Letters to "The Times" upon War and Neutrality (1881-1920) Part 24

Sir,--The questions put last night by Mr. M'Arthur need, perhaps, more fully considered answers than they received from Mr. McKinnon Wood.

With reference to the first answer, it may be worth while to point out that, in Art. 66 of the Declaration, the Powers undertake not only, as in the pa.s.sage quoted, "to give the necessary instructions to their authorities and armed forces," but also "to take the measures which may be proper for guaranteeing the application of the rules Contained in the Declaration by their Courts, and, in particular, by their Courts of Prize." The "authentic commentary" upon the article in M. Renault's "Report" explains that the measures in question "may vary in different countries, and may or may not require the intervention of the Legislature."

The second answer lays down broadly that "the decisions of the British Prize Courts are founded on International Law, and not on munic.i.p.al enactments." Our Prize Courts have, no doubt, on most points, decided in accordance with International Law, in the sense of the principles generally followed by civilised nations; but, on not a few points, in accordance with the British view of what is, or ought to be, International Law, in opposition to views persistently maintained by other countries--e.g. with reference to the moment from which a blockade-runner becomes liable to capture. The fact is that, whatever grandiloquent language may have been judicially employed by Lord Stowell in a contrary sense, it will now hardly be denied that a Prize Court sits by national, not international, authority, and is bound to take the view of International Law which, if any, is prescribed to it by the const.i.tutionally expressed will of its own Government.

The Declaration of London is in many ways a great achievement; but one is glad to learn from Mr. McKinnon Wood's third answer that opportunity will be given for discussing all important points in connexion with its rules.

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

Oxford, March 30 (1909).

THE DECLARATION OF LONDON

Sir,--Both the Prize Court Convention of 1907 and its complement, the London Declaration of 1909, stand greatly in need of full and well-informed discussion before receiving the Parliamentary approval which ought to be a condition precedent to the ratification of either of them. It is well, therefore, that many Chambers of Commerce have called the attention of Government to the detriment to British interest which may in their opinion result from these agreements if ratified, although the representations thus made exhibit, in some cases, so little technical knowledge as to have been readily disposed of by the Foreign Secretary. For the same reason, I welcome the letter from Mr. Gibson Bowles, which appeared in _The Times_ of yesterday, although it contains some statements the inaccuracy of which it may be desirable at once to point out.

1. The Declaration of Paris is neither implicitly nor explicitly adopted by the Declaration of London, "as a part of the common law of nations which can no longer be disputed." The later makes no mention of the earlier one, and M. Benault's _rapport_ (as to the interpretative authority of which opinions may well differ) applies the words quoted, not to the Paris Declaration as a whole, but to one only of its articles. Mr. Bowles's statement that "the Declaration of London, if adopted, would reaffirm, and its ratification would in effect, for the first time ratify, the Declaration of Paris" cannot be supported.

2. Mr. Bowles a.s.serts it to be "an unquestioned doctrine of the Law of Nations that war abrogates and annuls treaty obligations between belligerents." One would have supposed it to be common knowledge that large cla.s.ses of treaties are wholly unaffected by war. Such are, for instance, what are called conventions _transitoires_, because their effect is produced once for all, as in the case of cessions of territory; and, notably, treaties entered into for the regulation of the conduct of war, such as the Geneva Convention, many of The Hague Conventions of 1907, and the Declaration of Paris itself, which Mr.

Bowles appears to think would _ipso facto_ cease to be obligatory between its signatories on their becoming belligerent.

It is a pleasure to be able to agree with Mr. Bowles in his wish that the Naval Prize Bill, if reintroduced, should be rejected, though I would rather say "withdrawn." You have already allowed me (on July 10) to point out that if the Convention and Declaration are to be effectively discussed in Parliament they should be disentangled from that Bill, into which the Convention, and, by implication, the Declaration, have been incongruously thrust. This practically non-contentious Consolidation Bill, after several times securing the approval of the House of Lords, has. .h.i.therto for several years awaited the leisure of the House of Commons, but was suddenly reintroduced last Session, apparently as an un.o.btrusive vehicle for the new and highly debatable matter contained in the two above-mentioned doc.u.ments. May I now repeat my suggestion that "the debatable questions arising under the Convention of 1907 and the Declaration of 1909 should first be threshed out in discussions on a Bill dealing with these questions only; and that the decision, if any, thus arrived at should be subsequently inserted, freed from hypothesis, in the Consolidation Bill"?

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

Oxford, December 28 (1910).

THE DECLARATION OF LONDON

Sir,--I have read Professor Westlake's letters upon the Declaration of London with the attention due to anything written by my very learned friend, but, although myself opposed to the ratification alike of the Prize Court Convention and of its complement, the Declaration, do not at present wish to enter upon the demerits of either instrument.

There is, however, a preliminary question upon which, with your permission, I should like to say a few words. My friend justly observes that in dealing with the Declaration "the first necessity is to know what it is that we have before us"; and he devotes his letter of January 31 to maintaining that the Declaration must be read as interpreted by the explanations of it given to the full Conference by the Drafting Committee, of which M. Renault was president. Professor Westlake supports his opinion by a quotation from the reply of the Foreign Office in November last to the Edinburgh Chamber of Commerce (_Miscell._ 1910, No. 4, p. 21). I may mention that a similar reply had been given, a year previously, by Mr. McKinnon Wood to a question in the House of Commons.

The source of these replies is doubtless to be found in a paragraph of the Report, addressed on March 1, 1909, to Sir Edward Grey, of the British Delegates to the London Conference, which runs as follows:--

"It should be borne in mind that, in accordance with the principles and practice of Continental jurisprudence, such a Report is considered an authoritative statement of the meaning and intention of the instrument which it explains, and that consequently foreign Governments and Courts, and no doubt also the International Prize Court, will construe and interpret the provisions of the Declaration by the light of the Commentary given in the Report." (_Miscell._ 1909, No. 4, p. 94.)

It is desirable to know upon what authority this statement rests. I am aware of none. The nearest approach to an a.s.sertion of anything like it occurred at The Hague Conference of 1899, when the "approval" accorded to "the work of the Second Committee, as embodied in the articles voted and in the interpretative Report which accompanies them" was alleged by M. de Martens to amount to an acceptance of the Report "comme un commentaire interpretatif authentique des articles votes." (_Miscell._ 1899, No. 1, p. 165.) The drafting Report presented to the Geneva Conference of 1906 is merely said to have been "adopted" (Actes, p.

286); and M. Renault's Report to the Conference of London was similarly merely "accepted," although he presented it as containing

"Un commentaire precis, degage de tout controverse, qui, devenu commentaire officiel par l'approbation de la Conference, soit de nature a guider les autorites diverses, administratives, militaires, judiciaires, qui pourront avoir a l'appliquer." (_Miscell._ 1909, No. 5, p. 344.)

It would seem that in each of these cases the adoption of the Report, and even a suggestion or two for a change in its phraseology, amounted to nothing more than an expression of opinion on the part of the Delegates to the Conference that the Report contained explanations which had satisfied themselves, and might satisfy their Governments, that the Convention which they were about to forward to those Governments might safely be accepted.

So far as Governments are concerned, the adoption of a Report by their Delegates is _res inter alios acta_. An "authentic interpretation" of a contract can be given only by the parties to it, who, in the case of a treaty, are the States concerned. If these States desire to give to the report of a drafting committee the force of an authentic interpretation of their contract, they can surely do so only by something amounting to a supplementary convention. Writers upon international law naturally throw but little light upon questions to which the somewhat novel practice of argumentative drafting Reports has given rise; but I may cite Professor Ullmann, of Vienna, as saying:--

"Eine authentische Interpretation kann nur die durch Kontrahenten selbst, in einem gemeinschaftlichen, ihren Willen ausser Zweifel setzenden Acte (einem Nachtrags-oder Erlauterungsvertrage), erfolgen" (Volkerrecht, p. 282);

and Professor Fiore, of Naples, to the effect that what is called "authentic interpretation" is not

"interpretazione propriamente detta, ma una dichiarazione di quello che fu gia concordato, o un nuovo trattato" (Diritto Intern.a.z.ionale, ss. 1, 118);

and that

"il trattato non pu essere interpretato che dalle stesse Parti (_i.e._ Stati) contrahenti; e per la validita dell'

atto e indispensabile che la relativa convenzione di interpretazione abbia gli stessi requisiti ... di ogni altra convenzione tra Stato e Stato" (Il Dir. Int. Codif., -- 816).

I would submit that such a Report as that which accompanies the Declaration of London has no claim to the sort of interpretative authority which has been attributed to it; nor is it desirable that the requisite steps should be taken for giving it that authority. It would be calamitous should a practice be introduced of attempting to cure the imperfect expression of a treaty by tacking on to it an equally authoritative reasoned commentary, likely, as in the present case, to be enormously longer than the test to which it relates.

It is a wholly different question whether Governments or Courts would be inclined to take notice of such a Report, among other facts antecedent to a Convention, or Declaration, which they might be called upon to construe. A British Court would not, I conceive, be so inclined. On the probable inclinations of Continental Courts, and of an International Prize Court, should one be inst.i.tuted, further expert information would seem to be called for.

The fact is that the vitally important questions of theory and practice raised by the Convention and the Declaration need calmer and better instructed discussion than they have yet received. Ought they not to be referred to a Royal Commission, on which should be placed representatives of the Navy and Merchant Service, of the corn trade, and of the Colonies, together with international lawyers, in touch with the views of their Continental colleagues?

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

Oxford, February 16 (1911).

THE DECLARATION OF LONDON

Sir,--Professor Westlake, replying in _The Times_ of to-day to the arguments by which I had endeavoured to show that the Report made to the Conference of London has no pretensions to be treated as an authentic interpretation of the Declaration prepared by the Conference, still maintains that "the essential question will be, what the agreement was that the Conference arrived at." I had maintained, on the contrary, that the essential question will be, What is the agreement entered into by the Powers, as evidenced by their ratifications? anything outside of the ratified agreement being _res inter alios acta_. I should not be justified in asking you to allow me to repeat the contents of my letter of Monday last in support of this view. The pleadings are, I think, exhausted. "Therefore let a jury come."

I should like, however, to point out that I did not, as my friend seems to think, attribute the acceptance of the Report to the delegates "singly." It was, no doubt accepted by all present without protest. My colleague will, I am sure, pardon me if I add that I cannot concur in his exegesis of my citations from Ullmann and Fiore.

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

Oxford, February 25 (1911).

THE DECLARATION OF LONDON

Sir,--It is satisfactory that so high an authority as Mr. Arthur Cohen distinctly accedes to the view that the Declaration of London ought not to be ratified as it stands. I should, however, be sorry were his suggestion accepted that the Declaration and the argumentative report which accompanies it might be ratified together. The result would be _obscurum per obscurius_, a remedy worse than the disease.

I shall ask leave to add that, if Mr. Cohen will take the trouble to look again at my letters of February 10 and 25, he will cease to suppose it possible that in writing "the pleadings are, I think, exhausted, &c.," I meant to convey that no further discussion of the merits or demerits of the Declaration was required. On the contrary I expressly limited myself to a consideration of the preliminary question, whether interpretative authority would rightly be attributed to the report in question, stating that, while opposed to the ratification alike of the Prize Court Convention and of the Declaration, I did not, for the present, wish to enter upon the demerits of either instrument; and ended my first letter by suggesting the reference to a Royal Commission of "the vitally important questions of theory and practice raised by the Convention and the Declaration," as needing "calmer and better instructed discussion than they have yet received."

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

Oxford, March 1 (1911).

THE DECLARATION OF LONDON

Sir,--After Tuesday's debate in the House of Lords it may be hoped that not even "the man in the street" will suppose the Declaration of London to be anything more than an objectionable draft, by which no country has consented to be bound. Every day of the war makes more apparent our debt to the House of Lords for having, four years ago, prevented the British Government from ratifying either the International Prize Court Convention or this Declaration, which, while misleadingly professing that its provisions "correspond in substance with the generally recognised principles of international law," contains, interspersed with truisms familiar to all concerned with such matters, a good many undesirable novelties.

This being so, it was surely unfortunate that our Government, with a view apparently to saving time and trouble, decided, in the early days of the war, to adopt the Declaration _en bloc_ as a statement of prize law "during the present hostilities," subject, however, to "certain additions and modifications"; to which it, of course, retained the power of making additions. This power has been so freely exercised, and large portions of the Declaration, not thereby affected, have proved to be so inapplicable to modern conditions, as disclosed by the war, that the doc.u.ment, so far from providing reliable guidance, is now a mere source of hopeless confusion.

To put an end to this confusion, I venture to suggest that, in concert with our Allies, the Declaration should be finally consigned to oblivion. Either let its place be taken by some clear and simple statement of unquestioned prize law, for the use of commanders and officials (something like a confidential doc.u.ment in the drafting of which I had a hand some years ago, but, of course, brought up to date), or let established principles take care of themselves, certain doubtful points only being dealt with, from time to time, by Orders in Council.

While heartily concurring in Lord Portsmouth's description of the unratified "Declaration" as "rubbish," I regret that he seems to relegate to the same category even those generally ratified "Hague Conventions" which, as far as they go, mark a real advance upon previously accepted rules. Still less acceptable is his advice to "sweep away juridical niceties" in the conduct of hostilities. Did he intend thus to describe the whole fabric of the rules by which international law has endeavoured, with considerable success, to restrain barbarity in warfare?

I must mention that this letter was written before seeing this morning the letter of Mr. Gibson Bowles, my worthy ally in attacks upon the Declaration.

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