THE GIFT OF MAY TREAT MORRISON IN MEMORY OF ALEXANDER F MORRISON THE DECLARATION OF LONDON THE DECLARATION OF LONDON A LECTURE DELIVERED AT UNIVERSITY COLLEGE, GOWER STREET BY THE RIGHT HON. ARTHUR COHEN, M.A., K.C., F.B.A. 'Glniv>er6lti2 of ILouDon ipresa PUBLISHED FOR THE UNIVERSITY OF LONDON PRESS, LTD. BY HODDER & STOUGHTON, WARWICK SQUARE, E.C. 1911 i J J ) J J ■> ' > i * i i i JJjjj ''\\.i HODDER AND STOUGHTON PUBLISHERS TO THE UNIVERSITY OF LONDON PRESS • • • • ' * ' • •••••••••• • • ••••. .'. •*: \' • , 4 » a 5Z03 THE DECLARATION OF LONDON I. Much has been said, much has been written, about the Declaration of London. ^ There have been articles in all the news- 5 papers and reviews, letters written by eminent jurists, lawyers and merchants, pronounce- ments made by Chambers of Commerce, answers to them by Sir Edward Grey, followed by replies and rejoinders. There has been an able vindication of the Declaration by the Liverpool Steamship Owners' Association. There has been a full dress debate in the House of Lords, C and numberless speeches have been made by Mr. Mackinnon Wood and others. Moreover, some notable books have been written on the subject, amongst others c « r € t » - T , C » • 2 DECLARATION OF LONDON Professor Higgins's excellent and most use- ful work on the Hague Conferences, and Mr. Bray's extremely able book, the value of which is, however, somewhat diminished by the fact of the author being evidently one who is unable to see any flaw, error or defect in the instrument he has resolved to support, and lastly Mr. Thomas Gibson Bowles's work on Sea Power, remarkable by the vigour of its onslaught both on the Declaration of London and the Declaration of Paris, 2. It would seem, therefore, extremely difficult to say anything interesting on the subject, or at any rate anything both new and true. But the question whether the Declaration of London should be ratified unconditionally or subject to any and what conditions is of so much importance, and the arguments urged on both sides are so discordant and perplexing that, when I had the honour of being invited to deliver an address on this subject at the University of DECLARATION OF LONDON 3 London, the only hesitation I had arose from fear of my inability to do adequate justice to the subject. But I feel less diffidence when I remember that His Majesty's Government has given satisfactory assur- ances as to two points, on the importance of which I ventured strenuously to insist in an early letter to The Times, namely, that there should be no ratification until the Declaration had been thoroughly dis- cussed in Parliament, and until it had been submitted to the consideration of the ap- proaching Imperial Conference. There is, therefore, ample time for arriving at a just and safe conclusion. 3. Before entering upon the details of the Declaration, it will be useful to premise a few general considerations relating to the establishment of an International Prize Court, which should be constantly borne in mind during this discussion. Prize Courts are almost entirely concerned with the mutual rights and obligations of the 4 DECLARATION OF LONDON belligerent and the neutral, and scarcely ever deal with questions directly affecting the relation of belligerents to each other. Now the captors and the captured property are necessarily in the power and control of the National Prize Court, and cannot be in the power or control of the International Prize Court. From this follows the im- portant consequence that compensation from the captor, or restitution of captured pro- perty, can be enforced only by the Prize Court of the belligerent, and that no coercive jurisdiction can be directly exercised by the International Prize Court. For this reason Article 66 of the Declaration of London contains the following provision : " The signatory Powers undertake to insure in any war, in which all the belligerents are parties to the present Declaration, the mutual ob- servance of the rules contained herein. They will therefore issue the necessary in- structions to their authorities and to their armed forces, and will take such measures DECLARATION OF LONDON 5 as may be required In order to insure that it will be applied by their Courts and more particularly by their Prize Courts." Again, for the same reason, Article 9 of the Hague Convention, relating to the establishment of the International Prize Court, provides that " the Contracting Powers undertake to submit in good faith to the decisions of the International Prize Court and to carry them out with the least possible delay." 4. It is manifest that, unless these provi- sions be observed in good faith, judgments of the International Prize Courts can have no effective force. On the other hand, the advantages of an International Prize Court are equally manifest, for National Prize Courts are subject to the instructions of their own Sovereign, whether or not these be consistent with the ordinary rules of Inter- national Law. It is for this reason that neutral States do not consider themselves bound by the judgments of Prize Courts, and that disputes, often of a serious character, 6 DECLARATION OF LONDON arise between the neutral and the belligerent Powers, disputes which are sometimes settled by Mixed Commissions appointed after the end of the war. In order to avert these dangers and difficulties, and to prevent the rights of the neutral being determined by the Prize Court of the belligerent, and thus the belligerent being in a sense judge in his own cause, proposals have from time to time been made for a reform of Prize Court pro- cedure, and in 1877 and in 1905 carefully thought out schemes for the establishment of an International Prize Court were framed by the Institut de droit International. Fin- ally, at the Hague Conference of 1907 the' chief delegate of the German Government announced that he was authorized to present to the Conference proposals for the estab- lishment of an International Court to decide the lawfulness of the capture of prizes in maritime wars, and in response Sir E. Fry, representing the British Government, stated that he also had been entrusted with pro- DECLARATION OF LONDON 7 posals for the same object. Ultimately, on the 1 8th October, 1907, the agreement embodied in the Convention for the establishment of an International Prize Court was arrived at after prolonged discussion and deliberation. 5- It is the 7th Article of this Convention which has the most direct and important bearing on the Declaration of London, and as it seems to have been often overlooked or misunderstood, it will be useful to cite it at length. It is as follows : — " If the question of Law to be decided is covered by a Treaty in force between the belligerent captor and the Power which is itself, or whose nation is, a party to the pro- ceedings, the Court is governed by the provi- sions of the said Treaty. In the absence of such provisions, the Court shall apply the rules of International Law. If no generally recognized rule exists, the Court shall give judgment in accordance with the general principles of justice and equity. '' I beg you to mark these last words. 8 DECLARATION OF LONDON The importance of this article will be manifest when we remember there were in fact comparatively few rules of law governing the relation of belligerent and neutrals that were definitely fixed and generally recognized as absolutely binding. Indeed, a distin- guished jurist has gone so far as to assert that International Law on the subject was a chaos of separate treaties and conflicting usages and practices. Be this as it may, it was clearly shown by the discussion at the Hague Conference of 1907 that on a great many important questions connected with maritime war divergent views prevailed among the nations of the world. Upon some of these subjects agreement was reached, but on others it was not found possible to arrive at an understanding. In these circum- stances many governments, including His Majesty's Government, were of opinion that the establishment of an International Prize Court could not be safely sanctioned, so long as the vagueness and uncertainty existed as DECLARATION OF LONDON 9 to the principles which the Court would apply to questions of far-reaching importance affect- ing naval policy and practice, or in other words that such questions could not be safely left to be determined by the International Prize Court according to " the principles of justice and equity." 6. His Majesty's Government therefore proposed that another Conference should assemble with the object of arriving at an agreement as to what are the generally re- cognized principles of international law in those matters wherein the practice of nations has varied, and of formulating rules which, in the absence of special treaty provisions applicable to a particular case, the Court should observe in dealing with appeals brought before it. This, then, as stated by Sir Edward Grey's despatch of the 27th February, 1908, to his Majesty's representa- tives at Berlin, Madrid, Paris, Rome, St. Petersburg, Tokio, Vienna and Washington, was the object for which the Naval Confer- 10 DECLARATION OF LONDON ence was convened. It was at the same time suggested by His Majesty's Govern- ment that the following questions were the most important ones on which a divergence of views had manifested itself, and that they should, therefore, constitute the pro- gramme of the Conference : — (a) Contraband, including the circum- stances under which particular articles can be considered as contraband ; the penalties for their carriage ; the immunity of a ship from search when under convoy, and the rules with regard to compensation where vessels have been seized, but have been found in fact only to be carrying innocent cargo. (i») Blockade, including the questions as to the locality where seizure can be effected, and the notice that is necessary before a ship can be seized. (c) The doctrine of continuous voyage in respect both of contraband and of blockade. DECLARATION OF LONDON ii (d) The legality of the destruction of neutral vessels prior to their condemnation by a Prize Court. {e) The rules as to neutral ships or persons rendering " unneutral service." (/) The legality of the conversion of a merchant vessel into a warship on the high seas. {g) The rules as to the transfer of merchant vessels from a belligerent to a neutral flag during or in contemplation of hostilities. (Ji) The question whether the nation- ality or the domicile of the owner should be adopted as the dominant factor in de- ciding whether property is enemy property. With this programme before it the Naval Conference, finding it necessary to discard the proposed system of conventions, arrived, after prolonged deliberation and discussion, at the agreement called the Declaration of London, which embodies a code of rules relating to most of the matters I have just 12 DECLARATION OF LONDON enumerated, and which declares, in somewhat vague and diplomatic language, that "these rules correspond in substance with the gener- ally recognized principles of International Law." 7. Before adverting to the various articles of the Declaration of London, it is important to notice that the Declaration is explained, illustrated, and, to some extent, modified and corrected by the masterly document which has now become generally known by the name of M. Renault's Report. Indeed, but for such commentary the Declaration, as will be fully shown later on, would be, as to many important matters, vague, incomplete and de- fective. It is true that the British Delegates to the London Conference, in their despatch of the 2nd March, 1909, state that in accordance with the principles and practice of continental jurisprudence the provisions of the Declaration will be read by the light of the commentary, and that this view was sup- ported by Professor Westlake in one of his DECLARATION OF LONDON 13 earlier letters to The Times. The correct- ness, however, of this view is open to grave doubt, for it is contrary to the opinion em- phatically expressed by the Lord Chief Justice of England in the House of Lords (and you cannot have a higher authority on this ques- tion), and it is also opposed to the opinion of Lord Halsbury, Professor Holland, Sir T. Barclay, and several other eminent jurists. Indeed, Professor Westlake himself, finding himself confronted with authorities of such weight, in a subsequent letter intimated that it might be desirable to append to our ratifi- cation of the Declaration a reservation that the latter document should be interpreted by the light of the commentary contained in the Report. But reservations of this kind will be shown later on in this address to present serious difficulties, and it is, therefore, much to be desired that the Naval Powers who were parties to the Conference of London should be invited to record in a convention that M. Renault's Report should be as bind- B 2 14 DECLARATION OF LONDON ing on the International Prize Court as the Declaration itself. And if the view of the British Delegates as to the intended effect of that Report be correct, there could not be much difficulty in bringing about such an International Convention. At any rate this is perfectly clear : the schedule to the Naval Prize Bill, which sets out the Declaration of London, ought to be amended by inserting a distinct reference to the Report. 8. 1 have already pointed out that the Declaration of London mainly deals with the mutual rights and obligations of belligerents and neutrals. In considering this subject, it would seem on the one hand that the neutral who is a friend of both belligerents, and is no party to the dispute between them, should be left to deal and trade with both of them as freely as he previously did ; but, on the other hand, it appears to be a matter of practical necessity that the belligerent should be able to prevent a neutral from directly impeding his warlike operations, or DECLARATION OF LONDON 15 from directly assisting the military or naval forces of the enemy. Thus the subject presents one of those antinomies which, as the late Lord Bowen was fond of observing, often present themselves alike in moral philosophy and in jurisprudence. It is only by a reasonable compromise of conflicting claims and rights that such questions can be solved ; and more especially is this true of such questions as those relating to contra- band and commercial blockade, because they affect different States in a very different degree, according as these States are neutral or belligerent, and according as they are or are not great naval Powers, or in possession of numerous coaling and naval stations. For this reason Article 65 of the Declaration states that "the provisions of the Declaration must be treated as a whole and cannot be separated"; and to this Article Monsieur Renault's Report (see Appendix, p. 65) adds the following significant comment : " The provisions contained in the Declara- i6 DECLARATION OF LONDON tion must not be examined separately, but as a whole, otherwise there is a risk of the most serious misunderstandings. In fact, if one or more isolated rules are examined, either from the belligerent or the neutral point of view, the reader may find that the interests with which he is especially concerned are jeopardized by the adoption of these rules, but they have another side. The work is one of compromise and mutual concessions. Is it, as a whole, a good oner 9. It could, I think, be shown that the necessary tendency of the evolution of International law is to support the rights of the neutral and to restrict those of the belligerent, for this reason — that in the progress of civilization and commerce the respective interests of nations become more and more closely intertwined and mutually dependent. But, be this as it may, one fact certainly stands out prominently. All the principal Powers have, during the last DECLARATION OF LONDON 17 twenty or thirty years, greatly increased, and are certain in the near future still further to increase, their naval forces, so that neutral States will be able to present a most formidable opposition to any extreme claims of belligerent rights that may be put forward by Great Britain. Therefore, the armed neutrality at the beginning of the nineteenth century is, in point of strength, immeasurably inferior to what would be an armed neutrality of the present century. Already, indeed, in the year 1856 Lord Granville reported that it was found to be impossible for the British Government to resist the demand of the Great Powers that enemy property on board neutral ships should be immune from capture. 10. Having premised these general con- siderations, I will now proceed to discuss the specific provisions of the Declaration of London, comparing them principally with the rules of our own Prize Courts, inasmuch as these may be safely assumed not to be 1 8 DECLARATION OF LONDON unfairly prejudicial to British interests. 1 will begin with the provisions relating to blockade. They are contained in the first chapter of the Declaration of London in Articles i to 21, and form, when inter- preted by the light of Monsieur Renault's Report, a complete code of the law of blockade. Articles i to 16 inclusive, and Article 18, are substantially in accordance with English prize law, but in addition contain certain precise and useful regulations relating to the declaration and notification of blockades, the declaration being the act of the Government or the Commander of a squadron, stating that a blockade is or is about to be established, and the notification being the notification of the declaration of blockade to the neutral Powers. As regards Article 17, it is to be noticed that, according to the Prize Law of some Powers, including France and Italy, a ship cannot be captured for breach of blockade unless she has been already visited and a DECLARATION OF LONDON 19 notification of the existence of a blockade has been inscribed upon her papers ; whilst according to the Prize Courts of other countries the blockade involves the idea of a line drawn round the coast or port under blockade, and no ship can be seized until she actually attempts to cross this line. It is manifest that these two doctrines restrict the powers of a blockading squadron to a very serious extent. They have there- fore been abandoned in the Declaration. On the other hand, according to British Prize Law, a neutral ship could be captured at any point on her voyage to the blockaded port, and if she was coming out of the blockaded port she could be seized at any time until she reached a neutral port. The former of these rules, which was in fact en- forced only in a very few instances, and which can be proved to be of little, if any, value, has been abrogated by the Declaration of London, and for it has been substituted 20 DECLARATION OF LONDON Article 17. This Article provides that neutral vessels may not be captured for breach of blockade except v^^ithin the area of operations of the warships employed to render the blockade effective. This so-called area of operations, v^^hich, unfortunately, is not in any way defined in the Declaration of London, is fully and elaborately described and illustrated in M. Renault's Report ; and our distinguished naval delegates, Rear- Admiral Sir Charles Ottley, Secretary to the Imperial Defence Committee, and Rear- Admiral Slade, Director of Naval Intelli- gence, seemed to have entertained no doubt that Article 17, when interpreted by the light of the commentary, will be found amply sufficient to preserve the efficiency of the blockade. Article 19 provides that, whatever may be the ulterior destination of a vessel or her cargo, there can be no capture for breach of blockade if the vessel is on her way to a non-blockaded port ; but as to this, M. DECLARATION OF LONDON 21 Renault's Report makes a reservation which is evidently required, namely, that the cruiser may always prove that the destination to an unblockaded port is only apparent, and that in reality the immediate destination of the vessel is a blockaded port. • Article 20 provides that a vessel which has broken blockade outwards, or which has attempted to break blockade inwards, is liable to capture so long as she is pursued by a ship of the blockading force ; but if the pursuit be abandoned, or if the blockade be raised, her capture can no longer be effected. This differs from the rule of English Prize Law, according to which a vessel which has succeeded in coming out of port in breach of blockade is liable to capture until the conclusion of her voyage, whether she has or has not touched at an intermediate port. But considering that the ship's success in coming out of the blockaded port shows pro tanto that the blockade was not perfectly effective, there seems strong 22 DECLARATION OF LONDON ground for holding that the compromise, which is embodied in the Article in question, is fair and reasonable. On the whole, I venture to assert that the provisions of the law of blockade contained in the; Declaration of London, when — but, let me add, only when — interpreted by the light of M. Renault's Report, may be con- sidered as a fair and equitable compromise between English and Continental Prize Law, and constitute a complete code remarkable for its clearness, precision and comprehensive character. "* II. I proceed now to the law of contra- band contained in the second Chapter of the Declaration of London. Article 22 sets forth a list, which was unanimously settled at the Hague Con- ference in 1907, of commodities which may, without notice, be treated as contra- band of war under the name of absolute contraband, whilst Article 24 enumerates fourteen commodities susceptible of use in DECLARATION OF LONDON 23 war as well as for purposes of peace which may, without notice, be treated as contra- band of war under the name of coiidilionai contraband. This list includes, among other things, food-stuffs, forage, and grain, gold and silver, and paper money. Articles 23, 25 and 27 provide that by a declaration duly notified articles exclu- sively used for war may be added to the list of absolute contraband, and also that articles susceptible for use in war as well as for purposes of peace may be added to the list of conditional contraband, but that articles which are not susceptible of use in war can never be declared contraband of war. Moreover, Article 28 absolutely prohibits certain enumerated classes of goods from being declared contraband of war. These in- clude, it should be observed, such important goods or materials as raw cotton, wool, silk, jute, flax, hemp and other raw materials of the textile industries, rubber, hops and raw hides, a list which has been calculated 24 DECLARATION OF LONDON to comprise no less than 90 per cent, of the ordinary sea-borne commerce. Having thus clearly explained what may be treated as absolute and what as condi- tional contraband, the Declaration defines the legal incidents of these two classes. Absolute contraband is by Article 30 liable to capture if shown to be destined to territory occupied by or belonging to the enemy, or to the armed forces of the enemy, and it is immaterial whether the carriage of goods is direct, or entails transhipment or a subsequent transport by land. In other words, the so-called doctrine of continuous voyage or transit applies to absolute contraband. As regards conditional contraband, Article 33 provides that conditional contraband is liable to capture, if it is shown to be destined for the use of the armed forces or of a Government department of the enemy State, unless in this latter case the circumstances show that the goods cannot in fact be used for the purposes of the war in progress. DECLARATION OF LONDON 25 It is further provided by Article 35 that conditional contraband is not liable to capture except when found on board a vessel bound for territory belonging to or occupied by the enemy or for the armed forces of the enemy, and when it is not to be discharged in an intervening neutral port. If these Articles stood alone without M. Renault's Report, there might, in my opinion, be some doubt (on account of the use of the word " destined " in the 33rd Article) whether the doctrine of continuous voyage is absolutely excluded from applica- tion to conditional contraband ; but any such doubt is removed by the following explicit statement in M. Renault's Report (see Ap- pendix, p. 109). *' The doctrine of continuous voyage," says the report, " is excluded from conditional contraband when it is to be dis- charged in an enemy port. As soon as the goods are documented for discharge in a neutral port they can no longer be contra- band, and no examination will be made as to 26 DECLARATION OF LONDON whether they are to be forwarded to the enemy by sea or land from that neutral port. It is here that the case of absolute contraband is essentially different." These words are clear and distinct and leave no doubt that the doctrine of continuous voyage does not apply to conditional contraband and applies only to absolute contraband. 12. It is also to be particularly noticed that, by Articles 32 and 35, it is provided that the ship's papers are exclusive proof, both as to the voyage on which the vessel is engaged and as to the port of discharge of the goods, unless she is found clearly out of the course indicated by her papers and unable to give adequate reasons to justify such deviation. This rule is, however, modified in the Report by the following comment : " It must not be too literally interpreted. For that would make all frauds easy. A search of the vessel may reveal facts which irrefutably prove that her destina- tion or the place where her goods are to be DECLARATION OF LONDON 27 discharged is incorrectly entered in her ship's papers ; the commander of the cruiser is then free to judge of the circumstances, and capture the vessel or not according to his judgment. To sum up, the ship's papers are proof unless facts show their evidence to be false. This qualification of the value of the ship's papers as proof seems self- evident and unworthy of special mention. The aim has been not to appear to weaken the force of the general rule, which forms a safeguard for neutral trade," 13. It is principally around Articles 33 and 34 that a fierce controversy has raged. According to these Articles, conditional con- traband is generally liable to capture if it is shown to be destined for the use of the armed forces or the Government department of an enemy State, and such destination is presumed to exist if the goods are consigned to enemy authorities, or to a contractor established in the enemy country who, as a matter of common knowledge, supplied 28 DECLARATION OF LONDON articles of this kind to the enemy ; but here it should be specially noticed that the word " enemy," according to M. Renault's Report, (see Appendix, p. 177), means the enemy Government, and therefore does not apply to a private individual. Moreover, a similar presumption arises if the goods are consigned to a fortified place belonging to the enemy, or other place serving as a base for the armed forces of the enemy. These presumptions, however, are not absolute presumptions juris et de jure ; they are only prima-facie presumptions, capable of being rebutted. Now it has been urged that under this Article goods consigned to a port connected by rail with a place serving as a base for the armed forces of the enemy would be liable to capture. Such a construction is, however, impossible, not only for the cogent reason given by the Lord Chancellor, that it would reduce the Article to an absurdity inasmuch as it would apply to almost all DECLARATION OF LONDON 25 ports, but also because it would be incon- sistent with the rule that the doctrine of continuous voyage or transit is not to apply- to conditional contraband. 14. There are a few other points in which the Code has been said to deviate from English Prize Law. According to English Prize Law the ship carrying contra- band is subject to condemnation if she has made forcible resistance, or if there are other circumstances amounting to fraud. It has been objected that no such provision is con- tained in this second chapter of the Declaration of London ; but it is to be borne in mind that these cases are expressly provided for in the note in M. Renault's Report to Article 64. Article 40 declares that a vessel carrying contraband may be condemned if the con- traband, reckoned either by value, weight, volume or freight, forms more than half the cargo, presumably because in such cases the Master must have known the vessel was carrying contraband, c 2 30 DECLARATION OF LONDON Finally, Article 41 provides that, if the vessel carrying contraband is released, she may nevertheless be condemned to pay the cost and expenses incurred by the captor in respect of the proceedings in the National Prize Court, and in the custody of the ship and cargo during the pro- ceedings. Such are in substance the main pro- visions of the Code of Contraband framed at the Naval Conference. 15. These provisions have been strenu- ously attacked, especially by the Chambers of Commerce. Passing over certain serious mistakes which, as Sir Edward Grey has conclusively proved, invalidate much of their criticism, 1 hope you will allow me to notice some of the more plausible and important objec- tions which have been urged, and to point out the substantial merits of the Declaration of London on this subject. The code defines precisely what can and what cannot DECLARATION OF LONDON 31 be declared absolute or conditional contra- band. It is said, however, that in this respect we gain nothing by the Declaration of London, because according to an undoubted rule of International Law provisions could never be treated as absolute contraband. This my learned friend Mr. Butcher strenu- ously contends is proved by a statement made by Mr. James Bryce when Under-Secretary of State for Foreign Affairs, when he assured the House of Commons that by the universal consent of all civilized nations food-stuffs could never be deemed to be absolute contraband. The answer to this contention is that if in fact such an absolutely unqualified statement was made, it certainly is not accurate. I venture to make this assertion not only after my own careful study of the question, but also and especially on the strength of two letters addressed to the Spectator on the ist April, 191 1, by Sir Edward Fry and Professor Westlake, certainly two of the most eminent 32 DECLARATION OF LONDON jurists of this country. Sir Edward Fry, after going into the well-known history of the subject, proceeds as follows : " From what I have said it is plain that there is a great variety of opinion and practice on the question of how far food-stuffs can be treated as absolute contraband ; and it is obvious that if we were engaged in a war, our enemy would remember that we are, above all other nations, dependent upon sea-borne provi- sions, and that he would be under the strongest temptation to adopt the doctrine which would justify the seizure of all food- stuffs in neutral bottoms. To this great peril we are exposed if the Declaration of London remains unratified, and from this great danger we are delivered if the Decla- ration be ratified. For, whatever may be said about it, this is plain : that no nation who was a party to it can ever declare food-stuffs to be absolute contraband." Exactly the same view is put forward, without any doubt, by Professor Westlake. DECLARATION OF LONDON 33 16. It is, above all, important to observe that, whatever may have been the state of so-called International Law on the subject, the Declaration of London, if ratified, will effect a marked change, inasmuch as it will make it impossible for any Power to treat food-stuffs as absolute contraband without committing a flagrant breach of a solemn International Treaty. This fact, therefore, affords a strong additional security — the security which is derived from a solemn treaty between the principal Naval Powers of the world. For instance, it will be no longer possible for one belligerent Power to issue Berlin decrees, and the other belligerent to issue Orders in Council in answer to those decrees, unless, indeed, the two Powers are prepared to violate the express provisions of a great International Compact. 17. There is one objection which has been said to be fatal to the Declaration of London. It is urged that the presumptions 34 DECLARATION OF LONDON raised by Article 34 as to the destination of conditional contraband will be to stop to a very serious extent our food supply in time of war, and thereby to endanger our position by causing the most serious distress throughout the length and breadth of Great Britain. To this objection there is, I submit, a complete answer. In the Jonge Margaretha, C. Robinson, the leading case on the ques- tion of provisions being contraband, Lord Stowell at page 193 says, " I take the modern established rule to be this, that generally provisions are not contraband, but may become so under particular circumstances, arising out of the particular situation of the war, or the condition of the parties engaged in it.'' Please mark these words. " The Court, therefore," continues Lord Stowell, " must look at the circumstances under which the supply was sent." On reading the whole of his Lordship's judgment, there does not appear to be any reason why Lord Stowell would not have given effect to presumptions DECLARATION OF LONDON 35 similar to those specified in Article 34. But, in any case, he certainly would have applied the doctrine of continuous voyage, and have thus materially increased the liability of food-stuffs to be captured and condemned. Let me make this important point perfectly clear. Under the Declaration of London, in time of war provisions can be carried from food-supplying countries, such as Russia, the United States or the Argentine, to some neutral ports near England, either by English or neutral vessels, and then safely carried from those ports to this country by English vessels, as long as we keep the command of the neighbouring seas. Now it must never be forgotten that in this discussion we are always entitled to assume that we shall keep the command of these seas, for it is certain that if we failed in so doing for any length of time it would necessarily involve the irretrievable ruin of this country, and the matter of shortage of food supply would then, of course, be a matter of no 36 DECLARATION OF LONDON concern whatever. On this point the Report of the Royal Commission on Food Supply in Time of War, and the emphatic state- ments alike of the Prime Minister and of the Leader of the Opposition, leave no manner of doubt. It necessarily follows from these considerations that the effect of the Declaration of London will be, not to diminish, but on the contrary to increase our food supply in time of war. The only other substantial objection which has been raised is one which you will notice is one of an opposite character. It is, that if England were at war she would, under the Declaration of London, have great difficulty in distressing her enemy by stopping his food supply. But considering that a war in modern times cannot be of very long duration, and taking into account the numerous lines of railway communication between continental countries, it is, I think, abundantly clear that we can have no reasonable expectation of being able to DECLARATION OF LONDON 37 stop the food supply of our enemy to such an extent as to destroy his power of resistance or to shorten the duration of the war. For all these reasons I submit that the provisions relating to contraband contained in the Declaration of London, if interpreted (but I again add, only if interpreted, by the light of M. Renault's Report) are the result of a fair and equitable compromise, on the whole favourable to the interests of this country, and that they constitute a complete code of the law of contraband, remarkable for the skill and ability with which it has been framed. 18. Chapter III of the Declaration of London deals with unneutral services, but the provisions are not of sufficient im- portance to require notice on the present occasion. It is sufficient to say that they fully carry out in substance the suggestions made on this subject by Sir Edward Grey to the Earl of Desart. 38 DECLARATION OF LONDON 19. Chapter IV deals with the important question of the destruction of neutral prizes. It is maintained by His Majesty's Government that the destruction of neutral prizes could in no case be justified. There is, I believe, no English decision which supports this extreme view ; but, be this as it may, it soon became apparent at the Con- ference that it would certainly fail to receive the assent of a majority of the Delegates, and that, as indeed Sir Edward Grey had anticipated, some compromise on the subject would be absolutely necessary. On this subject allow me to cite from my address to the International Law Association the passage in which I set forth the nature of the compromise arrived at, and also the ground on which I thought objection might be taken to some of its terms. Allow me to do so, for I wish to state that on more mature consideration I have somewhat altered my view on this subject. Article 48 provides that a neutral vessel DECLARATION OF LONDON 39 which has been captured may not be destroyed by the captor, but must be brought into a proper port for adjudication, but the 49th Article declares, as an exception, that the neutral vessel which would be liable to con- demnation may be destroyed, if taking the vessel to port for adjudication ^^ would involve danger to the safety of the warships or to the success of the operations in which she is engaged at the tiine^ This Article is evidently extremely vague and indefinite. It appears (to say the least) to leave it open to the International Prize Court to decide that, according to the true construction of the Article, the inability to spare a prize crew may justify the destruction of the neutral prize. Lord Desart and his colleagues in their interesting report to Sir Edward Grey seek to justify Article 49 in the following passage at p. 99 of the Blue Book : " It was thought that unless the circumstances of exceptional necessity could be exhaustively enumerated, which would be 40 DECLARATION OF LONDON clearly impracticable, it would be better not to make special mention of any one particular contingency as not covered by that term, since this might be held to justify the conclu- sion that other eventualities not specifically included were so covered." This kind of argument is, I conceive, fallacious and unsound, for the apprehended danger might (as is well known to every draftsman) have been easily averted by an express proviso to the effect that provided always, and without prejudice to other excep- tions, the mere inability to spare a prize crew does not constitute an element of danger within the meaning of Article 49 — a proviso the importance of which, let me add, is emphasized by Sir Edward Grey at p. 29 of the Blue Book. On the other hand, we must not overlook the safeguards provided by Articles 50 and 51. Article 50 provides that before the vessel is destroyed all persons on board must be placed in safety, and Article 51 declares DECLARATION OF LONDON 41 that the captor who has destroyed a neutral vessel must, prior to any decision respecting the validity of the prize, establish that he only acted in the face of an exceptional necessity. It also contains the extremely important con- dition that, if he fails to do so, he must compensate the parties interested, and no exami- nation shall be made of the question whether the capture was valid or not. This condition, as is clearly shown in M. Renault's Report (see Appendix, p. 130), gives a guarantee against the arbitrary de- struction of prizes by throwing a real responsibility on the captor who has carried out the destruction, for the result is that before any decision has been given respect- ing the validity of the prize the captain must prove that the case was one of exceptional necessity within the meaning of Article 49. Again, it must be remembered that a vessel is not liable to capture unless the contraband constitutes one half of the cargo measured in volume, weight or freight. Finally it is to 42 DECLARATION OF LONDON be noticed, and this I had overlooked in my address to the International Law Association, that the danger of the destruction of the neutral ship being excused by the inability of the belligerent to spare a prize crew seems to be greatly diminished, if not en- tirely averted, by the following express state- ment in M. Renault's Report (see Appendix, p. 129). " It is, of course, only the situation al the moment when the destruction takes place which must be considered in order to decide whether the conditions necessary to justify it are or are not fulfilled," Fas est et ab hoste doceri. Let us see what our opponents say on this point. This will be found in the following remarkable state- ment in their report to Sir Edward Grey : " The Delegates representing those Powers which have been most determined in vindi- cating the right to destroy neutral prizes declared that the combination of the rules now adopted respecting destruction and liability of the ship practically amounted in DECLARATION OF LONDON 43 itself to a renunciation of the right in all but a few cases. We did not conceal the fact that this was exactly the object at which we aimed." On the whole I have come to the opinion that the view taken by those foreign repre- sentatives is justified by the various facts and considerations I have set forth. Articles 52, ^2 ^'"^^ 54 (see Appendix, p. 131) contain other useful provisions, on which, however, it is unnecessary for me to dwell on the present occasion. On the whole I submit that the law as to the destruction of neutral prizes, as laid down in Chapter IV of the Declaration of London, embodies a compromise which, con- sidering the great difficulty of the subject, is prudent, fair and equitable. 20. Chapter V deals with the transfer of an enemy vessel to a neutral flag. In para- graph 18 of my address to the International Law Association I set forth the English Prize Law on this subject, and gave reasons 44 DECLARATION OF LONDON why it appeared to me far more simple and clear than the provisions contained in the third Chapter, which make the validity of the transfer depend upon a number of arti- ficial presumptions, some absolute and others rebuttable ; but although I still consider my objection perfectly valid and by no means immaterial, I shall not trouble you with my arguments on this subject, because the objection is not, in my opinion, sufficiently important to justify us in declining to ratify the Declaration or in recording a reservation on this point. 21. Chapter VI deals with the question of the enemy character of ship or goods. As to the ship, it declares that her enemy or neutral character is determined by the flag which she is entitled to fly. As to goods, it declares that the neutral or enemy character of the goods found on board an enemy vessel is determined by the neutral or enemy character of the owner. But two questions are left entirely undeter- DECLARATION OF LONDON 45 mined. In the first place, it is declared that the case of the neutral vessel being engaged in a trade which is closed in time of peace to foreign vessels, but is opened in time of war to neutrals, remains entirely outside the scope of the Declaration. In other words, the rule which is known as the Rule of 1756, the most powerful vindication of which is, in my opinion, to be found in Manning's Law of Nations^ is expressly declared to be in no wise affected by the Declaration of London, but is left apparently an open question as to whether it is or is not to be followed by the International Prize Court. In the second place, it was found im- possible at the Naval Conference of London to come to an agreement whether the enemy character of the owner should depend upon his nationality, or upon his commercial or his civil domicile. 22. The seventh chapter of the Declaration of London deals with the subject of convoy. D 2 46 DECLARATION OF LONDON This question, which, as is well known, was at one time one of great importance, and mainly gave rise to the armed neutrality at the beginning of the nineteenth century, is at the present day, for the following reasons, a matter of little moment. (a) Since the Declaration of Paris a neutral ship can be searched only for the purpose of ascertaining whether she is carrying contraband goods or is otherwise violating the duties of neutrality. (b) According to the law of blockade as laid down in the Declaration of London, neutral vessels may not be captured except within the area of blockade operations. {c) The statement of Mr. Hall, that the use of convoys would be greatly restricted in future by the practical impossibility of working in a common body vessels of different rates of speed, is confirmed by the evidence given before the Royal Com- mission on Food Supply during War. {a) The right to visit ships under DECLARATION OF LONDON 47 convoy, which has always been strongly objected to by neutral Powers, and has in the past given rise to grave difficulties, has not been exercised by Great Britain for a great many years. For these reasons Sir Edward Grey seems perfectly justified in his assertion, at p. 25 of the Blue Book, that the original contention relating to convoy has practically lost all its importance, and in my opinion no sound objection can be taken to Articles 61 and 62. 23. Chapter VIII deals with the subject of search and capture. It provides that forcible resistance to the rights of stoppage, search and capture involves in all cases the condem- nation of the vessel, and that the cargo is liable to the same treatment as the cargo of an enemy vessel. This provision is fully explained and illustrated in a masterly manner in M. Renault's Report, in a note to Article 63 (see Appendix, p. 150) — a note remarkable for powerful arguments expressed in language the most perspicuous and persuasive. 48 DECLARATION OF LONDON 24. Chapter IX deals with the subject of compensation, and contains the general rule that, if the capture of vessels or goods is not upheld by the Prize Court, or the prize is released without any judgment being given, the parties interested have a right to com- pensation, unless there were good reasons for capturing the vessel and goods. This rule, which is far more liberal than that applied by Prize Courts, is admirably ex- plained in M. Renault's Report, in the note to Article 64. The comment (which is set out in the Appendix) also adds certain important provisions relating to false or forged ships' papers, and spoliation of papers, which are in accordance with English Prize Law, but which are not to be found in the Declaration itself. 25. Allow me now to summarize, in a few words, my criticism of the Declaration of London so far as concerns the matters on which the Naval Conference were able to agree. DECLARATION OF LONDON 49 I consider that the Declaration, unless supplemented by M. Renault's Report, is vague, defective and incomplete, and that therefore a convention ought to be come to by the Naval Powers, that the latter docu- ment should, by reference, or in some other manner, be embodied in the Declaration itself ; but, subject to this reservation, I confidently submit that the Declaration of London contains, on the points as to which an agreement was come to^ a code of International Law which is not only a fair and equitable compromise of divergent views, but is also one which it is to the interest of Great Britain to sanction and enforce. 26. I come now to the last branch of my subject. There are certain questions which the Declaration has left unsettled. Two are included in the eight questions which, you will remember, were considered as of far- reaching importance, and which in the opinion of our Government and other Governments ought to be settled before the International 50 DECLARATION OF LONDON Prize Court can safely be allowed to come into operation. These unsettled questions are the follow- ing :— (a) Is the rule of 1756 to be main- tained ? (i>) What constitutes the enemy char- acter of the owner of goods on board merchant ships ? (<:) In what circumstances, and subject to what conditions, should the conversion on the high seas of merchant ships into warships, and of warships into merchant vessels, be allowed ? As regards the first question it is one of considerable importance. 1 the coasting trade, or the trade between a belligerent country and its colonies, when carried on by neutrals in time of war, illegal as against the belligerent if such trade was closed against foreigners in time of peace ? This question might, in many cases, come before the International Prize Court. DECLARATION OF LONDON 51 As regards the second question it would constantly present itself. As regards the third question it might come before the International Prize Court in several cases, amongst others where a neutral Government has allowed a merchant vessel which has cruised as a warship and has after- wards on the high seas been converted into a merchant vessel to enter into and remain in one of its neutral ports. How, then, are these points to be decided by the International Prize Court ? 27. As to these unsettled points, Mr. Bray, at p. 93 of his book, observes that they are not strictly relevant to the ques- tion whether the Declaration should be ratified or not. This view, which is sub- stantially the same as that repeatedly put forward by the Foreign Office (and indeed Mr. Bray and the Foreign Office generally agree), is, I submit, unsound. It is, in my opinion, unsound because it follows from Article 66 of the Declaration, and from 52 DECLARATION OF LONDON several already cited articles in the Con- vention for the establishment of an Inter- national Prize Court, that the Naval Powers are bound to give effect to the decision of the International Prize Court, and that if we make no reservations those unsettled points will have to be decided by that Court according to what have been called the principles of justice and equity. 28. I agree, however, with Mr. Bray that the importance of these unsettled points has been greatly exaggerated. For instance, the result of a war cannot be seriously affected by the fact that the enemy char- acter of an owner of goods is determined by his nationality or by his domicile. Again, there has been the grossest exaggera- tion and misrepresentation in the discussion on the third question, whether on the high seas merchant vessels may be converted into warships and warships reconverted into merchant vessels. For instance, it has been contended that to allow this to DECLARATION OF LONDON 53 be done would be to reintroduce the system of privateering, which was abolished by the Declaration of Paris. This contention is entirely unfounded and almost absurd, inasmuch as Convention 7 of the Hague Conference contains the most stringent provisions against a merchant vessel which has been converted into a warship having any of the qualities or legal incidents of a privateer. These stringent provisions are contained in the following articles : Article i A merchant ship converted into a war- ship cannot have the rights and duties appertaining to vessels having that status unless it is placed under the direct authority, immediate con- trol, and responsibility of the Power, the flag of which it flies. Article 2 Merchant ships converted into warships must bear the external marks which 54 DECLARATION OF LONDON distinguish the warships of their nationality. Article 3 The Commander must be in the service of the State and duly commissioned by the proper authorities. His name must figure on the list of the Officers of the fighting fleet. Article 4 The crew must be subject to military discipline. Article 5 Every merchant ship converted into a warship is bound to observe in its operations the laws and custom of war. Article 6 The belligerent who converts a merchant ship into a warship must, as soon as possible, announce such conversion in the list of its warships. DECLARATION OF LONDON 55 Can any one who has read these Articles seriously contend that a merchant vessel converted into a warship in accordance with these provisos has anything in common with a privateer ? In fact, if the contention were true, then the British Government itself is guilty of contracting with the P. & O. and other shipping companies for the construction and equipment of privateers. 29. But although there has been gross exaggeration and misrepresentation in the controversy relating to these unsettled points, it is nevertheless necessary to determine how they are to be dealt with. Are they to be left to be decided by the International Prize Court according to the principles of justice and equity, or are we to make reservations in order that these points may be settled by negotiations between the Naval Powers or at the next Hague Conference .'' I myself am, after much hesitation, inclined to the opinion 56 DECLARATION OF LONDON that the latter course ought to be followed. But if this opinion be adopted, it must be distinctly declared on what points reserva- tions are made, and that the effect of mak- ing them will be equivalent to an announce- ment that the British Government and the British Courts will not enforce any judg- ment of the International Prize Court based on grounds inconsistent with the decisions of our own Prize Courts, and will, as regards the reserved questions, only enforce the judgments of our own Prize Courts. There should be a distinct declaration to that effect, for otherwise making reservations might easily give rise to grave International disputes and are likely to a great extent to detract from the benefits anticipated from the International Prize Court. On the whole, therefore, I submit that it would be unsafe to recommend the Declara- tion of London to be ratified until we are informed not only whether the Naval Powers will agree that M. Renault's Report shall DECLARATION OF LONDON 57 be binding on the International Prize Court, but also until we know the points, if any, on which the Government intend to make reservations. I have now finished my exposition and criticism of the Declaration of London. However feeble and imperfect it may be, I hope it will be found to be perfectly impartial and completely free from party spirit. Indeed, the subject is one which is, or, at any rate, ought to be, entirely outside the range of party politics. In conclusion, I venture to assert, for the reasons I have endeavoured to set forth, that whatever may be the fate of the Declaration of London, the establishment of a Supreme Prize Court and the codes contained in the Declaration mark a great and striking pro- gress in the law of nations, and will render the work done by the Hague Conference of 1907 and by the Naval Conference of 1909 for ever memorable in the annals of International Law. Since the delivery of this address Sir Edward Grey has assured the Members of the Imperial Conference that certain reservations will be made by our Government on the ratification of the Declaration of London^ and amongst others a distinct stipulation that Monsieur Renault's report shall be considered as an authorised interpretation of the Declaration. This removes my main objection to the ratification ; and the only point which in my opinion remains to be considered and determined is whether any reser- vations should be made as to the three unsettled questions of International Law, and if so, what will be the effect of such reservations. APPENDIX E THE DECLARATION OF LONDON. Together with the General Report thereon, presented to the Naval Conference on behalf of its Drafting Committee.* (A) Introductory.— On the 27th February, 1908, the British Government addressed a cir- * There has been a considerable discussion, notably in the columns of The Times, recently, in which all the most distinguished international lawyers have taken part, as to whether, as claimed by Sir Edward Grey, the General Report or Running Commentary on the Declaration, which is here printed in full, may really be taken to be an authori- tative interpretation of the Articles of the Declaration — as binding upon the signatory Powers as those Articles them- selves. The point which is chiefly at issue is as to the interpretation of Articles 22, 24 (absolute and conditional contraband), and 33, 34 ("destination" in the case of con- ditional contraband). It has been suggested (cp. pages 42- 45) that the presumptions as to destination would admit of the condemnation of food which was not really conditional contraband, but was destined for the general support of the population. This accusation loses force if the Commen- tary, which is quite clear on the point, is authoritative. The matter is not of great importance, because Sir Edward Grey has already stated that he will only ratify the Declara- tion if all ambiguity on this point is removed. Neverthe- less, it may be useful to append the Foreign Office state- ment regarding the authoritative character of the Commen- tary. (Mr. McKinnon Wood, in reply to Mr. J. G. Butcher, House of Commons, February 22nd, 191 1.) " It is obvious that if the delegates who are sent by the respective Governments to attend a Conference think it desirable to accompany the instrument which they sign by a commentary, which is described in the meetings of the Conference as an official commentary, which is accepted by the delegates on that footing, and which is formally adopted at a plenary meeting of the Conference, the com- mentary must be regarded as accepted by the Governments, unless the action of their delegates is disavowed. The object of such a commentary is to explain the meaning of the signed instrument, and to lessen the possibility of such E 2 61 62 DECLARATION OF LONDON cular to various Powers inviting them to meet at a Conference with the object of reaching an agreement as to the definition of the generally recognised principles of international law in the sense of Article 7, paragraph 2, of the Con- vention signed at The Hague on the i8th October, 1907, for the establishment of an In- ternational Prize Court. This agreement appeared necessary to the British Government on account of certain divergences of view which had become apparent at the second Peace Conference in connection with the settle- ment of various important questions of inter- national maritime law in time of war. The existence of these divergent views might, it seemed, render difficult the acceptance of the International Prize Court, as the power of this Court would be the more extended in propor- tion as the rules to be applied by it were more uncertain. The British Government suggested that the following questions might form the pro- gramme of the proposed Conference, and in- vited the Powers to express their views regarding them in preparatory Memoranda : ambiguities arising as are likely to occur subsequently in construing articles which are of necessity drawn up in very concise language ; it is in this sense that the commentary becomes an ' authoritative interpretation,' because it is the explanation of the meaning wliich the signatories to the Convention have placed upon it themselves." It has been suggested by Mr. Cohen, Professor Westlake, and others that Great Britain should ratify the Declaration only on the understanding that the Commentary is as authoritative as the Declaration. There appears to be no practical obstacle to such a course of action, and it undoubtedly suggests itself as a simple expedient. It would carry out Sir Edward Grey's pledge of removing ambiguity, and greatly help to set the minds of the doubters at rest. DECLARATION OF LONDON 63 (a) Contraband, including the circum- stances under which particular articles can be considered as contraband; the penalties for their carriage; the immunity of a ship from search when under convoy; and the rules with regard to compensation where vessels have been seized but have been found in fact only to be carrying innocent cargo; (b) Blockade, including the questions as to the locality where seizure can be effected, and the notice that is necessary before a ship can be seized ; (c) The doctrine of continuous voyage in respect both of contraband and of blockade ; (d) The legality of the destruction of neutral vessels prior to their condemnation by a prize court ; (e) The rules as to neutral ships or persons rendering "unneutral service" ("assistance hostile"); (/) The legality of the conversion of a merchant-vessel into a war-ship on the high seas; (g) The rules as to the transfer of merchant- vessels from a belligerent to a neutral flag during or in contemplation of hostilities; (h) The question whether the nationality or the domicile of the owner should be adopted as the dominant factor in deciding whether property is enemy property. The invitations were accepted, and the Con- ference met on the 4th December last. The British Government had been so good as to assist its deliberations by presenting a collec- tion of papers which quickly became known among us by the name of the Red Book, and 64 DECLARATION OF LONDON which, after a short introduction, contains a "Statement of the views expressed by the Powers in their Memoranda, and observations intended to serve as a basis for the dehbera- tions of the Conference." These are the " bases of discussion " which served as a starting-point for the examination of the chief questions of existing international maritime law. The Conference could not but express its gratitude for this valuable preparatory work, which was of great assistance to it. It made it possible to observe, in the first place, that the divergences in the practices and doctrines of the different countries were per- haps less wide than was generally believed, that the essential ideas were often the same in all countries, and that the methods of appli- cation alone varied with traditions or pre- judices, with permanent or accidental interests. It was, therefore, possible to extract a common element which it could be agreed to recommend for uniform application. "This is the end to which the efforts of the different Delegations tended, and they vied with one another in their zeal in the search for the grounds of a common understanding. Their efforts were strenuous, as is shown by the prolonged discussions of the Conference, the Grand Committee, and the Examining Committees, and by the numerous proposals which were presented. Sailors, diplomatists, and jurists cordially co-operated in a work the description of w^hich, rather than a final estimate of its essential value, is the object of this Report, as our impartiality might naturally be suspected. The body of rules contained in the Declara- tion, which is the result of the deliberations of DECLARATION OF LONDON 65 the Naval Conference, and which is to be entitled Declarations concerning the laws of naval %car, answers well to the desire expressed by the British Government in its invitation of February, 1908. The questions in the pro- gramme are all settled except two, with regard to which explanations will be given later. The solutions have been extracted from the various views or practices which prevail, and represent what may be called the media sententia. They are not always in absolute agreement with the views peculiar to each country, but they shock the essential ideas of none. They must not be examined separately, but as a whole, otherwise there is a risk of the most serious misunder- standings. In fact, if one or more isolated rules are examined either from the belligerent or the neutral point of view, the reader may find that the interests with which he is especially concerned are jeopardised by the adoption of these rules. But they have an- other side. The work is one of compromise and mutual concessions. Is it, as a whole, a good one ? We confidently hope that those who study it seriously will answer that it is. The Declara- tion puts uniformity and certainty in the place of the diversity and obscurity from which inter- national relations have too long suffered. The Conference has tried to reconcile in an equit- able and practical way the rights of belligerents with those of neutral commerce; it consists of Powers whose conditions, from the political, economic, and geographical points of view, vary considerably. There is therefore reason to suppose that the rules on which these Powers have a