Letters to "The Times" upon War and Neutrality (1881-1920) Part 16

I am, Sir, your obedient servant, T. E. HOLLAND.

Oxford, October 16 (1915).

CHAPTER VII

THE RIGHTS AND DUTIES OF NEUTRALS

SECTION 1

_The Criterion of Neutral Conduct_

The main object of the first of the following letters was to a.s.sert, as against any possible misunderstanding of phraseology attributed to a great international lawyer (since lost to science and to his friends by his sudden death on June 20, 1909), the authority by which alone neutral rights and duties are defined.

The letter also touches upon the limit of time which a neutral Power is bound to place upon the stay in its ports of belligerent ships of war; a topic more fully discussed in Section 4.

PROFESSOR DE MARTENS ON THE SITUATION

Sir,--The name of my distinguished friend, M. de Martens, carries so much weight that I hope you will allow me at once to say that I am convinced that to-day's telegraphic report of some communication made by him to the St. Petersburg newspapers fails to convey an accurate account of the views which he has thus expressed.

On matters of fact it would appear that he is no better informed than are most of us in this country; and under matters of fact may be included the breaches of neutrality which he is represented as counter-charging against the j.a.panese. It is exclusively with the views on questions of law which are attributed to Professor de Martens that I am now concerned. He is unquestionably right in saying, as I pointed out in a recent letter, that the hard-and-fast rule, fixing 24 hours as the limit, under ordinary circ.u.mstances, of the stay of a belligerent warship in neutral waters, is not yet universally accepted as a rule of international law; and, in particular, is not adopted by France.

But what of the further _dictum_ attributed to Professor de Martens, to the effect that "each country is its own judge as regards the discharge of its duties as a neutral"? This statement would be a superfluous truism if it meant merely that each country, when neutral, must, in the first instance, decide for itself what courses of action are demanded from it under the circ.u.mstances. The words may, however, be read as meaning that the decision of the neutral country, as to the propriety of its conduct, is final, and not to be questioned by other Powers. An a.s.sertion to this effect would obviously be the negation of the whole system of international law, of which Professor de Martens is so great a master, resting, as that system does, not on individual caprice, but upon the agreement of nations in restraint of the caprice of any one of them. The last word, with reference to the propriety of the conduct of any given State, rests, of course, not with that State; but with its neighbours. "Securus indicat orbis terrarum." Any Power which fails in the discharge, to the best of its ability, of a generally recognised duty, is likely to find that self-satisfaction is no safeguard against unpleasant consequences. Professor de Martens would, I am certain, endorse this statement.

I am, Sir, your obedient servant, T. E. HOLLAND.

Oxford, May 12 (1905).

NEUTRALS AND THE LAWS OF WAR

Sir,--The interesting address by Sir Edward Carson reported in your issue of yesterday will remind many of us of our regret that President Wilson, in Notes complaining of injuries sustained by American citizens, dwelt so slightly upon the violations of international law by which those injuries were brought about.

Sir Edward seems, however, to have made use of certain expressions which might be taken to imply a view of neutral responsibility which can hardly be accepted. The United States were warned in the address that they will not "by a mere Note maintain the obligations which are put upon them, as parties to international law, which are to prevent breaches of civilisation and to mitigate the horrors of war." Neutrals were spoken of as "the executives of international law," and as alone standing "behind the conventions" (for humanising warfare). "Abolish,"

we were told, "the power of neutrals, and you have abolished international law itself."

Is this so? The contract into which a State enters with other States, by adopting the customary laws of war and by ratifying express Conventions dealing with the same subject, obliges it, while remaining neutral, to submit to certain inconveniences resulting from the war, and, when belligerent, to abstain from certain modes of carrying on hostilities.

It is a.s.suredly no term of the contract that the State in question shall sit in judgment upon its co-contractors and forcibly intervene in _rebus inter alios actis_. Its hands are absolutely free. It may remain a quiescent spectator of evil, or, if strong enough and indignant with the wrongdoing, may endeavour to abate the mischief by remonstrance, and, in the last resort, by taking sides against the offender. Let us hope that at the present crisis the United States may see their way to choosing the better part.

I am, Sir, your obedient servant, T. E. HOLLAND.

Oxford, November 28 (1915).

SECTION 2

_The Duties of Neutral States, and the Liabilities of Neutral Individuals, distinguished_

The duties of neutral States have been cla.s.sified by the present writer under the heads, of "Abstention," "Prevention,"

and "Acquiescence." (_Transactions of the British Academy_, vol. ii, p. 55; reproduced in the _Revue de Droit International_, the _Revista de Derecho International_, and the _Marine Rundschau_.) In the three letters which follow, an attempt is made to point out the confusion which has resulted from failure to distinguish between the two last-mentioned heads of neutral duty; on the one hand, namely, the cases in which a neutral government is bound itself to come forward and take steps to prevent certain cla.s.ses of action on the part of belligerents, or of its own subjects, e.g. the overstay in its ports of belligerent fleets, or the export from its sh.o.r.es of ships of war for belligerent use; and, on the other hand, the cases in which the neutral government is bound only to pa.s.sively acquiesce in interference by belligerents with the commerce of such of its subjects as may choose, at their own risk and peril, to engage in carriage of contraband, breach of blockade, and the like.

I. A neutral State is bound to prevent its territory from becoming, in any way, a "base of operations" for either belligerent. Of the various obligations thus arising, the following letters deal with the duty of the State (1) to prevent the departure from its ports of vessels carrying coal intended to supply directly the needs of a belligerent fleet; and (2) to prevent the reception accorded in its ports to belligerent warships from being such as will unduly facilitate their subsequent operations. It is pointed out that the rule adopted by the United States and this country, as well as by some others, when neutral, by which the stay of belligerent warships is limited to twenty-four hours, has not been adopted by the nations of the European continent. The attempt made at The Hague Conference of 1907 to secure the general acceptance of this rule was unsuccessful; and Convention No. xiii. of that year, not yet ratified by Great Britain, which deals with this subject, merely lays down, in Art. 12, that "_In the absence of special provisions to the contrary in the legislation of a neutral Power_, belligerent warships are not permitted to remain in the ports, roadsteads, or territorial waters of the said Power for more than twenty-four hours, except in the cases covered by this Convention." Art. 27 obliges the contracting Powers to "communicate to each other in due course all laws, proclamations, and other enactments, regulating in their respective countries the _Status_ of belligerent warships in their ports laid waters."

II. A neutral State is not bound to prevent such a.s.sistance being rendered by its subjects to either belligerent as is involved in, e.g. blockade-running or carriage of contraband; but merely to acquiesce in the loss and inconvenience which may in consequence be inflicted by the belligerents upon persons so acting. In order to explain this statement, it became necessary to say much as to the true character of "carriage of contraband" (although this topic is more specifically dealt with in the letters contained in Section 5), and to point out that such carriage is neither a breach of international law nor forbidden by the law of England. For the same reason, it seemed desirable to criticise some of the clauses now usually inserted in British Proclamations of Neutrality.

The view here maintained commended itself to the Inst.i.tut de Droit International, at its Cambridge and Venice sessions, 1895, 1896, as against the efforts of MM Kleen and Brusa to impose on States a duty of preventing carriage of contraband by its subjects (_Annuaire_, t. xiv. p. 191, t. xv. p. 205). It has now received formal expression in The Hague Convention No.

x. of 1907, Art. 7 of which lays down that "a neutral Power is _not_ bound to prevent the export or transit, for the use of either belligerent, of arms, ammunition, or, in general, of anything which could be of use to an army or fleet."

CONTRABAND OF WAR

Sir,--As a good deal of discussion is evidently about to take place as to the articles which may be properly treated as contraband of war, and, in particular, as to coal being properly so treated, I venture to think that it may be desirable to reduce this topic (a sufficiently large one) to its true dimensions by distinguishing it from other topics with which it is too liable to be confused.

Articles are "contraband of war" which a belligerent is justified in intercepting while in course of carriage to his enemy, although such carriage is being effected by a neutral vessel. Whether any given article should be treated as contraband is, in the first instance, entirely a question for the belligerent Government and its Prize Court.

A neutral Government has no right to complain, of hardships which may thus be incurred by vessels sailing under its flag, but is bound to acquiesce in the views maintained by the belligerent Government and its Courts, unless these views involve, in the language employed by Lord Granville in 1861, "a flagrant violation of international law." This is the beginning and end of the doctrine of contraband. A neutral Government has none other than this pa.s.sive duty of acquiescence. Its neutrality would not be compromised by the shipment from its sh.o.r.es, and the carriage by its merchantmen, of any quant.i.ty of cannon, rifles, and gunpowder.

Widely different from the above are the following three topics, into the consideration of which discussions upon contraband occasionally diverge:--

1. The international duty of the neutral Government not to allow its territory to become a base of belligerent operations: e.g. by the organisation on its sh.o.r.es of an expedition, such as that which in 1828 sailed from Plymouth in the interest of Dona Maria; by the despatch from its harbours for belligerent use of anything so closely resembling an expedition as a fully equipped ship of war (as was argued in the case of the _Alabama_); by the use of its ports by belligerent ships of war for the reception of munitions of war, or, except under strict limitations, for the renewal of their stock of coal; or by such an employment of its colliers as was alleged during the Franco-Prussian war to have implicated British merchantmen in the hostile operations of the French fleet in the North Sea. The use of the term "contraband" with reference to the failure of a neutral State to prevent occurrences of this kind is purely misleading.

2. The powers conferred upon a Government by legislation of restraining its subjects from intermeddling in a war in which the Government takes no part. Of such legislation our Foreign Enlistment Act is a striking example. The large powers conferred by it have no commensurable relation to the duties which attach to the position of neutrality. Its effect is to enable the Government to prohibit and punish, from abundant caution, many acts on the part of its subjects for which it would incur no international liability. It does empower the Government to prevent the use of its territory as a base: e.g. by aid directly rendered thence to a belligerent fleet; but it, of course, gives no right of interference with the export or carriage of articles which may be treated as contraband.

3. The powers conferred upon a Government by such legislation as section 150 of the Customs Consolidation Act; 1853, now reproduced in a later enactment, of forbidding at any time, by Order in Council, the export of articles useful in war. The power thus given has no relation to international duty, and is mainly intended to be exercised, in the way of self-protection, when Great Britain is, or is likely to be, engaged in war. The object of the enactment is to enable the Government to retain in the country articles of which we may ourselves be in need, or to prevent them from reaching the hands of our enemies. The articles enumerated--e.g. arms, ammunition, marine engines, &c.--are, neither in the Act of 1853 nor in the Order in Council of the following year, described as "contraband of war."

I am, Sir, your obedient servant, T. E. HOLLAND.

Oxford, March 5 (1904).

COAL FOR THE RUSSIAN FLEET

Sir,--The use of coal for belligerent purposes is, of course, of comparatively modern date, and it is hardly surprising to find that the mercantile community, as would appear from your marine insurance article of this morning, does not clearly distinguish between the different cla.s.ses of questions to which such use may give rise. There is indeed a widely prevalent confusion, even in quarters which ought to be better informed, between two topics which it is essential to keep separate--viz. the shipment of contraband, and the use of neutral territory as a base for belligerent operations.

A neutral Government (our own at the present moment) occupies a very different position with reference to these two cla.s.ses of acts. With reference to the former, its international duty (as also its national policy) is merely one of acquiescence. It is bound to stand aside, and make no claim to protect from the recognised consequences of their acts such of its subjects as are engaged in carriage of contraband. So far as the neutral Government is concerned, its subjects may carry even cannon and gunpowder to a belligerent port, while the belligerent, on the other hand, who is injured by the trade may take all necessary stops to suppress it.

Such is the compromise which long experience has shown to be both reasonable and expedient between the, in themselves irreconcilable, claims of neutral and belligerent States. So far, it has remained unshaken by the arguments of theorists, such as the Swedish diplomatist M. Kleen, who would impose upon neutral Governments the duty of preventing the export of contraband by their subjects. A British trader may, therefore, at his own proper risk, despatch as many thousand tons of coal as he chooses, just as he may despatch any quant.i.ty of rifles or bayonets, to Vladivostok or to Nagasaki.

It by no means follows that British shipowners may charter their vessels "for such purposes as following the Russian fleet with coal supplies."

Lord Lansdowne's recent letter to Messrs. Woods, Tylor, and Brown is explicit to the effect that such conduct is "not permissible." Lord Lansdowne naturally confined himself to answering the question which had been addressed by those gentlemen to the Foreign Office; but the reason for his answer is not far to seek. The unlawfulness of chartering British vessels for the purpose above mentioned is wholly unconnected with the doctrine of contraband, but is a consequence of the international duty, which if inc.u.mbent on every neutral State, of seeing that its territory is not made a base of belligerent operations. The question was thoroughly threshed out as long ago as 1870, when Mr.

Gladstone said in the House Of Commons that the Government had adopted the opinion of the law officers:

"That if colliers are chartered for the purpose of attending the fleet of a belligerent and supplying it with coal, to enable it to pursue its hostile operations, such colliers would, to all practical purposes, become store-ships to the fleet, and would be liable, if within reach, to the operation of the English law under the (old) Foreign Enlistment Act."

British colliers attendant on a Russian fleet would be so undeniably aiding and abetting the operations of that fleet as to give just cause of complaint against us to the Government of j.a.pan. The British shipper of coal to a belligerent fleet at sea, besides thus laying his Government open to a charge of neglect of an international duty, lays himself open to criminal proceedings under the Foreign Enlistment Act of 1870. By section 8 (3) and (4) of that Act "any person within H.M.

Dominions" who (subject to certain exceptions) equips or despatches any ship, with intent, or knowledge, that the same will be employed in the military or naval service of a foreign State, at war with any friendly State, is liable to fine or imprisonment, and to the forfeiture of the ship. By section 30, "naval service" covers "user as a store-ship," and "equipping" covers furnishing a ship with "stores or any other thing which is used in or about a ship for the purpose of adapting her for naval service." Our Government has, therefore, ample powers for restraining, in this respect, the use of its territory as a base. It has no power, had it the wish (except for its own protection, under a different statute), to restrain the export of contraband of war.

It would tend to clearness of thought if the term "contraband" were never employed in discussions with reference to prohibition of the supply of coal to a belligerent fleet at sea.