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Attitude Certain Commercial Bodies.

85

Attitude of some commercial bodies.—The Declaration of London of February 26, 1909, has received in Great Britain very serious attention and the articles in regard to the destruction of neutral prizes have been the subject of much discussion. The chambers of commerce of Great Britain, apparently as a result of organized effort, have sent to the British Foreign Office various communications respecting the Declaration of London. To some of these communications the Foreign Secretary has replied.

The communication of the Glasgow Chamber of Commerce on August 10, 1910, so far as relates to the destruction of neutral prizes, is as follows:

The statement of the law on this subject is satisfactory, except as regards the exception contained in article 49. This article concedes the right of a belligerent warship to destroy the prize if the taking thereof into a port would involve danger to the safety of the warship or to the success of the operations in which the captor is engaged at the time. This is a serious departure from the practice hitherto recognized. The rule which has in the past been maintained by this country is that a neutral vessel must never be destroyed. If it is impossible to bring her within the jurisdiction of a court competent to adjudicate upon her, she must be immediately released. The only exception is that, if she can be sent into a neutral port and can be allowed to lie there, this may be done. Taking the exception contained in article 49 as it stands, no prize court-national or internationalwould seriously challenge the discretion of the captor in reference to danger to his vessel or to the success of his operations, and the provisions of article 51 are therefore of no value.

A question might no doubt be raised as to whether the neutral vessel was liable to condemnation, but this would require to be determined subsequently in a prize court or in the international court.

Experience has shown the disadvantage to which neutral owners are exposed in such circumstances, and while belligerents have claimed the right to destroy prizes the right has never been regarded favorably. The effect of article 49 is, however, to recognize and approve of the right, while the safeguards, it is submitted, are illusory.

Article 54 gives the captor right to destroy any goods liable to condemnation found on board a vessel not herself liable to condemnation under article 49. This is a further departure from the recognized rule and one which is of grave consequence to neutrals.

Keeping in view the enormous shipping trade of this country, it is submitted that the recognition of the rule in question would be a serious loss to British shippers and would impose upon them heavy burdens. (Correspondence respecting the Declaration of London, Parliamentary Papers, Miscellaneous, No. 4, 1910, Cd. 5418, p. 2.)

To this the Foreign Office replied on October 13, 1910: 18. Sir E. Grey is glad to find that on this subject the Chamber of Commerce regard the provisions of the Declaration of London as satisfactory, with the exception of article 49.

19. In articles 48 et sequentes, which govern the sinking of neutral vessels, very strict limitations are imposed on such action, while in all cases the onus of proof of the necessity of sinking the vessel lies on the captor. The right to sink neutral prizes has been claimed in the past by several Great Powers, and the modifications introduced by the Declaration place this country, when neutral, in a more favorable position than she has hitherto been, and, as the claim to sink neutral ships has always been opposed by Great Britain, her own rights as a belligerent are not affected, since, being ex hypothesi, already at war, she would not, except as a result of victory, be able to enforce her own views on her opponent. If the opponent sank a neutral merchantman the question would, in the absence of the Declaration, be dealt with by the two Governments directly concerned in accordance with their own views without any reference to the practice of Great Britain.

20. If, as the Chamber of Commerce assume, belligerents are likely to sink neutral vessels when captured, even though they may be liable to pay compensation under the Declaration, they will not refrain from doing so should the Declaration fail to be ratified.

21. The arguments which apply to the articles of the Declaration governing the destruction of neutral prizes apply equally to the destruction of goods liable to be condemned, the onus of proof falling upon the captor. (Ibid., p. 7.)

The Glasgow Chamber of Commerce sent another communication on November 14, 1910, saying:

Hitherto Great Britain has opposed the claim of a belligerent to sink neutral ships. Under article 49 of the Declaration, the right to do so is conceded to belligerents in certain circumstances. The Foreigu Office apparently assumes that if the Declaration is not ratified and Great Britain is a neutral, she will submit to have the rule of international law on which she insists, viz, that neutral ships shall not be sunk but brought into port for adjudication, violated in her case, without taking steps to enforce its observance. If this is a correct interpretation of the position of

Reply of Foreign Office.

87 the Foreign Office, the directors of the chamber, with respect, submit that it is a policy unworthy of Great Britain.

Further, the Foreign Office, in their instructions to their delegates at the conference, pointed out with conclusive force that if there was to be any agreement on this subject, the general principle that neutral prizes are not to be destroyed must be affirmed, followed by a precise statement of the conditions on which alone a departure from the principle could be allowed in exceptional circumstances. (Blue Book, p. 28, art. 29.) The Government went on to point out cases which could not be allowed to justify destruction. (Art. 30.) The Declaration of London on this point entirely fails to define the precise cases which shall justify destruction. On the contrary, the officer who destroys the prize is left without special directions to restrain him. Here again there is room for numerous questions and distressing uncertainty.

With reference to the provisions of the Declaration, both as affecting contraband and the destruction of neutral prizes, the directors can not help again referring to the instructions, for it seems to them that the Declaration, so far as the chamber has criticised it, violates the principles there laid down. Thus it is said the Government "would find it difficult to be satisfied with any merely conventional stipulations of limited application that would leave it uncertain whether the international court might not by its decisions introduce rules and principles of na val warfare which would unduly fetter the operations of His Majesty's ships." (Ibid., p. 10.)

Reply of British Foreign Office. To this the Foreign Oflice makes answer on November 26, 1910:

18. Your letter next discusses the question of the sinking of neutral prizes, and does so from the point of view of the neutral owners. The Declaration is criticised because it recognizes exceptions to the general rule that neutral prizes must be condemned in a prize court before they can be destroyed by the captor. As has already been pointed out, most of the naval Powers claim that the right to sink without previous adjudication is in conformity with the existing law of nations. Your directors consider that it would be unworthy of Great Britain not to insure by force the observance of the British view of the law of nations. Resort to war is of course the ultimate means of enforcing compliance with national demands, but it will be in the recollection of your directors that in 1904, when the belligerent claim to such treatment of neutral prizes was put into force for the first time, it was not thought desirable, in the higher inerests of the country, to go to war. The action of Great Britain was then confined to diplomatic protest, and it would on future occasions be all the more difficult for her to justify an appeal to force in support of views which are not held by the majority of the powers. His Majesty's Government have, therefore, been anxious to find a less violent and less costly method of solving the difficulty arising out of the conflicting interpretations of international law, if they could do so without material injury to the interests of the country and of British shipowners. They had, furthermore, to consider that in a war in which Great Britain was herself a belligerent, a powerful enemy claiming the right to sink would undoubtedly exercise that right without Great Britain being in a position to prevent this otherwise than by prosecuting the war in which she was already engaged; whilst resistance on the part of the neutrals was not to be counted upon so long as they themselves recognized the right.

19. For British vessels whilst neutral, the endeavor of His Majesty's Government has been to secure conditions offering reliable safeguards that destruction prior to adjudication shall not take place save in exceptional emergencies, and then only if a vessel is captured in circumstances that would render her liable to condemnation in a prize court. The strict fulfilment of such conditions would obviously be an absolute guaranty that the captor would in effect but destroy his own property. Supposing the right of destruction to have been thus narrowly circumscribed, it would remain to provide an effective remedy in the case of any abuse or mistake on the part of the captor. The appropriate remedy would consist in the neutral owner being fully indemnified for any loss or injury illegitimately inflicted upon him in such circumstances.

20. The Declaration consists of a series of provisions designed to attain these objects, which need not again be quoted at length. They were fully explained and commented upon in the report of the British Delegates at the Naval Conference of the 1st March, 1909, which is included in the Blue Book (p. 98). Your letter asserts that the Declaration “entirely fails to define the precise cases which justify destruction.” This is an error. The cases are expressly stated to be those, and those only, in which the ship is liable to condemnation, and these are enumerated and clearly defined in articles 40 and 46, under the heads of contraband and unneutral service. If the remark was meant to refer to the fact that the Declaration does not specifically define the circumstances of “exceptional necessity,” which constitute danger to the safety of the captor's ship or to the success of the operations in which she is at the moment engaged, your directors will see, on reference to section 25 of the Delegates' Report, that the alternative of introducing a more precise definition of such circumstances was after careful consideration discarded because it was seen to be impossible to enumerate them exhaustively and because any incomplete enumeration would be more harmful in its practical effects than a well-framed general rule standing alone. (Ibid., p. 14.)

Reply of Foreign Office.

89 In reply to a letter of the Leith Shipowners' Society, saying that the destruction of neutral prizes at sea would be" liable to serious abuse,” the Foreign Office, on November 4, 1910, says:

4. The second question raised in your letter is that of the destruction of neutral vessels prior to adjudication in a prize court. You contend that such a practice is liable to serious abuse, even under the most carefully worded conditions. It is, however, important primarily to consider what would be the position if the Declaration of London were not to come in force. Your society can not be unaware that the sinking of neutral vessels having contraband on board has been asserted by most of the naval Powers to be in entire accordance with the existing law of nations. Nor "ave those Powers hitherto admitted that such right is limited by any of the serious restrictions which are now im. posed under the Declaration, and to which, in fact, they have only been induced to agree as specific concessions to the view upheld by this country. Combined with the establishment of an international court of appeal in matters of prize, those concessions constitute a very effective safeguard against any abuse of the power to sink neutral vessels which belligerents have up to now claimed to exercise without any restraints.

5. Nonratification of the Declaration would necessarily involve the abandonment both of the concessions obtained thereunder and of the whole scheme of an international prize court, with this result, among others, that neutrals would, as heretofore, have no other remedy than a recourse to force against a belligerent whose national prize courts recognized the practically unrestricted right to sink neutral vessels carrying contraband as being well established in international law. Even, therefore, if it were, for the sake of argument, admitted that the safeguards provided by the Declaration were not so completely adequate as to prevent any possible abuse, it is a fact not open to controversy that, such as they are, they represent a material and beneficial advance on a state of things which left belligerents practically free to act without any of the stipulated restrictions. (Ibid., p. 17.)

There has been much activity shown by many commercial bodies and some of the resolutions adopted and communicat ons sent to the Foreign Office show that the present laws, as well as the articles of the Declaration of London, are not understood by those who may lose most because good laws do not exist or gain most if good laws are adopted.

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