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THE NAVAL CASE FOR RATIFYING THE DECLARATION OF LONDON
IF the bearing of certain Conventions agreed to at The Hague Conference and of the Declaration of London on the food-supply and trade of this country is to be viewed in proper perspective, the true nature of war at sea should be kept well in the foreground. In all wars, whether by land or sea, the armed forces are the chief, and most often the sole, factors in determining the ultimate result. At sea massed fleets meet in great battles which may decide the war, and isolated cruisers fight actions which may give temporary local control. The capture of belligerent merchant ships is secondary to, and cannot reverse, the decision by battle. By such captures each side seeks not only to press on his enemy by strangling his sea trade, but further to reduce his fighting power, since merchant ships can be used as instruments of war. Ultimately the results balance largely in favour of the victor in the decisive battle.
The capture of neutral merchant ships is an act of still less importance, since only such ships can be detained as attempt either to carry contraband to the enemy or to break blockade. Now neither the suppression of contraband trade nor blockade are feasible until one side has established some superiority over his opponent either by battle or otherwise; they are usually the means by which the victor brings pressure to bear on his adversary with a view to concluding the war, and for this their importance is very great. They cannot be used with any hope of success by a weak navy against a strong one properly directed and controlled.
The maintenance of sea trade by a belligerent depends upon his ability to reduce the risk of capture by the action of his navy in destroying the attacking force, and upon his success in spreading the losses which are due to capture over the general community by means of insurance and increased prices. Provided the losses are kept within bounds by the action of the navy, insurance becomes more effective as the mercantile marine and trade increase in size and value, since the losses will be spread over a larger area. Hence a numerous unarmed merchant fleet is not necessarily as vulnerable as it seems. The amount of trade which continues during war depends upon the result of the struggle between the armed forces, that is, on their relative strength and the use made of each.
The Prize Court Convention (No. XII. of The Hague Conference 1909) and the Declaration of London regulate the relations between belligerents and neutrals in the presence of naval war, and do not deal in any way with those between the belligerents themselves. Thus they treat only of a secondary feature of naval war, and we must be careful not to attach undue importance to them.
The Prize Court Convention grew out of the action taken by certain Russian cruisers during the Russo-Japanese war. British shipowners complained to the Foreign Office of the uncertainty in the law of contraband, and of some Russian Prize Court decisions from which no appeal was possible. To provide a remedy for this unsatisfactory state of things the British delegates to the second Hague Conference were entrusted with proposals to establish an International Prize Court, and thus when the German representative proposed such a Court he was supported by the representative of Great Britain. After much discussion the Convention was agreed to on the 18th of October 1907.
We have to note that Art. 7 of that Convention laid down that:
If the question of law to be decided is covered by a treaty in force between the belligerent captor and a Power which is itself, or whose national is, a party to the proceedings, the Court is governed by the provisions of the said treaty. In the absence of such provisions, the Court shall apply the rules of International Law. If no generally recognised rule exists, the Court shall give judgment in accordance with the general principles of justice and equity.
The absence of any generally accepted rules of International Law made it impossible to allow the proposed International Prize Court to give judgment in accordance with the principles of justice and equity. The British Government, therefore, proposed a naval conference to determine the generally recognised principles of International Law and to formulate rules to be observed by the Court.
This Conference met in London on the 4th of December
The questions laid before it included matters relating to: (a) Contraband.
(c) Continuous voyage.
(d) Destruction of neutral vessels.
(e) Un-neutral service.
(f) Conversion of merchant ships into warships.
(g) Transfer of merchant ships from belligerent to neutral flags. (h) Character of enemy property.
The results of the Naval Conference were embodied in a protocol, which, by the signatory Powers, was declared to contain rules corresponding in substance with the generally recognised
principles of International Law. The protocol is commonly known as the Declaration of London, and was accompanied by a commentary or general report, which, although often spoken of as M. Renault's, is the report of the Conference itself, and is essential to its right understanding. Sir E. Grey announced at the Colonial Conference 1911 that the Declaration of London would not be ratified by this country, unless the other Powers accepted this general report as an authoritative interpretation of that instrument.
We have now to examine the military effect of the Declaration of London, as interpreted by the general report, on a future maritime war. And further, the conditions existing before the meeting of the Naval Conference must be compared with those which will arise (1) if the Declaration of London is ratified, (2) if it is not.
Previously to the Naval Conference of London nations held two different views as to blockade. The one doctrine maintained that the blockading force should hold firmly a line drawn round the place blockaded, the other that it should control the surrounding The first contended that there could be no breach of blockade unless the ship had been already visited and notified of its existence, and that no ship could be seized until she actually attempted to cross the before-mentioned line. These conditions. were seen to be so unsuited to modern war that their adoption would make blockade difficult, if not impossible. The second was preferred by the Conference, but the right of capture for breach of blockade was limited to the area of blockading operations (Art. 17), or to any place to which there has been continuous pursuit from any part of that area (Art. 20). Under the rules as drawn in Chapter I. of the Declaration it is believed that an effective blockade can be maintained. It is true that the right of capture for breach of blockade outside the area of operations, except in the case of continuous pursuit, has been abandoned, but that area can be made so wide and the difficulty of capture on the wide and trackless sea is so great that little practical value attaches to that right. The contention that the vessel can only be captured by one of the blockading squadron does not seem to be tenable. Art. 20 says that she is liable to capture so long as she is pursued by a ship of the blockading force, but does not mention that no other ship is to join in the pursuit.
It will be seen that before the meeting of the Naval Conference the difficulties of blockade were liable to be increased in some cases by the friction likely to arise with those Powers which held to the 'line' theory. If the Declaration is ratified and accepted by the Powers, that cause of friction will be removed, but even if it is
not, those Powers who yielded, possibly in the expectation of getting an International Court of Appeal, will no longer be in a position to remonstrate with the same force. As a military operation blockade certainly seems to have been placed on a firmer footing by the Declaration of London.
The chapter on contraband of war tends to reduce some uncertainties in the relations between belligerents and neutrals, e.g. the lists of articles included under the head of absolute1 and conditional contraband (Arts. 22 and 24), as also the so-called free list (Art. 28) certainly do so. Formerly these lists were left to be declared by the belligerents on the outbreak of war, now they will be known beforehand, except so far as the belligerents may add to, or reduce, them within certain defined limits. The importance of these lists lies in the fact that they govern largely the amount of interference permissible with neutral ships, and with neutral goods captured under the enemy's flag. It is also to be noted that, as soon as the Declaration of London is ratified and accepted, those Powers who are now in favour of treating foodstuffs as absolute contraband, will be unable to do so without a breach of the agreement.
But the contraband character depends on the destination as as well as on the kind of goods. The Conference agreed to certain definite rules by which this further test shall be determined; these were embodied in the Declaration and commented on in the general report. Much controversy has since arisen as to the precise meaning of certain words and phrases used in the Article (more especially Art. 34), in which these rules are set forth. The words complained of are enemy,' 'base,' and 'fortified place.' In each case H.M. Government have defined the meaning, and have stated that they will neither ratify the Declaration, nor issue the order in council making the Naval Prize Bill operative, until and unless the signatory Powers accept the meaning attributed to those words by H.M. Government.
1 Articles used exclusively for war.
2 Articles susceptible of use in war as well as for the purpose of peace. (Art. 25.)
3 Articles not susceptible of use in war. (Art. 27.)
4 At the Colonial Conference Sir E. Grey stated that the Government view was that the word 'enemy' meant enemy government' and not 'enemy people.'
Earl Beauchamp stated in the House of Lords on the 12th of December 1911 that according to the view of the Government, the phrase 'base of supply' used in Art. 34 means a place which serves as a base of supply for the armed forces when the business of supplying those forces with what they require is organised and located there, and the stores required are collected and supplied to the
What is the military meaning of the chapter on contraband? Under Art. 30 absolute contraband is liable to capture if it is shown to be destined to territory belonging to or occupied by the enemy, or to the armed forces of the enemy. It is immaterial whether the carriage of goods is direct or entails transhipment or a subsequent transport by land. In other words, the doctrine of continuous voyage applies. This means that belligerent and neutral merchant ships when carrying absolute contraband are equally liable to capture whether bound for a belligerent or neutral port if the goods are finally destined for the enemy. The belligerent runs the greater risk, since he will forfeit his ship if captured, whereas the neutral will not always do so (Art. 40), although he may sometimes be condemned to pay costs (Art. 41). The application of the doctrine of continuous voyage to absolute contraband gives a new military advantage to the belligerent. The extent of that advantage depends on the kind of war.
Under Art. 33, 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. Under Art. 34:
The destination referred to in Art. 33 is presumed to exist if the goods are consigned to enemy authorities, or to a contractor (commerçant) established in the enemy country, who, as a matter of common knowledge, supplies articles of this kind to the enemy (Government). 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.
In cases where the above presumptions do not arise, the destination is presumed to be innocent.
The presumption set up by this article may be rebutted.
We have to note that the definitions of 'fortified place' and 'base of supply' given by the Government eliminate belligerent mercantile ports. The effect of this last article is to transfer the onus of proof in certain cases to the neutral instead of leaving it to the captor as is usually the case.
Under Art. 35 :
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
forces from that place. A place cannot be regarded as serving as a base of supply for the armed forces merely because it is connected by rail or other means of communication with those forces, and a source from which supplies might be obtained in case of need. Further, he stated that the phrase 'fortified place' in the same article was interpreted to mean a place surrounded by military works capable of withstanding a siege, and in which the military and civilian population are so intermingled that goods intended for the one could not be distinguished from goods intended for the other.