have been applied, it will often be found that the actual practice is very much the same, although the doctrines professed appear to be entirely in conflict. To enable two parties to agree, it is first of all necessary that they should understand each other, and this frequently is not the case. Thus it has been found that those who declared for the right to destroy neutral prizes never claimed to use this right wantonly or at every opportunity, but only by way of exception; while, on the other hand, those who maintained the principle that destruction is forbidden, admitted that the principle must give way in certain exceptional cases. It therefore became a question of reaching an understanding with regard to those exceptional cases to which, according to both views, the right to destroy should be confined. But this was not all: there was need for some guarantee against abuse in the exercise of this right; the possibility of arbitrary action in determining these exceptional cases must be limited by throwing some real responsibility upon the captor. It was at this stage that a new idea was introduced into the discussion, thanks to which it was possible to arrive at an agreement. The possibility of intervention by a court of justice will make the captor reflect before he acts, and at the same time secure reparation in cases where there was no reason for the destruction.
Such is the general spirit of the provisions of this chapter.
Article 48. (See ante, p. 557.)The general principle is very simple. A neutral vessel which has been seized may not be destroyed by the captor; so much may be admitted by every one, whatever view is taken as to the effect produced by the capture. The vessel must be taken into a port for the determination there as to the validity of the prize. A prize crew will be put on board or not, according to circumstances.
Article 49. (See ante, p. 557.)The first condition necessary to justify the destruction of the captured vessel is that she should be liable to condemnation upon the facts of the case. If the captor cannot even hope to obtain the condemnation of the vessel, how can he lay claim to the right to destroy her?
The second condition is that the observance of the general principle would involve danger to the safety of the warship or to the success of the operations in which she is engaged at the time. This is what was finally agreed upon after various solutions had been tried. It was understood that the phrase compromettre la sécurité was synonymous with mettre en danger le navire, and might be translated into English by: involve danger. It is, of course, the situation at the moment when the destruction takes place which must be considered in order to decide whether the conditions are or are not fulfilled. For a danger which did not exist at the actual moment of the capture may have appeared some time afterwards.
Article 50. (See ante, p. 558.)This provision lays down the precautions to be taken in the interests of the persons on board and of the administration of justice.
Article 51. (See ante, p. 558.)This claim gives a guarantee against the arbitrary destruction of prizes by throwing a real responsibility upon the captor who has carried out the destruction. The result is that before any decision is given respecting the validity of the prize, the captor must prove that the situation he was in was really one which fell under the head of the exceptional cases contemplated. This must be proved in proceedings to which the neutral is a party, and if the latter is not satisfied with the decision of the national prize court he may take his case to the International Court. Proof to the above effect is, therefore, a condition precedent which the captor must fulfil. If he fails to do this, he must compensate the parties interested in the vessel and the cargo, and the question whether the capture was valid or not will not be gone into. In this way a real sanction is provided in respect of the obligation not to destroy a prize except in particular cases, the sanction taking the form of a fine inflicted on the captor. If, on the other hand, this proof is given, the prize procedure follows the usual course; if the prize is declared valid, no compensation is due; if it is declared void, the parties interested have a right to be compensated. Resort to the International Court can only be made after the decision of the prize court has been given on the whole matter, and not immediately after the preliminary question has been decided.
Articles 52 and 53. (See ante, p. 558.)Supposing a vessel which has been destroyed carried neutral goods not liable to condemnation: the owner of such goods has, in every case, a right to compensation, that is, without there being occasion to distinguish between cases where the destruction was or was not justified. This is equitable and a further guarantee against arbitrary destruction.
Article 54. (See ante, p. 558.)A cruiser encounters a neutral merchant vessel carrying contraband in a proportion less than that specified in Article 40. The captain may put a prize crew on board the vessel and take her into a port for adjudication. He may, in conformity with the provisions of Article 44, agree to the handing over of the contraband if offered by the vessel stopped. But what is to happen if neither of these solutions is reached? The vessel stopped does not offer to hand over the contraband, and the cruiser is not in a position to take the vessel into a national port. Is the cruiser obliged to let the neutral vessel go with the contraband on board? To require this seemed going too far, at least in certain exceptional circumstances. These circumstances are in fact the same as would have justified the destruction of the vessel, had she been liable to condemnation. In such a case, the cruiser may demand the handing over, or proceed to the destruction, of the goods liable to condemnation. The reasons for which the right to destroy the vessel has been recognized may justify the destruction of the contraband goods, the more so as the considerations of humanity which can be adduced against the destruction of a vessel do not in this case apply. Against arbitrary demands by the cruiser there are the same guarantees as those which made it possible to recognize the right to destroy the vessel. The captor must, as a preliminary, prove that he was really faced by the exceptional circumstances specified; failing this, he is condemned to pay the value of the goods handed over or destroyed, and the question whether they were contraband or not will not be gone into.
The Article prescribes certain formalities which are necessary to establish the facts of the case and to enable the prize court to adjudicate.
Of course, when once the goods have been handed over or destroyed, and the formalities carried out, the vessel which has been stopped must be left free to continue her voyage.
Transfer to a neutral flag1 .
An enemy merchant vessel is liable to capture, whereas a neutral merchant vessel is immune. It can therefore be readily understood that a belligerent cruiser encountering a merchant vessel which lays claim to neutral nationality has to inquire whether such nationality has been acquired legitimately or merely in order to shield the vessel from the risks to which she would have been exposed had she retained her former nationality. This question naturally arises when the transfer has taken place a comparatively short time before the moment at which the ship is searched, whether the actual date be before, or after, the outbreak of hostilities. The answer will be different according as the question is looked at from the point of view of commercial or belligerent interests. Fortunately, rules have been agreed upon which conciliate both these interests as far as possible and which at the same time tell belligerents and neutral commerce what their position is.
Article 55. (See ante, p. 559.)The general rule laid down in the first paragraph is that the transfer of an enemy vessel to a neutral flag is valid, assuming, of course, that the ordinary requirements of the law have been fulfilled. It is upon the captor, if he wishes to have the transfer annulled, that the onus lies of proving that its object was to evade the consequences entailed by the war in prospect. There is one case which is treated as suspicious, that, namely, in which the bill of sale is not on board when the ship has changed her nationality less than sixty days before the outbreak of hostilities. The presumption of validity which has been set up by the first paragraph in favour of the vessel is then replaced by a presumption in favour of the captor. It is presumed that the transfer is void, but the presumption may be rebutted. With a view to such rebuttal, proof may be given that the transfer was not effected in order to evade the consequences of the war; it is unnecessary to add that the ordinary requirements of the law must have been fulfilled.
It was thought desirable to give to commerce a guarantee that the right of treating a transfer as void on the ground that it was effected in order to evade the consequences of war should not extend too far, and should not cover too long a period. Consequently, if the transfer has been effected more than thirty days before the outbreak of hostilities, it cannot be impeached on that ground alone, and it is regarded as unquestionably valid if it has been made under conditions which show that it is genuine and final; these conditions are as follows: the transfer must be unconditional, complete, and in conformity with the laws of the countries concerned, and its effect must be such that both the control of, and the profits earned by, the vessel pass into other hands. When once these conditions are proved to exist, the captor is not allowed to set up the contention that the vendor foresaw the war in which his country was about to be involved, and wished by the sale to shield himself from the risks to which a state of war would have exposed him in respect of the vessels he was transferring. Even in this case, however, when a vessel is encountered by a cruiser and her bill of sale is not on board, she may be captured if a change of nationality has taken place less than sixty days before the outbreak of hostilities; that circumstance has made her suspect. But if before the prize court the proof required by the second paragraph is adduced, she must be released, though she cannot claim compensation, inasmuch as there was good reason for capturing her.
Article 56. (See ante, p. 560.)The rule respecting transfers made after the outbreak of hostilities is more simple. Such a transfer is only valid if it is proved that its object was not to evade the consequences to which an enemy vessel, as such, is exposed. The rule accepted in respect of transfers made before the outbreak of hostilities is inverted. In that case there is a presumption that the transfer is valid; in the present, that it is void—provided always that proof to the contrary may be given. For instance, it might be proved that the transfer had taken place by inheritance.
Article 56 recites cases in which the presumption that the transfer is void is absolute, for reasons which can be readily understood: in the first case, the connection between the transfer and the war risk run by the vessel is evident; in the second, the transferee is a mere man of straw, who is to be treated as owner during a dangerous period, after which the vendor will recover possession of his vessel; lastly, the third case might strictly be regarded as already provided for, since a vessel which lays claim to neutral nationality must naturally prove that she has a right to it.
At one time provision was made in this Article for the case of a vessel which was retained, after the transfer, in the trade in which she had previously been engaged1 . Such a circumstance is in the highest degree suspicious; the transfer has a fictitious appearance, inasmuch as nothing has changed in regard to the vessel’s trade. This would apply, for instance, if a vessel were running on the same line before and after the transfer. It was, however, objected, that to set up an absolute presumption would sometimes be too severe, and that certain kinds of vessels, as, for example, tank-ships2 , could, no account of their build, engage only in a certain definite trade. To meet this objection, the word “route” was then added, so that it would have been necessary that the vessel should be engaged in the same trade and on the same route; it was thought that in this way the above contention would have been satisfactorily met. However, the suppression of this case from the list being insisted on, it was agreed to eliminate it. Consequently a transfer of this character now falls within the general rule; it is certainly presumed to be void, but the presumption may be rebutted.
Enemy character3 .
The rule in the Declaration of Paris, that “the neutral flag covers enemy goods, with the exception of contraband of war,” corresponds so closely with the advance of civilization, and has taken so firm a hold on the public mind that it is impossible, in the face of so extensive an application, to avoid seeing in that rule the embodiment of a principle of the common law of nations which can no longer be disputed. The determination of the neutral or enemy character of merchant vessels accordingly decides not only the question of the validity of their capture, but also the fate of the non-contraband goods on board. A similar general observation may be made with reference to the neutral or enemy character of goods. No one thinks of contesting to-day the principle according to which “neutral goods, with the exception of contraband of war, are not liable to capture on board an enemy ship.” It is, therefore, only in respect of goods found on board an enemy ship that the question whether they are neutral or enemy property arises.
The determination of what constitutes neutral or enemy character thus appears as a development of the two principles laid down in 1856, or rather as a means of securing their just application in practice.
The advantage of deducing from the practices of different countries some clear and simple rules on this subject may be said to need no demonstration. The uncertainty as to the risks of capture, if it does not put an end to trade, is at least the most serious of hindrances to its continuance. A trader ought to know the risks which he runs in putting his goods on board this or that ship, while the underwriter, if he does not know the extent of those risks, is obliged to charge war premiums which are often either excessive or else inadequate.
The rules which form this chapter are, unfortunately, incomplete; certain important points had to be laid aside, as has been already observed in the introductory explanations, and as will be further explained below.
Article 57. (See ante, p. 560.)The principle, therefore, is that the neutral or enemy character of a vessel is determined by the flag which she is entitled to fly. It is a simple rule which appears satisfactorily to meet the special case of ships, as distinguished from that of other movable property, and notably of the cargo. From more than one point of view, ships may be said to possess an individuality; notably they have a nationality, a national character. This attribute of nationality finds visible expression in the right to fly a flag; it has the effect of placing ships under the protection and control of the State to which they belong; it makes them amenable to the sovereignty and to the laws of that State, and liable to requisition, should the occasion arise. Here is the surest test of whether a vessel is really a unit in the merchant marine of a country, and here therefore the best test by which to decide whether her character is neutral or enemy. It is, moreover, preferable to rely exclusively upon this test, and to discard all considerations connected with the personal status of the owner.
The text makes use of the words “the flag which the vessel is entitled to fly”; that expression means, of course, the flag under which, whether she is actually flying it or not, the vessel is entitled to sail according to the municipal laws which govern that right.
Article 57 safeguards the provisions respecting transfer to another flag, as to which it is sufficient to refer to Articles 55 and 56; a vessel may very well have the right to fly a neutral flag, as far as the law of the country to which she claims to belong is concerned, but may be treated as an enemy vessel by a belligerent, because the transfer in virtue of which she has hoisted the neutral flag is annulled by Article 55 or Article 56.
Lastly, the question was raised whether a vessel loses her neutral character when she is engaged in a trade which the enemy, prior to the war, reserved exclusively for his national vessels; but as has been observed above in connection with the subject of Unneutral service, no agreement was reached, and the question remains an open one, as the second paragraph of Article 57 is careful to explain.
Article 58. (See ante, p. 561.)Unlike ships, goods have no individuality of their own; their neutral or enemy character is made to depend upon the personal status of their owner. This opinion prevailed after an exhaustive study of different views, which inclined towards reliance on the country of origin of the goods, the status of the person at whose risk they are, of the consignee, or of the consignor. The test adopted in Article 58 appears, moreover, to be in conformity with the terms of the Declaration of Paris, as also with those of the convention of The Hague of the 18th October, 1907, relative to the establishment of an International Prize Court, where the expression neutral or enemy property is used (Articles 1, 3, 4, 8)1 .
But it cannot be concealed that Article 58 solves no more than a part of the problem, and that the easier part; it is the neutral or enemy character of the owner which determines the character of the goods, but what is to determine the neutral or enemy character of the owner? On this point nothing is said, because it was found impossible to arrive at an agreement. Opinions were divided between domicile and nationality; no useful purpose will be served by reproducing here the arguments adduced to support the two positions. It was hoped that a compromise might have been reached on the basis of a clause to the following effect:—
“The neutral or enemy character of goods found on board an enemy vessel is determined by the neutral or enemy nationality of their owner, or, if he is of no nationality or of double nationality (i.e., both neutral and enemy), by his domicile in a neutral or enemy country;
“Provided that goods belonging to a limited liability or joint stock company are considered as neutral or enemy according as the company has its headquarters in a neutral or enemy country2 .”
But there was no unanimity.
Article 59. (See ante, p. 561.)Article 59 gives expression to the traditional rule according to which goods found on board an enemy vessel are, failing proof to the contrary, presumed to be enemy goods; this is merely a simple presumption, which leaves to the claimant the right, but at the same time the onus, of proving his title.
Article 60. (See ante, p. 561.)This provision contemplates the case where goods which were enemy property at the time of dispatch have been the subject of a sale or transfer during the course of the voyage. The ease with which enemy goods might secure protection from the exercise of the right of capture by means of a sale which is made subject to a reconveyance of the property on arrival has always led to a refusal to recognise such transfers. The enemy character subsists.
With regard to the moment from which goods must be considered to acquire and retain the enemy character of their owner, the text has been inspired by the same spirit of equity as governed the convention of The Hague, relative to the status of merchant vessels on the outbreak of hostilities, and by the same desire to protect mercantile operations undertaken in the security of a time of peace. It is only when the transfer takes place after the outbreak of hostilities that it is, so far as the loss of enemy character is concerned, inoperative until the arrival of the goods in question. The date which is taken into consideration here is that of the transfer, and not of the departure of the vessel. For, while the vessel which started before the war began, and remains, perhaps, unaware of the outbreak of hostilities, may enjoy on this account some degree of exemption, the goods may nevertheless possess enemy character; the enemy owner of these goods is in a position to be aware of the state of war, and it is for that very reason that he is likely to seek to evade its consequences.
It was, however, thought right to add what is, if not a limitation, at least a complement agreed to be necessary. In a great number of countries an unpaid vendor has, in the event of the bankruptcy of the buyer, a recognised legal right to recover the goods which have already become the property of the buyer but not yet reached him (stoppage in transitu). In such a case the sale is cancelled, and, in consequence of the recovery, the vendor obtains the goods again and is not deemed ever to have ceased to be the owner. This right gives to neutral commerce, in the case of a genuine bankruptcy, a protection too valuable to be sacrificed, and the second paragraph of Article 60 is intended to preserve it.
The practice of convoy has, in the past, occasionally given rise to grave difficulties and even to conflict. It is, therefore, satisfactory to be able to record the agreement which has been reached upon this subject.
Article 61. (See ante, p. 561.)The principle laid down is simple: a neutral vessel under the convoy of a warship of her own nationality is exempt from search. The reason for this rule is that the belligerent cruiser ought to be able to find in the assurances of the commander of the convoy as good a guarantee as would be afforded by the exercise of the right of search itself; in fact, she cannot call in question the assurances given by the official representative of a neutral Government, without displaying a lack of international courtesy. If neutral Governments allow belligerents to search vessels sailing under their flag, it is because they do not wish to be responsible for the supervision of such vessels, and therefore allow belligerents to protect themselves. The situation is altered when a neutral Government consents to undertake that responsibility; the right of search has no longer the same importance.
But it follows from the explanation of the rule respecting convoy that the neutral Government undertakes to afford the belligerents every guarantee that the vessels convoyed shall not take advantage of the protection accorded to them in order to do anything inconsistent with their neutrality, as, for example, to carry contraband, render unneutral service to the belligerent, or attempt to break blockade. There is need, therefore, that a genuine supervision should be exercised from the outset over the vessels which are to be convoyed; and that supervision must be continued throughout the voyage. The Government must act with vigilance so as to prevent all abuse of the right of convoy, and must give to the officer who is put in command of a convoy precise instructions to this effect.
A belligerent cruiser encounters a convoy; she communicates with the commander of the convoy, who must, at her request, give in writing all relevant information about the vessels under his protection. A written declaration is required, because it prevents all ambiguities and misunderstandings, and because it pledges to a greater extent the responsibility of the commander. The object of such a declaration is to make search unnecessary by the mere fact of giving to the cruiser the information which the search itself would have supplied.
Article 62. (See ante, p. 562.)In the majority of cases the cruiser will be satisfied with the declaration which the commander of the convoy will have given to her, but she may have serious grounds for believing that the confidence of the commander has been abused, as for example, that a ship under convoy of which the papers are apparently in order and exhibit nothing suspicious is, in fact, carrying contraband cleverly concealed. The cruiser may, in such a case, communicate her suspicions to the commander of the convoy, and an investigation may be considered necessary. If so, it will be made by the commander of the convoy, since it is he alone who exercises authority over the vessels placed under his protection. It appeared, nevertheless, that much difficulty might often be avoided if the belligerent were allowed to be present at this investigation; otherwise he might still suspect, if not the good faith, at least the vigilance and perspicacity of the person who conducted the search. But it was not thought that an obligation to allow the officer of the cruiser to be present at the investigation should be imposed upon the commander of the convoy. He must act as he thinks best; if he agrees to the presence of an officer of the cruiser, it will be as an act of courtesy or good policy. He must in every case draw up a report of the investigation and give a copy to the officer of the cruiser.
Differences of opinion may occur between the two officers, particularly in relation to conditional contraband. The character of a port to which a cargo of corn is destined may be disputed. Is it an ordinary commercial port? or is it a port which serves as a base of supply for the armed forces? The situation which arises out of the mere fact of the convoy must in such a case be respected. The officer of the cruiser can do no more than make his protest, and the difficulty must be settled through the diplomatic channel.
The situation is altogether different if a vessel under convoy is found beyond the possibility of dispute to be carrying contraband. The vessel has no longer a right to protection, since the condition upon which such protection was granted has not been fulfilled. Besides deceiving her own Government, she has tried to deceive the belligerent. She must therefore be treated as a neutral merchant vessel encountered in the ordinary way and searched by a belligerent cruiser. She cannot complain at being exposed to such rigorous treatment, since there is in her case an aggravation of the offence committed by a carrier of contraband.
Resistance to search.
Article 63. (See ante, p. 562.)The subject treated in this chapter was not mentioned in the programme submitted by the British Government in February 1908, but it is intimately connected with several of the questions in that programme, and thus attracted the attention of the Conference in the course of its deliberations; and it was thought necessary to frame a rule upon it, the drafting of which presented little difficulty1 .
A belligerent cruiser encounters a merchant vessel and summons her to stop in order that she may be searched. The vessel summoned does not stop, but tries to avoid the search by flight. The cruiser may employ force to stop her, and the merchant vessel, if she is damaged or sunk, has no right to complain, seeing that she has failed to comply with an obligation imposed upon her by the law of nations.
If the vessel is stopped, and it is shown that it was only in order to escape the inconvenience of being searched that recourse was had to flight, and that beyond this she had done nothing contrary to neutrality, she will not be punished for her attempt at flight. If, on the other hand, it is established that the vessel has contraband on board, or that she has in some way or other failed to comply with her duty as a neutral, she will suffer the consequences of her infraction of neutrality, but in this case as in the last, she will not undergo any punishment for her attempt at flight. Expression was given to the contrary view, namely, that a ship should be punished for an obvious attempt at flight as much as for forcible resistance. It was suggested that the prospect of having the escaping vessel condemned as good prize would influence the captain of the cruiser to do his best to spare her. But in the end this view did not prevail.
The situation is different if forcible resistance is made to any legitimate action by the cruiser. The vessel commits an act of hostility and must, from that moment, be treated as an enemy vessel; she will therefore be subject to condemnation, although the search may not have shown that anything contrary to neutrality had been done. So far no difficulty seems to arise.
What must be decided with regard to the cargo? The rule which appeared to be the best is that according to which the cargo will be treated like the cargo on board an enemy vessel. This assimilation involves the following consequences: a neutral vessel which has offered resistance becomes an enemy vessel and the goods on board are presumed to be enemy goods. Neutrals who are interested may claim their property, in accordance with Article 3 of the Declaration of Paris, but enemy goods will be condemned, since the rule that the flag covers the goods cannot be adduced, because the captured vessel on board which they are found is considered to be an enemy vessel. It will be noticed that the right to claim the goods is open to all neutrals, even to those whose nationality is that of the captured vessel; it would seem to be an excess of severity to make such persons suffer for the action of the master. There is, however, an exception as regards the goods which belong to the owner of the vessel; it seems natural that he should bear the consequences of the acts of his agent. His property on board the vessel is therefore treated as enemy goods. A fortiori the same rule applies to the goods belonging to the master.
This chapter is of very general application, inasmuch as the provisions which it contains are operative in all the numerous cases in which a cruiser may capture a vessel or goods.
Article 64. (See ante, p. 563.)A cruiser has captured a neutral vessel, on the ground, for example, of carriage of contraband or breach of blockade. The prize court releases the vessel declaring the capture to be void. This decision alone is evidently not enough to indemnify the parties interested for the loss incurred in consequence of the capture, and this loss may have been considerable, since the vessel has been during a period, which may often be a very long one, prevented from engaging in her ordinary trade. May these parties claim to be compensated for this injury? Reason requires that the affirmative answer should be given, if the injury has been undeserved, that is to say, if the capture was not brought about by some fault of the parties. It may, indeed, happen that there was good reason for the capture, because the master of the vessel searched did not produce evidence which ought in the ordinary course to have been available, and which was only furnished at a later stage. In such a case it would be unjust that compensation should be awarded. On the other hand, if the cruiser has really been at fault, if the vessel has been captured when there were not good reasons for doing so, it is just that compensation should be granted.
It may also happen that a vessel which has been captured and taken into a port is released by the action of the executive without the intervention of a prize court. The existing practice, under such circumstances, is not uniform. In some countries the prize court has no jurisdiction unless there is a question of validating a capture, and cannot adjudicate on a claim for compensation based upon the ground that the capture would have been held unjustifiable; in other countries the prize court would have jurisdiction to entertain a claim of this kind. On this point, therefore, there is a difference which is not altogether equitable, and it is desirable to lay down a rule which will produce the same result in all countries. It is reasonable that every capture effected without good reasons should give to the parties interested a right to compensation, without its being necessary to draw any distinction between the cases in which the capture has or has not been followed by a decision of a prize court; and this argument is all the more forcible when the capture may have so little justification that the vessel is released by the action of the executive. A provision in general terms has therefore been adopted, which is capable of covering all cases of capture.
It should be observed that in the text no reference is made to the question whether the national tribunals are competent to adjudicate on a claim for compensation. In cases where proceedings are taken against the property captured, no doubt upon this point can be entertained. In the course of the proceedings taken to determine the validity of a capture the parties interested have the opportunity of making good their right to compensation, and, if the national tribunal does not give them satisfaction, they can apply to the International Prize Court. If, on the other hand, the action of the belligerent has been confined to the capture, it is the law of the belligerent captor which decides whether there are tribunals competent to entertain a demand for compensation, and, if so, what are those tribunals; the International Court has not, according to the convention of The Hague, any jurisdiction in such a case. From an international point of view, the diplomatic channel is the only one available for making good such a claim, whether the cause for complaint is founded on a decision actually delivered, or on the absence of any tribunal having jurisdiction to entertain it.
The question was raised as to whether it was necessary to draw a distinction between the direct and the indirect losses suffered by vessel or goods1 . The best course appeared to be to leave the prize court free to estimate the amount of compensation due, which will vary according to the circumstances and cannot be laid down in advance in rules going into minute details.
For the sake of simplicity, mention has only been made of the vessel, but what has been said applies of course to cargo captured and afterwards released. Innocent goods on board a vessel which has been captured suffer, in the same way, all the inconvenience which attends the capture of the vessel; but if there was good cause for capturing the vessel, whether the capture has subsequently been held to be valid or not, the owners of the cargo have no right to compensation.
It is perhaps useful to indicate certain cases in which the capture of a vessel would be justified, whatever might be the ultimate decision of the prize court. Notably, there is the case where some or all of the ship’s papers have been thrown overboard, suppressed, or intentionally destroyed on the initiative of the master or one of the crew or passengers. There is in such a case an element which will justify any suspicion and afford an excuse for capturing the vessel, subject to the master’s ability to account for his actions before the prize court. Even if the court should accept the explanation given and should not find any reason for condemnation, the parties interested cannot hope to recover compensation.
An analogous case would be that in which there were found on board two sets of papers, or false or forged papers, if this irregularity were connected with circumstances calculated to contribute to the capture of the vessel.
It appeared sufficient that these cases in which there would be a reasonable excuse for the capture should be mentioned in the present Report, and should not be made the object of express provisions, since, otherwise, the mention of these two particular cases might have led to the supposition that they were the only cases in which a capture could be justified.
Such then are the principles of international law to which the Naval Conference has sought to give recognition as being fitted to regulate in practice the intercourse of nations on certain important questions in regard to which precise rules have hitherto been wanting. The Conference has thus taken up the work of codification begun by the Declaration of Paris of 1856. It has worked in the same spirit as the second Peace Conference and, taking advantage of the labours accomplished at The Hague, it has been able to solve some of the problems which, owing to the lack of time, that Conference was compelled to leave unsolved. Let us hope that it may be possible to say that those who have drawn up the Declaration of London of 1909 are not altogether unworthy of their predecessors of 1856 and 1907.
These provisions have reference to various questions relating to the effect of the Declaration, its ratification, its coming into force, its denunciation, and the accession of unrepresented Powers.
Article 65. (See ante, p. 563.)This Article is of great importance, and is in conformity with that which was adopted in the Declaration of Paris.
The rules contained in the present Declaration relate to matters of great importance and great diversity. They have not all been accepted with the same degree of eagerness by all the Delegations. Concessions have been made on one point in consideration of concessions obtained on another. The whole, all things considered, has been recognised as satisfactory, and a legitimate expectation would be falsified if one Power might make reservations on a rule to which another Power attached importance.
Article 66. (See ante, p. 563.)According to the engagement resulting from this Article, the Declaration applies to the relations between the Signatory Powers when the belligerents are likewise parties to the Declaration.
It will be the duty of each Power to take the measures necessary to insure the observance of the Declaration. These measures may vary in different countries, and may or may not involve the intervention of the legislature. The matter is one of national legal requirements.
It should be observed that neutral Powers also may find themselves in a position of having to give instructions to their authorities, notably to the commanders of convoys as previously explained.
Article 67. (See ante, p. 563.)This provision, of a purely formal character, needs no explanation. The wording adopted at The Hague by the second Peace Conference has been borrowed.
Articles 68 and 69. (See ante, p. 564.)It follows implicitly from Article 69 that the Declaration is of indefinite duration. The periods after which denunciation is allowed have been fixed on the analogy of the convention for the establishment of an International Prize Court.
Article 70. (See ante, p. 565.)The Declaration of Paris also contained an invitation to the Powers which were not represented to accede to the Declaration. The official invitation in this case, instead of being made individually by each of the Powers represented at the Conference, may more conveniently be made by Great Britain acting in the name of all the Powers.
The procedure for accession is very simple. The fact that the acceding Powers are placed on the same footing in every respect as the signatory Powers of course involves compliance by the former with Article 65. A Power cannot accede to a part of the Declaration, but only to the whole.
Article 71. (See ante, p. 566.)As at The Hague, account has been taken of the situation of certain Powers the Representatives of which may not be in a position to sign the Declaration at once, but which desire nevertheless to be considered as signatory, and not as acceding, Powers.
It is scarcely necessary to say that the Plenipotentiaries of the Powers referred to in Article 71 are not necessarily those who were, as such, delegates at the Naval Conference.
Sir Edward Grey to Sir Edward Fry1 .
Foreign Office, June 12, 1907.
1. In my despatch of the 19th April last I informed you that the King had been graciously pleased to appoint you to be His Majesty’s First Plenipotentiary to represent this country at the Second Peace Conference, which will assemble at The Hague on the 15th instant, in conjunction with the Right Honourable Sir Ernest Mason Satow, G.C.M.G., the Right Honourable Lord Reay, G.C.S.I., G.C.I.E., and Sir Henry Howard, K.C.M.G., C.B., His Majesty’s Minister at the Hague. Lieut. General Sir Edmond Roche Elles, G.C.I.E., K.C.B., and Captain Charles Langdale Ottley, M.V.O., R.N., Director of Naval Intelligence, have been appointed as Expert Delegates to assist you and your colleagues in the discussion of the military and naval questions which will come before the Conference.
2. You are aware from the correspondence that has been furnished to you from time to time that the proposal for this Conference, like that which was held at The Hague in 1899, emanated from His Majesty the Emperor of Russia, who in the spring of last year addressed an invitation to His Majesty’s Government to be represented at it. A similar invitation was at the same time sent to some forty-seven other States. The note conveying this invitation also indicated certain topics which it was thought might usefully be discussed at the Conference and which may be summarized as follows:
(I) Improvements to be made in the provisions of the Convention respecting the pacific settlement of international disputes regarding both the Court of Arbitration and the International Commissions of Inquiry.
(II) Additions to be made to the provisions of the Convention of 1899 respecting the Laws and Practices of Land Warfare, among others the opening of hostilities, the rights of neutrals on land, &c., consideration of the Declarations of 1899 and the question of the renewal of the one that has lapsed.
(III) Elaboration of a Convention respecting the Laws and Practices of Naval Warfare concerning—
(IV) Additions to be made to the Convention of 1899 for the adaptation to naval warfare of the principles of the Geneva Convention of 1864.
3. In accepting this invitation, His Majesty’s Government expressed the opinion that the subjects above indicated might, as a whole, be freely discussed with advantage, but they thought it desirable to reserve generally the right to abstain from taking part in the discussion at the Conference of any of the questions mentioned in the programme, should the discussion take a form unlikely, in their opinion, to lead to any useful result. Several other Powers have, as you are aware, made a similar reservation.
4. His Majesty’s Government further reserved to themselves the right of suggesting the discussion of other cognate questions of international interest not specifically mentioned in the programme. Foremost among such questions is that of expenditure on armaments, which His Majesty’s Government have from the first been desirous of seeing discussed at the Conference. They felt it was better to have a discussion, even if it did not lead to a satisfactory conclusion. Discussion without result would, at any rate, have kept the door open for continuing negotiations on the subject. Whereas, to put the question aside would seem like an admission that it was hopeless, and had receded since the first Conference, of which it was the prime object. They felt that, this being a question on which perhaps there must be many discussions, and even failures, before progress is made, even a failure to secure a definite result was better than no discussion at all.
5. His Majesty’s Government have accordingly reserved their right to bring this question forward at the Conference, and have told the United States’ Government, who have made a similar reservation, that they would support them in promoting a discussion. If, therefore, the United States’ Delegates bring the subject forward, it will be your duty to support them. But, after the apparently final declaration of the German Government that under no circumstances would they take any part in such a discussion, it is doubtful how far it would be expedient to proceed with it. The position of Germany both as a military and a naval Power is such that it is difficult to regard as serious any discussion in which she does not take part. His Majesty’s Government would be most reluctant that anything should take place at The Hague Conference, summoned, as it is, in the interests of peace, that would be of a nature to cause friction or ill-feeling. You will therefore consult closely with your United States’ colleagues, and ascertain what instructions they have, and consider with them what line it is best to take.
6. The Spanish Government have also made a similar reservation on this question, and their Delegates should also be consulted; and it is possible that the Italian Delegates may also have some instructions as to the procedure to be adopted.
7. Should it be decided that the subject shall be discussed and a practical proposal be invited, you are authorized to say that His Majesty’s Government would agree to a proposal that the Great Powers should communicate to each other in advance their programmes of new naval construction. If this were done, they might be led to realize how closely in some cases the naval construction of one Power is dependent upon that of another; and an opportunity would be given for negotiations with the object of reducing the programmes, before the Governments of the Great Powers were finally committed to them by announcing them to their respective Parliaments. His Majesty’s Government are aware that this would not necessarily lead directly to any reduction in expenditure, but they are hopeful that the mere fact of communication between the Powers would provide opportunities for negotiation that do not now exist, and would tend to alleviate the burden of expenditure or retard its increase. Though, however, they consider that this or some other proposal put forward by another Power would be useful for the sake of the discussion to which it would give rise, even if it were not eventually accepted you should not put forward any proposal unless there be a general decision and a strong desire that a discussion should take place, and unless it is made clear that such a course will be taken in good part.
8. I now pass to the consideration of the various heads of the programme in the order in which they are set out in the invitation:
Improvements to be made in the Provisions of the Convention of 1899 respecting the Pacific Settlement of International Disputes.
9. I am not aware of any proposals that will be made by other Powers for amending the provisions of this Convention, but I believe that Professor de Martens will, with the concurrence of the Government of the Czar, suggest certain amendments for increasing the utility of the “Commission d’Enquête” provided for in Articles IX—XIV of the Convention. The nature of the proposals is not at present known, but as at present advised, I see no reason for thinking it likely that His Majesty’s Government will be unable to agree to them, if you and your colleagues report that you consider that they may be introduced into the Convention with advantage.
10. His Majesty’s Government, however, are anxious to secure the adaptation of the machinery of the existing Tribunal, which was created by the Convention, to the purposes of an International Tribunal of Appeal from the decisions of belligerent Prize Courts affecting neutrals. The judgments of the Tribunal in such cases would probably prove the most rapid and efficient means which can, under existing conditions, be devised for giving form and authority to the canons of international law in matters of prize. It would no doubt be necessary that the procedure of the Court should be formulated, and its powers precisely defined, and that the Powers should bind themselves to employ the executive of their Governments to enforce its decrees against their own subjects or citizens. The advantages would far outweigh any difficulty that might arise from the fact that some alterations in the municipal laws of this Country, and probably also of other States, would be required. His Majesty’s Government consider that if The Hague Conference accomplishes no other object than the constitution of such a Tribunal, it will render an inestimable service to civilization and mankind.
11. It is not improbable that the question of the choice of languages to be used by and before the Permanent Court of Arbitration may be raised under the present head. By Articles XXX and XXXVIII of the Convention it is for the Tribunal itself to decide this point, unless the parties have themselves settled the language question in advance. His Majesty’s Government are aware that in some cases which have come before the Court this rule has been found to involve practical difficulties, but, after careful consideration, they have come to the conclusion that the existing arrangement is the best that can hope to meet with general consent. You should accordingly not support any suggestion which may be made at the Conference for altering the rules as to the choice of languages.
Additions to be made to the Provisions of the Convention of 1899, respecting the Laws and Practices of Land Warfare, &c.
12. The Russian Government have mentioned the opening of hostilities and the rights of neutrals on land as matters which might be treated in additional stipulations. But beyond this indication, no intimation has reached His Majesty’s Government as to the precise measures or principles which are to be brought forward for adoption. As at present advised they are not aware that the necessity or advisability of any such additions to the Convention has made itself felt in this country, and they have had no material before them enabling them to foreshadow the direction which a discussion on the points briefly mentioned in the Russian programme might take at the Conference. They therefore feel unable to lay down any specific directions for your guidance in the matter, and can only at this stage express their readiness to give any definite proposals which may eventually be made the earnest and impartial consideration which the important nature of the subject deserves.
13. The declarations referred to in the Russian note were the agreements to abstain from (1) the use of projectiles diffusing noxious gases; (2) the use of expanding bullets; and (3) the use of projectiles and explosives from balloons for a term of five years, that were signed by a majority of the Powers at the last Hague Conference, Great Britain, Germany, the United States, &c., dissenting. Should these questions be raised at the Conference, His Majesty’s Government think, as regards (1), that it is unnecessary for you to take the initiative in proposing such a prohibition, although you should not dissent from it if there should be a general consensus of the other Powers in its favour; with respect to (2), that the restriction may be supported so far as warfare between the High Contracting Powers is concerned; and with regard to (3), you should support any proposal for the renewal of this prohibition.
Elaboration of a Convention respecting the Laws and Practices of Naval Warfare concerning—
The Special Operations of Naval Warfare, such as the Bombardment of Ports, Towns, and Villages, by a Naval Force, the laying of Mines, &c.
14. His Majesty’s Government consider that the objection, on humanitarian grounds, to the bombardment of unfortified towns is too strong to justify a resort to that measure, even though it may be permissible under the abstract doctrines of international law. They wish it, however, to be clearly understood that any general prohibition of such practice must not be held to apply to such operations as the bombardment of towns or places used as bases or storehouses of naval or military equipment and supply, or ports containing fighting ships, and that the landing of troops, or anything partaking of the character of a naval or military operation, is also not covered.
15. His Majesty’s Government would view with satisfaction the abandonment of the employment of automatic mines in naval warfare altogether. Failing the acceptance of such a total prohibition they earnestly hope that the employment of these engines of war will only be sanctioned under the strictest limitations. They would advocate an arrangement by which the use of automatic mines should be limited to territorial waters, and, if possible, to such portions of territorial waters as adjoin naval bases or fortified ports. All mines thus employed should be effectively anchored, and so constructed that, in the event of their breaking adrift, they would either automatically become harmless or sink, and that in any case their active life should not exceed a limited period of, say, six months.
The Transformation of Commercial Vessels into War-ships.
16. As the best and surest means to meet the many difficulties arising in connection with the question of the status, or belligerent character, of ships engaged in naval operations, His Majesty’s Government would like to see the Powers agree upon some precise definition of a “war-ship.” Having given their attentive consideration to the problem in its many various aspects, they are of opinion that if such definition is to cover all vessels which may be directly associated with the warlike operations of a fleet, it should establish and comprise two categories of ships, viz.: (A) fighting ships, and (B) fleet auxiliaries. For these two classes of vessels, you might propose for acceptance some such definition as the following:—
(A) “Any vessel under a recognised naval flag, officered and manned by regular commission, and armed for the purpose of attacking an enemy, no vessel being allowed to assume this status unless before leaving a national port, or to surrender it except after arrival at one.”
(B) “A vessel under the mercantile flag of either a belligerent or neutral State which is engaged in transporting troops or on duties bringing her into direct communication with the belligerent fighting ships for the purpose of assisting their operations, either by the conveyance of seamen, munitions of war, fuel, provisions, water, or any kind of naval stores, or by executing repairs, or by carrying despatches or information, and whether such ship sails in company with the fighting ships or only meets them from time to time.”
17. The general acceptance of definition (A), as supplemented by definition (B), coupled with a general undertaking that no vessel was to perform fighting services unless qualified under definition (A), would, it is believed, prove sufficient to prevent the issue by any Power of letters of marque (whether such Power were a party to the Declaration of Paris or not), as none but regularly commissioned men-of-war would have the status of “fighting ships.” You might with advantage ascertain the views of your United States’ colleagues on this subject, to which particular importance is likely to be attached by their Government, special regard being had to the fact that, although conditionally refusing to sign the Declaration of Paris, the United States intimated their intention of observing it during the war with Spain in 1898.
The Private Property of Belligerents at Sea.
18. It is probable that a proposal will be brought before The Hague Conference to sanction the principle of the immunity of enemies’ merchant ships and private property from capture at sea in time of war. His Majesty’s Government have given careful consideration to this question, and the arguments on both sides have been fully set out in the various papers which have been at your disposal. They cannot disregard the weighty arguments which have been put forward in favour of immunity. Anything which restrains acts of war is in itself a step towards the abolition of all war, and by diminishing the apprehension of the evils which war would cause, removes one incentive to expenditure upon armaments. It is also possible to imagine cases in which the interests of Great Britain might benefit by the adoption of this principle of immunity from capture.
19. But, on the other hand, it must be remembered that the principle, if carried to its logical conclusion, must entail the abolition of the right of commercial blockade. Unless commercial blockade is discontinued there will be constant interference with an enemy’s ships, and constant disputes as to what constitutes an effective blockade. And when such disputes have once arisen between belligerent Powers it is obvious that the one which considers itself aggrieved by the application of commercial blockade to any of its ports would cease to respect the immunity of the merchant ships and private property of its enemy, wherever they were to be found. It seems to them, therefore, that it is impossible to separate this question of immunity from capture from that of commercial blockade; and that the question to which His Majesty’s Government have to apply themselves is whether they should agree to a proposal which would deprive the British navy in time of war of the right of interfering with an enemy’s merchant ships or property, and of the power of commercial blockade.
20. The British navy is the only offensive weapon which Great Britain has against Continental Powers. The latter have a double means of offence: they have their navies and they have their powerful armies. During recent years, the proportion between the British army and the great Continental armies has come to be such that the British army operating alone could not be regarded as a means of offence against the mainland of a great Continental Power. For her ability to bring pressure to bear upon her enemies in war Great Britain has, therefore, to rely on the navy alone. His Majesty’s Government cannot therefore authorize you to agree to any Resolution which would diminish the effective means which the navy has of bringing pressure to bear upon an enemy.
21. You should, however, raise no objection to the discussion of this question of immunity from capture at the Conference, nor should you refuse to participate in it, nor need you necessarily take the initiative in opposing a Resolution if brought forward. If at some future date the great Continental armies were to be diminished, and other changes favourable to the diminution of armaments were to take place, the British Government might be able to reconsider the question. If, for instance, nations generally were willing to diminish their armaments, naval and military, to an extent which would materially relieve them from the apprehension of the consequences of war, and by rendering aggression difficult would make war itself improbable; and if it became apparent that such a change could be brought about by an agreement to secure this immunity from capture at sea under all circumstances, and was dependent upon it, the British Government might feel that the risks they would run by adhering to such an agreement and the objections in principle now to be urged against it, would be outweighed by the general gain and relief which such a change would bring. But at the present time they are unable to assent to a Resolution which might, under existing conditions, so limit the prospective liability of war as to remove some of the considerations which now restrain public opinion from contemplating it, and might, after the outbreak of war, tend to prolong it.
The Period to be accorded to Commercial Vessels in leaving Neutral Ports or those of the Enemy after the Outbreak of Hostilities.
22. It has been customary on the outbreak of hostilities for belligerents to grant certain days of grace to enemy and neutral ships. In the view of His Majesty’s Government the allowance of such an interval before the strict rules of hostilities are enforced should, as indeed the term “days of grace” implies, be treated purely as a matter of grace and favour, and not as one of right, and they are of opinion that any fixed rule on the point would be undesirable, as the circumstances of each case must necessarily differ. It will be to the general interest of this country to maintain the utmost liberty of action in this particular.
The Rights and Duties of Neutrals at Sea: among other Questions that of Contraband; the Treatment to which the Ships of Belligerents should be subjected in Neutral Ports; Destruction by force majeure of Neutral Ships of Commerce as Prizes.
23. Many questions in regard to neutrality obligations may be raised at the coming Conference as a result of the experience of the late war between Russia and Japan. On the general principles involved nations are agreed, but in the application of these principles great divergence in the standard of obligations adopted by different Powers is sure to arise. Rules based on the following principles would, His Majesty’s Government consider, help to clear the situation:—
(a) Neutrals shall not allow their territorial waters to be used for purposes which will directly assist a belligerent in operations of war.
(b) Neutrals shall not allow fighting ships, or ships built or equipped, wholly or partly, for fighting purposes to leave their ports or territorial waters after the outbreak of war with the intention of assisting either of the belligerents.
(c) The customary maritime facilities known as “hospitality” shall not be withheld.
(d) A neutral State is not called upon to enforce the observance of the restrictions imposed upon trade by a belligerent by declarations of contraband, but must not assist in their violation.
(e) A neutral shall not allow the entrance of prizes into its harbours unless the prize is in want of fuel or supplies, or in actual danger on account of bad weather or unseaworthiness.
24. Great Britain as a belligerent is not likely, in any conditions which can at present be foreseen as probable, to have to depend on the assistance of neutrals in the direct carrying out of operations of war. Her interests as a neutral require uniformity of practice on the part of neutrals generally, and it would be desirable that the rules which obtain in this country as regards the obligations of neutrality should, if possible, obtain international sanction at the Conference.
25. With regard to contraband, many most difficult questions arose during the late war. These cases were sufficient to show that the rules with regard to contraband that were developed at the end of the eighteenth and the beginning of the nineteenth centuries are no longer satisfactory for the changed conditions under which both commerce and war are now carried on. His Majesty’s Government recognize to the full the desirability of freeing neutral commerce to the utmost extent possible from interference by belligerent Powers, and they are ready and willing for their part, in lieu of endeavouring to frame new and more satisfactory rules for the prevention of contraband trade in the future, to abandon the principle of contraband of war altogether, thus allowing the oversea trade in neutral vessels between belligerents on the one hand and neutrals on the other, to continue during war without any restriction, subject only to its exclusion by blockade from an enemy’s port. They are convinced that not only the interest of Great Britain, but the common interest of all nations will be found, on an unbiassed examination of the subject, to be served by the adoption of the course suggested.
26. In the event of the proposal not being favourably received, an endeavour should be made to frame a list of the articles that are to be regarded as contraband. Your efforts should then be directed to restricting that definition within the narrowest possible limits and upon lines which have the point of practical extinction as their ultimate aim.
27. If a definite list of contraband cannot be secured, you should support and, if necessary, propose regulations intended to insure that nations shall publish during peace the lists of articles they will regard as contraband during war, and that no change shall be made in the list on the outbreak of or during hostilities.
28. A list might be prepared and submitted for adoption by the Conference, specifying the articles which in no event shall fall within the enumeration of contraband, e.g., mails, food-stuffs destined for places other than beleaguered fortresses, and any raw materials required for the purposes of peaceful industry. It is essential to the interest of Great Britain that every effective measure necessary to protect the importation of food supplies and raw materials for peaceful industries should be accompanied by all the sanctions which the law of nations can supply.
29. His Majesty’s Government would further be glad to see the right of search limited in every practicable way, e.g., by the adoption of a system of Consular certificates declaring the absence of contraband from the cargo, and by the exemption of passenger and mail steamers upon defined routes, &c.
30. If an arrangement can be made for the abolition of contraband His Majesty’s Government would be willing, for their part, that it should also extend to what are technically known as the “analogues of contraband,” viz., the carriage of belligerent despatches and of persons in the naval and military services of a belligerent in cases where the rendering of such services by the neutral was not of such a kind or so great in extent as to identify the neutral vessel with the belligerent forces, and bring her within the definition of war-ship which His Majesty’s Government are anxious to secure.
31. The object which His Majesty’s Government have in view, as you are aware, is to limit, so far as may be, the restrictions that war entails upon legitimate neutral trade, and they feel that the extent to which this is possible in connection with the “analogues of contraband” is a matter that must be worked out in detail at the Conference.
32. Upon one point, however, they do desire to lay particular stress. The question of the carriage of enemy despatches cannot be entirely separated from that of mails in general, and they would welcome, and wish you to do all you can to secure, an arrangement under which mail packets or bags in transit on board a neutral ship, in accordance with the provisions of the Postal Conventions, should be inviolable, even though such mails should contain despatches for a belligerent, and the neutral vessel carrying such mails should not be subjected to any interference for so doing except in the case of her endeavouring to violate a blockade.
33. The subject of the treatment of interned belligerent vessels appears to be included in the Russian programme under the heading, “Régime auquel seraient soumis les bâtiments des belligérants dans les ports neutres.” His Majesty’s Government hold that while the war-ship of a belligerent taking refuge in a neutral port must, failing her departure within twenty-four hours, be interned, the question of her ultimate disposal is one which it would be best to leave to be dealt with under the terms of the Treaty of Peace. You will no doubt remember that one of the conditions of peace put forward by the Japanese Plenipotentiaries at the negotiations at Portsmouth, U.S.A., but afterwards abandoned, was the surrender to Japan of the Russian war-ships which had taken refuge at Kiao-chau, Shanghae, and Saigon, and which had there been interned.
34. As regards the sinking of neutral prizes, which gave rise to so much feeling in this country during the Russo-Japanese war, Great Britain has always maintained that the right to destroy is confined to enemy vessels only, and this view is favoured by other Powers. Concerning the right to destroy captured neutral vessels, the view hitherto taken by the greater Naval Powers has been that, in the event of it being impossible to bring in a vessel for adjudication, she must be released. You should urge the maintenance of the doctrine upon this subject which British prize courts have, for at least 200 years, held to be the law.
Additions to be made to the Convention of 1899 for the Adaptation to Naval Warfare of the Principles of the Geneva Convention of 1864.
35. A Convention of fourteen articles, applying the principles of the Geneva Convention of 1864 to maritime warfare, was signed by the Powers represented at The Hague Conference of 1899, Article X (respecting the landing of the shipwrecked, wounded, or sick of a belligerent Power at a neutral port) being excluded at the time of ratification both by this country and the other Signatory Powers. The Russian programme contemplates supplementary provisions to the Convention, which are to deal only with the treatment of shipwrecked, wounded, or sick men, and with vessels employed for these purposes, and His Majesty’s Government see no reason why they should withhold their consent to such provisions, if proposed at the Conference, provided that misuse of the privileges involved can be prevented.
36. In addition to the subjects mentioned in the Russian programme, His Majesty’s Government believe that a discussion will be initiated by the Government of the United States on the question of the employment of armed force for the collection of ordinary contract debts due to the subjects or citizens of a Power by other Governments. This practice is viewed with great disfavour on the American Continent, and the objections to it have become embodied in a principle known as the “Drago Doctrine.” His Majesty’s Government consider that you may express a general adherence to the “Drago Doctrine,” subject to the limitations mentioned in section 4 of the “Instructions to the United States’ Delegates to the Third International Conference of American States,” a copy of which was communicated to my predecessor by the American Ambassador on the 7th November, 1906. That is to say that, as a general principle, the debts of a State to the private subjects of another State are not to be collected by the employment of coercive measures in the nature of war, although occasions may, and do, occur when the non-payment of public debts is accompanied by such circumstances of fraud and injustice or violation of Treaty obligations as to justify the resort to force as a means of compelling payment. Each case, as it arises, must be considered on its merits, and the Government of the injured individual must decide in each case whether the general rule has or has not been overstepped to a degree sufficient to justify or demand interference.
37. Another matter which may be raised at the Conference is the extension of the 3-mile limit as the normal boundary of territorial waters. His Majesty’s Government are opposed to the extension of the 3-mile limit. It is now accepted by practically every country, and to enlarge such limit on account of the longer range of modern artillery or other cause would introduce uncertainty into what is now defined and settled, and would only increase the area over which the preservation of neutrality is obligatory upon a neutral Power, thus tending to diminish the sphere of action of the strongest navy, and to add to the difficulties of the weaker Powers.
38. The foregoing observations and directions will place you in possession generally of the views of His Majesty’s Government on the various points set out in the Russian programme. More precise instructions will, if necessary, be furnished to you from time to time as occasion may require.
39. I inclose a Full Power under the Royal sign manual, which will enable you and your co-Plenipotentiaries to sign with or without reservations, and subject to ultimate ratification by the King, any Convention which may result as the outcome of your labours, and I request you to keep me fully and constantly informed of the proceedings of the Conference, which His Majesty’s Government will watch with the greatest interest.
I am, &c.
(Signed) E. GREY.
ADDENDA AND ERRATA.
cambridge: printed by john clay, m.a. at the university press.
[1 ]This Committee consists of Messrs Kriege (Germany), Wilson (United States of America), Dumba (Austria-Hungary), Estrada (Spain), Renault (France) (Reporter), Hurst (Great Britain), Ricci-Busatti (Italy), Sakamoto (Japan), Ruyssenaers (Netherlands), Baron Taube (Russia).
[2 ]For original French text of the Report see Parl. Papers, Misc. No. 5 (1909), pp. 342-377; and for the translation, Parl. Papers, Misc. No. 4 (1909), p. 33. The original Report and the translation contain the text of the various Articles; these are here omitted, but referred to in the side-notes of which there are none in the original or in the translation. The translation of the Report contains only two footnotes, viz. the names of the members of the Committee, and the note on “de plein droit” (Article 23).
[3 ]The Powers are those enumerated in the Declaration (ante, p. 511).
[1 ]For texts of the Memoranda of the Powers see Parl. Papers, Misc. No. 5 (1909), pp. 2-56. The British Memorandum in English is to be found in No. 4 (1909), pp. 3-11.
[1 ]For British rules on this subject see Parl. Papers, Misc. No. 4 (1909), pp. 5-7; for Instructions to British Delegation, Ibid. p. 25.
[1 ]The first paragraph of this Article is based on a proposition of the Italian Delegation (Parl. Papers, Misc. No. 5 (1909), p. 161).
[1 ]Exposé par M. le Contre-Amiral de Bris (French Naval Delegate), Parl. Papers, Misc. No. 5 (1909), p. 255 (annexe, 67).
[2 ]As regards the question whether the continuous pursuit of a vessel guilty of breach of blockade must be undertaken by the same cruiser or can be taken up by others in the various lines of the blockade, see the following Memorandum of the United States Delegation: “As regards Article 25 [of the Bases de discussion] the Delegation, while believing that this Article could be combined with Article 24 with advantage, so as to deal with the whole question together, accepts the article, under the reservation that a pursuit is considered as continued and not abandoned within the meaning of the article, even if it is abandoned by one line of the blockading force to be resumed after an interval by a ship of the second line, until the limit of the area of operations is reached. In certain conditions there might be several lines, each having its respective zone of pursuit.” (Annexe, No. 69, Parl. Papers, Misc. No. 5 (1909), p. 256. See also p. 175 for explanations of this memorandum. See also Article by Admiral C. H. Stockton, Am. Journ. of Int. Law, Vol. iii. p. 604.)
[1 ]For British rules on this subject see Parl. Papers, Misc. No. 4 (1909), pp. 3-5, and Instructions to British Delegation, Ibid. p. 23.
[1 ]See La Deux. Confér. T. iii. pp. 1108-14.
[2 ]The following note is appended to the translation of “de plein droit” in Parl. Papers, Misc. No. 4 (1909), p. 43: “In view of the difficulty of finding an exact equivalent in English for the expression ‘de plein droit,’ it has been decided to translate it by the words ‘without notice,’ which represents the meaning attached to it by the draftsman of the present General Report.”
[1 ]See note 2, p. 583, ante.
[1 ]“When an adventure includes the carriage of goods to a neutral port, and thence to an ulterior destination, the doctrine of ‘continuous voyage’ consists in treating for certain purposes the whole journey as one transportation, with the consequences which would have attached had there been no interposition of the neutral port.” (See British Memorandum, Parl. Papers, Misc. No. 4 (1909), pp. 7-9.)
[1 ]See note on Article 35, ante, p. 552.
[1 ]See ante, pp. 296-7 (Articles 2, 3 and 4).
[1 ]For British rules on this subject see Parl. Papers, Misc. No. 4 (1909), p. 9; for Instructions to British Delegation, Ibid. p. 30.
[1 ]For further explanations of the cases dealt with in this Article see Parl. Papers, Misc. No. 5 (1909), pp. 191-3. Articles 45, 46 and 47 are based on a German draft (see Annexe, No. 55, Ibid. p. 247).
[1 ]See Article 2 (4) of German proposition, Parl. Papers, Misc. No. 5 (1909), p. 247, and Exposé by M. Kriege, p. 279.
[2 ]See Article 57, par. 2, and post, p. 602.
[1 ]See ante, pp. 88-92. The rule laid down in the British Memorandum on the subject is as follows: “The duty of a belligerent captor is to bring in, for adjudication by a Prize Court, any merchant-ship which he has seized. Where this is impossible, she may, if she is an enemy ship, be destroyed after removal of the crew and papers; if the nationality of a ship is neutral, or if there is any doubt as to the nationality, she should be dismissed, for her destruction cannot be justified as between the neutral owner and the captor by any necessity on the part of a belligerent” (Parl. Papers, Misc. No. 4 (1909), p. 9). The British delegate was instructed that an agreement “might perhaps be found by proceeding on the lines of an affirmation of the general principle that neutral prizes must not be destroyed before adjudication, followed by a precise statement of the conditions on which alone a departure from the principle would be allowed in exceptional circumstances” (Ibid. p. 28).
[1 ]For British rules see Parl. Papers, Misc. No. 4 (1909), p. 10; for Instructions to British Delegation, Ibid. p. 31.
[1 ]See British proposition, Parl. Papers, Misc. No. 5 (1909), pp. 180, 212, 244, 252.
[2 ]Les navires pétroliers.
[3 ]For British rules as to enemy property see Ibid. No. 4 (1909), p. 11; for British Instructions, Ibid. p. 32. For discussions on this subject see Ibid. No. 5 (1909), pp. 167, 181, 183, 191, 206, 209.
[1 ]See ante, pp. 408, 409, 411.
[2 ]For discussions see Parl. Papers, Misc. No. 5 (1909), pp. 279, 330.
[1 ]“A neutral vessel is not entitled to resist the exercise of the right of search by a belligerent war-ship on the ground that she is under the convoy of a war-ship of her own nationality.” This was the British rule as stated in the Memorandum, but, as was pointed out in the “Instructions,” this doctrine has not been enforced in recent wars. Germany was the only other Power maintaining the same view as Great Britain. The British Delegation was instructed that the specific abandonment of the British rule “would effect no substantial alteration in the actual situation, and may very well be admitted to be little more than the formal acknowledgment of a now generally accepted rule.” (See Parl. Papers, Misc. No. 4 (1909), pp. 4, 25.)
[1 ]The subject was first introduced by the German delegate at the Second Plenary Meeting on the 7th Dec., 1908, in connection with contraband. (Parl. Papers, Misc. No. 5 (1909), p. 140.)
[1 ]See views expressed in Memorandum of Austria-Hungary, Parl. Papers, Misc. No. 5 (1909), p. 75.
[1 ]Parl. Papers, Misc. No. 1 (1908), p. 11.
See ante, pp. 308-321, also Parl. Papers, Misc. No. 5 (1909), pp. 263-8 for various Memoranda on the subject.