Letters to "The Times" upon War and Neutrality (1881-1920) Part 20

Oxford, July 11 (1904).

_(Unqualified Captors)_

Among the objections raised by the British Government to the capture by the Russian ship _Peterburg_ in the Red Sea, on July 13, 1904, of the P. and O. ss. _Malacca_, for carriage of contraband were (1) that the so-called contraband consisted of government ammunition for the use of the British fleet in Chinese waters; and (2) what was more serious, that the capturing vessel, which belonged to the Russian volunteer fleet, after issuing from the Black Sea under the commercial flag had subsequently, and without touching at any Russian port, brought up guns from her hold, and had proceeded to exercise belligerent rights under the Russian naval flag. In consequence of the protest of the British Government, and to close the incident, the _Malacca_ was released at Algiers, after a purely formal examination, on July 27, and Russia agreed to instruct the officers of her volunteer fleet not to make any similar captures.

The question of the legitimacy of the transformation on the high seas into a ship-of-war of a vessel which has previously been sailing under the commercial flag was much discussed at The Hague Conference of 1907, but without result. Opinions were so much divided upon the point, that no mention of it is made in Convention No. vii. of that year, ratified by Great Britain on November 27, 1909, "as to the transformation of merchant vessels into ships-of-war." At the session of the Inst.i.tut de Droit International held at Oxford in 1913, this question was discussed, and rules relating to it will be found in Section 2 of the _Manuel des lois de la guerre maritime_, the drafting of which occupied the whole of the session.

THE _ALLANTON_ _(Unqualified Captors)_

Sir,--The indignation caused by the treatment of the _Allanton_ is natural, and will almost certainly prove to be well founded; but Mr.

Rae, in the letter which you print this morning, overstates a good case.

He asks that, "whatever steps are taken for the release of the _Malacca_, equally strong steps should be taken for the release of the _Allanton_"; and he can see no difference between the cases of the two ships, except that the former is owned by a powerful company in the habit of carrying British mails, while the latter is his private property.

One would have supposed it to be notorious that the facts which distinguish the one case from the other are, first, that the capture of the _Malacca_ was effected by a vessel not ent.i.tled to exercise belligerent rights; and, secondly, that Great Britain is prepared to claim the incriminated cargo as belonging to the British Government.

Capture by an unqualified cruiser is so sufficient a ground for a claim of restoration and compensation that, except perhaps as facilitating the retreat of Russia from a false position, it would seem, to say the least, superfluous to pray in aid any other reason for the cancellation of an act unlawful _ab initio._

I have not noticed any statement as to the actual const.i.tution of the prize Court concerned in the condemnation of the _Allanton._ Under Rule 54 of the Russian Naval Regulations of 1895, a "Port Prize Court" must, for a decree of confiscation, consist of six members, of whom three must be officials of the Ministries of Marine, Justice, and Foreign Affairs respectively. An "Admirals' Prize Court," for the same purpose, need consist of only four members, all of whom are naval officers.

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

Oxford, July 25 (1904).

_(Note upon the Declaration of London)_

The British delegates to The Hague Conference of 1907 were instructed that H.M. Government "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," except with reference to blockades. This proposal, fortunately, was not accepted by the Conference, which was unable even to agree upon lists of contraband articles, and recommended that the question should be further considered by the Governments concerned, _Parl. Paper, Miscell._ No. 1 (1908), p. 194.

This task was accordingly among those undertaken at the Conference of Maritime Powers held in London in 1908-1909, which resulted in a Declaration, Arts. 22-44 of which const.i.tuted a fairly complete code of the law of contraband.

Reference has already been made, in comments upon letters comprised in previous sections, to this Declaration, the demerits and history of which are more fully dealt with in section 10, _infra_, pp. 196-207.

SECTION 6

_Methods of Warfare as affecting Neutrals_

_(Mines)_

On the views expressed in the first of the two letters which follow, as also in the writer's British Academy paper on _Neutral Duties_, as translated in the _Marine Rundschau_, see Professor von Mart.i.tz of Berlin, in the _Transactions_ of the International Law a.s.sociation, 1907. The Inst.i.tut de Droit International has for some years past had under its consideration questions relating to mines, and has arrived at conclusions which will be found in its _Annuaire_, t. xxi. p.

330, t. xxii. p. 344, t xxiii. p. 429, t. xxiv. pp. 286, 301.

The topic has also been dealt with in The Hague Convention, No.

viii. of 1907, ratified with a reservation, by Great Britain on November 27, 1907. By Art. 1 it is forbidden "(1) to lay unanch.o.r.ed automatic-contact mines, unless they are so constructed as to become harmless one hour at most after he who has laid them has lost control over them; (2) to lay anch.o.r.ed automatic-contact mines which do not become harmless as soon as they have broken loose from their moorings; (3) to employ torpedoes which do not become harmless when they have missed their mark." By Art. 2, (which is, however, not accepted by France or Germany) it is forbidden "to lay automatic-contact mines off the coast and ports of an enemy, with the sole object of intercepting commercial navigation."

MINES IN THE OPEN SEA

Sir,--The question raised in your columns by Admiral do Horsey with reference to facts as to which we are as yet imperfectly informed, well ill.u.s.trates the perpetually recurring conflict between belligerent and neutral interests. They are, of course, irreconcilable, and the rights of the respective parties can be defined only by way of compromise. It is beyond doubt that the theoretically absolute right of neutral ships, whether public or private, to pursue their ordinary routes over the high sea in time of war, is limited by the right of the belligerents to fight on those seas a naval battle, the scene of which can be approached by such ships only at their proper risk and peril. In such a case the neutral has ample warning of the danger to which he would be exposed did he not alter his intended course. It would, however, be an entirely different affair if he should find himself implicated in belligerent war risks, of the existence of which it was impossible for him to be informed, while pursuing his lawful business in waters over which no nation pretends to exercise jurisdiction.

It is certain that no international usage sanctions the employment by one belligerent against the other of mines, or other secret contrivances, which would, without notice, render dangerous the navigation of the high seas. No belligerent has ever a.s.serted a right to do anything of the kind; and it may be in the recollection of your readers that strong disapproval was expressed of a design, erroneously attributed to the United States a few years since, of effecting the blockade of certain Cuban ports by torpedoes, instead of by a cruising squadron. These, it was pointed out, would superadd to the risk of capture and confiscation, to which a blockade-runner is admittedly liable, the novel penalty of total destruction of the ship and all on board.

It may be worth while to add, as bearing upon the question under discussion, that there is a tendency in expert opinion towards allowing the line between "territorial waters" and the "high seas" to be drawn at a considerably greater distance than the old measurement of three miles from the sh.o.r.e.

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

Oxford, May 23 (1904).

TERRITORIAL WATERS

Sir,--Most authorities would, I think, agree with Admiral de Horsey that the line between "territorial waters" and "the high sea" is drawn by international law, if drawn by it anywhere, at a distance of three miles from low-water mark. In the first place, the ridiculously wide claims made, on behalf of certain States, by mediaeval jurists were cut down by Grotius to so much water as can be controlled from the land. The Grotian formula was then worked out by Bynkershoek with reference to the range of cannon; and, finally, this somewhat variable test was before the end of the eighteenth century, as we may see from the judgments of Lord Stowell, superseded by the hard-and-fast rule of the three-mile limit, which has since received ample recognition in treaties, legislation, and judicial decisions.

The subordinate question, also touched upon by the Admiral, of the character to be attributed to bays, the entrance to which exceeds six miles in breadth, presents more difficulty than that relating to strictly coastal waters. I will only say that the Privy Council, in _The Direct U.S. Cable Co._ v. _Anglo-American Telegraph Co._ (L.R. 2 App.

Ca. 394), carefully avoided giving an opinion as to the international law applicable to such bays, but decided the case before them, which had arisen with reference to the Bay of Conception, in Newfoundland, on the narrow ground that, as a British Court, they were bound by certain a.s.sertions of jurisdiction made in British Acts of Parliament.

The three-mile distance has, no doubt, become inadequate in consequence of the increased range of modern cannon, but no other can be subst.i.tuted for it without express agreement of the Powers. One can hardly admit the view which has been maintained, e.g. by Professor de Martens, that the distance shifts automatically in accordance with improvements in artillery. The whole matter might well be included among the questions relating to the rights and duties of neutrals, for the consideration of which by a conference, to be called at an early date, a wish was recorded by The Hague Conference, of 1899.

In the meantime it may be worth while to call attention to the view of the subject taken by a specially qualified and representative body of international experts. The Inst.i.tut de Droit International, after discussions and enquiries which had lasted for several years, adopted, at their Paris meeting in 1894, the following resolutions, as a statement of what, in the opinion of the Inst.i.tut, would be reasonable rules with reference to territorial waters (I cite only those bearing upon the extent of such waters):--

"Art. 2.--La mer territoriale s'etend a six milles marins (60 au degre de lat.i.tude) de la laisse de ba.s.se maree sur tout l'etendue des cotes. Art. 3.--Pour les baies, la mer territoriale suit les sinuosites de la cote, sauf qu'elle mesuree a partir d'une ligne droite tiree en travers de la baie, dans la partie la plus rapprochee de l'ouverture vers la mer, ou l'ecart entre les deux cotes de la baie est de douze milles marins de largeur, a moins qu'un usage continu et seculaire n'ait consacre une largeur plus grande. Art.

4.--En cas de guerre, l'etat riverain neutre a le droit de fixer, par la declaration de neutralite, ou par notification speciale, sa zone neutre au dela de six milles, jusqu'a portee du canon des cotes. Art. 5.--Tous les navires sans distinction ont le droit de pa.s.sage inoffensif par la mer territoriale, sauf le droit des belligerants de reglementer et, dans un but de defense, de barrer le pa.s.sage dans la dite mer pour tout navire, et sauf le droit de neutres de reglementer le pa.s.sage dans la dite mer pour les navires de guerre de toutes nationalites." (_Annuaire de l'Inst.i.tut_, t.

xiii. p. 329).

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

Oxford, June 1 (1904).

A French decree, of October 18, 1912, accordingly extends, when France is neutral, her territorial waters to a distance of six miles (11 kilom.) from low-water mark.

_(Cable-cutting)_

With the letters which follow, compare the article by the present writer on "Les cables sous-marins en temps de guerre,"

in the _Journal de Droit International Prive_, 1898, p. 648.

The topic of cable-cutting, as to which the Inst.i.tut de Droit International arrived in 1879 at the conclusions set out in the first of these letters, was again taken into consideration by the Inst.i.tut in 1902: see the _Annuaire_ for that year, pp.

301-332.

The Hague Convention; No. iv. of 1907, provides, in Art. 54, that "submarine cables connecting occupied territory with a neutral territory shall not be destroyed or seized, unless in case of absolute necessity. They must be restored, and compensation must be arranged for them at the peace."

Convention No. v., by Art. 3, forbids belligerents (1) to install on neutral territory a radio-telegraphic station, or any other apparatus, for communicating with their land or sea forces; (2) to employ such apparatus, established by them there before the war, for purely military purposes. By Art. 5, a neutral Power is bound to permit nothing of the sort.

SUBMARINE CABLES

Sir,--The possibility of giving some legal protection to submarine cables has been carefully considered by the Inst.i.tut de Droit International. A committee was appointed in 1878 to consider the subject, and the presentation of its report to the meeting at Brussels in 1879 was followed by an interesting discussion (see the _Annuaire de l'Inst.i.tut_, 1879-80, pp. 351-394). The conclusions ultimately adopted by the Inst.i.tut were as follows:--

"1. It would be very useful if the various States would come to an understanding to declare that destruction of, or injury to, submarine cables in the high seas is an offence under the Law of Nations, and to fix precisely the wrongful character of the acts, and the appropriate penalties. With reference to the last-mentioned point, the degree of uniformity attainable must depend on the amount of difference between systems of criminal legislation. The right of arresting offenders, or those presumed to be such, might be given to the public vessels of all nations, under conditions regulated by treaties, but the right to try them should be reserved to the national Courts of the vessel arrested.