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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 naval 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 endea vor 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 detine 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 be. cause 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 Save those Powers hitherto admitted that such right is limited by any of the serious restrictions which are now imposed 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 communications 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.

Discussion in Parliament. The discussions in Parliament relating to the Declaration of London have been under the title of the Naval Prize Bill. The British Government promised that the Declaration of London should not be ratified until Parliament should have opportunity to discuss its provisions, though constitutionally the consent of Parliament is not necessary for ratification. The self-governing colonies were also given opportunity to discuss the provisions of the Declaration.

The lord chancellor in a speech in the House of Lords, upon the motion to appoint a Royal Commission to report on the advisability of agreeing to the terms of the Declaration of London, said on March 9, 1911:

I pass now to the subject of neutral prizes. All nations assert the right to destroy neutral prizes if they find they can not take them into port except Great Britain, Japan, Spain, and Holland. That is the law they would apply in their prize courts if you reject this Declaration. Even the record of Great Britain is not quite clear upon this subject of the destruction of neutral ships. The Declaration allows it subject to distinct conditions. A ship may be destroyed if the observance of article 48—that means taking her into port for adjudication-will involve danger to the warship or to the success of the operation in which she is engaged at the time. Suppose we reject this Declaration. Our enemy would destroy neutral prizes at discretion without any limitation at all, acting upon their own laws. But suppose we are neutrals and our merchant ships are destroyed. This actually happened, as we know, in the Russo-Japanese War. We were then put to the choice either of allowing the incident to pass uncompensated or to have recourse to war with Russia. Of course, the late Government, like sensible men, never thought of making that the subject of a declaration of war.

If that happened again, after the Declaration had been ratified, Russia would have to submit to the International Court and to pay compensation if she was found to be wrong. (Daily Telegraph, Mar. 10, 1910.)

Lord Salisbury, favoring the motion for a Royal Commission, said on March 13:

As matters stood without the Convention, if there were an attempt on the part of a belligerent to capture or destroy all ships carrying foodstuffs to our ports as contraband, there would at once be an uprising on the part of neutral powers.

Discussion in Parliament.

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As a matter of fact, the belligerent would be effectively controlled by the public opinion of the neutral powers. During the South African War there was a certain amount of friction between this country and Germany, and the protest of the German Government had immense weight with the British Government at that time; the protest that we were interpreting international law harshly was most effective, and had to be taken into account by us. If this Convention were not passed, he was perfectly certain that neutral Powers would not submit to a belligerent interpreting his powers harshly. If the Convention were ratified, when an enemy began to capture and destroy ships carrying foodstuffs, and if there were a protest the enemy would say: " It is all right. You can go to the tribunal when the war is over and get compensation. You can not protest, as you are not damaged. You can not take the law into your own hands. It is not for you to say what is a base of supply. That is for the international court when the war is over."

That was the essential point, and that was why this Convention was so dangerous. Under the convention a belligerent could go on destroying ships with foodstuffs, and when the war was over he would not care much whether or not he had to pay compensation.

After quite full discussion of various phases of the Declaration the motion for a Royal Commission was withdrawn on March 13, 1911.

Some who favor the abolition of all laws for war upon the sea so far as concerns Great Britain have made. strong speeches against the Declaration, others have seen only good points, while some have realized that there was no unity in the laws and practices of nations and that the Declaration would substitute in a large degree certainty for uncertainty and confusion likely to lead to international friction and to stir up sentiments favorable to the spread of war.

Letters to the London Times.-Mr. Thomas Gibson Bowles has maintained both in the House of Commons and outside a very active opposition to reforms in naval prize law and to the Declaration of London. His book, Sea Law and Sea Power, is in general opposed to all international agreements in regard to maritime warfare from the Declaration of Paris of 1856 to the Declaration of London of 1909, and including the conventions of the Hague Conferences of 1899 and 1907. In a letter to the London Times he says:

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