Letters to "The Times" upon War and Neutrality (1881-1920) Part 17

Your obedient servant, T. E. HOLLAND.

Oxford, November 7 (1904).

GERMAN WAR MATERIAL FOR TURKEY

Sir,--The _Cologne Gazette_ rightly treats as incredible the rumour, mentioned by your Sofia Correspondent, that a trainload of munitions of war had been despatched by the German Government for the use of Turkey, while admitting that such a consignment may very likely have been forwarded from private German workshops.

It has long been settled international law that a neutral Government, while, on the one hand, it is precluded from itself supplying munitions to a belligerent, is, on the other hand, not bound to prevent private individuals from so acting. The latter half of this rule has now received written expression in Art. 7 of The Hague Convention No. v. of 1907, which deals with "Neutral Powers and Persons in War on Land."

The only fault to be found with the paragraph in the _Cologne Gazette_ quoted by your Berlin Correspondent, supposing it to be correctly transcribed, would be that it seems to imply that the above-mentioned Art. 7 legitimatises the supply of war material to belligerents by "neutral States." It is, however, obvious from the rest of the paragraph that the _Gazette_ is not really under that impression.

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

Oxford, December 24 (1911).

SECTION 3

_Neutrality Proclamations_

The criticisms directed against the Proclamation of 1904, in the first two letters which follow, have produced some improvement in Proclamations of later date. See the last two letters of this section. See also Appendix A in F.E. Smith and N.W. Sibley's _International Law in the Russo-Chinese War_ (1905), devoted to a consideration of those criticisms.

THE BRITISH PROCLAMATION OF NEUTRALITY

Sir,--You were good enough to insert in your issue of November 9 some observations which I had addressed to you upon the essential difference between carriage of contraband, which takes place at the risk of the neutral shipowner, and use of neutral territory as a base for belligerent operations, an act which may implicate the neutral Power internationally, while also rendering the shipper liable to penal proceedings on the part of his own Government. I am gratified, to find that the views thus expressed by me are in exact accordance with those set forth by Lord Lansdowne in his reply of November 25 to the Chamber of Shipping of the United Kingdom. Perhaps you will allow me to say something further upon the same subject, suggested by several letters which appear in your paper of this morning. I am especially desirous of emphasising the proposition that carriage of contraband is no offence, either against international law or against the law of England.

1. The rule of international law upon the subject may, I think, be expressed as follows: "A belligerent is ent.i.tled to capture a neutral ship engaged in carrying contraband of war to his enemy, to confiscate the contraband cargo, and, in some cases, to confiscate the ship also, without thereby giving to, the Power to whose subjects the property in question belongs any ground for complaint." Or, to vary the phrase, "a neutral Power is bound to acquiesce in losses inflicted by a belligerent upon such of its subjects as are engaged in adding to the military resources of the enemy of that belligerent." This is the rule to which the nations have consented, as a compromise between the right of the neutral State that its subjects should carry on their trade without interruption, and the right of the belligerent State to prevent that trade from bringing an accession of strength to his enemy. International law here, as always, deals with relations between States, and has nothing to do with the contraband trader, except in so far as it deprives him of the protection of his Government. If authority were needed for what is here advanced, it might be found in Mr. Justice Story's judgment in the _Santissima Trinidad_, in President Pierce's message of 1854, and in the statement by the French Government in 1898, with reference to the case of the _Fram_, that "the neutral State is not required to prevent the sending of arms and ammunition by its subjects."

2. Neither is carriage of contraband any offence against the law of England; as may be learnt, by any one who is in doubt as to the statement, from the lucid language of Lord Westbury in _Ex parte Chava.s.se_ (34 L.J., Bkry., 17). And this brings me to the gist of this letter. I have long thought that the form of the Proclamation of Neutrality now in use in this country much needs reconsideration and redrafting. The clauses of the Proclamation which are set out by Mr.

Gibson Bowles in your issue of this morning rightly announce that every person engaging in breach of blockade or carriage of contraband "will be justly liable to hostile capture and to the penalties denounced by the law of nations in that behalf, and will in no wise obtain protection from us against such capture or such penalties." So far, so good. But the Proclamation also speaks of such acts as those just mentioned as being done "in contempt of this our Royal Proclamation, in derogation of their duty as subjects of a neutral Power in a war between other Powers, or in violation or contravention of the law of nations in that behalf."

It proceeds to say that all persons "who may misconduct themselves in the premises ... will incur our high displeasure for such misconduct." I venture to submit that all these last-quoted phrases are of the nature of misleading rhetoric, and should be eliminated from a statement the effective purport of which is to warn British subjects of the treatment to which certain courses of conduct will expose them at the hands of belligerents, and to inform them that the British Government will not protect them against such treatment. The reason why our Government will abstain from interference is, not that such courses of action are offences either against international or English law, but that it has no right to so interfere; having become a party to a rule of international law, under which a neutral Government waives the right, which it would otherwise possess, to protect the trade of its subjects from molestation.

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

Oxford, November 28 (1904).

THE BRITISH PROCLAMATION OF NEUTRALITY

Sir,--Enquiries which have reached me with reference to the observations which I recently addressed to you upon the British Proclamation of Neutrality induce me to think that some account of the development of the text of the proclamation now in use may be of interest to your readers. The proclamations with which I am acquainted conform to one or other of two main types, each of which has its history.

1. The earlier proclamations merely call attention to the English law against enlistments, &c., for foreign service; and command obedience to the law, upon pain of the penalties thereby inflicted, "and of his Majesty's high displeasure." In the proclamation of 1817, the tacit reference is doubtless to certain Acts of George II, which, having been pa.s.sed for a very different purpose, and having proved inadequate in their new application, were repealed by the Foreign Enlistment Act of 1819. This is the Act to which reference is made in the proclamations of 1823 and 1825; in the former of which we first get a recital of neutrality; while in the latter the clause enjoining all subjects strictly to observe the duties of neutrality and to respect the exercise of belligerent rights first makes its appearance.

2. The proclamation of 1859 is of a very different character, bearing traces of the influence of the ideas which had inspired the action of President Washington in 1793. While carrying on the old, it presents several new features. British subjects are enjoined to abstain from violating, not only "the laws and statutes of the realm," but also (for the first time) "the law of nations." They are also (for the first time) warned that, if any of them "shall presume, in contempt of this our Royal Proclamation, and of our high displeasure, to do any acts in derogation of their duty as subjects of a neutral Sovereign, ... or in violation of the law of nations, ... as, more especially," by breach of blockade, or carriage of contraband, &c., they will "rightfully incur, and be justly liable to, hostile capture, and to the penalties denounced by the law of nations in that behalf"; and notice is (for the first time) given that those "who may misconduct themselves in the premises will do so at their peril, and of their own wrong; and that they will in no wise obtain any protection from Us against such capture, or such penalties as aforesaid, but will, on the contrary, incur Our high displeasure by such misconduct."

The proclamations of 1861 and February and March 1866 complicate matters, by making the warning clause as to blockade and contraband apply also to the statutory offences of enlistment, &c.; but the proclamation of June, 1866, gets rid of this complication by returning to the formula of 1859, which has been also followed in 1870, 1877, 1898, and in the present year.

The formula as it now stands, after the process of growth already described, may be said to consist of seven parts--viz. (1) a recital of neutrality; (2) a command to subjects to observe a strict neutrality, and to abstain from contravention of the laws of the realm or the law of nations in relation thereto; (3) a recital of the Foreign Enlistment Act of 1870; (4) a command that the statute be obeyed, upon pain of the penalties thereby imposed, "and of Our high displeasure"; (5) a warning to observe the duties of neutrality, and to respect the exercise of belligerent rights; (6) a further warning to those who, in contempt of the proclamation "and of Our high displeasure," may do any acts "in derogation of neutral duty, or in violation of the law of nations,"

especially by breach of blockade, carriage of contraband, &c., that they will be liable to capture "and to the penalties denounced by the law of nations"; (7) a notification that persons so misconducting themselves "will in no wise obtain any protection from Us," but will, "on the contrary, incur Our high displeasure by such misconduct."

The question which I have ventured to raise is whether the _textus receptus_, built up, as it has been, by successive accretions, is sufficiently in accordance with the facts to which it purports to call the attention of British subjects to be properly submitted to His Majesty for signature. I would suggest for consideration: 1. Whether the phrases commanding obedience, on pain of His Majesty's "high displeasure," and the term "misconduct," should not be used only with reference to offences recognised as such by the law of England. 2.

Whether such condensed, and therefore incorrect, though very commonly employed, expressions as imply that breach of blockade and carriage of contraband are "in violation of the law of nations," and are liable to "the penalties denounced by the law of nations," should not be replaced by expressions more scientifically correct. The law of nations neither prohibits the acts in question nor prescribes penalties to be incurred by the doers of them. What it really does is to define the measures to which a belligerent may resort for the suppression of such acts, without laying himself open to remonstrance from the neutral Government to which the traders implicated owe allegiance.

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

Oxford, December 5 (1904).

THE BRITISH PROCLAMATION OF NEUTRALITY

Sir,--I am glad that Mr. Gibson Bowles has called attention to certain respects in which the Proclamation of Neutrality issued by our Government on the 3rd of the present month differs from that issued on February 11, 1904.

In two letters addressed to you with reference to the Proclamation of that year, I ventured to point out what appeared to me to be its defects, alike from a scientific and from a practical point of view. The present Proclamation has slightly minimised these defects, but, as a whole, remains open to the objections which I then raised. I have no wish to repeat in detail the contents of my letters of 1904, especially as they may be now found in my _Letters upon War and Neutrality_, published in 1909, pp. 95 and 98, but am unwilling not to take this opportunity once more to urge the desirability of redrafting the doc.u.ment in question.

The Proclamation just issued still answers to my description of that of 1904, as consisting of seven parts--viz.: (1) A recital of neutrality; (2) a command to subjects to observe a strict neutrality, and to abstain from contravention of the laws of the realm or the Law of Nations in relation thereto; (3) a recital of the Foreign Enlistment Act, 1870; (4) a command that the statute be obeyed, upon pain of the penalties thereby imposed, and of "Our high displeasure"; (5) a warning to observe the duties of neutrality and to respect the exercise of belligerent rights; (6) a further warning that any persons presuming, in contempt of the Proclamation, to do acts in derogation of their duty as subjects of a neutral Power, or of the Law of Nations, will incur the penalties denounced by such law; (7) a notice that persons so misconducting themselves will obtain no protection from their Sovereign.

With the phraseology of No. 1, reciting British neutrality, and Nos.

2-5, dealing with the duties of British subjects under the Foreign Enlistment Act of 1870, and const.i.tuting the bulk of the Proclamation, little serious fault can be found. It is well that such persons should be warned of the penalties which they may incur, including the Royal displeasure.

The remaining two clauses relate, however, to matters of a totally different character from those previously mentioned, and care should therefore have been taken, but has not been taken, to make this perfectly clear. I would further remark upon these clauses: (1) That I agree with Mr. Bowles in regretting the omission here of the specific mention made in 1904 of "breach of blockade," "carriage of contraband,"

&c., as specimens of the acts undoubtedly contemplated in these two clauses; (2) that it is a mistake to describe acts of this kind as being in derogation of "the duty of subjects of a neutral Power," or "in violation of the Law of Nations," or as "liable to the penalties denounced by such law." Carriage of contraband, and acts of the same cla.s.s, are notoriously not condemned by English law, neither are they, in any proper sense, breaches of the Law of Nations, which, speaking scientifically, never deals with individuals, as such, but only with the rights and duties of States _inter se_. What the Law of Nations really does is, as I said in 1904, "to define the measures to which a belligerent may resort for the suppression of such acts, without laying himself open to remonstrance from the neutral Government to which the traders implicated owe allegiance"; (3) that on the other hand, I am glad to find that, in accordance with my suggestion, while it continues very properly to be stated that persons doing the acts under discussion "will in no wise obtain any protection from Us against such capture, &c.," the further statement that such persons "will, on the contrary, incur Our high displeasure by such misconduct," has now been with equal propriety omitted.

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

The Athenaeum, October 9 (1911).

THE PROCLAMATION OF NEUTRALITY

Sir,--May I be allowed to point out that two questions arise upon the recent British Proclamation of Neutrality which were not, as they should have been, in the House of Commons last night, kept entirely distinct?

The Government has surely done right in now omitting, as I suggested in 1904, with reference to certain cla.s.ses of acts which are prohibited neither by English nor by International Law, a phrase announcing that the doers of them would incur the King's "high displeasure"; while retaining the warning that doers of such acts must be prepared for consequences from which their own Government will not attempt to shield them.

On the other hand, our Government has surely erred in not specifying, as in previous Proclamations, the sort of acts to which this warning relates--viz., to acts such as carriage of contraband, enemy service, and breach of blockade, which differ wholly in character from those violations of the Foreign Enlistment Act against which the bulk of the Proclamation is directed. As the Proclamation now stands, no clear transition is marked between breaches of English law and the unspecified acts which, though perfectly legal, will forfeit for the doers of them any claim to British protection from the consequences involved. Traders are left to find out as best they may the meaning of the general words "any acts in derogation of their duty as subjects of a neutral Power."

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

Oxford, October 31 (1911).

SECTION 4

_Neutral Hospitality_

The Hague Convention of 1907, No. xiii., not yet ratified by Great Britain, suggests in Art. 12, with reference to the question here raised, that "a defaut d'autres dispositions speciales de la legislation de la Puissance neutre, il est interdit aux navires de guerre des belligerants de demeurer dans les ports et rades ou dans les eaux territoriales de la dite Puissance pendant plus de 24 heures sauf dans les cas prevues par la presente Convention."

BELLIGERENT FLEETS IN NEUTRAL WATERS

Sir,--A novel question as to belligerent responsibilities would be suggested for solution if, as seems to be reported in Paris, Admiral Rozhdestvensky over-stayed his welcome in the waters of Madagascar, although ordered to leave them by his own Government in compliance with "pressing representations" on the part of the Government of France.