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the armed forces of the enemy, and when it is not to be discharged in an intervening neutral port.
The doctrine of continuous voyage does not apply to conditional contraband, which cannot, therefore, be captured when it is to be discharged at a neutral port, except under the unusual conditions referred to in Art. 36. Whether this is an advantage or a disadvantage to a belligerent it is unavoidable, since articles, e.g. foodstuffs, susceptible of use for the purposes of peace as well as in war (Art. 24), cannot in practice be earmarked for the belligerent. The three articles mentioned tend to free neutral trade in conditional contraband with belligerent mercantile ports under Arts. 33 and 34, and with neutral ports under Art. 35. Such trade cannot be touched under the strict letter of the agreement, but adherence to this cannot be relied upon, even although appeal is open to an International Prize Court. Neutrals will seek to evade the law, and belligerents to strain it. Both will be held in check by the fear of damages, but the latter will be further restrained by the risk of the forcible interference of the former, who under the agreement do not abrogate their right to protest against, or even to resist, improper belligerent action.
After the stronger belligerent has established his superiority at sea, neutral trade with the mercantile ports of the weaker belligerent can be stopped by declaring a blockade, which will end all questions of contraband as far as the ports blockaded are concerned. Neutral trade will continue with the mercantile ports of the stronger belligerent subject to such interference as can be offered by the weaker, hampered as he will be by the fear of damages, of neutral interference and of the stronger hostile Navy. Neutral trade will continue with neutral ports, subject to such interference as may be offered by either belligerent hampered as above.
Take a concrete example. If Great Britain is at war, neutral trade with her own mercantile ports and with neutral ports cannot be materially interrupted so long as her own navy remains predominant and is properly used.
Finally we have to note that the importance of contraband, whether absolute or conditional, depends upon the kind of war; that the action taken by belligerents and neutrals will vary with the conditions at the moment; and that whatever that action may be the deciding factors are the belligerent navies and the uses made of them. So far as relates to the doctrine of contraband as embodied in Chapter II. of the Declaration, it is believed that all necessary and legitimate belligerent rights have been maintained, while the greater, although imperfect, certainty aimed at tends to the advantage both of belligerents and neutrals.
CONVERSION OF MERCHANT SHIPS INTO SHIPS OF WAR
At the second Peace Conference was signed, on the 18th of October 1907, a Convention-No. VII.-defining the conditions under which merchant ships may be converted into ships of war and incorporated in the fighting fleet. As is generally admitted, the rules therein laid down will prevent the revival of privateering under the guise of so-called volunteer fleets. But the same results will be legalised under another form. The armed merchant ship will still prey on the unarmed trader, but as a man-of-war and not as a privateer. Thus the evils which attended on the action of the latter may perhaps not recur. One important point was left undecided. The preamble to the Convention recites that, the contracting Powers having been unable to agree on the question whether the conversion of a merchant ship into a war ship may take place on the high seas, it is understood that the question of the place where such conversion is effected remains outside the scope of the agreement. At the Naval Conference in London, the subject was again examined, and the same difference of opinion was found to exist. The question was left unsolved, and was not mentioned in the Declaration of London. We are faced with the fact that in the event of war the belligerent navies will be reinforced, as has been usual in the past, by merchant ships converted into ships of war, and that probably some of them will be so converted on the high seas, which in a somewhat analogous way has been done in former wars by converting prizes. The difficulty of doing this without attracting previous attention, and of maintaining such ships, must not be overlooked. Most conversions will no doubt take place in the territorial waters of the belligerent, but as things are, nothing except force, or the fear of force, can prevent any Power adding to its fighting strength by conversion on the high seas, if that Power so chooses. A belligerent Power cannot do more than use its utmost force in the war, which it will do in any case. A neutral Power can remonstrate diplomatically, and may, under certain circumstances, exercise a deterring influence, especially if prepared to back remonstrance by armed force, but neutral intervention can be avoided if the belligerent gives orders not to molest neutrals to such of his cruisers as are converted on the high seas. The proposal to treat the officers and men of such ships as pirates is not to be thought of, seeing that the former will hold commissions from their Sovereign, and the latter will be part of the regular navy. A belligerent owner, whose vessel is seized by a ship converted on the high seas, cannot expect redress from any International Prize Court, since usually it will have no jurisdiction in such a case. His only safeguard resides in the provision and proper use by his
Government of sufficient armed ships to hunt down and destroy those of the enemy. In a similar case, a neutral owner cannot look for redress from the Prize Court of a belligerent who sanctions conversion on the high seas, but an International Prize Court, if established, might, or might not, give him some relief.
It will be seen that the absence from the Declaration of London of any provision prohibiting the conversion on the high seas of merchant ships into ships of war has altered nothing. It is true that the International Prize Court might eventually give a decision. effecting the status of such ships. That decision might decrease their number, but is not likely to increase them, since, under existing conditions, a belligerent who determines to use them will naturally fit out as many as he can arrange for. To meet this form of attack it is still imperatively necessary for the Admiralty to arrange for the conversion of merchant ships into ships of war, and for their incorporation in the fighting fleet, also to make such dispositions of these ships and of the regular cruisers as will insure the hostile cruisers being brought to action. Convention No. VII. was ratified by the British Government on the 29th of November 1909. To refuse to ratify the Declaration of London, because the question of conversion on the high seas is omitted from it, would be to sacrifice a valuable set of rules, and to prolong the present unsatisfactory state of things without any counterbalancing advantage.
DESTRUCTION OF NEUTRAL PRIZES
It may be well to premise that the destruction of enemy prizes is freely admitted to be permissible. Much of the opposition to Chapter IV., which deals with the destruction of neutral prizes, seems to have arisen from the British proposal submitted at The Hague in 1907 that the destruction of a neutral prize by the captor is prohibited. The captor ought to release every neutral ship which he cannot bring before a Prize Court.' This is beyond our own past practice and the rulings of our own Prize Court, which permit destruction under certain very exceptional circumstances but, to check the practice, award full compensation to the parties interested, whether innocent or guilty.
On the other hand, all foreign nations admitted that as a general rule neutral prizes ought to be brought into port to go before a Prize Court, and a majority held that they might be sunk under certain circumstances, but that compensation was only to be given to the parties interested when found by a belligerent Prize Court to be innocent. The difference between Great Britain and the majority of other nations was that the former checked firmly the sinking of neutral prizes, whereas the latter did not do so. In the Russo-Japanese war the check was limited to neutral diplomatic
remonstrance, which in that case was futile, and will usually be so unless the belligerent fears that remonstrance may be followed by reprisals of some kind.
Turning to the actual agreement, we find that Arts. 48 and 49 affirm the general principle that a neutral ship may not be destroyed unless she is liable to condemnation, that is to say, has been guilty of breach of blockade, unneutral service, or carrying a cargo of which more than half is contraband. This condition limits the number of ships liable to be destroyed. The belligerent captor is further restricted by the proviso that he may not destroy a ship unless taking her into port will involve danger (at the moment) to the safety of his own ship or to the success of the operations in which she is engaged.' Other articles provide that compensation must be paid in certain cases, e.g. if the captor fails to prove in the first place that he acted in the face of exceptional necessity, or if the capture is subsequently held to be invalid. This liability to pay compensation, if the captor fails in the first place to prove exceptional necessity, provides the check on the belligerent captor hitherto refused by Continental Prize Courts, but given by our own. The general effect of Chapter IV. of the Declaration is to limit foreign practice in sinking neutral ships. It is true that the limit depends upon the meaning attached to the above words of Art. 49- danger to the safety of his own ship or to the success of the operations in which she is engaged at the time,' which are vague and indefinite. A belligerent may give to the words an interpretation unduly elastic, but judgment will rest first with the belligerent, and then with the International, Prize Court, if established. The fear of heavy damages will exercise a restraining influence, and besides there is nothing in the Declaration which invalidates, or destroys, the existing right of neutrals to protest against improper action on the part of a belligerent and to use diplomatic pressure, or even force, for its prevention. On the whole, Chapter IV. embodies generally British practice in the past and sacrifices no belligerent right, while neutral traders have a better chance of compensation.
The other important points which have provoked criticism, are the constitution of the International Prize Court and its competence to administer the law. These are not military but legal questions, and therefore are not within the competence of a naval officer to criticise, but it may be pointed out that they relate to the Prize Court Convention rather than to the Declaration of London. Finally is to be remembered the prominent part taken by this country in the preparation of these important conventions. Great Britain was one of the two Powers who initiated the International Prize Court; she has signed and ratified the Prize Court Convention; she convened, and presided over the Naval Conference; she took a prominent part in preparing the Declaration
of London, which she signed. It is further to be remembered that, in coming to an agreement on the many difficult and delicate questions dealt with by the Naval Conference, much give and take was necessary. The members must have had in mind the fact that an International Prize Court had been already agreed to. Having reached agreement on the Declaration of London, will it not be almost a breach of faith to hold back now on the Prize Court Convention? For it is to be noted that there can be no going back on the Declaration of London, which, whether ratified or not, will remain the most authoritative statement of International Law. As such it is a great boon to belligerents and neutrals alike. More especially is it so to the naval officers who will have to control and use the ships and fleets of this country.