Letters to "The Times" upon War and Neutrality (1881-1920) Part 18

A much larger question is, however, involved in the discussion which has arisen as to the alleged neglect by France to prevent the use of her Cochin-Chinese waters by the Russians as a base of operations against j.a.pan. We are as yet in the dark as to what is actually occurring in those waters, and are, perhaps, for that very reason in a better position for endeavouring to ascertain what are the obligations imposed on a neutral in such a case by international law.

It is admitted on all hands that a neutral Power is bound not to permit the "asylum" which she may grant to ships of war to be so abused as to render her waters a "base of operations" for the belligerent to which those ships belong. Beyond this, international law speaks at present with an uncertain voice, leaving to each Power to resort to such measures in detail as may be necessary to ensure the due performance of a duty which, as expressed in general terms, is universally recognised.

The rule enforced since 1862 by Great Britain for this purpose limits the stay of a belligerent warship, under ordinary circ.u.mstances, to a period of twenty-four hours; and the same provision will be found in the neutrality proclamations issued last year by, e.g. the United States, Egypt, China, Denmark, Sweden and Norway. So by j.a.pan and Russia in 1898. This rule, convenient and reasonable as it is, is not yet a rule of international law; as Lord Percy has had occasion to point out, in replying to a question addressed to him in the House of Commons. The proclamations of most of the Continental Powers do not commit their respective Governments to any period of time, and the material clauses of the French circular, to which most attention will be directed at the present time, merely provide as follows:--

"(1) En aucun cas, un belligerant ne peut faire usage d'un port Francais, ou appartenant a un etat protege, dans un but de guerre, &c. (2) La duree du sejour dans nos ports de belligerants, non accompagnes d'une prise, n'a ete limitee par aucune disposition speciale; mais pour etre autorises a y sejourner, ils sont tenus de se conformer aux conditions ordinaires de la neutralite, qui peuvent se resumer ainsi qu'il suit:--(_a_) ... (_b_) Les dits navires ne peuvent, _a l'aide de ressources puisees a terre_, augmenter leur materiel de guerre, renforcer leurs equipages, ni faire des enrolements volontaires, meme parmi leurs nationaux. (_c_) Ils doivent s'abstenir de toute enquete sur les forces, l'emplacement ou les ressources de leurs ennemis, ne pas appareiller brusquement pour poursuivre ceux qui leur seraient signales; en un mot, s'abstenir de faire du lieu de leur residence la base d'une operation quelconque contre l'ennemi. (3) Il ne peut etre fourni a un belligerant que les vivres, denrees, et moyens de reparations necessaires a la subsistence de son equipage ou a la securite de sa navigation."

Under the twenty-four hours rule, the duty of the neutral Government is clear. Under the French rules, all must evidently turn upon the wisdom and _bonne volonte_ of the officials on the spot, and of the home Government, so far as it is in touch with them. We have no reason to suppose that the qualities in question will not characterise the conduct of the French at the present moment. There can, however, be no doubt that a better definition of the mode in which a neutral Power should prevent abusive use of the asylum afforded by its ports and waters is urgently required. The point is one which must prominently engage the attention of the special conference upon the rights and duties of neutrals, for which a wish was expressed by The Hague Conference of 1899, and, more recently, by President Roosevelt.

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

Oxford, April 20 (1905).

THE APPAM

Sir,--It is satisfactory to learn that the United States Neutrality Board has decided adversely to the contention that the _Appam_ is a German ship of war. Her treatment as a prize would then, _prima facie_, seem to be governed by Art. 21 of The Hague Convention, No. xiii., which provides for her being released, together with her officers and crew, while the prize crew is to be interned. This Convention has been duly ratified both by Germany and by the United States. Its non-ratification by Great Britain is, I conceive, irrelevant.

But Germany contends that the situation is governed by Art. 19, the text of which has been several times set out in your columns, of the old Convention of 1799. This may startle those who are acquainted with what occurred at The Hague in 1907, and I have seen no reference to what must be the gist of the German argument on the point. They no doubt argue that the old Convention remains unrepealed by No. xiii. of The Hague, because the latter Convention is of no effect, in pursuance of its common form Art. 28, to the effect that:--"The provisions of the present Convention do not apply except between contracting Powers, and then only if all the belligerents are parties to the Convention" (which is by no means the case).

Your obedient servant, T. E. HOLLAND.

Oxford, February 4 (1916).

Certain reservations on ratification do not affect Arts. 21 or 22.

The State Department ruled that the case did not fall within the protecting clauses of the Treaty of 1799, which granted asylum only to ships of war accompanying prizes, whereas the _Appam_ was herself a prize. Proceedings by the owners in the local Federal Court for possession of the ship resulted in a decision in their favour, against which the Germans are appealing in the Supreme Court. They do not seem to have raised the objection, mentioned in the letter, as to the applicability of Convention viii.

SECTION 5

_Carriage of Contraband. (Absolute and Conditional Contraband: Continuous Voyages: Unqualified Captors: The Declaration of London)_

The letters included in the preceding sections 2 and 3 touched incidentally upon carriage of contraband, in relation to other departments of the law affecting neutrals. The eight letters which follow, suggested respectively by the Spanish-American, the Boer, and the Russo-j.a.panese wars, deal exclusively with this topic, which seems likely to be henceforth governed no longer only by customary and judge-made law, but largely also by written rules, such as those suggested by the unratified Declaration of London of 1909.

(_Absolute and Conditional Contraband_)

The divergence which has so long existed between Anglo-American and Continental views upon contraband was very noticeable at the commencement of the war of 1898, which gave occasion to the letter which immediately follows. While the Spanish Decree of April 23 set out only one list of contraband goods, the United States Instructions of June 20 recognised two lists--viz. of "absolute" and of "conditional" contraband, including under the latter head "coal when destined for a naval station, a port of call, or a ship or ships of the enemy; materials for the construction of railways or telegraphs, and money, when such materials or money are destined for an enemy's forces, provisions, when destined for an enemy's ship or ships, for a place besieged."

An answer was thus supplied to the question suggested in this letter, as to articles _ancipitis usus_.

CONTRABAND OF WAR

Sir,--I fear that the mercantile community will hardly profit so much as the managers of the Atlas Steamship Company seem to expect by the information contained in their letter which you print this morning. It was, indeed, unlikely that the courteous reply of the a.s.sistant Secretary of State at Washington to the enquiry addressed to him by the New York agents of the company would contain a declaration of the policy of the United States with reference to contraband of war. The threefold cla.s.sification of "merchandise" (not of "contraband") quoted in the reply occurs, in the judgment of the Supreme Court in the well-known case of the _Peterhoff_ (5 Wallace, 58), but it is substantially that of Grotius, and has long been accepted in this country and in the United States, while the Continent is, generally speaking, inclined to deny the existence of "contraband by accident," and to recognise only such a restricted list of contraband as was contained in the Spanish decree of April 24 last.

The questions upon which shippers are really desirous of information (which they are, however, perhaps not likely to obtain, otherwise than from decisions of prize Courts) are of a less elementary character. They would like to know what articles _ancipitis usus_ ("used for purposes of war or peace according to circ.u.mstances") will be treated by the United States as contraband, and with what penalty the carriage of such articles will be visited--_i.e._ whether by confiscation or merely by pre-emption.

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

Oxford, May 9 (1898).

The four letters which next follow also relate to the two cla.s.ses of contraband goods, with especial reference to the character attributed to foodstuffs, coal and cotton.

On foodstuffs, see the _Report of the Royal Commission on the Supply of Food, &c., in Time of War_, 1905. _Cf._ also _infra._, pp. 174, 176, 177. They were placed by the unratified Declaration of London, Art. 24, in the cla.s.s of conditional contraband; as is also coal. By Art. 28 of the Declaration, raw cotton was enumerated among the articles which cannot be declared contraband of war.

The suggestion in the letter of February 20, 1904, that certain words quoted from the j.a.panese instructions had been mistransmitted or misquoted was borne out by the Regulations governing captures at sea, issued on March 15, 1904, Art. 14 of which announces that certain goods are contraband "in case they are destined to the enemy's army or navy, or in case they are destined to the enemy's territory, and from the landing place it can be inferred that they are intended for military purposes."

The letters of March 10 and 15, 1905, will sufficiently explain themselves. The accuracy of the statements contained in them was vouched for by Baron Suyematsu, in a letter which appeared in _The Times_ for March 16, to the effect that: "In j.a.pan the matters relating to the organisation and procedure of the prize court, and the matters relating to prize, contraband goods, &c., are regulated by two separate sets of laws.... The so-called prize Court law of August 20, 1894, and amendment dated March 1, 1904, which your correspondent refers to, are the provisions relating to the former matters. The rules regulating the latter matters--viz. prize, contraband goods, &c., are not comprised in them. The rules which relate to the latter matters, as existing at present, are consolidated and comprised in an enactment which was issued on March 7, 1904....

Under the circ.u.mstances I can only repeat what Professor Holland says ... in other words, I fully concur with the views taken by the Professor."

The distinction between articles which are "absolutely contraband," those which are "conditionally contraband," and those which are incapable of being declared contraband was expressly adopted in Arts. 22, 24, and 28 of the unratified Declaration of London of 1909, as to which, see the comment at the end of this section, as also the whole of Section 10.

IS COAL CONTRABAND OF WAR?

Sir,--This question has now been answered, in unmistakable terms, on behalf of this country by Lord Lansdowne in his reply, which you printed yesterday, to Messrs. Powley, Thomas, and Co., and on behalf of j.a.pan by the proclamation which appears in _The Times_ of to-day. Both of these doc.u.ments set forth the old British doctrine, now fully adopted in the United States, and beginning to win its way on the Continent of Europe, that, besides articles which are absolutely contraband, other articles _ancipitis usus_, and amongst them coal, may become so under certain conditions. "When destined," says Lord Lansdowne, "for warlike as opposed to industrial use." "When destined," says j.a.pan, "for the enemy's army or navy, or in such cases where, _being goods arriving, at enemy's territory_, there is reason to believe that they are intended for use of enemy's army or navy."

I may say that the words which I have italicised must, I think, have been mistranslated or mistransmitted. Their intention is, doubtless, substantially that which was more clearly expressed in the j.a.panese proclamation of 1894 by the words: "Either the enemy's fleet at sea or a hostile port used exclusively or mainly for naval or military equipment."

A phrase in your issue of to-day with reference to the Cardiff coal trade suggests that it may be worth while to touch upon the existence of a widely-spread confusion between the grounds on which export of coal may be prohibited by a neutral country and those which justify its confiscation, although on board a neutral ship, by a belligerent. A neutral State restrains, under certain circ.u.mstances, the export of coal, not because coal is contraband, but because such export is converting the neutral territory into a base of belligerent operations.

The question of contraband or no contraband only arises between the neutral carrier and the belligerent when the latter claims to be ent.i.tled to interfere with the trade of the former.

Since the rules applicable to the carriage of coal are, I venture to think, equally applicable, to the carriage of foodstuffs, I may perhaps be allowed to add a few words with reference to the letter addressed to you a day or two ago by Sir Henry Bliss. I share his desire for some explanation of the telegram which reached you on the 12th of this month from British Columbia. One would like to know: (1) What is "the Government," if any, which has instructed the Empress Line not to forward foodstuffs to j.a.pan; (2) whether the refusal relates to foodstuffs generally, or only to those with a destination for warlike use; (3) what is meant by the statement that "the steamers of the Empress Line belong to the Naval Reserve"? I presume the meaning to be that the line is subsidised with a view to the employment of the ships of the company as British cruisers when Great Britain is at war. The bearing of this fact upon the employment of the ships when Great Britain is at peace is far from apparent. It is, of course, possible that the Government contract with the company may have been so drawn, _ex abundanti cautela_, as greatly to restrict what would otherwise have been the legitimate trade of the company.

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

Oxford, February 20 (1904).

COTTON AS CONTRABAND OF WAR

Sir,--The text of the decision of the Court of Appeal at St. Petersburg in the case of the _Calchas_ has at length reached this country, and we are thus informed, upon the highest authority, though, perhaps, not in the clearest language, of the meaning which is now to be placed upon the Russian notification that cotton is contraband of war.

This notification, promulgated on April 21, 1904, was received with general amazement, not diminished by an official gloss to the effect that it "applied only to raw cotton suitable for the manufacture of explosives, and not to yarn or tissues." It must be remembered that at the date mentioned, and for some months afterwards, Russia stoutly maintained that all the articles enumerated in her list of contraband of February 28, 1904, and in the additions to that list, were "absolutely"

such; _i.e._ were confiscable if in course of carriage to any enemy's port, irrespectively of the character of that port, or of the use to which the articles would probably be put. It was only after much correspondence, and the receipt of strong protests from Great Britain and the United States, that Russia consented to recognise the well-known distinction between "absolute" and "conditional" contraband; the latter cla.s.s consisting of articles useful in peace as well as for war, the character of which must, therefore, depend upon whether they are, in point of fact, destined for warlike or for peaceful uses. This concession was made about the middle of September last, and it was then agreed that provisions should be placed in the secondary category (as was duly explained in the Petersburg judgment in the case of the _Arabia_ on December 14) together with some other articles, among which it seemed that raw cotton was not included.

The final decision in the _Calchas_ case marks a welcome change of policy. Cotton has now followed foodstuffs into the category of "conditional" contraband, and effect has so far been given to the representations on the subject made by Mr. Hay in circular despatches of June 10 and August 30, 1904, and by Sir Charles Hardinge, in a note presented to Count Lamsdorff on October 9 of the same year.

The question had become a practical one in the case of the _Calchas_. On July 25 this vessel, laden with, _inter alia_, nine tons of raw cotton for Yokohama and Kobe, was seized by a Russian cruiser and carried into Vladivostok, where, on September 18, the cotton, together with other portions of her cargo, was condemned as absolutely contraband. The reasons for repudiating this decision, and the notification to which it gave effect, were not far to seek, and it may still be worth while to insist upon them. As against Russia, it is well to recall that, from the days of the Armed Neutralities onwards, her traditional policy has been to favour a very restricted list of contraband; that when in 1877, as again in 1900 and 1904, she included in it materials "servant de faire sauter les obstacles," the examples given of such materials were things so immediately fitted for warlike use as "les mines, les torpilles, la dynamite," &c.; and that what is said as to "conditional contraband" by her trusted adviser, Professor de Martens, in his _Droit International_, t. iii (1887), pp. 351-354, can scarcely be reconciled with her recent action.

But a still stronger argument against the inclusion of cotton in the list of "absolute" contraband is that this is wholly without precedent.

It has, indeed, been alleged that cotton was declared to be "contraband"

by the United States in their Civil War. The Federal proclamations will, however, be searched in vain for anything of the kind. The mistake is due to an occasional loose employment of the term, as descriptive of articles found by an invader in an enemy's territory, which, although the property of private, and even neutral, individuals, happen to be so useful for the purposes of the war as to be justly confiscated. That this was so will appear from an attentive reading of the case of _Mrs.

Alexander's Cotton_, in 1861 (2 Wallace, 404), and of the arguments in the claim made by Messrs. Maza and Larrache against the United States in 1886 (Foreign Relations of U.S., 1887). A similarly loose use of the term was its application by General B.F. Butler to runaway slaves who had been employed on military works--an application of which he confessed himself "never very proud as a lawyer," though "as an executive officer, much comforted with it." The phrase caught the popular fancy, came to be applied to slaves generally, and was immortalised in a song, long a favourite among negro children, the refrain of which was "I'se a happy little contraband."

The decision of the Court of St. Petersburg in the case of the _Calchas_, so far as it recognises the existence of a conditional cla.s.s of contraband, and that raw cotton, as _res ancipitis usus_, must be treated in accordance with the rules applicable to goods belonging to that cla.s.s, has laid down an unimpeachable proposition of law. Whether the view taken by the Court of the facts of the case, so far as they relate to the cotton cargo, is equally satisfactory, is a different and less important question, upon which I refrain from troubling you upon the present occasion.