Letters to "The Times" upon War and Neutrality (1881-1920) Part 21

"2. A submarine-telegraph cable uniting two neutral territories is inviolable. It is desirable that, when telegraphic communication must be interrupted in consequence of war, a belligerent should confine himself to such measures as are absolutely necessary to prevent the cable from being used, and that such measures should be discontinued, or that any damage caused by them, should be repaired as soon as the cessation of hostilities may permit."

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

Oxford, November 23 (1881).

SUBMARINE CABLES IN TIME OF WAR

Sir,--I venture to think that the question which has been raised as to the legitimacy of cable-cutting is not so insoluble as most of the allusions to it might lead one to suppose. It is true that no light is thrown upon it by the Convention of 1884, which relates exclusively to time of peace, and was indeed signed by Lord Lyons, on behalf of Great Britain, only with an express reservation to that effect. Nor are we helped by the case to which attention was called in your columns some time since by Messrs. Eyre and Spottiswoode. Their allusion was doubtless to the _International_ (L.R. 3 A. and E. 321), which is irrelevant to the present enquiry. The question is a new one, but, though covered by no precedent, I cannot doubt that it is covered by certain well-established principles of international law, which, it is hardly necessary to remark, is no cut-and-dried system but a body of rules founded upon, and moving with, the public opinion of nations.

That branch of international law which deals with the relations of neutrals and belligerents is, of course, a compromise between what Grotius calls the "belli rigor" and the "commerciorum libertas." The terms of the compromise, originally suggested partly by equity, partly by national interest, have been varied and re-defined, from time to time, with reference to the same considerations. It is perhaps reasonable that, in settling these terms, preponderant weight should have been given to the requirements of belligerents, engaged possibly in a life-and-death struggle. "Ius commerciorum aequum est," says Gentili; "at hoc aequius, tuendae salutis." There is accordingly no doubt that in land warfare a belligerent may not only interrupt communications by road, railway, post, or telegraph without giving any ground of complaint to neutrals who may be thereby inconvenienced, but may also lay hands on such neutral property--shipping, railway carriages, or telegraphic plant--as may be essential to the conduct of his operations, making use of and even destroying it, subject only to a duty to compensate the owners. This he does in pursuance of the well-known "droit d'angarie,"

an extreme application of which occurred in 1871, when certain British colliers were sunk in the Seine by the Prussians in order to prevent the pa.s.sage of French gunboats up the river. Count Bismarck undertook that the owners of the ships should be indemnified, and Lord Granville did not press for anything further. Such action, if it took place outside of belligerent territory, would not be tolerated for a moment.

The application of these principles to the case of submarine cables would appear to be, to a certain point at any rate, perfectly clear.

Telegraphic communication with the outside world may well be as important to a State engaged in warfare as similar means of communication between one point and another within its own territory.

Just as an invader would without scruple interrupt messages, and even destroy telegraphic plant, on land, so may he thus act within the enemy's territorial waters, or, perhaps, even so far from sh.o.r.e as he could reasonably place a blockading squadron. It may be objected that a belligerent has no right to prevent the access of neutral ships to unblockaded portions of the enemy's coast on the ground that by carrying diplomatic agents or despatches they are keeping up the communications of his enemy with neutral Governments. But this indulgence rests on the presumption that such official communications are "innocent," a presumption obviously inapplicable to telegraphic messages indiscriminately received in the course of business. It would seem, therefore, to be as reasonable as it is in accordance with a.n.a.logy, that a belligerent should be allowed, within the territorial waters of his enemy, to cut a cable, even though it may be neutral property, of which the _terminus ad quem_ is enemy territory, subject only to a liability to indemnify the neutral owners.

The cutting, elsewhere than in the enemy's waters, of a cable connecting enemy with neutral territory receives no countenance from international law. Still less permissible would be the cutting of a cable connecting two neutral ports, although messages may pa.s.s through it which, by previous and subsequent stages of transmission, may be useful to the enemy.

Your obedient servant, T. E. HOLLAND.

Oxford, May 21 (1897).

SUBMARINE CABLES IN TIME OF WAR

Sir,--Will you allow me to refer in a few words to the interesting letters upon the subject of submarine cables which have been addressed to you by Mr. Parsone and Mr. Charles Bright? In a.s.serting that "the question as to the legitimacy of cable-cutting is covered by no precedent," I had no intention of denying that belligerent interference with cables had ever occurred. International precedents are made by diplomatic action (or deliberate inaction) with reference to facts, not by those facts themselves. To the best of my belief no case of cable-cutting has ever been made matter of diplomatic representation, and I understand Mr. Parsone to admit that no claim in respect of damage to cables was presented to the mixed Commission appointed under the Convention of 1883 between Great Britain and Chile.

In the course of his able address upon "Belligerents and Neutrals,"

reported in your issue of this morning, I observe that Mr. Macdonell suggests that the Inst.i.tut de Droit International might usefully study the question of cables in time of war. It may, therefore, be well to state that this service hat already been rendered. The Inst.i.tut, at its Paris meeting in 1878, appointed a committee, of which M. Renault was chairman, to consider the whole subject of the protection of cables, both in peace and in war; and at its Brussels meeting, in 1879, carefully discussed the exhaustive report of its committee and voted certain "conclusions," notably the following:--

"Le cable telegraphique sous-marin qui unit deux territoires neutres est inviolable.

"Il est a desirer, quand les communications telegraphiques doivent cesser par suite de l'etat de guerre, que l'on se borne aux mesures strictement necessaires pour empecher l'usage du cable, et qu'il soit mis fin a ces mesures, ou que l'on en repare les consequences, aussitot que le permettra la cessation des hostilites."

It was in no small measure due to the initiative of the Inst.i.tut that diplomatic conferences were held at Paris, which in 1882 produced a draft convention for the protection of cables, not restricted in its operation to time of peace; and in 1884 the actual convention, which is so restricted.

It may not be generally known that in 1864, before the difficulties of the subject were thoroughly appreciated, a convention was signed, though it never became operative, by which Brazil, Hayti, Italy, and Portugal undertook to recognise the "neutrality" in time of war of a cable to be laid by one Balestrini. So, in 1869, the United States were desirous of concluding a general convention which should a.s.similate the destruction of cables in the high seas to piracy, and should continue to be in force in time of war. The Brussels conference of 1874 avoided any mention of "cables sous-marins."

The moral of all that has been written upon this subject is obviously that drawn by Mr. Charles Bright--viz. "the urgent necessity of a system of cables connecting the British Empire by direct and independent means--_i.e._ without touching on foreign soil."

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

Oxford, June 3 (1897).

SECTION 7

_Destruction of Neutral Prizes_

A British ship, the _Knight Commander_, bound from New York to Yokohama and Kobe, was stopped on July 23, 1904, by a Russian cruiser, and as her cargo consisted largely of railway material, was considered to be engaged in carriage of contraband. Her crew and papers were taken on board the cruiser, and she was sent to the bottom by fire from its guns.

The reasons officially given for this proceeding were that: "The proximity of the enemy's port, the lack of coal on board the vessel to enable her to be taken into a Russian port, and the impossibility of supplying her with coal from one of the Russian cruisers, owing to the high seas running at the time, obliged the commander of the Russian cruiser to sink her."

The Russian Regulations as to Naval Prize, Art. 21, allowed a commander "in exceptional cases, when the preservation of a captured vessel appears impossible on account of her bad condition or entire worthlessness, the danger of her recapture by the enemy, or the great distance or blockade of ports, or else on account of danger threatening the ship which has made the capture, or the success of her operations," to burn or sink the prize.

The j.a.panese Regulations, Art. 91, were to the same effect in cases where the prize (1) cannot be navigated owing to her being unseaworthy, or to dangerous seas; (2) is likely to be recaptured by the enemy; (3) cannot be navigated without depriving the ship-of-war of officers and men required for her own safety.

The case of the _Knight Commander_ was the subject of comment, on the 27th of the same month, in both Houses of Parliament. In the House of Lords, Lord Lansdowne spoke of what had occurred as "a very serious breach of international law," "an outrage,"

against which it had been considered "a duty to lodge a strong protest." In the House of Commons, Mr. Balfour described it as "entirely contrary to the accepted practice of civilised nations." Similar language was used in Parliament on August 10, when Mr. Gibson Bowles alluded to my letter of the 6th, in a way which gave occasion for that of the 14th.

The _Knight Commander_ was condemned by the Prize Court at Vladivostok on August 16, 1904, and the sentence was confirmed on December 5, 1905, by the Court of Appeal at St. Petersburg, which found it "impossible to agree that the destruction of a neutral vessel is contrary to the principles of international law." The Russian Government remained firm on the point, and in 1908 declined to submit the case to arbitration.

The Inst.i.tut de Droit International in its _Code des Prises maritimes_, voted in 1887, Art. 50 (not, be it observed, professing to state the law as it is, but as it should be), had taken a view in accordance with that maintained by the British Government (_Annuaire_ for 1888, t. ix. p. 228; _cf. ib._ pp.

200, 201). (The _Manuel des lois de la guerre maritime_, voted at Oxford in 1913, dealing exclusively with "les rapports entre les belligerants," does not deal with the topic in question.) It was, however, the opinion of the present writer, as will appear from the following letters, that no rule of international law, by which the sinking of even neutral prizes was absolutely prohibited, could be shown to exist. He had previously touched upon this question in his evidence before the Royal Commission on the Supply of Food, &c., in Time of War, on November, 4, 1903, and returned to it later in his paper upon "The Duties of Neutrals," read to the British Academy on April 12, 1905, _Transactions_, ii. p. 66. It was reproduced in French, German, Belgian, and Spanish periodicals, and was cited in the judgment of the St. Petersburg Court of Appeal in the case of the _Knight Commander._

The subsequent history of the question, and, in particular, of the rules suggested in Arts. 48-54 of the unratified Declaration of London, may be claimed in favour of the correctness of the opinion maintained in the letters.

RUSSIAN PRIZE LAW

Sir,--The neutral Powers have serious ground of complaint as to the mode in which Russia is conducting operations at sea. It may, however, be doubted whether public opinion is sufficiently well informed to be capable of estimating the comparative gravity of the acts which are just now attracting attention. Putting aside for the moment questions arising out of the Straits Convention of 1856, as belonging to a somewhat different order of ideas, we may take it that the topics most needing careful consideration relate to removal of contraband from the ship that is carrying it without taking her in for adjudication; interference with mail steamers and their mail bags; perversely wrong decisions of Prize Courts; confiscation of ships as well as of their contraband cargo; destruction of prizes at sea; the list of contraband. Of these topics, the two last mentioned are probably the most important, and on each of these I will ask you to allow me to say a few words.

1. There is no doubt that by the Russian regulations of 1895, Art. 21; and instructions of 1901, Art. 40, officers are empowered to destroy their prizes at sea, no distinction being drawn between neutral and enemy property, under such exceptional circ.u.mstances as the bad condition or small value of the prize, risk of recapture, distance from a Russian port, danger to the Imperial cruiser or to the success of her operations. The instructions of 1901, it may be added, explain that an officer "incurs no responsibility whatever" for so acting if the captured vessel is really liable to confiscation and the special circ.u.mstances imperatively demand her destruction. It is fair to say that not dissimilar, though less stringent, instructions were issued by France in 1870 and by the United States in 1898; also that, although the French instructions expressly contemplate "l'etabliss.e.m.e.nt des indemnites a attribuer aux neutres," a French prize Court in 1870 refused compensation to neutral owners for the loss of their property on board of enemy ships burnt at sea.

The question, however, remains whether such regulations are in accordance with the rules of international law. The statement of these rules by Lord Stowell, who speaks of them as "clear in principle and established in practice," may, I think, be summarised as follows: An enemy's ship, after her crew has been placed in safety, may be destroyed. Where there is any ground for believing that the ship, or any part of her cargo, is neutral property, such action is justifiable only in cases of "the gravest importance to the captor's own State," after securing the ship's papers and subject to the right of neutral owners to receive fall compensation (_Actaeon_, 2 Dods. 48; _Felicity, ib._ 381; substantially followed by Dr. Lushington in the _Leucade_, Spinks, 221).

It is not the case, as is alleged by the _Novoe Vremya_, that any British regulations "contain the same provisions as the Russian" on this subject. On the contrary, the Admiralty Manual of 1888 allows destruction of enemy vessels only; and goes so far in the direction of liberality as to order the release, without ransom, of a neutral prize which either from its condition, or from lack of a prize crew, cannot be sent in for adjudication. The j.a.panese instructions of 1894 permit the destruction of only enemy vessels; and Art. 50 of the carefully debated "Code des prises" of the Inst.i.tut de Droit International is to the same effect. It may be worth while to add that the eminent Russian jurist, M.

de Martens, in his book on international law, published some twenty years ago, in mentioning that the distance of her ports from the scenes of naval operations often obliges Russia to sink her prizes, so that "ce qui les lois maritimes de tous les etats considerent comme un moyen auquel il n'y a lieu de recourir qu'a la derniere extremite, se transformera necessairement pour nous en regle normale," foresaw that "cette mesure d'un caractere general soulevera indubitablement contre notre pays un mecontentement universel."

2. A far more important question is, I venture to think, raised by the Russian list of contraband, sweeping, as it does, into the category of "absolutely contraband" articles things such as provisions and coal, to which a contraband character, in any sense of the term, has usually been denied on the Continent, while Great Britain and the United States have admitted them into the category of "conditional" contraband, only when shown to be suitable and destined for the armed forces of the enemy, or for the relief of a place besieged. Still more unwarrantable is the Russian claim to interfere with the trade in raw cotton. Her prohibition of this trade is wholly unprecedented, for the treatment of cotton during the American Civil War will be found on examination to have no bearing on the question under consideration. I touch to-day upon this large subject only to express a hope that our Government, in concert, if possible, with other neutral Governments, has communicated to that of Russia, with reference to its list of prohibited articles, a protest in language as unmistakable as that employed by our Foreign Office in 1885; "I regret to have to inform you, M. l'Amba.s.sadeur," wrote Lord Granville, "that Her Majesty's Government feel compelled to take exception to the proposed measure, as they cannot admit that, consistently with the law and practice of nations, and with the rights of neutrals, provisions in general can be treated as contraband of war."

A timely warning that a claim is inadmissible is surely preferable to waiting till bad feeling has been aroused by the concrete application of an objectionable doctrine.

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

Oxford, August I (1904).

RUSSIAN PRIZE LAW

Sir,--From this hilltop I observe that, in the debate of Thursday last, Mr. Gibson Bowles, alluding to a letter of mine which appeared in your issue of August 6, complained that I "had not given the proper reference" to Lord Stowell's judgments. Mr. Bowles seems to be unaware that in referring to a decided case the page mentioned is, in the absence of any indication to the contrary, invariably that on which the report of the case commences. I may perhaps also be allowed to say that he, in my opinion, misapprehends the effect of the pa.s.sage quoted by him from the _Felicity_, which decides only that, whatever may be the justification for the destruction of a neutral prize, the neutral owner is ent.i.tled, as against the captor, to full compensation for the loss thereby sustained.

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

Eggishorn, Valais, Suisse, August 14 (1904).

RUSSIAN PRIZE LAW

Sir,--Mr. Gibson Bowles has, I find, addressed to you a letter in which he attempts to controvert two statements of mine by the simple expedient of omitting essential portions of each of them.

1. Mr. Bowles having revealed himself as unaware that the mode in which I had cited a group of cases upon destruction of prizes was the correct mode, I thought it well to provide him with the rudimentary information that, "in referring to a decided case, the page, mentioned is, _in the absence of any indication to the contrary_, invariably that on which the report of the case commences." He replies that he has found appended to a citation of a pa.s.sage in a judgment the page in which this pa.s.sage occurs. May I refer him, for an explanation of this phenomenon, to the words (now italicised) omitted in his quotation of my statement? It is, of course, common enough, when the reference is obviously not to the case as a whole but to an extract from it, thus to give a clue to the extract, the formula then employed being frequently "_at_ page so-and-so."

2. I had summarised the effect, as I conceive it, of the group of cases above mentioned in the following terms: "Such action is justifiable only in cases of the gravest importance to the captor's own State, _after securing the ship's papers, and subject to the right of the neutral owners to receive full compensation_." Here, again, while purporting to quote me, Mr. Bowles omits the all-important words now italicised. I am, however, maltreated in good company. Mr. Bowles represents Lord Stowell as holding that destruction of neutral property cannot be justified, even in cases of the gravest importance to the captor's own State. What Lord Stowell actually says, in the very pa.s.sage quoted by Mr. Bowles, is that "to the neutral can only be justified, under any such circ.u.mstances, by a full rest.i.tution in value." I would, suggest that Mr. Bowles should find an opportunity for reading _in extenso_ the reports of the _Actaeon_ (2 Dods. 48), and the _Felicity_ (_ib._ 881), as also for re-reading the pa.s.sage which occurs at p. 386 of the latter case, before venturing further into the somewhat intricate technicalities of prize law.