Letters to "The Times" upon War and Neutrality (1881-1920) Part 6

THE NAVAL PRIZE BILL

CIVIL DISABILITIES OF ENEMY SUBJECTS

Sir,--The Naval Prize Bill has sins enough of its own to answer for. The question dealt with under that heading in Mr. Arthur Cohen's letter of this morning has, however, nothing to do with naval matters, but arises under The Hague Convention of 1907 as to warfare on land, which was ratified by our Government two years ago; unfortunately without any reserve as to the extraordinary provision contained in Art. 28 (_h_) of that Convention.

I lose not a moment in asking to be allowed to state that my view of the question is, and always has been, the reverse of that attributed to me by my friend Mr. Cohen. No less than three views are entertained as to the meaning of Art. 28 (_h_). (1) Continental writers, e.g., MM.

Fauchille, Kohler, and Ullmann, with the German Whitebook, a.s.sert, in the most unqualified manner, that Great Britain and the United States have under this clause abandoned their long-established doctrine as to the suspension of the private rights and remedies of enemy subjects; (2) Our own Government, in a non-confidential reply to an inquiry from Professor Oppenheim, a.s.serts categorically, as does General Davis in the United States, that the clause relates only to the action of a commander in a territory of which he is in occupation; while (3) most English and American writers look upon the meaning of the clause as doubtful. If Mr.

Cohen will look at p. 44 of my _Laws of War on Land_, 1909, he will find that I carry this sceptical att.i.tude so far as to include the clause in question in brackets as "apocryphal," with the comment that "it can hardly, till its policy has been seriously discussed, be treated as a rule of international law." I have accordingly maintained, in correspondence with my Continental colleagues, that the clause should be treated as "non avenue," as "un non sens," on the ground that, while, torn from their context, its words would seem ("ont faux air") to bear the Continental interpretation, its position as part of a "Reglement,"

in conformity with which the Powers are to "issue instructions to their armed land forces," conclusively negatives this interpretation. I will not to-day trouble you in detail with the very curious history of the clause; which, as originally proposed by Germany, merely prohibited (a commander?) from announcing that the private claims ("reclamations") of enemy subjects would be unenforceable. It is astonishing that no objection was raised by the British or by the American delegates to the subsequent transformation of this innocent clause into something very different, first by the insertion of the words "en justice," and later by the subst.i.tution of "droits et actions" for "reclamations." The quiescence of the delegates is the more surprising, as, at the first meeting of the sub-committee, General de Gundel, in the plainest language, foreshadowed what was aimed at by the clause.

Art. 23 (_h_) is, I submit, incapable of rational interpretation and should be so treated by the Powers. If interpreted at all, its sense must be taken to be that which is now, somewhat tardily, put upon it by our own Government.

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

Oxford, November 6 (1911).

I may perhaps refer here to my _Laws of War on Land_ (1908), p.

44, where I describe as "apocryphal" Art. 23 (_h_) of the Hague Convention No. iv. of 1907; and to my paper upon that article in the _Law Quarterly Review_ for 1912, pp. 94-98, reproduced in the _Revue de Droit International_, the _Revue Generale de Droit International Public_, and the _Zeitschrift fur Volkerrecht und Bundesstaatsrecht_, for the same year.

The view there maintained was affirmed by the Court of Appeal in _Porter_ v. _Freudenberg_, [1915] 1 K.B. 857, _at_ p. 874.

_Enemy Ships in Port_

ENEMY SHIPS IN PORT

Sir,--The action taken by the United States in seizing German merchant ships lying in their ports will raise several questions of interest. It is, however, important at once to realise that, apart from anything which may be contained in old treaties with Prussia, their hands are entirely free in the matter. The indulgences so often granted: to such ships during the last 60 years, notably by themselves in the Spanish War of 1898, under endlessly varying conditions, have been admittedly acts of grace, required by no established rule of international law.

The United States are also unaffected by The Hague Convention No. vi, to which they are not a party. It is therefore superfluous to inquire what construction they would have been bound to put upon the ambiguous language of Section 1 of the Convention, which proclaims that "when a merchant ship of one of the belligerent Powers is, at the commencement of hostilities, in an enemy port, _it is desirable_ that it should be allowed to depart freely," &c. It might perhaps be argued that our own Prize Court might well have refrained from treating this section as if it were obligatory, and have founded its decisions rather upon international law, as supplemented by a non-obligatory custom. Be this as it may, it would seem that the policy of the United States has to some extent felt the influence of Convention vi. in announcing that seizure will, provisionally, only amount to requisitioning.

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

Oxford, April 7 (1917).

CHAPTER VI

THE CONDUCT OF WARFARE

The three following sections relate to the waters in which hostile operations may take place. Section 1 probably calls for no explanatory remark. With reference to Section 2, dealing with certain s.p.a.ces of water more or less closed to belligerent action, it may be desirable to state that the letters as to the Suez Ca.n.a.l were written to obviate some misconceptions as to the purport of the Convention of October 29, 1888, and to maintain that it was not, at the time of writing, operative, so far as Great Britain was concerned.

This state of things was, however, altered by the Anglo-French Convention of April 8, 1804, which, concerned princ.i.p.ally with the settlement of the Egyptian and Newfoundland questions, provides, in Art. 6, that "In order to a.s.sure the free pa.s.sage of the Suez Ca.n.a.l, the Government of His Britannic Majesty declares that it adheres to the stipulations of the Treaty concluded on the 29th October 1888; and to their becoming operative. The free pa.s.sage of the ca.n.a.l being thus guaranteed, the execution of the last phrase of paragraph 1, and that of paragraph 2 of the 8th article of this Treaty, will remain suspended."

The last phrase of paragraph 1 of Art. 8 relates to annual meetings of the agents of the signatory Powers.

Paragraph 2 of this Article relates to the presidency of a special commissioner of the Ottoman Government over those meetings.

On the whole question see _Parl. Papers, Egypt_, No. 1 (1888), _Commercial_, No. 2 (1889), and the present writer's _Studies in International Law_, pp. 275-293. Note must, of course, now be taken of the const.i.tutional changes resulting from the war of 1914.

The provisions of the Treaty of 1888, with reference to the free navigation of the Suez Ca.n.a.l, have, of course, acquired a new importance from their adoption into the Hay-Pauncefote Treaty of November 18, 1901, as to the Panama Ca.n.a.l, and from the divergent views taken of their interpretation, as so adopted.

SECTION 1

_On the Open Sea_

"THE FREEDOM OF THE SEAS"?

Sir,--Your remarks upon "the wide and ambiguous suggestions" contained in the Pope's Peace Note are especially apposite to his desire for "the freedom of the seas." It is regrettable that his Holiness does not explain the meaning which he attaches to this phrase, in itself unmeaning, so dear to the Germans. He is doubtless well aware that the sea is already free enough, except to pirates, in time of peace, and must be presumed to refer to time of war, and specifically to propose the prohibition of any such interference with neutral shipping as is now legalised by the rules relating to visit and search, contraband and blockade.

If this be indeed the Pope's meaning, his aspirations are now less likely than ever to be realised. It is curious to reflect that the proposal actually made by our own Government at The Hague Conference of 1907, apparently under the impression that Great Britain would be always neutral, for protecting the carriage of contraband was most fortunately defeated by the opposition of the other great naval Powers, of which Germany was one.

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

Oxford, August 16 (1917).

SECTION 2

_In Other Waters_

THE SUEZ Ca.n.a.l

Sir,--Your correspondent "M.B." has done good service by calling attention to the misleading nature of the often-repeated statement that the Suez Ca.n.a.l has been "neutralised" by the Convention of 1888. Perhaps you will allow me more explicitly to show why, and how far, this statement is misleading.

In the first place, this Convention is inoperative. It is so in consequence of the following reservation made by Lord Salisbury in the course of the negotiations which resulted in the signature of the Convention:--

"Les Delegues de la Grande-Bretagne ... pensent qu'il est de leur devoir de formuler une reserve generale quant a l'application de ces dispositions en tant qu'elles ne seraient pas compatibles avec l'etat transitoire et exceptionnel ou se trouve actuellement l'Egypte, et qu'elles pourraient entraver la liberte d'action de leur Gouvernement pendant la periode de l'occupation de l'Egypte par les forces de sa Majeste Britannique."

Being thus unaffected by the treaty, the ca.n.a.l retains those characteristics which it possesses, under the common law of nations, as a narrow strait, wholly within the territory of one Power and connecting two open seas. The fact that the strait is artificial may, I think, be dismissed from consideration, for reasons stated by me in the _Fortnightly Review_ for July, 1883. The characteristics of such a strait are unfortunately by no means well ascertained, but may perhaps be summarised as follows. In time of peace, the territorial Power is bound by modern usage to allow "innocent pa.s.sage," under reasonable conditions as to tolls and the like, not only to the merchant vessels, but also, probably, to the ships of war, of all nations. In time of war, the territorial Power, if belligerent, may of course carry on, and is exposed to, hostilities in the strait as elsewhere, and the entrances to the strait are liable to a blockade. Should the territorial Power be neutral, the strait would be closed to hostilities, though it would probably be open to the "innocent pa.s.sage" of belligerent ships of war.

It may be worth while to enquire how far this state of things would be affected by the Convention of 1888, were it to come into operation. The _status_ of the ca.n.a.l in time of peace would be substantially untouched, save by the prohibition to the territorial Power to fortify its banks.

Even with reference to time of war, several of the articles of the Convention merely reaffirm well-understood rules applicable to all neutral waters--e.g. that no hostilities may take place therein. The innovations proposed by the Convention are mainly contained, as "M.B."

points out, in the first article, which deals with the position of the ca.n.a.l when the territorial Power is belligerent. In such a case, subject to certain exceptions, with a view to the defence of the country, the ships of that Power are neither to attack nor to be attacked in the ca.n.a.l, or within three miles of its ports of access, nor are the entrances of the ca.n.a.l to be blockaded. This is "neutralisation" only in a limited and vague sense of the term, the employment of which was indeed carefully avoided not only in the Convention itself but also in the diplomatic discussions which preceded it.

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

Brighton, October 4 (1898).

THE SUEZ Ca.n.a.l

Sir,--Your correspondent "M.B.," if he will allow me to say so, supports this morning a good case by a bad argument, which ought hardly to pa.s.s without remark.

It is impossible to accept his suggestion that the article which he quotes from the Treaty of Paris can be taken as containing "an international official definition of neutralisation as applied to waters." The article in question, after declaring the Black Sea to be "neutralisee," no doubt goes on to explain the sense in which this phrase is to be understood, by laying down that the waters and ports of that sea are perpetually closed to the ships of war of all nations. It is, however, well known that such a state of things as is described in the latter part of the article is so far from being involved in the definition of "neutralisation" as not even to be an ordinary accompaniment of that process. Belgium is unquestionably "neutralised,"

but no one supposes that the appearance in its waters and ports of ships of war is therefore prohibited. The fact is that the term "neutralisee"