Letters to "The Times" upon War and Neutrality (1881-1920) Part 22

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

Eggishorn, Suisse, August 26 (1904).

THE SINKING OF NEUTRAL PRIZES

Sir,--In your St. Petersburg correspondence of yesterday I see that some reference is made to what I have had occasion to say from time to time upon the vexed question of the sinking of neutral vessels, and your Correspondent thinks it "would be decidedly interesting" to know whether I have really changed my opinion on the subject. Perhaps, therefore, I may be allowed to state that my opinion on the subject has suffered no change, and may be summarised as follows:--

1. There is no established rule of international law which absolutely forbids, under any circ.u.mstances, the sinking of a neutral prize. A _consensus gentium_ to this effect will hardly be alleged by those who are aware that such sinking is permitted by the most recent prize regulations of France, Russia, j.a.pan, and the United States.

2. It is much to be desired that the practice should be, by future international agreement, absolutely forbidden--- that the lenity of British practice in this respect should become internationally obligatory.

3. In the meantime, to adopt the language of the French instructions, "On ne doit user de ce droit de destruction qu'avec plus la grande reserve"; and it may well be that any given set of instructions (e.g.

the Russian) leaves on this point so large a discretion to commanders of cruisers as to const.i.tute an intolerable grievance.

4. In any case, the owner of neutral property, not proved to be good prize, is ent.i.tled to the fullest compensation for his loss. In the language of Lord Stowell:--

"The destruction of the property may have been a meritorious act towards his own Government; but still the person to whom the property belongs must not be a sufferer ... if the captor has by the act of destruction conferred a benefit upon the public, he must look to his own Government for his indemnity."

It may be worth while to add that the published statements on the subject for which I am responsible are contained in the _Admiralty Manual of Prize Law_ of 1888 (where section 808 sets out the lenient British instructions to commanders, without any implication that instructions of a severer kind would have been inconsistent with international law); in letters which appeared in your columns on August 6, 17, and 30, 1904; and in a paper on "Neutral Duties in a Maritime War, as ill.u.s.trated by recent events," read before the British Academy in April last, a French translation of which is in circulation on the Continent.

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

Temple, June 29 (1905).

The Russian circular of April 3, 1906, inviting the Powers to a second Peace Conference, included amongst the topics for discussion: "Destruction par force majeure des batiments de commerce neutres arretes comme prises," and the British delegates were instructed to urge the acceptance of what their Government had maintained to be the existing rule on the subject. The Conference of 1907 declined, however, to define existing law, holding that its business was solely to consider what should be the law in future. After long discussions, in the course of which frequent reference was made to views expressed by the present writer (see _Actes et Doc.u.ments_, t.

iii. pp. 991-993, 1010, 1016, 1018, 1048, 1171), the Conference failed to arrive at any conclusion as to the desirability of prohibiting the destruction of neutral prizes, and confined itself to the expression of a wish (_voeu_) that this, and other unsettled points in the law of naval warfare, should be dealt with by a subsequent Conference.

This question was, accordingly, one of those submitted to a Conference of ten maritime Powers, which was convoked by Great Britain in 1908, for reasons upon which something will be said in the next section.

The question of sinking was fully debated in this Conference, with the a.s.sistance of memoranda, in which the several Powers represented explained their divergent views upon it, and of reports prepared by committees specially appointed for the purpose. It soon became apparent that the British proposal for an absolute prohibition of the destruction of neutral prizes had no chance of being accepted; while, on the other hand, it was generally agreed that the practice is permissible only in exceptional cases. (See _Parl. Paper, Miscell._ No. 5 (1909), pp. 2-63, 99-102, 120, 189, 205, 215, 223, 248, 268-278, 323, 365.) Arts. 48-54 of the Declaration, signed by the delegates to the Conference on February 26, 1909, but not ratified by Great Britain, related to this question. After laying down, in Art. 48, the general principle that "a neutral prize cannot be destroyed by the captor, but should be taken into such port as is proper for the legal decision of the rightfulness of the capture" the Declaration proceeded, in Art. 49, to qualify this principle by providing that "exceptionally, a neutral vessel captured by a belligerent warship, which would be liable to confiscation, may be destroyed, if obedience to Art. 48 might compromise the safety of the warship, or the success of the operations in which she is actually engaged."

SECTION 8

_An International Prize Court_

The forecast, incidentally attempted in the following letters, of the general results likely to be arrived at by the second Peace Conference, has been justified by the event. As much may be claimed for the views maintained upon the topic with which these letters were more specifically concerned. Instead of letting loose the judges of the proposed International prize Court to "make law," in accordance with what might happen to be their notions of "the general principles of justice and equity," a serious attempt has been made to supply them with a Code of the law which they would be expected to administer.

Some account will be given at the end of this section of the movement towards the establishment of an International Court of Appeal in oases of prize.

AN INTERNATIONAL PRIZE COURT

SIR--The idea suggested by the question addressed on February 19 to the Government by Mr. A. Herbert--viz. that the appeal in prize cases should lie, not to a Court belonging to the belligerent from whose Court of first instance the appeal is brought, but to an international tribunal, has a plausible appearance of fairness, but involves many preliminary questions which must not be lost sight of.

Prize Courts are, at present, Courts of enquiry, to which a belligerent Government entrusts the duty of ascertaining whether the captures made by its officers have been properly made, according to the views of international law entertained by that Government. There exists, no doubt, among Continental jurists, a considerable body of opinion in favour of giving to Courts of Appeal, at any rate, in prize cases a wholly different character. This opinion found its expression in Arts.

100-109 of the _Code des Prises maritimes_, finally adopted at its Heidelberg meeting, in 1887, by the Inst.i.tut de Droit International.

Art. 100 runs as follows:--

"Au debut de chaque guerre, chacune des parties belligerantes const.i.tue un tribunal international d'appel en matiere de prises maritimes. Chacun de ces tribunaux est compose de cinq membres, designes comme suit: L'etat belligerant nommera lui-meme le president et un des membres. Il designera en outre trois etats neutres, qui choisiront chacun un des trois autres membres."

In the abstract, and supposing that a tribunal perfectly satisfactory both to belligerents and neutrals could be const.i.tuted, whether antecedently or _ad hoc_, there might be much to be said for the proposal; subject, however, to one condition--viz. that an agreement had been previously arrived at as to the law which the Court is to apply. At the present time there exists, on many vital questions of prize law, no such agreement. It will be sufficient to mention those relating to the list of contraband, the distinction between "absolute"

and "conditional" contraband, the doctrine of "continuous voyages," the right of sinking a neutral prize, the moment from which a vessel becomes liable for breach of blockade.

Just as the _Alabama_ arbitration would have been impossible had not an agreement been arrived at upon the principles in accordance with which neutral duties as to the exit of ships of war were to be construed, so, also, before an international Court can be empowered to decide questions of prize, whether in the first instance or on appeal, it is indispensable that the law to be applied on the points above mentioned, and many others, should have been clearly defined and accepted, if not generally, at least by all parties concerned. The moral which I would venture to draw is, therefore, that although questions of fact, arising out of capture of a prize, might sometimes be submitted to a tribunal of arbitration, no case, involving rules of law as to which nations take different views, could possibly be so submitted. One is glad, therefore, to notice that the Prime Minister's reply to Mr. A. Herbert was of the most guarded character. The settlement of the law of prize must necessarily precede any general resort to an international prize Court; and if the coming Hague Conference does no more than settle some of the most pressing of these questions, it will have done much to promote the cause of peace.

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

Oxford, February 20 (1907).

A NEW PRIZE LAW

Sir,--The leading articles which you have recently published upon the doings of the Peace Conference, as also the weighty letter addressed to you by my eminent colleague, Professor Westlake, will have been welcomed by many of your readers who are anxious that the vital importance of some of the questions under discussion at The Hague should not be lost sight of.

The Conference may now be congratulated upon having already given a _quietus_ to several proposals for which, whether or not they may be rightly described as Utopian, the time is admittedly not yet ripe. Such has been the fate of the suggestions for the limitation of armaments, and the exemption from capture of private property at sea. Such also, there is every reason to hope, is the destiny which awaits the still more objectionable proposals for rendering obligatory the resort to arbitration, which by the Convention of 1899 was wisely left optional.

Should the labours of the delegates succeed in placing some restrictions upon the employment of submarine mines, the bombardment of open coast towns, and the conversion of merchant vessels into ships of war; in making some slight improvements in each of the three Conventions of 1899; and in solving some of the more pressing questions as to the rights and duties of neutrals, especially with reference to the reception in their ports of belligerent warships, it will have more than justified the hopes for its success which have been entertained by persons conversant with the difficulty and complexity of the problems involved.

But what shall we say of certain proposals for revolutionising the law of prize, which still remain for consideration, notably for the establishment of an international Court of Appeal, and for the abolition of contraband? It can hardly be supposed that either suggestion will win its way to acceptance.

1. The British scheme for an international Court of Appeal in prize cases is, indeed, far preferable to the German; but the objections to anything of the kind would seem to be, for the present, insuperable, were it only for the reason which you allowed me to point out, some months ago, _a propos_ of a question put in the House of Commons by Mr.

Arnold Herbert. As long as nations hold widely different views on many points of prize law, it cannot be expected that they should agree beforehand that, when belligerent, they will leave it to a board of arbitrators to say which of several competing rules shall be applied to any given case of capture, or to evolve out of their inner consciousness a new rule, hitherto unknown to any national prize Court. It would seem that the German advocates of the innovation claim in its favour the authority of the Inst.i.tut de Droit International. Permit me, therefore, as one who has taken part in all the discussions of the Inst.i.tut upon the subject, to state that when it was first handled, at Zurich, in 1878, the difficulties in the way of an international Court were insisted on by such men as a.s.ser, Bernard, Bluntschli, Bulmerincq, and Neumann, and the vote of a majority in its favour was coupled with one which demanded the acceptance by treaty of a universally applicable system of prize law. The drafting of such a system was accordingly the main object of the _Code des Prises maritimes_, which, after occupying several sessions of the Inst.i.tut, was finally adopted by it, at Heidelberg, in 1887. Only ten of the 122 sections of this Code deal with an international Court of Appeal. A complete body of law, by which States have agreed to be bound, must, one would think, necessarily precede the establishment of a mixed Court by which that law is to be interpreted.

2. While the several delegations are vying with one another in devising new definitions of contraband, there would seem to be little likelihood that the British proposal for its total abandonment will be seriously entertained. Such a step could be justified, if at all, from the point of view of national interest, only on the ground that it might possibly throw increased difficulties in the way of an enemy desirous, even by straining the existing law, of interfering with the supply of foodstuffs to the British Islands. I propose, for the present, only to call attention to the concluding paragraph of the British notice of motion on this point, which would seem to imply much more than the abandonment of contraband. The words in question, if indeed they are authentically reported, are as follows: "Le droit de visite ne serait exerce que pour constater le caractere neutre du batiment de commerce." Does this mean that the visiting officer, as soon as he has ascertained from the ship's papers that she is neutral property, is to make his bow and return to the cruiser whence he came? If so, what has become of our existing right to detain any vessel which has sailed for a blockaded port, or is carrying, as a commercial venture, or even ignorantly, hostile troops or despatches? No such definition as is proposed of an "auxiliary ship-of-war" would safeguard the right in question, since a ship, to come within that definition, must, it appears, be under the orders of a belligerent fleet.

I would venture to suggest that the motto of a reformer of prize law should be _festina lente._ The existing system is the fruit of practical experience extending over several centuries, and, though it may need, here and there, some readjustment to new conditions, brought about by the subst.i.tution of steam for sails, is not one which can safely be pulled to pieces in a couple of months. Let us leave something for future Hague Conferences.

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

Oxford, July 24 (1907).

A NEW PRIZE LAW

Sir,--In a letter under the above heading, for which you were so good as to find room in July last, I returned to the thesis which I had ventured to maintain some months previously, _a propos_ of a question put in the House of Commons. My contention was that the establishment of an international prize Court, a.s.suming it to be under any circ.u.mstances desirable, should follow, not precede, a general international agreement as to the law which the Court is to administer.

It would appear, from such imperfect information as intermittently reaches Swiss mountain hotels, that a conviction of the truth of this proposition is at length making way among the delegates to The Hague Conference and among observers of its doings. In a recent number of the _Courrier de la Conference_, a publication which cannot be accused of lukewarmness in the advocacy of proposals for the peaceful settlement of international differences, I find an article ent.i.tled "Pas de Code Naval, pas de Cour des Prises," to the effect that "l'acceptation de la Cour des Prises est strictement conditionnelle a la redaction du Code, qu'elle aura a interpreter." Its decisions must otherwise be founded upon the opinions of its Judges, "the majority of whom will belong to a school which has never accepted what Great Britain looks upon as the fundamental principles of naval warfare." One learns also from other sources, that efforts are being made to arrive, by a series of compromises, at some common understanding upon the points as to which the differences of view between the Powers are most p.r.o.nounced. It may, however, be safely predicted that many years must elapse before any such result will be achieved.

In the meantime, a very different solution of the difficulty has commended itself to the partisans of the proposed Court. M. Renault, the accomplished Reporter of the committee which deals in the first instance with the subject, after stating that "sur beaucoup de points le droit de la guerre maritime est encore incertain, et chaque etat le formule au gre de ses idees et de ses interets," lays down that, in accordance with strict juridical reasoning, when international law is silent an international Court should apply the law of the captor. He is, nevertheless, prepared to recommend, as the spokesman of the committee, that in such cases the Judges should decide "d'apres les principes[C]

generaux de la justice et de l'equite"--a process which I had, less complimentarily, described as "evolving new rules out of their inner consciousness." The Court, in pursuance of this confessedly "hardie solution," would be called upon to "faire le droit."

One may be permitted to hope that this proposal will not be accepted.

The beneficent action of English Judges in developing the common law of England may possibly be cited in its favour; but the a.n.a.logy is delusive. The Courts of a given country in evolving new rules of law are almost certain to do so in accordance with the views of public policy generally entertained in that country. Should they act otherwise their error can be promptly corrected by the national Legislature. Far different would be the effect of the decision of an international Court, in which, though it might run directly counter to British theory and practice, Great Britain would have bound herself beforehand to acquiesce. The only quasi-legislative body by which the _ratio decidendi_ of such a decision could be disallowed would be an international gathering in which British views might find scanty support. The development of a system of national law by national Judges offers no a.n.a.logy to the working of an international Court, empowered, at its free will and pleasure, to disregard the views of a sovereign Power as to the proper rule to be applied in cases as to which international law gives no guidance. In such cases the ultimate adjustment of differences of view is the appropriate work, not of a law Court, but of diplomacy.

It is hardly necessary to combat the notion that there already exists, _in nubibus_, a complete system of prize law, which is in some mysterious way accessible to Judges, and reveals to them the rule applicable to each new case as it arises. This notion, so far as it is prevalent, seems to have arisen from a mistaken reading of certain _dicta_ of Lord Stowell, in which that great Judge, in his finest eighteenth-century manner, insists that the law which it was his duty to administer "has no locality" and "belongs to other nations as well as our own." He was, of course, thinking of the rules of prize law upon which the nations are agreed, not of the numerous questions upon which no agreement exists, and was dealing with the difficult position of a Judge who has to choose (as in the recent _Moray Firth_ case) between obedience to such rules and obedience to the legislative, or quasi-legislative, acts of his own Government.

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

Eggishorn, Suisse, September 16 (1907).