Letters to "The Times" upon War and Neutrality (1881-1920)
by Thomas Erskine Holland · English · Gutenberg #14447 · 461,606 chars · public domain (US)
The Project Gutenberg eBook of Letters to "The Times" upon War and Neutrality (1881-1920)
This eBook is for the use of anyone anywhere in the United States and
most other parts of the world at no cost and with almost no restrictions
whatsoever. You may copy it, give it away or re-use it under the terms
of the Project Gutenberg License included with this eBook or online
at www.gutenberg.org. If you are not located in the United States,
you will have to check the laws of the country where you are located
before using this eBook.
Title: Letters to "The Times" upon War and Neutrality (1881-1920)
Author: Thomas Erskine Holland
Release date: December 24, 2004 [eBook #14447]
Most recently updated: October 28, 2024
Language: English
Other information and formats: www.gutenberg.org/ebooks/14447
Credits: Produced by Robert Connal, Aaron Reed and the Online Distributed
Proofreading Team. This file was produced from images generously
made available by the Biblioth�que nationale de France (BnF/Gallica)
at http://gallica.bnf.fr
*** START OF THE PROJECT GUTENBERG EBOOK LETTERS TO "THE TIMES" UPON WAR AND NEUTRALITY (1881-1920) ***
LETTERS
UPON
WAR AND NEUTRALITY
(1881-1920)
LETTERS TO "THE TIMES"
UPON
WAR AND NEUTRALITY
(1881-1920)
WITH SOME COMMENTARY
BY
SIR THOMAS ERSKINE HOLLAND
K.C., D.C.L., F.B.A.
FELLOW OF ALL SOULS COLLEGE
SOMETIME CHICHELE PROFESSOR OF INTERNATIONAL LAW
MEMBRE (PRÉSIDENT 1913) DE L'INSTITUT DE DROIT INTERNATIONAL
ETC., ETC.
THIRD EDITION
LONGMANS, GREEN, AND CO.
39 PATERNOSTER ROW, LONDON
FOURTH AVENUE & 30TH STREET, NEW YORK
BOMBAY, CALCUTTA, AND MADRAS
1921
PREFACE TO THE FIRST EDITION
For a good many years past I have been allowed to comment, in letters to
_The Times_, upon points of International Law, as they have been raised
by the events of the day. These letters have been fortunate enough to
attract some attention, both at home and abroad, and requests have
frequently reached me that they should be rendered more easily
accessible than they can be in the files of the newspaper in which they
originally appeared.
I have, accordingly, thought that it might be worth while to select,
from a greater number, such of my letters as bear upon those questions
of War and Neutrality of which so much has been heard in recent years,
and to group them for republication, with some elucidatory matter (more
especially with reference to changes introduced by the Geneva Convention
of 1906, The Hague Conventions of 1907, and the Declaration of London of
the present year) under the topics to which they respectively relate.
The present volume has been put together in accordance with this plan;
and my best thanks are due to the proprietors of The Times for
permitting the reissue of the letters in a collected form.
Cross-references and a full Index will, I hope, to some extent remove
the difficulties which might otherwise be caused by the fragmentary
character, and the chances of repetition, inseparable from such a work.
T. E. H.
EGGISHORN, SWITZERLAND,
_September_ 14, 1909.
* * * * *
PREFACE TO THE SECOND EDITION
I have again to thank _The Times_ for permission to print in this new
edition letters which have appeared in its columns during the past four
years. They will be found to deal largely with still unsettled questions
suggested by the work of the Second Peace Conference, by the Declaration
of London, and by the, unfortunately conceived, Naval Prize Bill of
1911.
I have no reason to complain of the reception which has so far been
accorded to the views which I have thought it my duty to put forward.
T. E. H.
OXFORD,
_January_ 10, 1914.
* * * * *
PREFACE TO THE THIRD EDITION
This, doubtless final, edition of my letters upon War and Neutrality
contains, by renewed kind permission of _The Times_, the whole series of
such letters, covering a period of no less than forty years. To the
letters which have already appeared in former editions, I have now added
those contained in the "Supplement" of 1916 (for some time out of print)
to my second edition; as also others of still more recent date. All
these have been grouped, as were their predecessors, under the various
topics which they were intended to illustrate. The explanatory
commentaries have been carefully brought up to date, and a perhaps
superfluously full Index should facilitate reference for those
interested in matters of the kind. Such persons may not be sorry to have
their attention recalled to many questions which have demanded practical
treatment of late years, more especially during the years of the great
war.
Not a few of these questions are sure again to come to the front, so
soon as the rehabilitation of International Law, rendered necessary by
the conduct of that War, shall be seriously taken in hand.
T. E. H.
OXFORD,
_April_ 25, 1921.
CONTENTS
CHAPTER I
MEASURES SHORT OF WAR FOR THE SETTLEMENT
OF INTERNATIONAL CONTROVERSIES 1
SECTION 1
_Friendly Measures_ 1
The Petition to the President of the United States (1899) 2
Commissions of Enquiry and The Hague Convention (1904) 3
The League of Nations (1919) 7
" " " " ( " ) 8
" " " " (1920) 9
SECTION 2
_Pacific Reprisals_ 9
The Blockade of the Menam (1893) 10
Pacific Blockade (1897) 11
The Venezuelan Controversy (1902) 13
The Venezuela Protocol (1903) 18
War and Reprisals (1908) 18
CHAPTER II
STEPS TOWARDS A WRITTEN LAW OF WAR 22
Count von Moltke on the Laws of Warfare (1881) 23
Professor Bluntschli's Reply to Count von Moltke (1881) 26
The United States Naval War Code (1901) 29
A Naval War Code (1902) 31
CHAPTER III
TERMINOLOGY 33
International Terminology (1918) 33
CHAPTER IV
CONVENTIONS AND LEGISLATION 36
Government Bills and International Conventions (1911) 36
The present Bill in Parliament (1914) 38
The Foreign Enlistment Bill (1912) 39
CHAPTER V
THE COMMENCEMENT OF WAR 41
SECTION 1
_Declaration of War_ 41
The Sinking of the _Kowshing_ (1894) 41
SECTION 2
_The Immediate Effects of the Outbreak of War_ 44
Foreign Soldiers in England (1909) 45
The Naval Prize Bill: Civil Disabilities of Enemy
Subjects (1911) 47
Enemy Ships in Port (1917) 49
CHAPTER VI
THE CONDUCT OF WARFARE 50
SECTION 1
_On the Open Sea_ 51
The Freedom of the Seas? (1917) 51
SECTION 2
_In Other Waters_ 51
The Suez Canal (1898) 51
" " " ( " ) 51
" " " ( " ) 53
" " " ( " ) 54
The Closing of the Dardanelles (1912) 55
" " " " " ( " ) 58
SECTION 3
_In a Special Danger Zone?_ 59
The German Threat (1915) 59
SECTION 4
_Aerial Warfare_ 61
The Debate on Aeronautics (1909) 61
The Aerial Navigation Act (1913) 63
Sovereignty over the Air (1913) 65
Attack from the Air: The Enforcement of International Law (1914) 66
" " " " The Rules of International Law (1914) 67
SECTION 5
_Submarines_ 69
Germany and the Hague (1914) 69
The "Pirates" (March 13, 1915) 70
Submarine Crews (March 22, 1915) 71
Mr. Wilson's Note (May 16, 1915) 72
SECTION 6
_Lawful Belligerents_ 73
Guerilla Warfare (1906) 73
The Russian Use of Chinese Clothing (1904) 75
The Rights of Armed Civilians (1914) 77
Civilians in Warfare: The Right to take up Arms (1914) 78
Civilians and a Raid (1914) 79
Miss Cavell's Case (1915) 79
SECTION 7
_Privateering and the Declaration of Paris_ 80
Our Mercantile Marine in War Time (1898) 81
" " " " " " ( " ) 84
Our Mercantile Marine in War (1898) 87
The Declaration of Paris (1911) 87
" " " " (1914) 89
" " " " (1916) 91
" " " " (1916) 92
SECTION 8
_Assassination_ 93
The Natal Proclamation (1906) 93
SECTION 9
_The Choice of Means of Injuring_ 94
Bullets in Savage Warfare (1903) 94
Gases (1918) 97
SECTION 10
_The Geneva Convention_ 98
Wounded Horses in War (1899) 98
SECTION 11
_Enemy Property in Occupied Territory_ 100
International "Usufruct" (1898) 101
Requisitions in Warfare (1902) 103
SECTION 12
_Enemy Property at Sea_ 104
Private Property at Sea (1913) 104
SECTION 13
_Martial Law_ 105
The Executions at Pretoria (1901) 106
The Petition of Right (1901) 108
The Petition of Right (1902) 109
Martial Law in Natal (1906) 111
SECTION 14
_The Naval Bombardment of Open Coast Towns_ 112
Naval Atrocities (1888) 113
The Naval Manoeuvres (1888) 113
" " " ( " ) 117
Naval Bombardments of Unfortified Places (1904) 120
SECTION 15
_Belligerent Reprisals_ 123
Reprisals (1917) 123
" ( " ) 124
SECTION 16
_Peace_ 124
Undesirable Peace Talk (1915) 124
CHAPTER VII
THE RIGHTS AND DUTIES OF NEUTRALS 126
SECTION 1
_The Criterion of Neutral Conduct_ 126
Professor de Martens on the Situation (1905) 126
Neutrals and the Laws of War (1915) 127
SECTION 2
_The Duties of Neutral States, and the Liabilities of Neutral
Individuals, distinguished_ 129
Contraband of War (1904) 130
Coal for the Russian Fleet (1904) 132
German War Material for Turkey (1911) 135
SECTION 3
_Neutrality Proclamations_ 135
The British Proclamation of Neutrality (1904) 136
" " " " ( " ) 138
" " " " (1911) 141
The Proclamation of Neutrality (1911) 143
SECTION 4
_Neutral Hospitality_ 143
Belligerent Fleets in Neutral Waters (1905) 144
The _Appam_ (1916) 146
SECTION 5
_Carriage of Contraband_ 147
_Absolute and Conditional Contraband_ 147
Contraband of War (1898) 147
Is Coal Contraband of War? (1904) 149
Cotton as Contraband of War (1905) 151
" " " " (1916) 154
Japanese Prize Law (1905) 155
" " " (1915) 157
_Continuous Voyages_ 157
Prize Law (1900) 158
The _Allanton_ (1904) 161
_Unqualified Captors_ 162
The _Allanton_ (1904) 162
SECTION 6
_Methods of Warfare as affecting Neutrals_ 164
_Mines_ 164
Mines in the Open Sea (1904) 164
Territorial Waters (1904) 166
_Cable-cutting_ 168
Submarine Cables (1881) 168
" " in Time of War (1897) 169
" " " " " " ( " ) 171
SECTION 7
_Destruction of Neutral Prizes_ 173
Russian Prize Law (1904) 174
" " " ( " ) 177
" " " ( " ) 178
The Sinking of Neutral Prizes (1905) 179
SECTION 8
_An International Prize Court_ 181
An International Prize Court (1907) 182
A New Prize Law (1907) 183
" " " " ( " ) 186
" " " " ( " ) 189
SECTION 9
_The Naval Prize Bill_ 191
The Naval Prize Bill (1910) 192
" " " " (1911) 194
Naval Prize Money (1918) 195
SECTION 10
_The Declaration of London_ 196
The Declaration of London (1909) 196
" " " " (1910) 197
" " " " (1911) 199
" " " " ( " ) 202
" " " " ( " ) 203
" " " " (1915) 204
" " " " (1916) 205
Germany wrong again (1917) 207
INDEX 209
CHAPTER I
MEASURES SHORT OF WAR FOR THE SETTLEMENT OF INTERNATIONAL CONTROVERSIES
SECTION 1
_Friendly Measures_
Of the letters which follow, the first was suggested by a
petition presented in October, 1899, to the President of the
United States, asking him to use his good offices to terminate
the war in South Africa; the second by discussions as to the
advisability of employing, for the first time, an International
Commission of Enquiry, for the purpose of ascertaining the
facts of the lamentable attack perpetrated by the Russian fleet
upon British fishing vessels off the Dogger Bank, on October
21, 1905. The Commission sat from January 19 to February 25,
1905, and its report was the means of terminating a period of
great tension in the relations of the two Powers concerned (see
_Parl. Paper_, Russia, 1905, No. 3): this letter deals also
with Arbitration, under The Hague Convention of 1899.
It may be worth while here to point out that besides direct
negotiation between the Powers concerned, four friendly methods
for the settlement of questions at issue between them are now
recognised, _viz_ (1) Good offices and mediation of third
Powers; (2) "Special mediation"; (3) "International Commissions
of Enquiry"; (4) Arbitration. All four were recommended by The
Hague Convention of 1899 "For the Peaceful Settlement of
International Disputes" (by which, indeed, (2) and (3) were
first suggested), as also by the amended re-issue of that
convention in 1907. It must be noticed that resort to any of
these methods is entirely discretionary, so far as any rule of
International Law is concerned; all efforts to render it
universally and unconditionally obligatory having, perhaps
fortunately, hitherto failed.
It remains to be seen how far the settlement of international
controversies has been facilitated by the establishment of a
"League of Nations" (to which reference is made in the
concluding letters of this chapter), and, in particular, by the
plan for the establishment of a "Permanent Court of
International Justice," formulated by the League, in pursuance
of Art. 14 of the Treaty of Versailles, and submitted to its
members in December, 1920.
THE PETITION TO THE PRESIDENT OF THE UNITED STATES
Sir,--It seems that a respectably, though perhaps thoughtlessly signed
petition was on Thursday presented to President McKinley, urging him to
offer his good offices to bring to an end the war now being waged in
South Africa. From the _New York World_ cablegram, it would appear that
the President was requested to take this step "in accordance with Art. 3
of the protocol of the Peace Conference at The Hague." The reference
intended is doubtless to the _Convention pour le règlement pacifique des
conflits internationaux_, prepared at the Conference [of 1899], Art. 3
of which is to the following effect:--
"Les Puissances signataires jugent utile qu'une ou plusieurs
Puissances étrangères au conflit offrent de leur propre
initiative, en tant que les circonstances s'y prêtent, leurs
bons offices ou leur médiation aux États en conflit.
"Le droit d'offrir les bons offices ou la médiation appartient
aux Puissances étrangères au conflit, même pendant le cours
des hostilités.
"L'exercice de ce droit ne peut jamais être considéré par
l'une ou l'autre des parties en litige comme un acte peu
amical."
Several remarks are suggested by the presentation of this petition:--
(1) One might suppose from the glib reference here and elsewhere made to
The Hague Convention, that this convention is already in force, whereas
it is [1899], in the case of most, if not all, of the Powers represented
at the conference, a mere unratified draft, under the consideration of
the respective Governments.
(2) The article, if it were in force, would impose no duty of offering
good offices, but amounts merely to the expression of opinion that an
offer of good offices is a useful and unobjectionable proceeding, in
suitable cases (_en tant que les circonstances s'y prêtent_). It cannot
for a moment be supposed that the President would consider that an
opportunity of the kind contemplated was offered by the war in South
Africa.
(3) One would like to know at what date, if at all, the Prime Minister
of the British colony of the Cape was pleased, as is alleged, to follow
the lead of the Presidents of the two Boer Republics in bestowing his
grateful approval upon the petition in question.
Your obedient servant,
T. E. HOLLAND.
Oxford, October 28 (1899).
_Par._ 2 (1).--The Convention of 1899 was ratified by Great
Britain, on September 4, 1900; and between that year and 1907
practically all civilised Powers ratified or acceded to it. It
is now, for almost all Powers, superseded by The Hague
Convention, No. i. of 1907, which, reproduces Art. 3 of the
older Convention, inserting, however, after the word "utile,"
the words "et désirable."
_Ib._ (2).--On March 6, 1900, the two Boer Republics proposed
that peace should be made on terms which included the
recognition of their independence. Great Britain having, on
March 11, declared such recognition to be inadmissible, the
European Powers which were requested to use their good offices
to bring this about declined so to intervene. The President of
the United States, however, in a note delivered in London on
March 13, went so far as to "express an earnest hope that a way
to bring about peace might be found," and to say that he would
aid "in any friendly manner to bring about so happy a result."
Lord Salisbury, on the following day, while thanking the United
States Government, replied that "H.M. Government does not
propose to accept the intervention of any Power in the South
African War." Similar replies to similar offers had been made
both by France and Prussia in 1870, and by the United States in
1898.
COMMISSIONS OF ENQUIRY AND THE HAGUE CONVENTION
Sir,--It is just now [1904] especially desirable that the purport of
those provisions of The Hague Convention "for the peaceful settlement of
international controversies" which deal with "international commissions
of enquiry" should be clearly understood. It is probably also desirable
that a more correct idea should be formed of the effect of that
convention, as a whole, than seems to be generally prevalent. You may,
therefore, perhaps, allow me to say a few words upon each of these
topics.
Art. 9 of the convention contains an expression of opinion to the effect
that recourse to an international commission of enquiry into disputed
questions of fact would be useful. This recommendation is, however,
restricted to "controversies in which neither honour nor essential
interests are involved," and is further limited by the phrase "so far as
circumstances permit." Two points are here deserving of notice.
In the first place, neither "the honour and vital interests clause," as
seems to be supposed by your correspondent Mr. Schidrowitz, nor the
clause as to circumstances permitting, is in any way modified by the
article which follows. Art. 10 does not enlarge the scope of Art. 9, but
merely indicates the procedure to be followed by Powers desirous of
acting under it. In the second place, it is wholly unimportant whether
or no the scope of Art. 9 is enlarged by Art. 10. The entire liberty of
the Powers to make any arrangement which may seem good to them for
clearing up their differences is neither given, nor impaired, by the
articles in question, to which the good sense of the Conference declined
to attach any such obligatory force as had been proposed by Russia. It
may well be that disputant Powers may at any time choose to agree to
employ the machinery suggested by those articles, or something
resembling it, in cases of a far more serious kind than those to which
alone the convention ventured to make its recommendation applicable; and
this is the course which seems to have been followed by the Powers
interested with reference to the recent lamentable occurrence in the
North Sea.
As to the convention as a whole, it is important to bear in mind that,
differing in this respect from the two other conventions concluded at
The Hague, it is of a non-obligatory character, except in so far as it
provides for the establishment of a permanent tribunal at The Hague, to
which, however, no Power is bound to resort. It resembles not so much a
treaty as a collection of "pious wishes" (_voeux_), such as those which
were also adopted at The Hague. The operative phrases of most usual
occurrence in the convention are, accordingly, such as "jugent utile";
"sont d'accord pour recommander"; "est reconnu comme le moyen le plus
efficace"; "se réservent de conclure des accords nouveaux, en vue
d'étendre l'arbitrage obligatoire à tous les cas qu'elles jugeront
possible de lui soumettre."
It is a matter for rejoicing that, in accordance with the suggestion
contained in the phrase last quoted, so many treaties, of which that
between Great Britain and Portugal is the most recent, have been entered
into for referring to The Hague tribunal "differences of a juridical
nature, or such as relate to the interpretation of treaties; on
condition that they do not involve either the vital interests or the
independence or honour of the two contracting States." Such treaties,
conforming as they all do to one carefully defined type, may be
productive of much good. They testify to, and may promote, a very widely
spread _entente cordiale_, they enhance the prestige of the tribunal of
The Hague, and they assure the reference to that tribunal of certain
classes of questions which might otherwise give rise to international
complications. Beyond this it would surely be unwise to proceed. It is
beginning to be realised that what are called "general" treaties of
arbitration, by which States would bind themselves beforehand to submit
to external decision questions which might involve high political
issues, will not be made between Powers of the first importance; also,
that such treaties, if made, would be more likely to lead to fresh
misunderstandings than to secure the peaceful settlement of disputed
questions.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 21 (1904).
_Pars._ 1-3.--The topic of "Commissions of Enquiry," which
occupied Arts. 9-13 of the Convention of 1899 "For the Peaceful
Settlement of International Disputes," is more fully dealt with
in Arts. 9-36 of the Convention as amended in 1907.
_Par._ 4.--The amended Convention, as a whole, is still, like
its predecessor, purely facultative. The Russian proposal to
make resort to arbitration universally obligatory in a list of
specified cases, unless when the "vital interests or national
honour" of States might be involved, though negatived in 1899,
was renewed in 1907, in different forms, by several Powers,
which eventually concurred in supporting the
Anglo-Portuguese-American proposal, according to which,
differences of a juridical character, and especially those
relating to the interpretation of treaties, are to be submitted
to arbitration, unless they affect the vital interests,
independence, or honour, of the States concerned, or the
interests of third States; while all differences as to the
interpretation of treaties relating to a scheduled list of
topics, or as to the amount of damages payable, where liability
to some extent is undisputed, are to be so submitted without
any such reservation. This proposal was accepted by thirty-two
Powers, but as nine Powers opposed it, and three abstained from
voting, it failed to become a convention. The delegates to the
Conference of 1907 went, however, so far as to include in their
"Final Act" a statement to the effect that they were unanimous:
(1) "in recognising the principle of obligatory arbitration";
(2) "in declaring that certain differences, and, in particular,
such as relate to the interpretation and application of the
provisions of International Conventions, are suitable for being
submitted to obligatory arbitration, without any reservations."
_Par._ 5.--The Convention between France and Great Britain,
concluded on October 14, 1903, for five years, and renewed in
1908, and again in 1913, for a like period, by which the
parties agree to submit to The Hague tribunal any differences
which may arise between them, on condition "that they do not
involve either the vital interests, or the independence, or
honour of the two contracting States, and that they do not
affect the interests of a third Power," has served as a model
or "common form," for a very large number of conventions to the
same effect, entered into between one State and another. The
Convention of April 11, 1908, between Great Britain and the
United States is substantially of this type.
But see now the three letters which follow.
THE LEAGUE OF NATIONS
Sir,--The League is unquestionably "a brave design." Sympathy with its
objects and some hope that they may be realised have induced myself, as,
doubtless many others, to abstain from criticising the way in which the
topic has been handled by the representatives of the victorious Powers.
Recent discussions seem, however, to render such reticence no longer
desirable.
It begins to be recognised that, as some of us have all along held to be
the case, a serious mistake was made by the Paris delegates when they
combined in one and the same document provisions needed for putting an
end to an existing state of war with other provisions aiming at the
creation in the future of a new supernational society. Two matters so
wholly incongruous in character should surely have been dealt with
separately. Whether it is now too late to attempt a remedy for the
consequences of this unfortunate combination is a question which can be
answered only by the diplomatists whose business it is to be intimately
in touch with the susceptibilities of the various nations concerned. In
the meantime, however, on the assumption that this state of things is
productive of regrettable results, I may perhaps venture to indicate,
recommending their adoption, the steps which appear to be required for
the reformation of the Treaty as drafted. My suggestions would run as
follows:--
(1) Subtract from the Treaty of Versailles, Parts I. and XIII., the
former constituting a League of Nations, the latter, in pursuance of a
recital that universal peace "can be established only if it is based
upon social justice," wholly occupied with a sufficiently ambitious
scheme for the regulation by the League of all questions relating to
"Labour" which may arise within its jurisdiction.
(2) Let Part I., with Part XIII. annexed, constitute a new and
independent Treaty; to be, as such, submitted to the Powers for further
consideration. (The opportunity might be taken of ridding it of all
references to a system of "mandates," which might very probably lead to
jealousies and misunderstandings.)
(3) Parts II. to XII., XIV., and XV. would then constitute the real
Treaty of Peace, in which it would, however, be necessary in the
numerous articles attributing functions, for the most part of a
temporary character, the "League of Nations," to substitute for any
mention of the League words descriptive of some other authority, yet to
be created, such as, for instance, "a Commission to be constituted by
the principal Allied and Associated Powers."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 16 (1919).
Sir,--Let me assure Lord Robert Cecil that I am perfectly serious in
giving expression to a long-felt wish that the Treaty of Peace could be
relieved of articles relating exclusively to an as yet to be created
League of Nations, and in proceeding to indicate the steps that must be
taken if this reform is to be effected.
It can hardly be necessary also to assure Lord Robert that I am fully
aware of the formidable, though perhaps not insuperable, difficulties
which would beset any efforts to carry out my suggestions. He may have
inferred so much from my letter of the 16th, in which, treating the
question whether it is now too late to attempt a remedy for the existing
state of things as beyond the competence of an outsider, I describe it
as one which can be answered "only by the diplomatists whose business it
is to be intimately in touch with the susceptibilities of the various
nations concerned."
On a point of detail, I am surprised that Lord Robert is unwilling that
the contents of Part XIII. should be removed to their natural context,
on the ground that the Labour organisation might be annoyed if this were
done. I am, however, confident that the organisation is too intelligent
not to see that it would lose nothing if the articles in which it is
interested were made an integral part of a Convention constituting a
League of Nations; the League being already solely charged with giving
effect to the articles in question.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 20 (1919).
Sir,--Professor Alison Phillips is not quite accurate in attributing to
me a belief that the task of amending the Treaty of Versailles is "not
beyond the powers of competent diplomatists." No such belief is
expressed in my letter of December 16, in which I was careful to admit
that the question, "whether it is now too late to attempt" the reform
which appears to me to be desirable is one "which can be answered only
by the diplomatists."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, January 5 (1920).
* * * * *
SECTION 2
_Pacific Reprisals_
The four letters next following were suggested by the ambiguous
character of the blockades instituted by France against Siam in
1893, by the Great Powers against Crete in 1897, and by Great
Britain, Germany, and Italy, against Venezuela in 1902. The
object, in each case, was to explain the true nature of the
species of reprisals known as "Pacific Blockade," and to point
out the difference between the consequences of such a measure
and those which result from a "Belligerent Blockade." A fifth
letter, written with reference to the action of the Netherlands
against Venezuela in 1908, emphasises the desirability of more
clearly distinguishing between war and reprisals. On the
various applications of a blockade in time of peace, see the
author's _Studies in International Law_, pp. 130-150.
THE BLOCKADE OF THE MENAM
Sir,--Upon many questions of fact and of policy involved in the quarrel
between France and Siam it may be premature as yet to expect explicit
information from the French Government; but there should not be a
moment's doubt as to the meaning of the blockade which has probably by
this time been established.
Is France at war with Siam? This may well be the case, according to
modern practice, without any formal declaration of war; and it is, for
international purposes, immaterial whether the French Cabinet, if it has
commenced a war without the sanction of the Chambers, has or has not
thereby violated the French Constitution. If there is a war, and if the
blockade, being effective, has been duly notified to the neutral Powers,
the vessels of those Powers are, of course, liable to be visited, and,
if found to be engaged in breach of the blockade, to be dealt with by
the French Prize Courts.
Or is France still at peace with Siam, and merely putting upon her that
form of pressure which is known as "pacific blockade"?
In this case, since there is no belligerency there is no neutrality, and
the ships of States other than that to which the pressure is being
applied are not liable to be interfered with. The particular mode of
applying pressure without going to war known as "pacific blockade"
dates, as is well known, only from 1827. It has indeed been enforced, by
England as well as by France, upon several occasions, against the
vessels of third Powers; but this practice has always been protested
against, especially by French jurists, as an unwarrantable interference
with the rights of such Powers, and was acknowledged by Lord Palmerston
to be illegal. The British Government distinctly warned the French in
1884 that their blockade of Formosa could be recognised as affecting
British vessels only if it constituted an act of war against China; and
when the Great Powers in 1886 proclaimed a pacific blockade of the
coasts of Greece they carefully limited its operation to ships under the
Greek flag.
The Subject has been exhaustively considered by the Institut de Droit
International, which, at its meeting at Heidelberg in 1887, arrived at
certain conclusions which may be taken to express the view of learned
Europe. They are as follows:--
"L'établissement d'un blocus en dehors de l'état de guerre ne
doit être considere comme permis par le droit des gens que
sous les conditions suivantes:--
"1. Les navires de pavillon étranger peuvent entrer librement
malgré le blocus.
"2. Le blocus pacifique doit être déclaré et notifié
officiellement, et maintenu par une force suffisante.
"Les navires de la puissance bloquée qui ne respectent pas un
pareil blocus peuvent être séquestrés. Le blocus ayant cessé,
ils doivent être restitués avec leur cargaisons à leurs
propriétaires, mais sans dédommagement à aucun titre."
If the French wish to reap the full advantages of a blockade of the
Siamese coast they must be prepared, by becoming belligerent, to face
the disadvantages which may result from the performance by this country
of her duties as a neutral.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Athenæum Club, July 26 (1893).
PACIFIC BLOCKADE
Sir,--The letter signed "M." in your issue of this morning contains, I
think, some statements which ought not to pass uncorrected. A "blockade"
is, of course, the denial by a naval squadron of access for vessels to a
defined portion of the coasts of a given nation. A "pacific blockade" is
one of the various methods--generically described as "reprisals," such
as "embargo," or seizure of ships on the high seas--by which, without
resort to war, pressure, topographically or otherwise limited in extent,
may be put upon an offending State. The need for pressure of any kind
is, of course, regrettable, the only question being whether such limited
pressure be not more humane to the nation which experiences it, and less
distasteful to the nation which exercises it, than is the letting loose
of the limitless calamities of war.
The opinion of statesmen and jurists upon this point has undergone a
change, and this because the practice known as "pacific blockade" has
itself changed. The practice, which is comparatively modern, dating only
from 1827, was at first directed against ships under all flags, and
ships arrested for breach of a pacific blockade were at one time
confiscated, as they would have been in time of war. It has been purged
of these defects as the result of discussions, diplomatic and
scientific. As now understood, the blockade is enforced only against
vessels belonging to the "quasi-enemy," and even such vessels, when
arrested, are not confiscated, but merely detained till the blockade is
raised. International law does not stand still; and having some
acquaintance with Continental opinion on the topic under consideration,
I read with amazement "M.'s" assertion that "the majority in number,"
"the most weighty in authority" of the writers on international law
"have never failed to protest against such practices as indefensible in
principle." The fact is that the objections made by, e.g. Lord
Palmerston in 1846, and by several writers of textbooks, to pacific
blockade, had reference to the abuses connected with the earlier stages
of its development. As directed only against the ships of the
"quasi-enemy," it has received the substantially unanimous approbation
of the Institut de Droit International at Heidelberg in 1887, after a
very interesting debate, in which the advocates of the practice were led
by M. Perels, of the Prussian Admiralty, and its detractors by Professor
Geffken. It is true that in an early edition of his work upon
international law my lamented friend, Mr. Hall, did use the words
attributed to him by "M.": "It is difficult to see how a pacific
blockade is justifiable." But many things, notably Lord Granville's
correspondence with France in 1884 and the blockade of the Greek coast
in 1886, have occurred since those words were written. If "M." will turn
to a later edition of the work in question he will see that Mr. Hall had
completely altered his opinion on the subject, or rather that, having
disapproved of the practice as unreformed, he blesses it altogether in
its later development. With reference to the utility of the practice, I
should like to call the attention of "M." to a passage in the latest
edition of Hall's book which is perhaps not irrelevant to current
politics:--
"The circumstances of the Greek blockade of 1886 show that
occasions may occur in which pacific blockade has an efficacy
which no other measure would possess. The irresponsible
recklessness of Greece was endangering the peace of the
world; advice and threats had been proved to be useless; it
was not till the material evidence of the blockade was
afforded that the Greek imagination could be impressed with
the belief that the majority of the Great Powers of Europe
were in earnest in their determination that war should be
avoided."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 5 (1897).
THE VENEZUELAN CONTROVERSY
Sir,--Apart from the practical difficulty, so ably described by Sir
Robert Giffen in your issue of this morning, of obtaining compensation
in money from a State which seems to be at once bankrupt and in the
throes of revolution, not a few questions of law and policy, as to which
misunderstanding is more than probable, are raised from day to day by
the action of the joint squadrons in Venezuelan waters. It may therefore
be worth while to attempt to disentangle the more important of these
questions from the rest, and to indicate in each case the principles
involved.
1. Are we at war with Venezuela? Till reading the reports of what passed
last night in the House of Commons, I should have replied to this
question unhesitatingly in the negative. Most people whose attention has
been directed to such matters must have supposed that we were engaged in
the execution of "reprisals," the nature and legitimacy of which have
long been recognised by international law. They consist, of course, in
the exertion of pressure, short of war; over which they possess the
following advantages: They are strictly limited in scope; they cease,
when their object has been attained, without the formalities of a treaty
of peace; and, no condition of "belligerency" existing between the
Powers immediately concerned, third Powers are not called upon to
undertake the onerous obligations of "neutrality." The objection
sometimes made to reprisals, that they are applicable only to the weaker
Powers, since a strong Power would at once treat them as acts of war, is
indeed the strongest recommendation of this mode of obtaining redress.
To localise hostile pressure as far as possible, and to give to it such
a character as shall restrict its incidence to the peccant State, is
surely in the interest of the general good. That the steps taken are
such as would probably, between States not unequally matched, cause an
outbreak of war cannot render them inequitable in cases where so
incalculable an evil is unlikely to follow upon their employment.
2. The justification of a resort either to reprisals or to war, in any
given case, depends, of course, upon the nature of the acts complained
of, and upon the validity of the excuses put forward either for the acts
themselves, or for failure to give satisfaction for them. The British
claims against Venezuela seem to fall into three classes. It will hardly
be disputed that acts of violence towards British subjects or vessels,
committed under State authority, call for redress. Losses by British
subjects in the course of civil wars would come next, and would need
more careful scrutiny (on this point the debates and votes of the
Institut de Droit International, at its meeting at Neuchâtel in 1900,
may be consulted with advantage). Last of all would come the claims of
unpaid bondholders, as to which Mr. Balfour would seem to endorse, in
principle, the statement made in 1880 by Lord Salisbury who, while
observing that "it would be an extreme assertion to say that this
country ought never to interfere on the part of bondholders who have
been wronged," went on to say that "it would be hardly fair if any body
of capitalists should have it in their power to pledge the people of
this country to exertions of such an extensive character.... They would
be getting the benefit of an English guarantee without paying the price
of it."
3. Reprisals may be exercised in many ways; from such a high-handed act
as the occupation of the Principalities by Russia in 1853, to such a
mere seizure of two or three merchant vessels as occurred in the course
of our controversy with Brazil in 1861. In modern practice, these
measures imply a temporary sequestration, as opposed to confiscation or
destruction, of the property taken. In the belief that reprisals only
were being resorted to against Venezuela one was therefore glad to hear
that the sinking of gunboats by the Germans had been explained as
rendered necessary by their unseaworthiness.
4. Pacific reprisals should also, according to the tendency of modern
opinion and practice, be so applied as not to interfere with the
interests of third Powers and their subjects. This point has been
especially discussed with reference to that species of reprisal known as
a "pacific blockade," of which some mention has been made in the present
controversy. The legitimacy of this operation, though dating only from
1827, if properly applied, is open to no question. Its earlier
applications were, no doubt, unduly harsh, not only towards the peccant
State, but also towards third States, the ships of which were even
confiscated for attempting to break a blockade of this nature. Two views
on this subject are now entertained--viz. (1) that the ships of third
Powers breaking a pacific blockade may be turned back with any needful
exertion of force, and, if need be, temporarily detained; (2) that they
may not be interfered with. The former view is apparently that of the
German Government. It was certainly maintained by M. Perels, then as now
the adviser to the German Admiralty, during the discussion of the
subject by the Institut de Droit International at Heidelberg in 1887.
The latter view is that which was adopted by the Institut on that
occasion. It was maintained by Great Britain, with reference to the
French blockade of Formosa in 1884; was acted on by the allied Powers in
the blockade of the coast of Greece, instituted in 1886; and is
apparently put forward by the United States at the present moment.
5. If, however, we are at war with Venezuela (as will, no doubt, be the
case if we proclaim a belligerent blockade of the coast, and may at any
moment occur, should Venezuela choose to treat our acts, even if
intended only by way of reprisals, as acts of war), the situation is
changed in two respects: (1) the hostilities which may be carried on by
the allies are no longer localised, or otherwise limited, except by the
dictates of humanity; (2) third States become _ipso facto_ "neutrals,"
and, as such, subject to obligations to which up to that moment they had
not been liable. Whatever may have previously been the case, it is
thenceforth certain that their merchant vessels must respect the (now
belligerent) blockade, and are liable to visit, search, seizure, and
confiscation if they attempt to break it.
6. If hostile pressure, whether by way of reprisals or of war, is
exercised by the combined forces of allies, the terms on which this is
to be done must obviously be arranged by previous agreement. More
especially would this be requisite where, as in the case of Great
Britain and Germany, different views are entertained with reference to
the acts which are permissible under a "pacific blockade."
7. When, besides the Power, or Powers, putting pressure upon a given
State, with a view to obtaining compensation for injuries received from
it, other Powers, though taking no part in what is going on, give notice
that they also have claims against the same offender; delicate questions
may obviously arise between the creditors who have and those who have
not taken active steps to make their claims effective. In the present
instance, France is said to assert that she has acquired a sort of prior
mortgage on the assets of Venezuela; and the United States, Spain, and
Belgium declare themselves entitled to the benefit of the
"most-favoured-nation clause" when those assets are made available for
creditors. What principles are applicable to the solution of the novel
questions suggested by these competing claims?
8. It is satisfactory to know, on the highest authority, that the
"Monroe doctrine" is not intended to shield American States against the
consequences of their wrongdoing; since the cordial approval of the
doctrine which has just been expressed by our own Government can only be
supposed to extend to it so far as it is reasonably defined and applied.
Great Britain, for one, has no desire for an acre of new territory on
the American continent. The United States, on the other hand, will
doubtless readily recognise that, if international wrongs are to be
redressed upon that continent, aggrieved European Powers may
occasionally be obliged to resort to stronger measures than a mere
embargo on shipping, or the blockade (whether "pacific" or
"belligerent") of a line of coast.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 18 (1902).
THE VENEZUELA PROTOCOL
Sir,--The close (for the present, at any rate) of the Venezuelan
incident will be received with general satisfaction. One of the articles
of the so-called "protocol" of February 18 seems, however, to point a
moral which one may hope will not be lost sight of in the future--viz.
the desirability of keeping unblurred the line of demarcation between
such unfriendly pressure as constitutes "reprisals" and actual war.
After all that has occurred--statements in Parliament, action of the
Governor of Trinidad in bringing into operation the dormant powers of
the Supreme Court of the island as a prize Court, &c.--one would have
supposed that there could be no doubt, though no declaration had been
issued, that we were at war with Venezuela.
Our Government has, therefore, been well advised in providing for the
renewal of any treaty with that Power which may have been abrogated by
the war; but it is curious to find that the article (7) of the protocol
which effects this desirable result begins by a recital to the effect
that "it may be contended that the establishment of a blockade of the
Venezuelan ports by the British naval forces has _ipso facto_ created a
state of war between Great Britain and Venezuela."
It is surely desirable that henceforth Great Britain should know, and
that other nations should at least have the means of knowing, for
certain, whether she is at war or at peace.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, February 17 (1903).
WAR AND REPRISALS
Sir,--Professor Westlake's interesting letter as to the measures
recently taken by the Netherlands Government in Venezuelan waters
opportunely recalls attention to a topic upon which I addressed you
when, six years ago, our own Government was similarly engaged in putting
pressure upon Venezuela--viz. the desirability of drawing a clear line
between war and reprisals. Perhaps I may now be allowed to return, very
briefly, to this topic, with special reference to Professor Westlake's
remarks.
In any discussion of the questions involved, we ought, I think, clearly
to realise that The Hague Convention, No. iii. of 1907, has no
application to any measures not amounting to war. The "hostilities"
mentioned in Art. 1 of the Convention are, it will be observed,
exclusively such as must not commence without either a "declaration of
war," or "an ultimatum with a conditional declaration of war"; and Art.
2 requires that the "state of war" thus created shall be notified to
"neutral Powers." There are, of course, no Powers answering to this
description till war has actually broken out. Neutrality presupposes
belligerency. Any other interpretation of the Convention would, indeed,
render "pacific blockades" henceforth impossible.
In the next place, we must at once recognise that the application of the
term "reprisals," whatever may have been its etymological history, must
no longer be restricted to seizure of property. It has now come to
cover, and it is the only term which does cover generically, an
indeterminate list of unfriendly acts, such as embargo, pacific
blockade, seizure of custom-houses, and even occupation of territory, to
which resort is had in order to obtain redress from an offending State
without going to war with it. The pressure thus exercised, unlike the
unlimited _licentia laedendi_ resulting from a state of war, is
localised and graduated. It abrogates no treaties, and terminates
without a treaty of peace. It affects only indirectly, if at all, the
rights of States which take no part in the quarrel.
The questions which remain for consideration would seem to be the
following:--
1. Would it be feasible to draw up a definite list of the measures which
may legitimately be taken with a view to exercising pressure short of
war?--I think not. States differ so widely in offensive power and
vulnerability that it would be hardly advisable thus to fetter the
liberty of action of a State which considers itself to have been
injured.
2. Ought it to be made obligatory that acts of reprisal should be
preceded, or accompanied, by a notification to the State against which
they are exercised that they are reprisals and not operations of
war?--This would seem to be highly desirable; unless indeed it can be
assumed that, in pursuance of The Hague Convention of 1907, no war will
henceforth be commenced without declaration.
8. Ought a statement to the like effect to be made to nations not
concerned in the quarrel?--This would, doubtless, be convenient, unless
the non-receipt by them of any notification of a "state of war," in
pursuance of the Convention, could be supposed to render such a
statement superfluous.
On the ambiguous character sometimes attaching to reprisals as now
practised, I may perhaps refer to an article in the _Law Quarterly
Review_ for 1903, entitled "War Sub Modo."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 26 (1908).
The operations against Venezuela which were closed by the
protocol of February 13, 1903, had given rise to the
enunciation of the so-called "Drago doctrine," in a despatch,
addressed on December 29 of the preceding year, by the
Argentine Minister for Foreign Affairs to the Government of the
United States, which asserts that "public indebtedness cannot
justify armed intervention by a European Power, much less
material occupation by it of territory belonging to any
American nation." The reply of the United States declined to
carry the "Monroe doctrine" to this length, citing the passage
in President Roosevelt's message in which he says: "We do not
guarantee any State against punishment, if it misconducts
itself, provided such punishment does not take the form of the
acquisition of territory by any non-American Power."
It is, however, now provided by The Hague Convention, No. ii.
of 1907, ratified by Great Britain on November 27, 1909, that
"the contracting Powers have agreed not to have recourse to
armed force for the recovery of contractual debts, claimed from
the Government of a country by the Government of another
country, as being due to its subjects. This stipulation shall
have no application when the debtor State declines, or leaves
unanswered, an offer of arbitration, or, having accepted it,
renders impossible the conclusion of the terms of reference
(_compromis_), or, after the arbitration, fails to comply with
the arbitral decision."
CHAPTER II
STEPS TOWARDS A WRITTEN LAW OF WAR
A large body of written International Law, with reference to
the conduct of warfare, has been, in the course of the last
half-century, and, more especially, in quite recent years,
called into existence by means of General Conventions, or
Declarations, of which mention must frequently be made in the
following pages. Such are:--
(i.) With reference to war, whether on land or at sea: the
Declaration of St. Petersburg, of 1868, as to explosive
bullets; the three Hague Declarations of 1899 (of which the
first was repeated in 1907), as to projectiles from balloons,
projectiles spreading dangerous gases, and expanding bullets;
The Hague Convention, No. iii. of 1907 as to Declaration of
War; all ratified by Great Britain, except the Declaration of
St. Petersburg, which was thought to need no ratification.
(ii.) With reference only to war on land: the Geneva Convention
of 1906 (superseding that of 1864) as to the sick and wounded,
which was generally ratified, though by Great Britain only in
1911 (it was extended to maritime warfare by Conventions iii.
of 1899 and x. of 1907, both ratified by Great Britain, _cf.
infra_, Ch. VI. Section 10); the Hague Conventions of 1907, No.
iv. (superseding the Convention of 1899) as to the conduct of
warfare, and No. v. as to neutrals, of which only the former
has as yet been ratified by Great Britain.
(iii.) With reference only to war at sea: the Declaration of
Paris, of 1856, supposed apparently to need no ratification (to
which the United States is now the only important Power which
has not become a party), as to privateering, combination of
enemy and neutral property and blockades; The Hague Conventions
of 1907, No. vi. as to enemy merchant vessels at outbreak, No.
vii. as to conversion of merchantmen into warships, No. viii.
as to mines, No. ix. as to naval bombardments, No. x. as to the
sick and wounded, No. xi. as to captures, No. xii. as to an
International Prize Court, supplemented by the Convention of
1910, No. xiii. as to neutrals. It must be observed that, of
these Conventions, Great Britain has ratified only vi., vii.,
viii., ix., and x., the three last subject to reservations. The
Declaration of London of 1909, purporting to codify the laws of
naval warfare as to blockade, contraband, hostile assistance,
destruction of prizes, change of flag, enemy character, convoy,
resistance and compensation, and so to facilitate the working
of the proposed International Prize Court, if, and when, this
Court should come into existence, has failed to obtain
ratification, as will be hereafter explained.
Concurrently with the efforts which have thus been made to
ascertain the laws of war by general diplomatic agreement, the
way for such agreement has been prepared by the labours of the
Institut de Droit International, and by the issue by several
governments of instructions addressed to their respective
armies and navies.
The _Manuel des Lois de la Guerre sur Terre_, published by the
Institut in 1880, is the subject of the two letters which
immediately follow. Their insertion here, although the part in
them of the present writer is but small, may be justified by
the fact that they set out a correspondence which is at once
interesting (especially from its bearing upon the war of 1914)
and not readily elsewhere accessible.
The remaining letters in this chapter relate to the _Naval War
Code_, issued by the Government of the United States in 1900,
but withdrawn in 1904, though still expressing the views of
that Government, for reasons specified in a note to the British
_chargé d'affaires_ at Washington and printed in _Parl. Papers,
Miscell._ No. 5 (1909), p. 8. The United States, it will be
remembered, were also the first Power to attempt a codification
of the laws of war on land, in their _Instructions for the
Government of Armies of the United States_, issued in 1863, and
reissued in 1898. Some information as to this and similar
bodies of national instructions may be found in the present
writer's _Studies in International Law_, 1898, p. 85. _Cf._ his
_Manual of Naval Prize Law_, issued by authority of the
Admiralty in 1888, his _Handbook of the Laws and Customs of War
on Land_, issued by authority to the British Army in 1904, and
his _The Laws of War on Land (written and unwritten)_, 1908.
The Institut de Droit International, which has been engaged for
some years upon the Law of War at Sea, by devoting the whole of
its session at Oxford, in 1913, to the discussion of the
subject, produced a _Manuel des Lois de la Guerre sur Mer_,
framed in accordance with the now-accepted view which sanctions
the capture of enemy private property at sea. It is to be
followed by a manual framed in accordance with the contrary
view. _Cf._ the letters upon the _Declaration of London_, in
Ch. VII. Section 10, _infra_.
COUNT VON MOLTKE ON THE LAWS OF WARFARE
Sir,--You may perhaps think that the accompanying letter, recently
addressed by Count von Moltke to Professor Bluntschli, is of sufficient
general interest to be inserted in _The Times_. It was written with
reference to the Manual of the Laws of War which was adopted by the
Institut de Droit International at its recent session at Oxford. The
German text of the letter will appear in a few days at Berlin. My
translation is made from the proof-sheets of the February number of the
_Revue de Droit International_, which will contain also Professor
Bluntschli's reply.
Your obedient servant,
T. E. HOLLAND.
Oxford, January 29 (1881).
"Berlin, Dec. 11, 1880.
"You have been so good as to forward to me the manual
published by the Institut de Droit International, and you hope
for my approval of it. In the first place I fully appreciate
the philanthropic effort to soften the evils which result from
war. Perpetual peace is a dream, and it is not even a
beautiful dream. War is an element in the order of the world
ordained by God. In it the noblest virtues of mankind are
developed; courage and the abnegation of self, faithfulness to
duty, and the spirit of sacrifice: the soldier gives his life.
Without war the world would stagnate, and lose itself in
materialism.
"I agree entirely with the proposition contained in the
introduction that a gradual softening of manners ought to be
reflected also in the mode of making war. But I go further,
and think the softening of manners can alone bring about this
result, which cannot be attained by a codification of the law
of war. Every law presupposes an authority to superintend and
direct its execution, and international conventions are
supported by no such authority. What neutral States would ever
take up arms for the sole reason that, two Powers being at
war, the 'laws of war' had been violated by one or both of the
belligerents? For offences of that sort there is no earthly
judge. Success can come only from the religious moral
education of individuals and from the feeling of honour and
sense of justice of commanders who enforce the law and conform
to it so far as the exceptional circumstances of war permit.
"This being so, it is necessary to recognise also that
increased humanity in the mode of making war has in reality
followed upon the gradual softening of manners. Only compare
the horrors of the Thirty Years' War with the struggles of
modern times.
"A great step has been made in our own day by the
establishment of compulsory military service, which introduces
the educated classes into armies. The brutal and violent
element is, of course, still there, but it is no longer alone,
as once it was. Again, Governments have two powerful means of
preventing the worst kind of excesses--strict discipline
maintained in time of peace, so that the soldier has become
habituated to it, and care on the part of the department which
provides for the subsistence of troops in the field. If that
care fails, discipline can only be imperfectly maintained. It
is impossible for the soldier who endures sufferings,
hardships, fatigues, who meets danger, to take only 'in
proportion to the resources of the country.' He must take
whatever is needful for his existence. We cannot ask him for
what is superhuman.
"The greatest kindness in war is to bring it to a speedy
conclusion. It should be allowable with that view to employ
all methods save those which are absolutely objectionable
('dazu müssen alle nicht geradezu verwerfliche Mittel
freistehen'). I can by no means profess agreement with the
Declaration of St. Petersburg when it asserts that 'the
weakening of the military forces of the enemy' is the only
lawful procedure in war. No, you must attack all the resources
of the enemy's Government: its finances, its railways, its
stores, and even its prestige. Thus energetically, and yet
with a moderation previously unknown, was the late war against
France conducted. The issue of the campaign was decided in two
months, and the fighting did not become embittered till a
revolutionary Government, unfortunately for the country,
prolonged the war for four more months.
"I am glad to see that the manual, in clear and precise
articles, pays more attention to the necessities of war than
has been paid by previous attempts. But for Governments to
recognise these rules will not be enough to insure that they
shall be observed. It has long been a universally recognised
custom of warfare that a flag of truce must not be fired on,
and yet we have seen that rule violated on several occasions
during the late war.
"Never will an article learnt by rote persuade soldiers to see
a regular enemy (sections 2-4) in the unorganised population
which takes up arms 'spontaneously' (so of its own motion) and
puts them in danger of their life at every moment of day and
night. Certain requirements of the manual might be impossible
of realisation; for instance, the identification of the slain
after a great battle. Other requirements would be open to
criticism did not the intercalation of such words as 'if
circumstances permit,' 'if possible,' 'if it can be done,' 'if
necessary,' give them an elasticity but for which the bonds
they impose must be broken by inexorable reality.
"I am of opinion that in war, where everything must be
individual, the only articles which will prove efficacious are
those which are addressed specifically to commanders. Such are
the rules of the manual relating to the wounded, the sick, the
surgeons, and medical appliances. The general recognition of
these principles, and of those also which relate to prisoners,
would mark a distinct step of progress towards the goal
pursued with so honourable a persistency by the Institut de
Droit International.
"COUNT VON MOLTKE, Field-Marshal-General."
PROFESSOR BLUNTSCHLI'S REPLY TO COUNT VON MOLTKE
Sir,--In accordance with a wish expressed in several quarters, I send
you, on the chance of your being able to make room for it, a translation
of Professor Bluntschli's reply to the letter from Count von Moltke
which appeared in _The Times_ of the 1st inst.
Your obedient servant,
T. E. HOLLAND.
Oxford, February (1881).
"Christmas, 1880.
"I am very grateful for your Excellency's detailed and kind
statement of opinion as to the manual of the laws of war. This
statement invites serious reflections. I see in it a testimony
of the highest value, of historical importance; and I shall
communicate it forthwith to the members of the Institut de
Droit International.
"For the present I do not think I can better prove my
gratitude to your Excellency than by sketching the reasons
which have guided our members, and so indicating the nature of
the different views which prevail upon the subject.
"It is needless to say that the same facts present themselves
in a different light and give a different impression as they
are looked at from the military or the legal point of view.
The difference is diminished, but not removed, when an
illustrious general from his elevated position takes also into
consideration the great moral and political duties of States,
and when, on the other hand, the representatives of science of
international law set themselves to bring legal principles
into relation with military necessities.
"For the man of arms the interest of the safety and success of
the army will always take precedence of that of the
inoffensive population, while the jurist, convinced that law
is the safeguard of all, and especially for the weak against
the strong, will ever feel it a duty to secure for private
individuals in districts occupied by an enemy the
indispensable protection of law. There may be members of the
Institut who do not give up the hope that some day, thanks to
the progress of civilisation, humanity will succeed in
substituting an organised international justice for the wars
which now-a-days take place between sovereign States. But the
body of the Institut, as a whole, well knows that that hope
has no chance of being realised in our time, and limits its
action in this matter to two principal objects, the attainment
of which is possible:--
"1. To open and facilitate the settlement of trifling disputes
between nations by judicial methods, war being unquestionably
a method out of all proportion in such cases.
"2. To aid in elucidating and strengthening legal order even
in time of war.
"I acknowledge unreservedly that the customs of warfare have
improved since the establishment of standing armies, a
circumstance which has rendered possible a stricter
discipline, and has necessitated a greater care for the
provisionment of troops. I also acknowledge unreservedly that
the chief credit for this improvement is due to military
commanders. Brutal and barbarous pillage was prohibited by
generals before jurists were convinced of its illegality. If
in our own day a law recognised by the civilised world
forbids, in a general way, the soldier to make booty in
warfare on land, we have here a great advance in civilisation,
and the jurists have had their share in bringing it about.
Since compulsory service has turned standing armies into
national armies, war has also become national. Laws of war are
consequently more than ever important and necessary, since, in
the differences of culture and opinion which prevail between
individuals and classes, law is almost the only moral power
the force of which is acknowledged by all, and which binds all
together under common rules. This pleasing and cheering
circumstance is one which constantly meets us in the Institut
de Droit International. We see a general legal persuasion ever
in process of more and more distinct formation uniting all
civilised peoples. Men of nations readily disunited and
opposed--Germans and French, English and Russians, Spaniards
and Dutchmen, Italians and Austrians--are, as a rule, all of
one mind as to the principles of international law.
"This is what makes it possible to proclaim an international
law of war, approved by the legal conscience of all civilised
peoples; and when a principle is thus generally accepted, it
exerts an authority over minds and manners which curbs sensual
appetites and triumphs over barbarism. We are well aware of
the imperfect means of causing its decrees to be respected and
carried out which are at the disposal of the law of nations.
We know also that war, which moves nations so deeply, rouses
to exceptional activity the good qualities as well as the evil
instincts of human nature. It is for this very reason that the
jurist is impelled to present the legal principles, of the
need for which he is convinced, in a clear and precise form,
to the feeling of justice of the masses, and to the legal
conscience of those who guide them. He is persuaded that his
declaration will find a hearing in the conscience of those
whom it principally concerns, and a powerful echo in the
public opinion of all countries.
"The duty of seeing that international law is obeyed, and of
punishing violations of it, belongs, in the first instance, to
States, each within the limits of its own supremacy. The
administration of the law of war ought therefore to be
intrusted primarily to the State which wields the public power
in the place where an offence is committed. No State will
lightly, and without unpleasantness and danger, expose itself
to a just charge of having neglected its international duties;
it will not do so even when it knows that it runs no risk of
war on the part Of neutral States. Every State, even the most
powerful, will gain sensibly in honour with God and man if it
is found to be faithful and sincere in respect and obedience
to the law of nations.
"Should we be deceiving ourselves if we admitted that a belief
in the law of nations, as in a sacred and necessary authority,
ought to facilitate the enforcement of discipline in the Army
and help to prevent many faults and many harmful excesses? I,
for my part, am convinced that the error, which has been
handed down to us from antiquity, according to which all law
is suspended during war, and everything is allowable against
the enemy nation--that this abominable error can but increase
the unavoidable sufferings and evils of war without necessity,
and without utility from the point of view of that energetic
way of making war which I also think is the right way.
"With reference to several rules being stated with the
qualifications 'if possible,' 'according to circumstances,' we
look on this as a safety-valve, intended to preserve the
inflexible rule of law from giving way when men's minds are
overheated in a struggle against all sorts of dangers, and so
to insure the application of the rules in many other
instances. Sad experience teaches us that in every war there
are numerous violations of law which must unavoidably remain
unpunished, but this will not cause the jurist to abandon the
authoritative principle which has been violated. Quite the
reverse. If, for instance, a flag of truce has been fired
upon, in contravention of the law of nations, the jurist will
uphold and proclaim more strongly than ever the rule that a
flag of truce is inviolable.
"I trust that your Excellency will receive indulgently this
sincere statement of my views, and will regard it as an
expression of my gratitude, as well as of my high personal
esteem and of my respectful consideration.
"Dr. BLUNTSCHLI, Privy Councillor, Professor."
THE UNITED STATES NAVAL WAR CODE.[1]
Sir,--The "Naval War Code" of the United States, upon which an
interesting article appeared in _The Times_ of Friday last, in so well
deserving of attention in this country that I may perhaps be allowed to
supplement the remarks of your Correspondent from the results of a
somewhat minute examination of the code made shortly after its
publication.
One notes, in the first place, that the Government of the United States
does not shirk responsibility. It puts the code into the hands of its
officers "for the government of all persons attached to the naval
service," and is doubtless prepared to stand by the rules contained in
it, as being in accordance with international law. These rules deal
boldly with even so disagreeable a topic as "Reprisals" (Art. 8), upon
which the Brussels, and after it The Hague, Conference preferred to keep
silence; and they take a definite line on many questions upon which
there are wide differences of opinion. On most debatable points, the
rules are in accordance with the views of this country--e.g. as to the
right of search (Art. 22), as to the two-fold list of contraband (Arts.
34-36), as to the moment at which the liability of a blockade-runner
commences (Art. 44), and as to the capture of private property (Art.
14), although the prohibition of such capture has long been favoured by
the Executive of the United States, and was advocated by the American
delegates at The Hague Conference. So also Arts. 34-36, by apparently
taking for granted the correctness of the rulings of the Supreme Court
in the Civil War cases of the _Springbok_ and the _Peterhoff_ with
reference to what may be described as "continuous carriage," are in
harmony with the views which Lord Salisbury recently had occasion to
express as to the trade of the _Bundesrath_ and other German vessels
with Lorenzo Marques. It must be observed, on the other hand, that Art.
30 flatly contradicts the British rule as to convoy; while Art. 3 sets
out The Hague Declaration as to projectiles dropped from balloons, to
which this country is not a party. Art. 7 departs from received views by
prohibiting altogether the use of false colours, and Art. 14 (doubtless
in pursuance of the recent decision of the Supreme Court in the _Paquete
Habana_), by affirming the absolute immunity of coast fishing vessels,
as such, from capture.
On novel questions the code is equally ready with a solution. It speaks
with no uncertain voice on the treatment of mail steamers and mail-bags
(Art. 20). On cable-cutting it adopts in Art. 5, as your Correspondent
points out, the views which I ventured to maintain in your columns when
the question was raised during the war of 1898.[2] I may also, by the
way, claim the support of the code for the view taken by me, in a,
correspondence also carried on in your columns during the naval
manoeuvres of 1888, of the bombardment of open coast towns.[3] Art. 4
sets out substantially the rules upon this subject for which I secured
the _imprimatur_ of the Institut de Droit International in 1896.
Secondly, the code is so well brought up to date as to incorporate
(Arts. 21-29) the substance of The Hague Convention, ratified only in
September last, for applying to maritime warfare the principles of the
Convention of Geneva. Art. 10 of The Hague Convention has been
reproduced in the code, in forgetfulness perhaps of the fact that that
article has not been ratified.
Thirdly, the code contains, very properly, some general provisions
applicable equally to warfare upon land (Arts. 1, 3, 8, 12, 54).
Fourthly, it is clearly expressed; and it is brief, consisting of only
54 articles, occupying 22 pages.
Fifthly, it deals with two very distinct topics--viz. the mode of
conducting hostilities against the forces of the enemy, and the
principles applicable to the making prize of merchant vessels, which as
often as not may be the property of neutrals. These topics are by no
means kept apart as they might be, articles on prize occurring
unexpectedly in the section avowedly devoted to hostilities.
It is worth considering whether something resembling the United States
code would not be found useful in the British Navy. Our code might be
better arranged than its predecessor, and would differ from it on
certain questions, but should resemble it in clearness of expression, in
brevity, and, above all things, in frank acceptance of responsibility.
What naval men most want is definite guidance, in categorical language,
upon those points of maritime international law upon which our
Government has made up its own mind.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, April 8 (1901).
NOTES
- 1: Withdrawn in 1904.
- 2: _Infra_, Ch. VII. Section 6.
- 3: _Infra_, Ch. VI. Section 14.
A NAVAL WAR CODE
Sir,--It is now nearly a year ago since I ventured to suggest in your
columns (for April 10, 1901) that something resembling the United States
"Naval War Code," dealing with "the laws and usages of war at sea,"
would be found useful in the British Navy.
The matter is, however, not quite so simple as might be inferred from
some of the allusions to it which occurred during last night's debate
upon the Navy Estimates. Upon several disputable and delicate questions
the Government of the United States has not hesitated to express
definite views; and they are not always views which the Government of
our own country would be prepared to endorse. For some remarks upon
these questions in detail, and upon the code generally, I must refer to
my former letter, but may perhaps be allowed to quote its concluding
words, which were to the following effect:--
"Our code might be better arranged than its predecessor, and
would differ from it on certain questions, but should
resemble it in clearness of expression, in brevity, and,
above all things, in frank acceptance of responsibility. What
naval men most want is definite guidance, in categorical
language, upon those points of maritime international law
upon which our Government has made up its own mind."
Before issuing such a code our authorities would have to decide--first,
what are the classes of topics as to which it is desirable to give
definite instructions to naval officers; and, secondly, with reference
to topics, to be included in the instructions, as to which there exist
international differences of view, what is, in each case, the view by
which the British Government is prepared to stand.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 12 (1902).
CHAPTER III
TERMINOLOGY
INTERNATIONAL TERMINOLOGY
Sir,--Demands for the punishment of the ex-Kaiser have produced many
"curiosities of literature," sometimes even over the signatures of men
deservedly respected as authorities upon subjects which they have made
their own; but _ne sutor supra crepidam_. A.B.,[1] for instance, wrote
of the Kaiser as guilty of "an indictable offence." X.Y.[1] naturally
protests against this misuse of terminology, which is, indeed, far more
specifically erroneous than was the popular application, which you
allowed me to criticise, of the terms "murder" and "piracy" to certain
detestable acts perpetrated under Government authority.[2] He goes on to
give an elaborate, though perhaps hardly necessary, explanation that
breaches of that generally accepted body of rules to be followed by
States _inter se_, which is known as "international law," can be
enforced, in the last resort, only by hostile State action--a fact which
he seems to suppose may entitle him to qualify the rules as "a mockery."
X.Y.[1] then proceeds to give an account of the so-called "private
international law" which surely needs revision for the benefit of any
"man in the street" who may care to hear about it. X.Y.[1] defines it as
"that part of the law of each separate country, as administered in its
own Courts, which deals with international matters," and he enumerates
as such matters "prize, contraband, blockade, the rights of
ambassadors." In fact none of these matters are within the scope of
"private international law," but are governed by "(public) international
law," non-compliance with which by the Courts or subjects of any State
is ground of complaint for the Government of any other State thereby
wrongfully affected.
The so-called "private international law," better described as "the
conflict of laws," deals, in reality, with the rules which the Courts of
each country apply, apart from any international obligation, to the
solution of questions, usually between private litigants, in which doubt
may arise as to the national law by which a given transaction ought to
be governed--e.g. with reference to a contract made in France, but to
be performed in England. There is here a "conflict," or "collision," of
laws, and it is decided in accordance with rules adopted in the country
in which the litigation occurs. These rules have no "international"
validity, and the term is applied to them, merely in a popular way, to
indicate that a Court may have in some cases to apply the law of a
country other than that in which it is sitting. The unfortunate
opposition of "public" to "private" international law has to answer for
much confusion of thought. "International law," properly so called, has,
of course, no need to be described as "public" to distinguish it from
rules for solving the "conflicts" of private laws, which are
"international" rules only in the sense that laws are sometimes applied
in countries other than those in which they are primarily binding.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 19 (1918).
NOTES
- 1: Writer's names are omitted as immaterial.
- 2: _Infra_, p. 70.
A full discussion of the topics dealt with in the last
paragraph of this letter may be found in my _Elements of
Jurisprudence_, edit. xii., pp. 409-425. A translation, by
Professor Nys, of the chapter in which those pages occur, as it
stood in edit. i., appeared in the _Revue de Droit
International_, t. xii., pp. 565, &c.
CHAPTER IV
CONVENTIONS AND LEGISLATION
Not a few International Conventions necessitate, before they
can be ratified, in order that their provisions may be carried
into effect, a certain amount of municipal legislation.
The letters which follow are concerned with some measures
introduced into the British Parliament for this purpose,
relating respectively to Naval Prize, to the Geneva Convention
of 1906, and to Conventions signed at The Hague Peace
Conference of 1907. It is with criticisms of Bills dealing with
the last-mentioned topic that this chapter is mainly occupied.
GOVERNMENT BILLS AND INTERNATIONAL CONVENTIONS
Sir,--You have already allowed me to point out how singularly
ill-adapted is the resuscitated "Naval Prize Consolidation Bill"[1] to
inform Parliament upon the highly technical points as to which a vote in
favour of the Bill might be supposed to imply approval of the Government
policy.
Two other Bills have now been presented to the House of Commons in such
a shape as to raise a doubt whether the wish of the Government, or of
the draftsman, has been that the topics to which they relate shall be
discussed _en pleine connaissance de cause_.
The "Geneva Convention Bill"[2] is intended to facilitate the withdrawal
of reservations subject to which the Convention was ratified by Great
Britain. These reservations, upon which I insisted at Geneva, somewhat
to the surprise of my French and Russian colleagues, relate to Arts. 23,
27, and 28 of the Convention, one of the effects of which would have
been to impose upon our Government an obligation to carry through,
within five years, an Act of Parliament, making the employment of the
Geneva emblem or name, except for military purposes, a criminal offence.
Any one who knows something of the difficulties which beset legislation
in this country, especially where commercial interests are involved,
will see that the performance of such an undertaking might well have
proved to be impossible. Though myself strongly in favour of placing, at
the proper time and in an appropriate manner, legislative restrictions
upon the general use of the emblem and name, I can hardly think the Bill
now before Parliament to be well adapted for its purpose. The
"Memorandum" prefixed to it ought surely to have stated, in plain
language, the effect of the articles in question and the reasons which
prevented them from being ratified together with the rest of the
Convention. Instead of this, only one of those articles is cited, and
few members of Parliament will be aware that an omitted paragraph of
that article requires that the use of the emblem or name should be
penalised by British law at the latest five years and six months from
the date of the British ratification, which was deposited on April 16,
1907--_i.e._, not later than October 16, 1912. This requirement is not
satisfied by the Bill, which, even if passed in the present Session,
would preserve intact till 1915 the rights of proprietors of
trade-marks, while somewhat harshly rendering forthwith illegal the user
of the emblem or name by all other persons.
On the drafting of the "Second Peace Conference Conventions Bill," I
will only remark that neither in the preamble nor elsewhere is any
information vouchsafed as to the Conventions, out of thirteen drafted at
The Hague, which are within the purview of the Bill. The reader is left
to puzzle out for himself, supposing him to have the necessary materials
at hand, that certain clauses of the Bill relate respectively to certain
articles which must be looked for in the Conventions numbered I., V.,
X., XII., and XIII.
I am, Sir, your obedient servant,
T. E. HOLLAND.
The Athenæum, July 7 (1911).
NOTES
- 1: This Bill, originally introduced in the House of Commons on June 23
1910, to enable the Government to ratify Hague Convention No xii.
of 1907 and the Declaration of London of 1909, was passed by that
House on December 7, 1911, but rejected on the 12th of the same
month, by 145 to 53 votes, in the House of Lords. Cf. _infra_,
pp. 191-196.
- 2: Cf. _infra_, p. 98. The Bill became an Act, 1 & 2 Geo. 5,
c. 20.
Questions were put and objections raised, in the sense of my
criticisms upon the drafting of the "Second Peace Conference
(Conventions) Bill" of 1911, upon several occasions in the
House of Commons, especially in August of that year, and on
December 16 the Bill was finally withdrawn. On the
re-introduction of the Bill in 1914, see the following letter.
THE PRESENT BILL IN PARLIAMENT
Sir,--In reintroducing their Bill "to make such amendments in the law as
are necessary in order to enable certain conventions to be carried into
effect," the Government has justified the criticisms which I addressed
to you upon the way in which this measure was first presented to
Parliament.
I pointed out that neither in the preamble nor elsewhere was any
information vouchsafed as to which of "the various conventions drawn up
at the second Peace Conference" were within the purview of the Bill.
Still less was any clue given to those articles, out of nearly 400
contained in the 13 conventions in question, which are relevant to the
proposed legislation. Members of Parliament sufficiently inquisitive not
to be inclined to take the measure on trust, were left to puzzle out all
this for themselves, but proved so restive under the treatment that the
Bill, which was introduced in June, 1911, had to be withdrawn in the
following December.
As now resuscitated, the Bill is accompanied by a memorandum containing
information which will enable the reader, even though no specialist,
supposing him to have the necessary documents at hand, though probably
only after several hours of labour, to ascertain what would be the
result of passing it. Is it too much to hope that similar aids to the
understanding of complicated legislative proposals will be
systematically provided in the future?
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, April 13, 1914.
This Bill was introduced into the House of Commons on April 8,
1914, with a memorandum proposed in compliance with the
criticisms, which had led to the withdrawal of its predecessor
of 1911. _Cf. supra_, p. 37. It also was withdrawn, after
sustaining much renewed criticism, on July 17, 1914.
THE FOREIGN ENLISTMENT BILL
Sir,--It is doubtless the case, as stated in your leading article of
to-day, that the Foreign Enlistment Bill has not received the attention
which it deserves. It may perhaps be worth while to mention, as
affording some explanation of this neglect, the fact that the memorandum
prefixed to the Bill vaguely describes its main object as being to bring
our law into conformity with "The Hague Conventions" at large. An
ordinary member of Parliament would surely be grateful to be referred
specifically to Convention No. xiii., Arts. 8, 17, and 25. He might well
shrink from the labour of exploring the hundreds of articles contained
in "The Hague Conventions" in order to ascertain which of the articles
suggest some modification of the English statute.
I would also venture to suggest that, in Article 1 (1) (b) of the Bill
the words "or allows to depart," carried over from the old Act, should
be omitted, as of doubtful interpretation. Would it not also be
desirable to take this opportunity of severing the enlistment articles
of the overgrown principal Act from those forbidding the despatch of
ships fitted for hostilities and restricting the hospitality which may
be extended to belligerent war ships?
Upon quite a different subject, I should like to answer the question
propounded in your article, as to the weight now to be given to the
Declaration of London, by saying that no weight should be given to it,
except as between Powers who may have ratified it or may have agreed to
be temporarily bound by its provisions. One has of late been surprised
to read of vessels carrying contraband being allowed to continue their
voyage after surrendering the contraband goods, in accordance with a new
rule suggested by the Declaration, whereas, under still existing
international law, the duty of a captor is to bring in the vessel
together with her cargo, in order that the rightfulness of the seizure
may be investigated by a Prize Court.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 23 (1912).
The Bill of 1912 "to amend the Foreign Enlistment Act, 1870,"
passed the House of Lords with little comment, but was
withdrawn, after much adverse criticism, in the House of
Commons on February 12, 1913.
CHAPTER V
THE COMMENCEMENT OF WAR
SECTION 1
_Declaration of War_
The following letter bears upon the question, much discussed in
recent years, of the lawfulness of hostilities commenced
without anything amounting to a declaration of war. Although
several modern wars, e.g. the Franco-Prussian of 1870, and
the Russo-Turkish of 1877, were preceded by declaration, it was
hardly possible, in view of the practice of the last two
centuries, to maintain, that this was required by international
law, and it has never been alleged that any definite interval
need intervene between a declaration and the first act of
hostilities. On the destruction of the _Kowshing_, the present
writer may further refer to his _Studies in International Law_,
1898, p. 126, and to Professor Takahashi's _International Law
during the Chino-Japanese War_, 1899, pp. 24, 192. But see now
the note at the end of the "Letter" which follows.
THE SINKING OF THE _KOWSHING_
Sir,--The words of soberness and truth were spoken with reference to the
sinking of the _Kowshing_ in the letter from Professor Westlake which
you printed on Friday last. Ignorance dies hard, or, after the
appearance of that letter and of your remarks upon it, one might have
expected that leading articles would be less lavishly garnished with
such phrases as "act of piracy," "war without declaration," "insult to
the British flag," "condign punishment of the Japanese commander." But
these flowers of speech continue to blossom; and, now that the facts of
the case seem to be established beyond reasonable doubt by the telegrams
of this morning, I should be glad to be allowed to state shortly what I
believe will be the verdict of international law upon what has occurred.
If the visiting, and eventual sinking, of the _Kowshing_ occurred in
time of peace, or in time of war before she had notice that war had
broken out, a gross outrage has taken place. But the facts are
otherwise.
In the first place, a state of war existed. It is trite knowledge, and
has been over and over affirmed by Courts, both English and American,
that a war may legally commence with a hostile act on one side, not
preceded by declaration. How frequently this has occurred in practice
may be seen from a glance at an historical statement prepared for the
War Office by Colonel Maurice _à propos_ of the objections to a Channel
tunnel. Whether or no hostilities had previously occurred upon the
mainland, I hold that the acts of the Japanese commander in boarding the
_Kowshing_ and threatening her with violence in case of disobedience to
his orders were acts of war.
In the second place, the _Kowshing_ had notice of the existence of a
war, at any rate from the moment when she received the orders of the
Japanese commander.
The _Kowshing_, therefore, before the first torpedo was fired, was, and
knew that she was, a neutral ship engaged in the transport service of a
belligerent. (Her flying the British flag, whether as a _ruse de guerre_
or otherwise, is wholly immaterial.) Her liabilities, as such ship, were
twofold:--
1. Regarded as an isolated vessel, she was liable to be stopped,
visited, and taken in for adjudication by a Japanese Prize Court. If, as
was the fact, it was practically impossible for a Japanese prize crew to
be placed on board of her, the Japanese commander was within his rights,
in using any amount of force necessary to compel her to obey his orders.
2. As one of a fleet of transports and men-of-war engaged in carrying
reinforcements to the Chinese troops on the mainland, the _Kowshing_ was
clearly part of a hostile expedition, or one which might be treated as
hostile, which the Japanese were entitled, by the use of all needful
force, to prevent from reaching its destination.
The force employed seems not to have been in excess of what might
lawfully be used, either for the arrest of an enemy's neutral transport
or for barring the progress of a hostile expedition. The rescued
officers also having been set at liberty in due course, I am unable to
see that any violation of the rights of neutrals has occurred. No
apology is due to our Government, nor have the owners of the _Kowshing_,
or the relatives of any of her European officers who may have been lost,
any claim for compensation. I have said nothing about the violation by
the Japanese of the usages of civilised warfare (not of the Geneva
Convention, which has no bearing upon the question), which would be
involved by their having fired upon the Chinese troops in the water; not
only because the evidence upon this point is as yet insufficient, but
also because the grievance, if established, would affect only the rights
of the Belligerents _inter se_; not the rights of neutrals, with which
alone this letter is concerned. I have also confined my observations to
the legal aspects of the question, leaving to others to test the conduct
of the Japanese commander by the rules of chivalrous dealing or of
humanity.
Your obedient servant,
T. E. HOLLAND.
Athenæum Club, August 6 (1894)
The controversy caused by the sinking of the _Kowshing_ in 1894
was revived by the manner of the Japanese attack upon Port
Arthur, in 1904 (see Professor Takahashi's _International Law
applied to the Russo-Japanese War_, 1908, p. 1), and led to a
careful study of the subject by a committee of the Institut de
Droit International, resulting in the adoption by the Institut,
at its Ghent Meeting in 1906, of the following resolutions:--
(1) "It is in conformity with the requirements of International
law, to the loyalty which the nations owe to one another in
their, mutual relations, as well as to the general interests of
all States, that hostilities ought not to commence without
previous and unequivocal warning.
(2) "This warning may be given either in the shape of a
declaration of war pure and simple, or in the shape of an
ultimatum duly notified to the adversary by the State which
wishes to begin the war.
(3) "Hostilities must not commence until after the expiration
of a delay which would suffice to prevent the rule as to a
previous and unequivocal warning from being thought to be
evaded." See the _Annuaire de l'Institut_, t, xxi. p. 292.
In accordance with the principles underlying the first and
second of these resolutions, The Hague Convention, No. iii. of
1907 (ratified generally by Great Britain on November 27,
1909), has now laid down as a principle of International Law,
binding upon the contracting Powers, that--
(1) "Hostilities between them ought not to commence without a
warning previously given and unequivocal, in the form either of
a reasoned declaration of war, or of an ultimatum, with a
conditional declaration of war."
And the Convention goes on to provide that--
(2) "The state of war ought to be notified without delay to
neutral Powers, and shall be of no effect with reference to
them, until after a notification, which may be made even
telegraphically. Nevertheless, neutral Powers may not plead
absence of notification, if it has been shown beyond question
that they were in fact cognisant of the state of war." Any
reference to the need of an interval between declaration and
the first act of hostility (such as is contained in the third
of the resolutions of the Institut) was deliberately omitted
from the Convention, although a declaration immediately
followed by an attack would obviously be of little service to
the party attacked. (See the present writer's _Laws of War on
Land (written and unwritten)_, 1908, P. 18.)
* * * * *
SECTION 2
_The Immediate Effects of the Outbreak of War_
_Enemy Residents_
Before any actual hostilities have taken place, each
belligerent acquires, _ipso facto_, certain new rights over
persons and property belonging to the other, which happen to be
at the time within its power, e.g. the right, much softened
in modern practice, and specifically dealt with in The Hague
Convention, No. vi. of 1907, of capturing enemy merchant
vessels so situated.
The following letter deals with the permissible treatment of
enemy persons so situated; and was suggested by a question
asked in the House of Commons on February 25, 1909, by Mr.
Arnold-Forster: viz. "What would be the _status_ of officers
and men of the regular Army of a hostile belligerent Power,
found within the limits of the United Kingdom after an act or
declaration of war; and would such persons be liable to be
treated as prisoners of war, or would they be despatched under
the protection of the Government to join the forces of the
enemy?" The general effect of the Attorney-General's reply may
be gathered from the quotations from it made in the letter.
The topic was again touched upon on March 3, in a question put
by Captain Faber, to which Mr. Haldane replied.
FOREIGN SOLDIERS IN ENGLAND
Sir,--The question raised last night by Mr. Arnold-Forster is one which
calls for more careful consideration than it appears yet to have
received. International law has in modern times spoken with no very
certain voice as to the permissible treatment of alien enemies found
within the territory of a belligerent at the outbreak of war.
There is, however, little doubt that such persons, although now more
usually allowed to remain, during good behaviour, may be expelled, and,
if necessary, wholesale, as were Germans from France in 1870. But may
such persons be, for good reasons, arrested, or otherwise prevented from
leaving the country, as Germans were prevented from leaving France in
the earlier days of the Franco-Prussian War? Grotius speaks with
approval of such a step being taken, "ad minuendas hostium vires."
Bynkershoek, more than a century later, recognises the right of thus
acting, "though it is rarely exercised." So the Supreme Court of the
United States in _Brown v. United States_ (1814). So Chancellor Kent
(1826), and Mr. Manning (1889) is explicit that the arrest in question
is lawful, and that "the individuals are prisoners of war."
Vattel, is it true (1758), ventures to lay down that--
"Le Souverain qui déclare la guerre ne peut retenir les
sujets de ennemi qui se trouvent dans ses états au moment de
la déclaration ... en leur permettant d'entrer dans ses
terres et d'y séjourner, il leur a promis tacitement toute
liberté et toute sûreté pour le retour."
And he has been followed by some recent writers. There is, however, I
venture to hold, no ground for asserting that this indulgent system is
imposed by international law. I am glad, therefore, to find the
Attorney-General laying down that--
"for strictly military reasons, any nation is entitled to
detain and to intern soldiers found upon the territory at the
outbreak of war."
And I should be surprised if, under all circumstances, as the learned
Attorney-General seems to think probable--
"England would follow, whatever the strict law may be, the
humane and chivalrous practice of modern times, and would
give to any subjects of a hostile Power who might be found
here engaging in civilian pursuits a reasonable time within
which to leave for their own country, even although they were
under the obligation of entering for service under the
enemy's flag."
The doctrine of Vattel has, in fact, become less plausible than it was
before universal liability to military service had become the rule in
most Continental countries. The peaceably engaged foreign resident is
now in all probability a trained soldier, and liable to be recalled to
the flag of a possible enemy.
There may, of course, be considerable practical difficulties in the way
of ascertaining the nationality of any given foreigner, and whether he
has completed, or evaded, the military training required by the laws of
his country. It may also be a question of high policy whether resident
enemies would not be a greater danger to this country if they were
compelled to remain here, than if they were allowed, or compelled, to
depart, possibly to return as invaders.
I am only concerned to maintain that, as far as international law is
concerned, England has a free hand either to expel resident enemies or
to prevent them from leaving the country, as may seem most conducive to
her own safety.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, February 25 (1909).
_Civil Disabilities of Alien Enemies_
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, assert, 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, asserts 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 attitude 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 "Règlement,"
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 ("réclamations") 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 substitution of "droits et actions" for "réclamations." 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 Générale de
Droit International Public_, and the _Zeitschrift für
Völkerrecht 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 spaces of water more or less closed to belligerent
action, it may be desirable to state that the letters as to the
Suez Canal 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 principally with
the settlement of the Egyptian and Newfoundland questions,
provides, in Art. 6, that "In order to assure the free passage
of the Suez Canal, 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 passage of the canal 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 constitutional changes resulting from the war
of 1914.
The provisions of the Treaty of 1888, with reference to the
free navigation of the Suez Canal, have, of course, acquired a
new importance from their adoption into the Hay-Pauncefote
Treaty of November 18, 1901, as to the Panama Canal, 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 CANAL
Sir,--Your correspondent "M.B." has done good service by calling
attention to the misleading nature of the often-repeated statement that
the Suez Canal 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 Délégués de la Grande-Bretagne ... pensent qu'il est de
leur devoir de formuler une réserve générale quant à
l'application de ces dispositions en tant qu'elles ne
seraient pas compatibles avec l'état transitoire et
exceptionnel où se trouve actuellement l'Egypte, et qu'elles
pourraient entraver la liberté d'action de leur Gouvernement
pendant la période de l'occupation de l'Egypte par les forces
de sa Majesté Britannique."
Being thus unaffected by the treaty, the canal 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 passage," 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 passage" 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 canal 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
canal 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
canal, or within three miles of its ports of access, nor are the
entrances of the canal 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 CANAL
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 pass
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
"neutralisée," 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 "neutralisée"
was employed in the Treaty of Paris as a euphemism, intended to make
less unpalatable to Russia a restriction upon her sovereign rights which
she took the earliest opportunity of repudiating.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Brighton, October 6 (1898).
THE SUEZ CANAL
Sir,--Will you allow me to reply in the fewest possible words to the
questions very courteously addressed to me by Mr. Gibson Bowles in his
letter which appeared in _The Times_ of yesterday?
1. It is certainly my opinion, for what it is worth, that the full
operation of the Convention of 1888 is suspended by the reserves first
made on behalf of this country during the sittings of the Conference of
1885. These reserves were texually repeated by Lord Salisbury in his
despatch of October 21, 1887, enclosing the draft convention which,
three days later, was signed at Paris by the representatives of France
and Great Britain, the two Powers which, with the assent of the rest,
had been carrying on the resumed negotiations with reference to the
canal. Lord Salisbury's language was also carefully brought to the
notice of each of the other Powers concerned; in the course of the
somewhat protracted discussions which preceded the final signature of
the same convention at Constantinople on October 29, 1888.
2. All the signatories of the convention having thus become parties to
it after express notice of "the conditions under which her Majesty's
Government have expressed their willingness to agree to it," must, it
can hardly be doubted, share the view that the convention is operative
only _sub modo_.
3. Supposing the convention to have become operative, and supposing the
territorial Power to be neutral in a war between States which we may
call A and B, the convention would certainly entitle A to claim
unmolested passage for its ships of war on their way to attack the
forces of B in the Eastern seas.
4. The language of the convention, being as it, is the expression of a
compromise involving much re-drafting, is by no means always as clear as
it might be. But when Mr. Gibson Bowles is again within reach of
Blue-books he will probably agree with me that the treaty need not, as
he suggests, be "read as obliging the territorial Power, even when
itself a belligerent, to allow its enemy to use the canal freely for the
passage of that enemy's men-of-war." The wide language of Art. 1 (which
is substantially in accordance with Mr. Gibson Bowles's reminiscence of
it) must be read in connection with Art. 10, and without forgetting
that, in discussing the effect of an attack upon the canal by one of the
parties to the convention, Lord Salisbury wrote in 1887, "on the whole
it appears to be the sounder view that, in such a case, the treaty,
being broken by one of its signatories, would lose its force in all
respects."
Your obedient servant,
T. E. HOLLAND.
Oxford, October 9 (1898).
THE CLOSING OF THE DARDANELLES
Sir,--Now that the pressure upon your space due to the clash of opposing
views of domestic politics is likely to be for the moment relaxed, you
may, perhaps, not think it inopportune that attention should be recalled
to a question of permanent international interest raised by the recent
action of the Turkish Government in closing the Dardanelles to even
commercial traffic.
I cordially agree, as would, I suppose, most people, with your leading
article of some weeks since in deprecating any crude application to the
case of the Dardanelles and Bosporus of _dicta_ with reference to
freedom of passage through straits connecting two open seas. It would,
indeed, be straining what may be taken to be a general principle of
international law to say that Turkey is by it prohibited from protecting
her threatened capital by temporarily closing the Straits.
A good deal of vague reference has, however, been made in the
discussions which have taken place upon the subject to "Treaties" under
which it seems to be thought that trading ships enjoy, in all
circumstances, rights of free navigation through the Straits in question
which they would not have possessed otherwise. I should like, therefore,
with your permission, to state what seem to be the relevant Treaty
provisions upon the subject, whether between the Powers constituting the
European Concert collectively, or between Russia and Turkey as
individual Powers.
As to what may be described as the "European" Treaties, it is necessary,
once for all, to put aside as irrelevant Art. 10 of the Treaty of Paris
of 1856 and its annexed Convention; Art. 2 of the Treaty of London of
1871; and the confirmatory Art. 63 of the Treaty of Berlin of 1878.
These articles have exclusive reference to the "ancient rule of the
Ottoman Empire," under which, so long as the Porte is at peace, no
foreign ships of war are to be admitted into the Straits. There are,
however, two articles, still in force, of these "European" Treaties
which may seem to bear upon the present inquiry. By Art. 12 of the
Treaty of Paris:--
"Free from any impediment, the commerce in the ports and
waters of the Black Sea shall be subject only to regulations
of health, Customs, and police, framed in a spirit favourable
to the development of commercial transactions."
And by Art. 3 of the Treaty of London:--
"The Black Sea remains open, as heretofore, to the mercantile
marine of all nations."
It is submitted that these provisions relate solely to commerce carried
on by vessels already within the Black Sea, and contain no covenant for
an unrestricted right of access to that sea.
As between Russia and Turkey individually, Treaties which are still in
force purport, no doubt, to give to the former a stronger claim to free
passage through the Straits for her mercantile marine than that which
can be supposed to be enjoyed by other Powers. By Art. 7, for instance,
of the Treaty of Adrianople of 1829, the Porte recognises and declares
the passage of the "Canal de Constantinople," and of the Strait of the
Dardanelles, to be entirely free and open to Russian merchant vessels;
and goes on to extend the same privilege to the merchant vessels of all
Powers at peace with Turkey. Art. 24 of the Treaty of San Stefano is
still more explicit, providing that "the Bosporus and Dardanelles shall
remain open in time of war as in time of peace to the merchant vessels
of neutral States arriving from or bound to Russian ports." The rest of
the article contains a promise by the Porte never henceforth to
establish a "fictitious blockade, at variance with the spirit of the
Declaration of Paris"; meaning thereby such a blockade of ports on the
Black Sea as had been enforced by Turkish ships of war stationed at the
entrance to the Bosporus.
It may well be doubted whether these articles, containing concessions
extorted from Turkey at the end of wars in which she had been defeated,
ought not, like so many other provisions of the Treaty of San Stefano,
to have been abrogated by the Treaty of Berlin. They are of such a
character that, in the struggle for existence, Turkey can hardly be
blamed for disregarding them. As was said long ago, "Ius commerciorum
aequum est, at hoc acquius, tuendae salutis." The imperious necessities
of self-preservation were recognised both by Lord Morley and by Lord
Lansdowne in the debate which took place on May 3, although Lord
Lansdowne intimated that
"the real question, which will have to be considered sooner
or later, is the extent to which a belligerent Power,
controlling narrow waters which form a great trade avenue for
the commerce of the world, is justified in entirely closing
such an avenue in order to facilitate the hostile operations
in which the Power finds itself involved."
It is, I think, clear that the solution of a question at once so novel
and so delicate must be undertaken, not by any one Power, but by the
Concert of Europe, or of the civilised world, which must devise some
guarantee for the safety of any littoral Power which would be called
upon in the general interest to restrict its measures of self-defence.
In the meantime, we may surely say that the case is provided for neither
by established international law nor by "European" Treaties; and,
further, that the Treaties between Russia and Turkey, which do provide
for it, are not such as it is desirable to perpetuate.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 22 (1912).
THE CLOSING OF THE DARDANELLES
Sir,--I am reminded by Mr. Lucien Wolf's courteous letter that I ought
probably to have mentioned, in alluding to the Treaty of San Stefano,
that it is doubtful whether Art. 24 of that Treaty is in force. It was
certainly left untouched by the Treaty of Berlin, but the language of
the relevant article (3) of the definitive Treaty of Peace of 1879 is
somewhat obscure, nor is much light to be gained upon the point from the
protocol of the 14th _séance_ of the Congress of Berlin, at which Art.
24 came up for discussion.
The earlier Treaties, however, which were revived beyond question by
Art. 10 of the Treaty of 1879, grant to Russian merchant vessels full
rights of passage between the Black Sea and the Ægean, exercisable, for
all that appears, in time of war as well as of peace, although these
Treaties contain no express words to that effect. Such rights, I would
again urge, if enjoyed by one Power, should be enjoyed by all; upon
terms to be settled, not by any pair of Powers but by the Powers
collectively.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, June 5 (1912).
* * * * *
SECTION 3
_In a Special Danger Zone?_
THE GERMAN THREAT
Sir,--It may perhaps be desirable, for the benefit of the general
reader, to distinguish clearly between the two topics dealt with in the
recent announcement of German naval policy.
1. We find in it what may, at first sight, suggest the establishment of
a gigantic "paper blockade," such as was proclaimed in the Berlin Decree
of 1806, stating that "Les îles Britanniques sont déclarées en état de
blocus." But in the new decree the term "blockade" does not occur, nor
is there any indication of an intention to comply with the prescriptions
of the Declaration of Paris of 1856 as to the mode in which such an
operation must be conducted. What we really find in the announcement is
the specification of certain large spaces of water, including the whole
of the British Channel, within which German ships will endeavour to
perpetrate the atrocities about to be mentioned.
2. These promised, and already perpetrated, atrocities consist in the
destruction of merchant shipping without any of those decent preliminary
steps, for the protection of human life and neutral property, which are
insisted on by long established rules of international law. Under these
rules, the exercise of violence against a merchant vessel is
permissible, in the first instance, only in case of her attempting by
resistance or flight to frustrate the right of visit which belongs to
every belligerent cruiser. Should she obey the cruiser's summons to
stop, and allow its officers to come on board, they will satisfy
themselves, by examination of her papers, and, if necessary, by further
search, of the nationality of ship and cargo, of the destination of
each, and of the character of the latter. They will then decide whether
or no they should make prize of the ship, and in some cases may feel
justified in sending a prize to the bottom, instead of taking her into
port. Before doing so it is their bounden duty to preserve the ship
papers, and, what is far more important, to provide for the safety of
all on board.
This procedure seems to have been followed, more or less, by the
submarines which sank the _Durward_ in the North Sea, and several small
vessels near the Mersey, but is obviously possible to such craft only
under very exceptional circumstances. It was scandalously not followed
in the cases of the _Tokomaru_, the _Ikaria_, and the hospital ship (!)
_Asturias_, against which a submarine fired torpedoes, off Havre,
without warning or inquiry, and, of course, regardless of the fate of
those on board. The threat that similar methods of attack will be
systematically employed, on a large scale, on and after the 18th inst.,
naturally excites as much indignation among neutrals as among the Allies
of the Entente.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, February 12 (1915).
* * * * *
SECTION 4
_Aerial Warfare_
It may be desirable to supplement what is said in the following
letters by mentioning that the Declaration of 1899 (to remain
in force for five years) was largely ratified, though not by
Great Britain; that of 1907 (to remain in force till the
termination of the third Peace Conference) was ratified by
Great Britain and by most of the other great Powers in 1909,
not, however, by Germany or Austria; that aerial navigation is
regulated by the Acts, I & 2 Geo. 5, c. 4, and 2 & 3 Geo. 5, c.
22; and that an agreement upon the subject was entered into
between France and Germany, on July 26, 1913, by exchange of
notes, "en attendant la conclusion d'une convention sur cette
matière entre un plus grand nombre d'états" (the international
Conference held at Paris in 1910 had failed to agree upon the
terms of such a Convention); and that Art. 25 of The Hague
Convention of 1907, No. iv., was ratified by Great Britain, and
generally.
THE DEBATE ON AERONAUTICS
Sir,--It is not to be wondered at that the Chairman of Committees
declined to allow yesterday's debate on aviation to diverge into an
enquiry whether the Powers could be induced to prohibit, or limit, the
dropping of high explosives from aerial machines in war time. The
question is, however, one of great interest, and it may be desirable,
with a view to future discussions, to state precisely, since little
seems to be generally known upon the subject, what has already been
attempted in this direction.
In the _Règlement_ annexed to The Hague Convention of 1899, as to the
"Laws and Customs of War on Land," Art. 23, which specifically prohibits
certain "means of injuring the enemy," makes no mention of aerial
methods; but Art. 25, which prohibits "the bombardment of towns,
villages, habitations, or buildings, which are not defended," was
strengthened, when the _Règlement_ was reissued in 1907 as an annexe to
the, as yet not generally ratified, Hague Convention No. iv. of that
year, by the insertion, after the word "bombardment," of the words "by
any means whatever," with the expressed intention of including in the
prohibition the throwing of projectiles from balloons.
The Hague Convention No. ix. of 1907, also not yet generally ratified,
purports to close a long controversy, in accordance with the view which
you allowed me to advocate, with reference to the naval manoeuvres of
1888, by prohibiting the "naval bombardment of ports, towns, villages,
habitations, or buildings, which are not defended." The words "by any
means whatever" have not been here inserted, one would incline to think
by inadvertence, having regard to what passed in Committee, and to the
recital of the Convention, which sets out the propriety of extending to
naval bombardments the principles of the _Règlement_ (cited, perhaps
again by inadvertence, as that of 1899) as to the Laws and Customs of
War on Land.
But the topic was first squarely dealt with by the first of the three
Hague Declarations of 1899, by which the Powers agreed to prohibit, for
five years, "the throwing of projectiles and explosives from balloons,
or by other analogous new methods." The Declaration was signed and
ratified by almost all the Powers concerned; not, however, by Great
Britain.
At The Hague Conference of 1907, when the Belgian delegates proposed
that this Declaration, which had expired by efflux of time, should be
renewed, some curious changes of opinion were found to have occurred.
Twenty-nine Powers, of which Great Britain was one, voted for renewal,
but eight Powers, including Germany, Spain, France, and Russia, were
opposed to it, while seven Powers, one of which was Japan, abstained
from voting. The Japanese delegation had previously intimated that, "in
view of the absence of unanimity on the part of the great military
Powers, there seemed to be no great use in binding their country as
against certain Powers, while, as against the rest, it would still be
necessary to study and bring to perfection this mode of making war."
Although the Declaration, as renewed, was allowed to figure in the "Acte
final" of the Conference of 1907, the dissent from it of several Powers
of the first importance must render its ratification by the others
highly improbable; nor would it seem worth while to renew, for some time
to come, a proposal which, only two years ago, was so ill received.
I may perhaps add, with reference to what was said by one of yesterday's
speakers, that any provision on the topic under discussion would be
quite out of place in the Geneva Convention, which deals, not with
permissible means of inflicting injury, but exclusively with the
treatment of those who are suffering from injuries inflicted.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August 3 (1909).
THE AERIAL NAVIGATION ACT
PRACTICAL DIFFICULTIES
Sir,--The haste with which Colonel Seely's Bill, authorising resort to
extreme measures for the prevention of aerial trespass under suspicious
circumstances, has been passed through all its stages, was amply
justified by the urgent need for such legislation, which Russia seems to
have been the first to recognise. The task of those responsible for
framing regulations for the working of the new Act will be no easy one.
They will be brought face to face with practical difficulties, such as
led to the adjournment of the Paris Conference of 1910.
In the meantime, it may interest your readers to have some clue to what
has taken place, with reference to the more theoretical aspects of the
questions involved, in so competent and representative a body as the
Institut de Droit International. The Institut has had the topic under
consideration ever since 1900, more especially at its sessions for the
years 1902, 1906, 1910, and 1911. In the volumes of its "Annuaire" for
those years will be found not only the text of the resolutions adopted
on each occasion, together with a summary account of the debates which
preceded their adoption, but also, fully set out, the material which had
been previously circulated for the information of members, in the shape
of reports and counter-reports from inter-sessional committees, draft
resolutions, and such critical observations upon these documents as had
been received by the secretary. The special committee upon the subject,
of which M. Fauchille is _Rapporteur_, is still sitting, and the topic
will doubtless be further debated at the session of the Institut, which
will this year be held at Oxford. No success has attended efforts to
pass resolutions in favour of any interference with the employment of
_aéronefs_ in time of war, such as was proposed by The (now discredited)
Hague Declaration, prohibiting the throwing of projectiles and
explosives from airships. With reference to the use of these machines in
time of peace, the debates have all along revealed a fundamental
divergence of opinion between the majority of the Institut and a
minority, comprising those English members who have made known their
views. Both parties are agreed that aerial navigation must submit to
some restrictions, but the majority, starting from the Roman law dictum,
"Naturali iure omnium communia sunt _aer_, aqua profluens, et mare,"
would always presume in favour of freedom of passage. The minority, on
the other hand, citing sometimes the old English saying, "Cuius est
solum eius est usque ad coelum," hold that the presumption must be in
favour of sovereignty and ownership as applicable to superimposed air
space.
It is hardly necessary to observe that neither of the maxims just
mentioned was formulated with reference to problems which have only
presented themselves within the last few years. The Romans, in the
passage quoted, were thinking not of aerial space, but of the element
which fills it. The old English lawyers were preoccupied with questions
as to projecting roofs and overhanging boughs of trees. The problems now
raised are admittedly incapable of solution _a priori_, but the
difference between the two schools of thinkers is instructive, as
bearing upon the extent to which those who belong to one or the other
school would incline towards measures of precaution against abuses of
the novel art. This difference was well summed up at one of our meetings
by Professor Westlake as follows: "Conservation et passage, comment
combiner ces deux droits? Lequel des deux est la règle? Lequel
l'exception? Pour le Rapporteur (M. Fauchille) c'est le droit de passage
qui prime. Pour moi c'est le droit de conservation."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, February 15 (1913).
SOVEREIGNTY OVER THE AIR
Sir,--Mr. Arthur Cohen has done good service by explaining that Great
Britain has practically asserted the right of a State to absolute
control of the airspace vertically above its territory. I may, however,
perhaps be permitted to remark that he seems to have been misinformed
when he states that the Institute of International Law has arrived at no
decision upon the subject. The facts are as follows: The problems
presented by the new art of aerostation have been under the
consideration of the Institute since 1900, producing a large literature
of reports, counter-reports, observations, and draft rules, to debates
upon which no fewer than four sittings were devoted at the Madrid
meeting in 1911. Wide differences of opinion then disclosed themselves
as to territorial rights over the air, the radical opposition being
between those members who, with M. Fauchille, the Reporter of the
Committee, would presume in favour of freedom of aerial navigation,
subject, as they would admit, to some measures of territorial
precaution, and those who, like the present writer ("il se proclame
opposé au principe de la liberté de la navigation aérienne, et s'en
tiendrait[A] plutôt au principe _cuius est solum, huius est usque ad
coelum_, en y apportant au besoin quelques restrictions," "Annuaire," p.
821), would subject all aerial access to the discretion of the
territorial Power.
The discussion took place upon certain _bases_, and No. 3 of these was
ultimately adopted, though only by 21 against 10 votes, to the following
effect: "La circulation aérienne internationale est libre, sauf le droit
pour les états sous-jacents de prendre certaines mesures à déterminer,
en vue de leur sécurité et de celle des personnes et des biens de leur
territoire."
The Institut then proceeded to deal with _bases_ relating to a time of
war, but was unable to make much progress with them in the time
available. The debate upon the "Régime juridique des aérostats" was not
resumed at Christiania in 1911, nor is it likely to be at Oxford "in the
autumn of the present year," as Mr. Cohen has been led to suppose. Other
arrangements were found to be necessary, at a meeting which took place a
week ago between myself and the other members of our _bureau_.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 30 (1913).
ATTACK FROM THE AIR
THE ENFORCEMENT OF INTERNATIONAL LAW
Sir,--In his interesting and important address at the Royal United
Service Institution, Colonel Jackson inquired: "Can any student of
international law tell us definitely that such a thing as aerial attack
on London is outside the rules; and, further, that there exists an
authority by which the rules can be enforced?" As one of the students to
whom the Colonel appeals I should be glad to be allowed to reply to the
first of his questions.
The "Geneva Convention" mentioned in the address has, of course, no
bearing upon aerial dangers. The answer to the question is contained in
the, now generally ratified, Hague Convention No. iv. of 1907. Art. 25
of the regulations annexed to this Convention runs as follows:
"It is forbidden to attack or to bombard _by any means
whatever (par quelque moyen que ce soit)_ towns, villages,
habitations, or buildings which are not defended."
It clearly appears from the "Actes de la Conférence," e.g. _T._ i.,
pp. 106, 109, that the words which I have italicised were inserted in
the article, deliberately and after considerable discussion, in order to
render illegal any attack from the air upon undefended localities; among
which I conceive that London would unquestionably be included.
I cannot venture to ask the hospitality of your columns for an adequate
discussion of the gallant officer's second question, as to the binding
force attributable to international law. Upon this I may, however,
perhaps venture to refer him to some brief remarks, addressed to you a
good many years ago, and now to be found at pp. 101 and 105 of the new
edition of my "Letters to _The Times_ upon War and Neutrality
(1881-1918)."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, April 24 (1914).
ATTACK FROM THE AIR
THE RULES OF INTERNATIONAL LAW
Sir,--In reply to Colonel Jackson's inquiry as to any rule of
international law bearing upon aerial attack upon London, I referred him
to the, now generally accepted, prohibition of the "bombardment, _by any
means whatever_, of towns, &c., which are not defended." This rule has
been growing into its present form ever since the Brussels Conference of
1874. The words italicised were added to it in 1907, to show that it
applies to the action of _aéronefs_ as well as to that of land
batteries. It clearly prohibits any wanton bombardment, undertaken with
no distinctly military object in view, and the prohibition is much more
sweeping, for reasons not far to seek, than that imposed by Convention
No. ix. of 1907 upon the treatment of coast towns by hostile fleets.
So far good; but further questions arise, as to which no diplomatically
authoritative answers are as yet available; and I, for one, am not wise
above that which is written. One asks, for instance, what places are
_prima facie_ "undefended." Can a "great centre of population" claim
this character, although it contains barracks, stores, and bodies of
troops? For the affirmative I can vouch only the authority of the
Institut de Droit International, which in 1896, in the course of the
discussion of a draft prepared by General Den Beer Pourtugael and
myself, adopted a statement to that effect. A different view seems to be
taken in the German _Kriegsbrauch_, p. 22. One also asks: Under what
circumstances does a place, _prima facie_, "undefended," cease to
possess that character? Doubtless so soon as access to it is forcibly
denied to the land forces of the enemy; hardly, to borrow an
illustration from Colonel Jackson's letter of Thursday last, should the
place merely decline to submit to the dictation of two men in an
aeroplane.
I read with great pleasure the colonel's warning, addressed to the
United Service Institution, and am as little desirous as he is that
London should rely for protection upon The Hague article, ambiguous as I
have confessed it to be; trusting, indeed, that our capital may be
enabled so to act at once in case of danger as wholly to forfeit such
claim as it may in ordinary times possess to be considered an
"undefended" town. Let the principle involved in Art. 25 be carried into
much further detail, should that be found feasible, but, in the
meantime, let us not for a moment relax our preparation of vertical
firing guns and defensive aeroplanes.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, May 2 (1914).
The war of 1914 has definitely established the employment of
aircraft for hostile purposes, and, as evidenced by the
reception given by belligerents to neutral protests, the
sovereignty of a state over its superincumbent air-spaces.
On the bombardment of undefended places, _cf. supra_, pp. 30,
62, 67, 68; _infra_, pp. 97, 109, 112-123.
On the authority of International Law, _supra_, pp. 25, 66, 67;
_infra_, pp. 77, 114, 115, 137, 169.
* * * * *
SECTION 5
_Submarines_
GERMANY AND THE HAGUE
Sir,--One excuse for German atrocities put forward, as you report, in
the _Kolnische Zeitung_, ought probably not to pass unnoticed, denying,
as it does, any binding authority to the restrictions imposed upon the
conduct of warfare, on land or at sea, by The Hague Conventions of 1907.
It is true that each of these Conventions contains an article to the
effect that its provisions "are applicable only between the contracting
Powers, and only if all the belligerents are parties to the Convention."
It is also true that three of the belligerents in the world-war now
raging--namely, Serbia, Montenegro, and, recently, Turkey--although they
have (through their delegates) signed these Conventions, have not yet
ratified them. Therefore, urges the _Zeitung_, the Conventions are, for
present purposes, waste paper. The argument is as technically correct as
its application would be unreasonable; and I should like to recall the
fact that, in the important prize case of the _Möwe_, Sir Samuel Evans,
in a considered judgment, pointed out the undesirability of refusing
application to the maritime conventions because they had not been
ratified by Montenegro, which has no navy, or by Serbia, which has no
seaboard; and accordingly, even after Turkey, which also has not
ratified, had become a belligerent, declined to deprive a German
shipowner of an indulgence to which he was entitled under the Sixth
Hague Convention.
Admiral von Tirpitz was perhaps not serious when he intimated to the
representative of the United Press of America that German submarines
might be instructed to torpedo all trading vessels of the Allies which
approach the British coasts. The first duty of a ship of war which
proposes to sink an enemy vessel is admittedly, before so doing, to
provide for the safety of all its occupants, which (except in certain
rare eventualities) can only be secured by their being taken on board of
the warship. A submarine has obviously no space to spare for such an
addition to its own staff.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 26 (1914).
The charitable view taken in the last paragraph has, of course,
not been justified.
For the _Möwe_, see 2 Lloyd, 70. On the restrictive article in
The Hague Convention, _cf. passim_.
"THE PIRATES"
Sir,--Would it not be desirable, in discussing the execrable tactics of
the German submarines, to abandon the employment of the terms "piracy"
and "murder," unless with a distinct understanding that they are used
merely as terms of abuse?
A ship is regarded by international law as "piratical" only if, upon the
high seas, she either attacks other vessels, without being commissioned
by any State so to do (_nullius Principis auctoritate_, as Bynkershoek
puts it), or wrongfully displaces the authority of her own commander.
The essence of the offence is absence of authority, although certain
countries, for their own purposes, have, by treaty or legislation, given
a wider meaning to the term, e.g., by applying it to the slave-trade.
"Murder" is such slaying as is forbidden by the national law of the
country which takes cognizance of it.
In ordering the conduct of which we complain, Germany commits an
atrocious crime against humanity and public law; but those who, being
duly commissioned, carry out her orders, are neither pirates nor
murderers. The question of the treatment appropriate to such persons,
when they fall into our hands, is a new one, needing careful
consideration. In any case, it is not for us to rival the barbarism of
their Government by allowing them to drown.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 13 (1915)
SUBMARINE CREWS
Sir,--My letter in _The Times_ of March 15 with reference to the conduct
of certain of the German submarines has been followed by a good many
other letters upon the same subject. Some of your correspondents have
travelled far from the question at issue into the general question of
permissible reprisals, into which I have no intention of following them.
But others, by exhibiting what I may venture to describe as an
_ignoratio elenchi_, have made it desirable to recall attention to the
specific purport of my former letter. It was to the effect--(1) that the
acts of those who, in pursuance of a Government commission, sink
merchant vessels without warning are not "piracy," the essence of that
offence at international law being that it is committed under no
recognised authority; and that neither is it "murder" under English law;
(2) that the question of the treatment appropriate to the perpetrators
of such acts, even under the orders of their Government, is a new one,
needing careful consideration. I was, of course, far from stating, as a
general rule, that Government authority exempts all who act under it
from penal consequences. The long-established treatment of spies is
sufficient proof to the contrary.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, March 22 (1915).
MR. WILSON'S NOTE
Sir,--I may perhaps be permitted to endorse every word of the high
praise bestowed in your leading article of this morning upon the Note
addressed to Germany by the Government of the United States. The
frequent mentions which it contains of "American ships," "American
citizens," and the like, were, no doubt, natural and necessary, as
establishing the _locus standi_ of that Government in the controversy
which it is carrying on. But we find also in the Note matters of even
more transcendent interest, relating to the hitherto universally
accepted doctrines of international law, applicable to the treatment of
enemy as well as of neutral vessels.
It may suffice to cite the paragraph which assumes as indisputable
"the rule that the lives of non-combatants, whether they be
of neutral citizenship or citizens of one of the nations at
war, cannot lawfully or rightfully be put in jeopardy by the
capture or destruction of unarmed merchantmen,"
as also
"the obligation to take the usual precaution of visit and
search to ascertain whether a suspected merchantman is in
fact of belligerent nationality, or is in fact carrying
contraband under a neutral flag."
[I assume that the word "unarmed" here does not exclude the case of a
vessel carrying arms solely for defence.]
The Note also recognises, what you some time ago allowed me to point
out,
"the practical impossibility of employing submarines in the
destruction of commerce without disregarding those rules of
fairness, reason, justice, and humanity which modern opinion
regards as imperative."
Adding:--
"It is practically impossible for them to make a prize of
her, and if they cannot put a prize crew on board, they
cannot sink her without leaving her crew and all on board her
to the mercy of the sea in her small boats."
Nothing could be more satisfactory than the views thus authoritatively
put forth, first as to the applicable law, and secondly as to the means
by which its prescriptions can be carried out.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Brighton, May 15 (1915).
_Cf. supra_, p. 70.
* * * * *
SECTION 6
_Lawful Belligerents_
GUERILLA WARFARE
Sir,--When Mr. Balfour last night quoted certain articles of the
"Instructions for the Government of Armies of the United States in the
Field" with reference to guerilla warfare, some observations were made,
and questions put, upon which you will perhaps allow me to say a word or
two.
1. Mr. Healy seemed to think that something turned upon the date (May,
1898) at which these articles were promulgated. In point of fact they
were a mere reissue of articles drawn by the well-known jurist Francis
Lieber, and, after revision by a military board, issued in April, 1868
by President Lincoln.
2. To Mr. Morley's enquiry, "Have we no rules of our own?" the answer
must be in the negative. The traditional policy of our War Office has
been to "trust to the good sense of the British officer." This policy,
though surprisingly justified by results, is so opposed to modern
practice and opinion that, as far back as 1878-80, I endeavoured,
without success, to induce the Office to issue to the Army some
authoritative, though simple, body of instructions such as have been
issued on the Continent of Europe and in America. The War Office was,
however, content to include in its "Manual of Military Law," published
in 1888, a chapter which is avowedly unauthoritative, and expressly
stated to contain only "the opinions of the compiler, as drawn from the
authorities cited."
3. The answer to Sir William Harcourt's unanswered question, "Were there
no rules settled at the Hague?" must be as follows. The Hague Convention
of 1899, upon "the laws and customs of warfare," ratified by this
country on September 4 last, binds the contracting parties to give to
their respective armies instructions in conformity with the _Règlement_
annexed to the Convention. This _Règlement_, which is substantially a
reproduction of the unratified _projet_ of the Brussels Conference of
1874, does deal, in Arts. 1-3, with guerilla warfare. It is no doubt
highly desirable that, as soon as may be, the drafting of rules in
accordance with the _Règlement_ should be seriously taken in hand, our
Government having now abandoned its _non possumus_ attitude in the
matter. It will, however, be found to be the case, as was pointed out by
Mr. Balfour, that the sharp distinction between combatants and
non-combatants contemplated by the ordinary laws of war is inapplicable
(without the exercise of undue severity) to operations such as those now
being carried out in South Africa.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, December 7 (1900).
"Lieber's Instructions," issued in 1863 and reissued in 1898,
will doubtless be superseded, or modified, in consequence of
the United States having, on April 9, 1902, ratified the
Convention of 1899, and on March 10, 1908, that of 1907, as to
the Laws and Customs of War on Land.
The answer to Mr. Morley's enquiry in 1900 would not now be in
the negative. The present writer's representations resulted in
Mr. Brodrick, when Secretary for War, commissioning him to
prepare a Handbook of the _Laws and Customs of War on Land_,
which was issued to the Army by authority in 1904. On the
instructions issued by other National Governments, see the
author's _Laws of War on Land_, 1908, pp. 71-73.
The answer, given in the letter, to Sir William Harcourt's
question must now be supplemented by a reference to the
Handbook above mentioned as having contained rules founded upon
the _Règlement_ annexed to the Convention of 1899, and by a
statement that that Convention, with its _Règlement_, is now
superseded by Conventions No. iv. (with its _Règlement_) and
No. v. of 1907, of which account has been taken in a new
Handbook upon _Land Warfare_, issued by the War Office in 1913.
As to what is required from a lawful belligerent, see Arts. 1
and 2 of the _Règlement_ of 1899, practically repeated in that
of 1907. The substance of Art. 1 is set out in the letter which
follows.
Art. 2 grants some indulgence to "the population of a territory
which has not been occupied who, on the approach of the enemy,
spontaneously take up arms to resist the invading troops,
without having had time to organise themselves in accordance
with Art. 1." _Cf. infra_, pp. 76, 79.
THE RUSSIAN USE OF CHINESE CLOTHING
Sir,--If Russian troops have actually attacked while disguised in
Chinese costume, they have certainly violated the laws of war. It may,
however, be worth while, to point out that the case is not covered, as
might be inferred from the telegram forwarded to you from Tokio on
Wednesday last, by the text of Art. 23 (_f_) of the _Règlement_ annexed
to The Hague Convention "on the laws and customs of war on land." This
article merely prohibits "making improper use of the flag of truce, of
the national flag or the military distinguishing marks and the uniform
of the enemy, as well as of the distinguishing signs of the Geneva
Convention."
Art. 1 of the _Règlement_ is more nearly in point, insisting, as it
does, that even bodies not belonging to the regular army, which, it is
assumed, would be in uniform (except in the case of a hasty rising to
resist invasion), shall, in order to be treated as "lawful
belligerents," satisfy the following requirements, viz.:--
"(1) That of being commanded by a person responsible for his
subordinates;
"(2) That of having a distinctive mark, recognisable at a
distance;
"(3) That of carrying their arms openly; and
"(4) That of conducting their operations in accordance with
the laws and customs of war."
The fact that, in special circumstances, as in the Boer war, marks in
the nature of uniform have not been insisted upon, has, of course, no
bearing upon the complaint now made by the Japanese Government.
All signatories of The Hague Convention are bound to issue to their
troops instructions in conformity with the _Règlement_ annexed to it.
The only countries which, so far as I am aware, have as yet fulfilled
their obligations in this respect are Italy, which has circulated the
French text of the _Règlement_ without comment; Russia, which has
prepared a little pamphlet of sixteen pages for the use of its armies in
the Far East; and Great Britain, which has issued a Handbook, containing
explanatory and supplementary matter, besides the text of the relevant
diplomatic Acts.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, October 21 (1904).
THE RIGHTS OF ARMED CIVILIANS
Sir,--It is interesting to be reminded by Sir Edward Ridley of the view
taken by Sir Walter Scott of the right and duty of civilians to defend
themselves against an invading enemy. International law is, however,
made neither by the ruling of an "impartial historian," on the one hand,
nor by the _ipse dixit_ of an Emperor, on the other.
In point of fact, the question raised by Sir Edward is not an open one,
and, even in our own favoured country, it is most desirable that every
one should know exactly how matters stand. The universally accepted
rules as to the persons who alone can claim to act with impunity as
belligerents are set forth in that well-known "scrap of paper" The Hague
Convention No. iv. of 1907; to the effect that members of "an army" (in
which term militia and bodies of volunteers are included) must (1) be
responsibly commanded, (2) bear distinctive marks, visible at a
distance, (3) carry their arms openly, and (4) conform to the laws of
war. By way of concession, inhabitants of a district not yet "occupied"
who spontaneously rise to resist invasion, without having had time to
become organised, will be privileged if they conform to requirements (3)
and (4). These rules are practically a republication of those of The
Hague Convention of 1899, which again were founded upon the
recommendations of the Brussels Conference of 1874, although, at the
Conference, Baron Lambermont regretted that "si les citoyens doivent
être conduits au supplice pour avoir tenté de défendre leur pays, au
péril de leur vie, ils trouvent inscrit, sur le poteau au pied duquel
ils seront fusillés, l'article d'un Traité signé par leur propre
gouvernement qui d'avance les condamnait à mort."
_An Englishman's Home_ was a play accurately representing the accepted
practice, shocking as it must be. I remember the strength of an epithet
which was launched from the gallery at the German officer on his
ordering the shooting of the offending householder. It may be hardly
necessary to add that nothing in international usage justifies execution
of innocent wives and children.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, September 17 (1914).
This letter was, it seems, perverted in the _Kreuz Zeitung_.
CIVILIANS IN WARFARE
THE RIGHT TO TAKE UP ARMS
Sir,--I have read with some surprise so much of Sir Ronald Ross's letter
of to-day as states that "the issue still remains dark" as to the right
of civilians to bear arms in case of invasion. It has long been settled
that non-molestation of civilians by an invader is only possible upon
the understanding that they abstain from acts of violence against him.
Modern written international law has defined, with increasing
liberality, by the draft Declaration of 1874 and the Conventions of 1899
and 1907, the persons who will be treated as lawful belligerents. Art. 1
of The Hague Regulations of 1907 recognises as such, not only the
regular army, but also militia and volunteers. Art. 2 grants indulgence
to a _levée en masse_ of "la population" (officially mistranslated "the
inhabitants") of a territory not yet occupied. Art. 3, also cited by Sir
Ronald, has no bearing upon the question.
The rules are, I submit, as clear as they could well be made, and are
decisive against the legality of resistance by individual civilians, the
sad, but inevitable consequence of which was, as I pointed out in _The
Times_ of September 19 last, truthfully represented on the stage in _An
Englishman's Home_.
In the same letter I wrote that "even in our own favoured country it is
most desirable that every one should know exactly how matters stand."
There are, however, obvious objections, possibly not insuperable, to
this result being brought about, as is proposed by Sir Ronald Ross, by
Government action.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, October 26 (1914).
CIVILIANS AND A RAID
Sir,--It is satisfactory to learn, from Mr. McKenna's answer to a
question last night, that the duty of the civilian population, at any
rate in certain counties, is engaging the attention of Government. I
confess, however, to having read with surprise Mr. Tennant's
announcement that "it was provided by The Hague Convention that the
wearing of a brassard ensured that the wearer would be regarded as a
belligerent." It ought surely to be now generally known that, among the
four conditions imposed by the Convention upon Militia and bodies of
Volunteers, in order to their being treated as belligerents, the third
is "that they shall bear a distinctive mark, fixed and recognisable at a
distance." Whether an enemy would accept the mere wearing of a brassard
as fulfilling this condition is perhaps an open question upon which some
light may be thrown by the controversies of 1871 with reference to
_francs-tireurs_.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, November 24 (1914).
MISS CAVELL'S CASE
Sir,--The world-wide abhorrence of the execution of Miss Cavell,
aggravated as it was by the indecent and stealthy haste with which it
was carried out, is in no need of enhancement by questionable arguments,
such as, I venture to say, are those addressed to you by Sir James
Swettenham.
It is, of course, the case that Germany is in Belgium only as the result
of her deliberate violation of solemnly contracted treaties, but she is
in military "occupation" of the territory. From such "occupation" it
cannot be disputed that there flow certain rights of self-defence. No
one, for instance, would have complained of her stern repression of
civilian attacks upon her troops, so long as it was confined to actual
offenders. The passages quoted by Sir James from Hague Convention v.,
and from the _Kriegsbrauch_, relate entirely to the rights and duties of
Governments, and have no bearing upon the tragical abuse of jurisdiction
which is occupying the minds of all of us.
May I take this opportunity of calling attention to the fresh evidence
afforded by the new Order in Council of our good fortune in not being
bound by the Declaration of London, which erroneously professed to
"correspond in substance with the generally recognised principles of
International Law"? Is it too late, even now, to announce, by a
comprehensive Order in Council, any relaxations which we and our Allies
think proper to make of well-established rules of Prize Law, without any
reference to the more and more discredited provisions of the
Declaration, the partial and provisional adoption of which seems, at the
outbreak of the war, to have been thought likely to save trouble?
Your obedient servant,
T. E. HOLLAND.
Oxford, October 26 (1915).
* * * * *
SECTION 7
_Privateering_
The three letters which immediately follow were written to
point out that neither belligerent in the war of 1898 was under
any obligation not to employ privateers. Within, however, a few
days after the date of the second of these letters, both the
United States and Spain, though both still to be reckoned among
the few powers which had not acceded to the Declaration of
Paris, announced their intention to conduct the war in
accordance with the rules laid down by the Declaration.
Art. 3 of the Spanish Royal Decree of April 23 was to the
effect that "notwithstanding that Spain is not bound by the
Declaration signed in Paris on April 16, 1856, as she expressly
stated her wish not to adhere to it, my Government, guided by
the principles of international law, intends to observe, and
hereby orders that the following regulations for maritime law
be observed," viz. Arts. 2, 3, and 4 of the Declaration,
after setting out which, the Decree proceeds to state that the
Government, while maintaining "their right to issue letters of
marque, ... will organise, for the present, a service of
auxiliary cruisers ... subject to the statutes and jurisdiction
of the Navy."
The Proclamation of the President of the United States of April
26 recited the desirability of the war being "conducted upon
principles in harmony with the present views of nations, and
sanctioned by their recent practice," and that it "has already
been announced that the policy of the Government will not be to
resort to privateering, but to adhere to the rules of the
Declaration of Paris," and goes on to adopt rules 2, 3, and 4
of the Declaration.
Ten years afterwards, viz. on January 18, 1908, Spain
signified "her entire and definitive adhesion to the four
clauses contained in the Declaration," undertaking scrupulously
to conduct herself accordingly. Mexico followed suit on
February 13, 1909. The United States are therefore now the only
important Power which has not formally bound itself not to
employ privateers. It seems unlikely that privateers, in the
old sense of the term, will be much heard of in the future,
though many questions may arise as to "volunteer navies" and
subsidised liners, such as those touched upon in the last
section, with reference to captures made by the _Malacca_;
possibly also as to ships "converted" on the High Seas.
OUR MERCANTILE MARINE IN WAR TIME
Sir,--There can be no doubt that serious loss would be occasioned to
British commerce by a war between the United States and Spain in which
either of those Powers should exercise its right of employing privateers
or of confiscating enemy goods in neutral bottoms.
Before, however, adopting the measures recommended, with a view to the
prevention of this loss, by Sir George Baden-Powell in your issue of
this morning, it would be desirable to enquire how far they would be in
accordance with international law, and what would be the net amount of
the relief which they would afford.
It is hardly necessary to say that non-compliance with the provisions of
the Declaration of Paris by a non-signatory carries with it none of the
consequences of a breach of the law of nations. The framers of that
somewhat hastily conceived attempt to engraft a paper amendment upon the
slowly matured product of oecumenical opinion, far from professing to
make general law, expressly state that the Declaration "shall not be
binding except upon those Powers who have acceded, or shall accede, to
it." As regards Spain and the United States the Declaration is _res
inter alios acta_.
It follows that, in recommending that any action taken by privateers
against British vessels should be treated as an act of piracy, Sir
George Baden-Powell is advocating an inadmissible atrocity, which
derives no countenance from the view theoretically maintained by the
United States, at the outset of the Civil War, of the illegality of
commissions granted by the Southern Confederation. His recommendation
that our ports should be "closed" to privateers is not very
intelligible. Privateers would, of course, be placed under the
restrictions which were imposed in 1870, in accordance with Lord
Granville's instructions, even on the men-of-war of belligerents. They
would be forbidden to bring in prizes, to stay more than twenty-four
hours, to leave within twenty-four hours of the start of a ship of the
other belligerent, to take more coal than enough to carry them to the
nearest home port, and to take any further supply of coal within three
months. We might, no doubt, carry discouragement of privateers by so
much further as to make refusal of coal absolute in their case, but
hardly so far as to deny entry to them under stress of weather.
The difficulties in the way of accepting Sir G. Baden-Powell's other
suggestion are of a different order. Although we could not complain of
the confiscation by either of the supposed belligerents of enemy
property found in British vessels, as being a violation of international
duty, we might, at our own proper peril, announce that we should treat
such confiscation as "an act of war." International law has long
abandoned the attempt to define a "just cause of war." That must be left
to the appreciation of the nations concerned. So to announce would be,
in effect, to say: "Although by acting as you propose you would violate
no rule, yet the consequences would be so injurious to me that I should
throw my sword into the opposite scale." We should be acting in the
spirit of the "Armed Neutralities" of 1780 and 1800. The expediency of
so doing depends, first, upon the extent to which the success of our
action would obviate the mischief against which it would be directed;
and, secondly, upon the likelihood that the benefit which could be
obtained only by imposing a new rule of international law _in invitos_
would counterbalance the odium incurred by its imposition. On the former
question it may be worth while to remind the mercantile community that,
even under the Declaration of Paris, neutral trade must inevitably be
put to much inconvenience. Any merchant vessel may be stopped with a
view to the verification of her national character, of which the flag is
no conclusive evidence. She is further liable to be visited and searched
on suspicion of being engaged in the carriage of contraband, or of enemy
military persons, or of despatches, or in running a blockade. Should the
commander of the visiting cruiser "have probable cause" for suspecting
any of these things, though the vessel is in fact innocent of them, he
is justified in putting a prize crew on board and sending her into port,
with a view to the institution of proceedings against her in a prize
Court. A non-signatory of the Declaration of Paris may investigate and
penalise, in addition to the above-mentioned list of offences, the
carriage of enemy goods. This is, no doubt, by far the most important
branch of the trade which is carried on for belligerents by neutrals,
but it must not be forgotten that even were this branch of trade
universally indulged, in accordance with the Declaration of Paris
neutral commerce would still remain liable to infinite annoyance from
visit and search, with its possible sequel in a prize Court.
The question of the balance between benefit to be gained and odium to be
incurred by insisting upon freedom to carry the goods of belligerents I
leave to the politicians.
I am, Sir, your obedient servant,
T. E. HOLLAND.
The Athenæum, April 16 (1898).
OUR MERCANTILE MARINE IN WAR TIME
Sir,--To-day's debate should throw some light upon the views of the
Government, both as to existing rules of international law and as to the
policy demanded by the interests of British trade. It is, however,
possible that the Government may decline to anticipate the terms of the
Declaration of Neutrality which they may too probably find themselves
obliged to issue in the course of the next few days, and it is not
unlikely that the law officers may decline to advise shipowners upon
questions to which authoritative replies can be given only with
reference to concrete cases by a prize Court.
You may perhaps, therefore, allow me in the meantime to supplement my
former letter by a few remarks, partly suggested by what has since been
written upon the subject.
It is really too clear for argument that privateers are not, and cannot
be treated as, pirates.
Sir George Baden-Powell still fails to see that the Declaration of Paris
was not a piece of legislation, but a contract, producing no effect upon
the rights and duties of nations which were not parties to it. We did
not thereby, as he supposes, "decline to recognise private vessels of
war as competent to use force on neutral merchantmen." We merely bound
ourselves not to use such vessels for such a purpose. Sir George is
still unable to discover for privateers any other category than the
"_status_ of pirate." He admits that it would not be necessary for their
benefit to resort to "the universal use of the fore-yard-arm." Let me
assure him that the bearer of a United States private commission of war
would run no risk even of being hanged at Newgate. President Lincoln, it
is true, at the outset of the Civil War, threatened to treat as pirates
vessels operating under the "pretended authority" of the rebel States;
but he was speedily instructed by his own law Courts--e.g. in the
_Savannah_ and in the _Golden Rocket_ (insurance) cases--that even such
vessels were not pirates _iure gentium_. It is also tolerably
self-evident that we cannot absolutely "close" our ports to any class of
vessels. There is no inconsistency here between my friend Sir Sherston
Baker and myself. We can discourage access, and of course, by refusal of
coal, render egress impossible for privateers. Mr. Coltman would
apparently be inclined to carry this policy so far that he would disarm
and intern even belligerent ships of war which should visit our ports: a
somewhat hazardous innovation, one would think.
It is quite possible that the question of privateering may not become a
practical one during the approaching war. Both parties may expressly
renounce the practice, or they may follow the example of Prussia in
1870, and Russia at a later date, in commissioning fast liners under the
command of naval officers--a practice, by the by, which is not, as Sir
George seems to think, "right in the teeth of the Declaration of Paris."
See Lord Granville's despatch in 1870.
On Sir George's proposals with reference to the carriage of enemy goods,
little more need be said, except to deprecate arguments founded upon the
metaphorical statement that "a vessel is part of the territory covered
by her flag," a statement which Lord Stowell found it necessary to meet
by the assertion that a ship is a "mere movable." There can be no
possible doubt of the right, under international law, of Spain and the
United States to visit and search neutral ships carrying enemy's goods,
and to confiscate such goods when found. They may also visit and search
on many other grounds, and the question (one of policy) is whether,
rather than permit this addition to the list, we choose to take a step
which would practically make us belligerent. This question also, it may
be hoped, will not press for solution.
In any case, let me express my cordial concurrence with your hope that,
when hostilities are over, some really universal and lasting agreement
may be arrived at with reference to the matters dealt with, as I venture
to think prematurely, by the Declaration of Paris. A reform of maritime
law to which the United States are not a party is of little worth. That
search for contraband of war can ever be suppressed I do not believe,
and fear that it may be many years before divergent national interests
can be so far reconciled as to secure an agreement as to the list of
contraband articles. In the meantime this country is unfortunately a
party to that astonishing piece of draftsmanship, the "three rules" of
the Treaty of Washington, to which less reference than might have been
expected has been made in recent discussions. The ambiguities of this
document, which have prevented it from ever being, as was intended,
brought to the notice of the other Powers, with a view to their
acceptance of it, are such that, its redrafting, or, better still, its
cancellation, should be the first care of both contracting parties when
the wished for congress shall take place.
May I add that no serious student of international law is likely either
to overrate the authority which it most beneficially exercises, or to
conceive of it as an unalterable body of theory.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Brighton, April 21 (1898).
OUR MERCANTILE MARINE IN WAR
Sir,--Let me assure Sir George Baden-Powell that if, as he seems to
think, I have been unsuccessful in grasping the meaning of his very
interesting letters, it has not been from neglect to study them with the
attention which is due to anything which he may write. How privateering,
previously innocent, can have become piratical, _i.e._ an offence,
everywhere justiciable, against the Law of Nations, if the Declaration
of Paris was not in the nature of a piece of legislation, I confess
myself unable to understand; but have no wish to repeat the remarks
which you have already allowed me to make upon the subject.
I shall, however, be glad at once to remove the impression suggested by
Sir George's letter of this morning, that Art. 7 of the Spanish Decree
of April 24 has any bearing upon the legitimacy of privateering
generally. The article in question (following, by the by, the very
questionable precedent of a notification issued by Admiral Baudin,
during the war between France and Mexico in 1889) merely threatens with
punishment neutrals who may accept letters of marque from a belligerent
Government.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, April 27 (1898).
THE DECLARATION OF PARIS
Sir,--There is really no question at issue between your two
correspondents Mr. Gibson Bowles and "Anglo-Saxon" as to the attitude of
the United States towards the Declaration of Paris.
Mr. Bowles rightly maintains that the United States has not acceded to
the Declaration as a whole, or to its second article, which exempts from
capture enemy property in neutral ships. He means, of course, that
neither the whole nor any part of that Declaration has been ratified by
the President with the advice and consent of the Senate. The whole
contains, indeed, an article on privateering, to which, as it stands,
the United States have always objected, and no part of the Declaration
can be accepted separately.
"Anglo-Saxon," on the other hand, is equally justified in asserting that
the "officially-recorded policy" of the States, _i.e._ of the Executive,
is in accordance with Art. 2 of the Declaration. This policy has been
consistently followed for more than half a century. Its strongest
expression is perhaps to be found in the President's Proclamation of
April 26, 1898, in which, after reciting that it being desirable that
the war with Spain "should be conducted upon principles in harmony with
the present views of nations and sanctioned by their recent practice, it
has already been announced that the policy of the Government will not be
to resort to privateering, but to adhere to the rules for the
Declaration of Paris," he goes on to "declare and proclaim" the three
other articles of the Declaration. The rule of Art. 2, as to exemption
of enemy goods in neutral ships, was embodied in Art. 19 of the Naval
War Code of 1900 (withdrawn in 1904, for reasons not affecting the
article in question), and reappears in Art. 17, amended only by the
addition of a few words relating to "hostile assistance" in the draft
Code which the United States delegates to the Conferences of 1907 and
1908 were instructed to bring forward "with the suggested changes, and
such further changes as may be made necessary by other agreements
reached at the Conference, as a tentative formulation of the rules which
should be considered." (My quotation is from the instructions as
originally issued in English.) Such changes as have been made in the
Code are due to discussions which have taken place between high naval
and legal authorities at the Naval War College. I do not know whether
the annual reports of these discussions, with which I am kindly
supplied, are generally accessible, but would refer, especially with
reference to the Declaration of Paris, to the volumes for 1904 and 1906.
It can hardly be necessary to add that no acts of the Executive, such as
the Proclamation of 1898, the order putting in force the Code of 1900,
or the instructions to delegates in 1907 and 1909, amount to anything
like a ratification of the Declaration in the manner prescribed by the
Constitution of the United States.
I have the honour to be, Sir,
Your obedient servant,
T. E. HOLLAND.
Oxford, January 4 (1911).
THE DECLARATION OF PARIS
Sir,--Mr. Gibson Bowles resuscitates this morning his crusade against
the Declaration of 1856. It is really superfluous to argue in support of
rules which have met with general acceptance for nearly sixty years
past, to all of which Spain and Mexico, who were not originally parties
to the Declaration, announced their formal adhesion in 1907, while the
United States, which for well-known reasons declined to accede to the
Declaration, described, in 1898, all the articles except that dealing
with privateering as "recognised rules of International Law."
It may, however, be worth while to point out why it was that no
provision was made for the ratification of the Declaration of 1856, or
for that of 1868 relating to the use of explosive bullets. At those
dates, when the first steps were being taken towards the general
adoption of written rules for the conduct of warfare, it was, curiously
enough, supposed that agreement upon such rules might be sufficiently
recorded without the solemnity of a treaty. This was, in my opinion, a
mistake, which has been avoided in more recent times, in which the
written law of war has been developed with such marvellous rapidity. Not
only have codes of such rules been promulgated in regular "Conventions,"
made in 1899, 1906, and 1907, but the so-called "Declarations," dealing
with the same topic, of 1899, 1907, and 1909 have been as fully equipped
as were those Conventions with provisions for ratification. The
distinction between a "Convention" and a "Declaration" is therefore now
one without a difference, and should no longer be drawn. Nothing in the
nature of rules for the conduct of warfare can prevent their expression
in Conventions, and the reason which seems to have promoted the
misdescription of the work of the London Conference of 1908-9 as a
"Declaration"--viz. an imaginary difference between rules for the
application of accepted principles and wholly new rules--is founded in
error. Much of the contents of The Hague "Conventions" is as old as the
hills while much of the "Declaration" of London is revolutionary.
This by the way. It is not very clear whether Mr. Gibson Bowles, in
exhorting us to denounce the Declaration, relies upon its original lack
of ratification, or upon some alleged "privateering" on the part of the
Germans. Nothing of the kind has been reported. The commissioning of
warships on the high seas is a different thing, which may possibly be
regarded as an offence of a graver nature. Great Britain is not going to
imitate the cynical contempt for treaties, evidenced by the action of
Germany in Belgium and Luxemburg, in disregard not only of the
well-known treaties of 1889 and 1867, but of a quite recent solemn
undertaking, to which I have not noticed any reference. Art. 2 of The
Hague Convention No. v. of 1907, ratified by her in 1909, is to the
following effect:--
"Belligerents are forbidden to move across the territory of a
neutral Power troops or convoys, whether of munitions or of
supplies."
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August 12 (1914).
The true ground for objecting to the legality of the purchase by Turkey
of the German warships which have been forced to take refuge in her
waters is no doubt that stated by Sir William Scott in the _Minerva_, 6
C. Rob. at p. 400--viz. that it would enable the belligerent to whom
the ships belong "so far to rescue himself from the disadvantage into
which he has fallen as to have the value at least restored to him by a
neutral purchaser." The point is not touched upon in the (draft)
Declaration of London.
Even supposing the purchase to be unobjectionable, the duty of Turkey to
remove all belligerents from the ships would be unquestionable.
_Cf._ on the Declaration of Paris, _passim_, see Index; on the
misuse of Declarations, _infra_, p. 92; on privateering,
_supra_, pp. 80-84.
THE DECLARATION OF PARIS
Sir,--The resuscitation, a few days ago, in the House of Commons of an
old controversy reminds one of the mistaken procedure which made such a
controversy possible. It can hardly now be doubted that the rules set
forth in the Declaration of Paris of 1856, except possibly the
prohibition of privateering, have by general acceptance during sixty
years, strengthened by express accessions on the part of so many
Governments, become a portion of international law, and are thus binding
upon Great Britain, notwithstanding her omission to ratify the
Declaration. This omission is now seen to have been a mistake. So also
was the description of the document as a "declaration." Both mistakes
were repeated in 1868 with reference to the "Declaration" of St.
Petersburg (as to explosive bullets).
In those early attempts at legislation for the conduct of warfare it
seems to have been thought sufficient that the conclusions arrived at by
authorised delegates should be announced without being embodied in a
treaty. Surely, however, what purported to be international agreements
upon vastly important topics ought to have been accompanied by all the
formalities required for "conventions," and should have been so
entitled. In later times this has become the general rule for the
increasingly numerous agreements which bear upon the conduct of
hostilities. Thus we have The Hague "conventions" of 1899 and 1907, and
the Geneva "convention" of 1906, all duly equipped with provisions for
ratification. Such provisions are also inserted in certain other recent
agreements dealing with aerial bombardments, gases, and expanding
bullets, which it has nevertheless pleased their contrivers to
misdescribe as "declarations." Equally so misdescribed was the deceased
Declaration of London, with a view, apparently, to suggesting, as was
far from being the case, that it was a mere orderly statement of
universally accepted principles, creating no new obligations.
Is it not to be desired that all future attempts for the international
regulation of warfare should not only be specifically made subject to
ratification, but should also, in accordance with fact, be described as
"conventions"?
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August 13 (1916).
THE DECLARATION OF PARIS
Sir,--If Mr. Gibson Bowles, whose courteous letter I have just been
reading, will look again at my letter of the 18th, I think he will see
that I there carefully distinguished between the Declaration of Paris,
which, as is notorious, must be accepted as a whole or not at all, and
the rules set forth in it, "except, possibly, the prohibition of
privateering," which I thought, for the reasons which I stated, might be
taken to have become a portion of International Law.
I must be excused from following Mr. Bowles into a discussion of the
bearing of those rules upon the Order in Council of March 11, 1915--a
large and delicate topic, which must be studied in elaborate dispatches
exchanged between this country and the United States.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Oxford, August 17 (1916).
* * * * *
SECTION 8
_Assassination_
THE NATAL PROCLAMATION
Sir,--It was reported a few days ago that the Natal Government had
offered a reward for Bambaata, dead or alive. I have waited for a
statement that no offer of the kind had been made, or that it had been
made by some over-zealous official, whose act had been disavowed. No
such statement has appeared. On the contrary, we read that "the price
placed upon the rebel's head has excited native cupidity." It may
therefore be desirable to point out that what is alleged to have been
done is opposed to the customs of warfare, whether against foreign
enemies or rebels.
By Art. 28 (_b_) of The Hague Regulations, "it is especially prohibited
to kill or wound treacherously individuals belonging to the hostile
nation or army": words which, one cannot doubt, would include not only
assassination of individuals, but also, by implication, any offer for an
individual "dead or alive." The Regulations are, of course, technically
binding only between signatories of the convention to which they are
appended; but Art. 28 (_b_) is merely an express enactment of a
well-established rule of the law of nations. A recent instance of its
application occurred, before the date of The Hague Convention, during
operations in the neighbourhood of Suakin. An offer by the British
Admiral of a reward for Osman Digna, dead or alive, was, if I mistake
not, promptly cancelled and disavowed by the home Government.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Brighton, April 17 (1906).
* * * * *
SECTION 9
_The Choice of Means of Injuring_
BULLETS IN SAVAGE WARFARE
Sir,--The Somaliland debate was sufficient evidence that The Hague
Convention "respecting the laws and customs of war on land" is far more
talked about than read. Colonel Cobbe had, it appears, complained of the
defective stopping power, as against the foes whom he was encountering,
of the Lee-Metford bullet. It is the old story that wounds inflicted by
this bullet cannot be relied on to check the onrush of a hardy and
fanatical savage, though they may ultimately result in his death.
Whereupon arises, on the one hand, the demand for a more effective
projectile, and, on the other hand, the cry that the proposed substitute
is condemned by "the universal consent of Christendom"; or, in
particular, "by the Convention of The Hague," which, as was correctly
stated by Mr. Lee, prohibits only the use of arms which cause
superfluous injury.
You print to-day two letters enforcing the view of the inefficiency
against savages of the ordinary service bullet. Perhaps you will find
space for a few words upon the question whether the employment for this
purpose of a severer form of projectile, such as the Dum Dum bullet,
would be a contravention of the "laws of war."
The law of the subject, as embodied in general international national
agreements, is to be found in four paragraphs; to which, be it observed,
nothing is added by the unwritten, or customary, law of nations. Of
these paragraphs, which I shall set out textually, three affirm general
principles, while the fourth contains a specific prohibition. The
general provisions are as follows:--
"The progress of civilisation should have the effect of
alleviating as much as possible the calamities of war. The
only legitimate object which States should set before
themselves during war is to weaken the military forces of the
enemy. For this purpose it is sufficient to disable the
greatest possible number of men. This object would be
exceeded by the employment of arms which would uselessly
aggravate the sufferings of disabled men or render their
death inevitable. The employment of such arms would,
therefore, be contrary to the laws of humanity." (St.
Petersburg Declaration, 1868. Preamble.)
"The right of belligerents to adopt means of injuring the
enemy is not unlimited." (Hague _Règlement_, Art. 22.)
"Besides the prohibitions provided by special conventions [the
Declaration of St. Petersburg alone answers to this
description] it is in particular prohibited (_e_) to employ
arms, projectiles, or material of a nature to cause
superfluous injury." (_Ib._ Art. 23.)
The only special prohibition is that contained in the Declaration of St.
Petersburg, by which the contracting parties--
"Engage mutually to renounce, in case of war among
themselves, the employment by their military or naval forces
of any projectile of a weight below 400 grammes which is
either explosive or charged with fulminating or inflammable
substances."
No one, so far as I am aware, has any wish to employ a bullet weighing
less than 14 oz. which is either explosive or charged as above. So far,
therefore, as the generally accepted laws of warfare are concerned, the
only question as to the employment of Dum Dum or other expanding bullets
is whether they "uselessly aggravate the sufferings of disabled men, or
render their death inevitable"; in other words, whether they are "of a
nature to cause superfluous injury." It is, however, probable that
people who glibly talk of such bullets being "prohibited by The Hague
Convention" are hazily reminiscent, not of the _Règlement_ appended to
that convention, but of a certain "Declaration," signed by the delegates
of many of the Powers represented at The Hague in 1899, to the effect
that--
"The contracting Powers renounce the use of bullets which
expand or flatten easily in the human body, such as bullets
with a hard casing, which does not entirely cover the core,
or is pierced with incisions."
To this declaration neither Great Britain nor the United States are
parties, and it is waste-paper, except for Powers on whose behalf it has
not only been signed, but has also been subsequently ratified.
I am, Sir, your obedient servant,
T. E. HOLLAND.
Athenæum Club, May 2 (1903).
The Declaration last mentioned (No. 3 of the first Peace
Conference) is now something more than waste paper, having been
generally ratified. Great Britain, on August 17, 1907, at the
fourth plenary sitting of the Second Peace Conference,
announced her adhesion to it, as also to the, also generally
ratified, Declaration No. 2 of 1899, which forbids the
employment of projectiles constructed solely for the diffusion
suffocating or harmful gases.
The provisions of Arts. 22 and 23 (_e_) of the _Règlement_
annexed to The Hague Convention of 1899 "concerning the Laws
and Customs of War on Land," as quoted in the letter, have been
textually reproduced in Arts. 22 and 23 (_e_) of the
_Règlement_ annexed to the Hague Convention, No. iv. of 1907,
on the same subject, ratified by Great Britain on November 27,
1909.
The written agreements as to the choice of weapons may be taken
therefore to start from the general principles laid down in the
preamble to the Declaration of St. Petersburg (though held by
some Powers to err in the direction of liberality), and in
Arts. 22 and 23 (_e_) of The Hague _Règlements_. The specially
prohibited means of destruction are, by the Declaration of St.
Petersburg, explosive bullets; by The Hague _Règlements_, Art.
23 (_a_) poison or poisoned arms; by The Hague Declarations of
1898, Nos. 2 and 3, "projectiles the sole object of which is
the diffusion of asphyxiating or harmful gases," and "bullets
which expand or flatten easily in the human body, such as
bullets with a hard casing, which does not entirely cover the
core, or is pierced with incisions." As to Declaration No. 1,
_cf. supra_, p. 22. It must be remarked that the Declarations
of St. Petersburg and of The Hague, unlike The Hague
Règlements, apply to war at sea, as well as on land.
_Cf. supra_, p. 22, and see the author's _The Laws of War on
Land (written and unwritten)_, 1908, pp. 40-43.
GASES
Sir,--The weightily signed medical protest which you publish this
morning will be widely welcomed. The German employment of poisonous
gases for military purposes, which the Allies were obliged, reluctantly,
though necessarily, to reciprocate, was, of course, prohibited by
international Acts to which Germany is a party. Not only does the
Declaration of 1899 specifically render unlawful "the use of projectiles
the sole object of which is the diffusion of asphyxiating or harmful
gases," but the Hague Conventions of 1899 and 1907 both forbid, in
general terms, the employment of "(_a_) poison or poisoned arms," "(_c_)
arms, projectiles, or material of a nature to cause superfluous
suffering." The United States, like the rest of the world, are a party
to the two Conventions, and would doubtless, after the experiences of
recent years, no longer hesitate, as hitherto, to adhere to the
Declaration of 1899; in accordance with Admiral Mahan's view at that
date, to the effect that "the effect of gas shells has yet to be
ascertained," and, in particular, "whether they would be more, or less,
merciful than missiles now available."
The prohibition ought, no doubt, to be renewed and, if possible,
strengthened; but this is surely not, as your correspondents suggest,
work for the Peace Cong
Showing first 200,000 characters. Full text: gutenberg.org/ebooks/14447