There is, however, little doubt that such persons, although now more usually allowed to remain, during good behaviour, may be expelled, and, if necessary, wholesale, as were Germans from France in 1870. But may such persons be, for good reasons, arrested, or otherwise prevented from leaving the country, as Germans were prevented from leaving France in the earlier days of the Franco-Prussian War? Grotius speaks with approval of such a step being taken, "ad minuendas hostium vires." Bynkershoek, more than a century later, recognises the right of thus acting, "though it is rarely exercised." So the Supreme Court of the United States in Brown v. United States (1814). So Chancellor Kent (1826), and Mr. Manning (1889) is explicit that the arrest in question is lawful, and that "the individuals are prisoners of war."

Vattel, is it true (1758), ventures to lay down that—

"Le Souverain qui declare la guerre ne peut retenir les sujets de ennemi qui se trouvent dans ses etats au moment de la declaration ... en leur permettant d'entrer dans ses terres et d'y sejourner, il leur a promis tacitement toute liberte et toute surete pour le retour."

And he has been followed by some recent writers. There is, however, I venture to hold, no ground for asserting that this indulgent system is imposed by international law. I am glad, therefore, to find the Attorney-General laying down that—

"for strictly military reasons, any nation is entitled to detain and to intern soldiers found upon the territory at the outbreak of war."

And I should be surprised if, under all circumstances, as the learned Attorney-General seems to think probable—

"England would follow, whatever the strict law may be, the humane and chivalrous practice of modern times, and would give to any subjects of a hostile Power who might be found here engaging in civilian pursuits a reasonable time within which to leave for their own country, even although they were under the obligation of entering for service under the enemy's flag."

The doctrine of Vattel has, in fact, become less plausible than it was before universal liability to military service had become the rule in most Continental countries. The peaceably engaged foreign resident is now in all probability a trained soldier, and liable to be recalled to the flag of a possible enemy.

There may, of course, be considerable practical difficulties in the way of ascertaining the nationality of any given foreigner, and whether he has completed, or evaded, the military training required by the laws of his country. It may also be a question of high policy whether resident enemies would not be a greater danger to this country if they were compelled to remain here, than if they were allowed, or compelled, to depart, possibly to return as invaders.

I am only concerned to maintain that, as far as international law is concerned, England has a free hand either to expel resident enemies or to prevent them from leaving the country, as may seem most conducive to her own safety.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, February 25 (1909).

Civil Disabilities of Alien Enemies

THE NAVAL PRIZE BILL

CIVIL DISABILITIES OF ENEMY SUBJECTS

Sir,—The Naval Prize Bill has sins enough of its own to answer for. The question dealt with under that heading in Mr. Arthur Cohen's letter of this morning has, however, nothing to do with naval matters, but arises under The Hague Convention of 1907 as to warfare on land, which was ratified by our Government two years ago; unfortunately without any reserve as to the extraordinary provision contained in Art. 28 (h) of that Convention.

I lose not a moment in asking to be allowed to state that my view of the question is, and always has been, the reverse of that attributed to me by my friend Mr. Cohen. No less than three views are entertained as to the meaning of Art. 28 (h). (1) Continental writers, e.g., MM. Fauchille, Kohler, and Ullmann, with the German Whitebook, assert, in the most unqualified manner, that Great Britain and the United States have under this clause abandoned their long-established doctrine as to the suspension of the private rights and remedies of enemy subjects; (2) Our own Government, in a non-confidential reply to an inquiry from Professor Oppenheim, asserts categorically, as does General Davis in the United States, that the clause relates only to the action of a commander in a territory of which he is in occupation; while (3) most English and American writers look upon the meaning of the clause as doubtful. If Mr. Cohen will look at p. 44 of my Laws of War on Land, 1909, he will find that I carry this sceptical attitude so far as to include the clause in question in brackets as "apocryphal," with the comment that "it can hardly, till its policy has been seriously discussed, be treated as a rule of international law." I have accordingly maintained, in correspondence with my Continental colleagues, that the clause should be treated as "non avenue," as "un non sens," on the ground that, while, torn from their context, its words would seem ("ont faux air") to bear the Continental interpretation, its position as part of a "Reglement," in conformity with which the Powers are to "issue instructions to their armed land forces," conclusively negatives this interpretation. I will not to-day trouble you in detail with the very curious history of the clause; which, as originally proposed by Germany, merely prohibited (a commander?) from announcing that the private claims ("reclamations") of enemy subjects would be unenforceable. It is astonishing that no objection was raised by the British or by the American delegates to the subsequent transformation of this innocent clause into something very different, first by the insertion of the words "en justice," and later by the substitution of "droits et actions" for "reclamations." The quiescence of the delegates is the more surprising, as, at the first meeting of the sub-committee, General de Gundel, in the plainest language, foreshadowed what was aimed at by the clause.

Art. 23 (h) is, I submit, incapable of rational interpretation and should be so treated by the Powers. If interpreted at all, its sense must be taken to be that which is now, somewhat tardily, put upon it by our own Government.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 6 (1911).

I may perhaps refer here to my Laws of War on Land (1908), p. 44, where I describe as "apocryphal" Art. 23 (h) of the Hague Convention No. iv. of 1907; and to my paper upon that article in the Law Quarterly Review for 1912, pp. 94-98, reproduced in the Revue de Droit International, the Revue Generale de Droit International Public, and the Zeitschrift fuer Voelkerrecht und Bundesstaatsrecht, for the same year.

The view there maintained was affirmed by the Court of Appeal in Porter v. Freudenberg, [1915] 1 K.B. 857, at p. 874.

Enemy Ships in Port

ENEMY SHIPS IN PORT

Sir,—The action taken by the United States in seizing German merchant ships lying in their ports will raise several questions of interest. It is, however, important at once to realise that, apart from anything which may be contained in old treaties with Prussia, their hands are entirely free in the matter. The indulgences so often granted: to such ships during the last 60 years, notably by themselves in the Spanish War of 1898, under endlessly varying conditions, have been admittedly acts of grace, required by no established rule of international law.

The United States are also unaffected by The Hague Convention No. vi, to which they are not a party. It is therefore superfluous to inquire what construction they would have been bound to put upon the ambiguous language of Section 1 of the Convention, which proclaims that "when a merchant ship of one of the belligerent Powers is, at the commencement of hostilities, in an enemy port, it is desirable that it should be allowed to depart freely," &c. It might perhaps be argued that our own Prize Court might well have refrained from treating this section as if it were obligatory, and have founded its decisions rather upon international law, as supplemented by a non-obligatory custom. Be this as it may, it would seem that the policy of the United States has to some extent felt the influence of Convention vi. in announcing that seizure will, provisionally, only amount to requisitioning.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 7 (1917).



CHAPTER VI

THE CONDUCT OF WARFARE

The three following sections relate to the waters in which hostile operations may take place. Section 1 probably calls for no explanatory remark. With reference to Section 2, dealing with certain spaces of water more or less closed to belligerent action, it may be desirable to state that the letters as to the Suez Canal were written to obviate some misconceptions as to the purport of the Convention of October 29, 1888, and to maintain that it was not, at the time of writing, operative, so far as Great Britain was concerned.

This state of things was, however, altered by the Anglo-French Convention of April 8, 1804, which, concerned principally with the settlement of the Egyptian and Newfoundland questions, provides, in Art. 6, that "In order to assure the free passage of the Suez Canal, the Government of His Britannic Majesty declares that it adheres to the stipulations of the Treaty concluded on the 29th October 1888; and to their becoming operative. The free passage of the canal being thus guaranteed, the execution of the last phrase of paragraph 1, and that of paragraph 2 of the 8th article of this Treaty, will remain suspended."

The last phrase of paragraph 1 of Art. 8 relates to annual meetings of the agents of the signatory Powers.

Paragraph 2 of this Article relates to the presidency of a special commissioner of the Ottoman Government over those meetings.

On the whole question see Parl. Papers, Egypt, No. 1 (1888), Commercial, No. 2 (1889), and the present writer's Studies in International Law, pp. 275-293. Note must, of course, now be taken of the constitutional changes resulting from the war of 1914.

The provisions of the Treaty of 1888, with reference to the free navigation of the Suez Canal, have, of course, acquired a new importance from their adoption into the Hay-Pauncefote Treaty of November 18, 1901, as to the Panama Canal, and from the divergent views taken of their interpretation, as so adopted.

SECTION 1

On the Open Sea

"THE FREEDOM OF THE SEAS"?

Sir,—Your remarks upon "the wide and ambiguous suggestions" contained in the Pope's Peace Note are especially apposite to his desire for "the freedom of the seas." It is regrettable that his Holiness does not explain the meaning which he attaches to this phrase, in itself unmeaning, so dear to the Germans. He is doubtless well aware that the sea is already free enough, except to pirates, in time of peace, and must be presumed to refer to time of war, and specifically to propose the prohibition of any such interference with neutral shipping as is now legalised by the rules relating to visit and search, contraband and blockade.

If this be indeed the Pope's meaning, his aspirations are now less likely than ever to be realised. It is curious to reflect that the proposal actually made by our own Government at The Hague Conference of 1907, apparently under the impression that Great Britain would be always neutral, for protecting the carriage of contraband was most fortunately defeated by the opposition of the other great naval Powers, of which Germany was one.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, August 16 (1917).

* * * * *

SECTION 2

In Other Waters

THE SUEZ CANAL

Sir,—Your correspondent "M.B." has done good service by calling attention to the misleading nature of the often-repeated statement that the Suez Canal has been "neutralised" by the Convention of 1888. Perhaps you will allow me more explicitly to show why, and how far, this statement is misleading.

In the first place, this Convention is inoperative. It is so in consequence of the following reservation made by Lord Salisbury in the course of the negotiations which resulted in the signature of the Convention:—

"Les Delegues de la Grande-Bretagne ... pensent qu'il est de leur devoir de formuler une reserve generale quant a l'application de ces dispositions en tant qu'elles ne seraient pas compatibles avec l'etat transitoire et exceptionnel ou se trouve actuellement l'Egypte, et qu'elles pourraient entraver la liberte d'action de leur Gouvernement pendant la periode de l'occupation de l'Egypte par les forces de sa Majeste Britannique."

Being thus unaffected by the treaty, the canal retains those characteristics which it possesses, under the common law of nations, as a narrow strait, wholly within the territory of one Power and connecting two open seas. The fact that the strait is artificial may, I think, be dismissed from consideration, for reasons stated by me in the Fortnightly Review for July, 1883. The characteristics of such a strait are unfortunately by no means well ascertained, but may perhaps be summarised as follows. In time of peace, the territorial Power is bound by modern usage to allow "innocent passage," under reasonable conditions as to tolls and the like, not only to the merchant vessels, but also, probably, to the ships of war, of all nations. In time of war, the territorial Power, if belligerent, may of course carry on, and is exposed to, hostilities in the strait as elsewhere, and the entrances to the strait are liable to a blockade. Should the territorial Power be neutral, the strait would be closed to hostilities, though it would probably be open to the "innocent passage" of belligerent ships of war.

It may be worth while to enquire how far this state of things would be affected by the Convention of 1888, were it to come into operation. The status of the canal in time of peace would be substantially untouched, save by the prohibition to the territorial Power to fortify its banks. Even with reference to time of war, several of the articles of the Convention merely reaffirm well-understood rules applicable to all neutral waters—e.g. that no hostilities may take place therein. The innovations proposed by the Convention are mainly contained, as "M.B." points out, in the first article, which deals with the position of the canal when the territorial Power is belligerent. In such a case, subject to certain exceptions, with a view to the defence of the country, the ships of that Power are neither to attack nor to be attacked in the canal, or within three miles of its ports of access, nor are the entrances of the canal to be blockaded. This is "neutralisation" only in a limited and vague sense of the term, the employment of which was indeed carefully avoided not only in the Convention itself but also in the diplomatic discussions which preceded it.

I am, Sir, your obedient servant, T. E. HOLLAND. Brighton, October 4 (1898).

THE SUEZ CANAL

Sir,—Your correspondent "M.B.," if he will allow me to say so, supports this morning a good case by a bad argument, which ought hardly to pass without remark.

It is impossible to accept his suggestion that the article which he quotes from the Treaty of Paris can be taken as containing "an international official definition of neutralisation as applied to waters." The article in question, after declaring the Black Sea to be "neutralisee," no doubt goes on to explain the sense in which this phrase is to be understood, by laying down that the waters and ports of that sea are perpetually closed to the ships of war of all nations. It is, however, well known that such a state of things as is described in the latter part of the article is so far from being involved in the definition of "neutralisation" as not even to be an ordinary accompaniment of that process. Belgium is unquestionably "neutralised," but no one supposes that the appearance in its waters and ports of ships of war is therefore prohibited. The fact is that the term "neutralisee" was employed in the Treaty of Paris as a euphemism, intended to make less unpalatable to Russia a restriction upon her sovereign rights which she took the earliest opportunity of repudiating.

I am, Sir, your obedient servant, T. E. HOLLAND. Brighton, October 6 (1898).

THE SUEZ CANAL

Sir,—Will you allow me to reply in the fewest possible words to the questions very courteously addressed to me by Mr. Gibson Bowles in his letter which appeared in The Times of yesterday?

1. It is certainly my opinion, for what it is worth, that the full operation of the Convention of 1888 is suspended by the reserves first made on behalf of this country during the sittings of the Conference of 1885. These reserves were texually repeated by Lord Salisbury in his despatch of October 21, 1887, enclosing the draft convention which, three days later, was signed at Paris by the representatives of France and Great Britain, the two Powers which, with the assent of the rest, had been carrying on the resumed negotiations with reference to the canal. Lord Salisbury's language was also carefully brought to the notice of each of the other Powers concerned; in the course of the somewhat protracted discussions which preceded the final signature of the same convention at Constantinople on October 29, 1888.

2. All the signatories of the convention having thus become parties to it after express notice of "the conditions under which her Majesty's Government have expressed their willingness to agree to it," must, it can hardly be doubted, share the view that the convention is operative only sub modo.

3. Supposing the convention to have become operative, and supposing the territorial Power to be neutral in a war between States which we may call A and B, the convention would certainly entitle A to claim unmolested passage for its ships of war on their way to attack the forces of B in the Eastern seas.

4. The language of the convention, being as it, is the expression of a compromise involving much re-drafting, is by no means always as clear as it might be. But when Mr. Gibson Bowles is again within reach of Blue-books he will probably agree with me that the treaty need not, as he suggests, be "read as obliging the territorial Power, even when itself a belligerent, to allow its enemy to use the canal freely for the passage of that enemy's men-of-war." The wide language of Art. 1 (which is substantially in accordance with Mr. Gibson Bowles's reminiscence of it) must be read in connection with Art. 10, and without forgetting that, in discussing the effect of an attack upon the canal by one of the parties to the convention, Lord Salisbury wrote in 1887, "on the whole it appears to be the sounder view that, in such a case, the treaty, being broken by one of its signatories, would lose its force in all respects."

Your obedient servant, T. E. HOLLAND. Oxford, October 9 (1898).

THE CLOSING OF THE DARDANELLES

Sir,—Now that the pressure upon your space due to the clash of opposing views of domestic politics is likely to be for the moment relaxed, you may, perhaps, not think it inopportune that attention should be recalled to a question of permanent international interest raised by the recent action of the Turkish Government in closing the Dardanelles to even commercial traffic.

I cordially agree, as would, I suppose, most people, with your leading article of some weeks since in deprecating any crude application to the case of the Dardanelles and Bosporus of dicta with reference to freedom of passage through straits connecting two open seas. It would, indeed, be straining what may be taken to be a general principle of international law to say that Turkey is by it prohibited from protecting her threatened capital by temporarily closing the Straits.

A good deal of vague reference has, however, been made in the discussions which have taken place upon the subject to "Treaties" under which it seems to be thought that trading ships enjoy, in all circumstances, rights of free navigation through the Straits in question which they would not have possessed otherwise. I should like, therefore, with your permission, to state what seem to be the relevant Treaty provisions upon the subject, whether between the Powers constituting the European Concert collectively, or between Russia and Turkey as individual Powers.

As to what may be described as the "European" Treaties, it is necessary, once for all, to put aside as irrelevant Art. 10 of the Treaty of Paris of 1856 and its annexed Convention; Art. 2 of the Treaty of London of 1871; and the confirmatory Art. 63 of the Treaty of Berlin of 1878. These articles have exclusive reference to the "ancient rule of the Ottoman Empire," under which, so long as the Porte is at peace, no foreign ships of war are to be admitted into the Straits. There are, however, two articles, still in force, of these "European" Treaties which may seem to bear upon the present inquiry. By Art. 12 of the Treaty of Paris:—

"Free from any impediment, the commerce in the ports and waters of the Black Sea shall be subject only to regulations of health, Customs, and police, framed in a spirit favourable to the development of commercial transactions."

And by Art. 3 of the Treaty of London:—

"The Black Sea remains open, as heretofore, to the mercantile marine of all nations."

It is submitted that these provisions relate solely to commerce carried on by vessels already within the Black Sea, and contain no covenant for an unrestricted right of access to that sea.

As between Russia and Turkey individually, Treaties which are still in force purport, no doubt, to give to the former a stronger claim to free passage through the Straits for her mercantile marine than that which can be supposed to be enjoyed by other Powers. By Art. 7, for instance, of the Treaty of Adrianople of 1829, the Porte recognises and declares the passage of the "Canal de Constantinople," and of the Strait of the Dardanelles, to be entirely free and open to Russian merchant vessels; and goes on to extend the same privilege to the merchant vessels of all Powers at peace with Turkey. Art. 24 of the Treaty of San Stefano is still more explicit, providing that "the Bosporus and Dardanelles shall remain open in time of war as in time of peace to the merchant vessels of neutral States arriving from or bound to Russian ports." The rest of the article contains a promise by the Porte never henceforth to establish a "fictitious blockade, at variance with the spirit of the Declaration of Paris"; meaning thereby such a blockade of ports on the Black Sea as had been enforced by Turkish ships of war stationed at the entrance to the Bosporus.

It may well be doubted whether these articles, containing concessions extorted from Turkey at the end of wars in which she had been defeated, ought not, like so many other provisions of the Treaty of San Stefano, to have been abrogated by the Treaty of Berlin. They are of such a character that, in the struggle for existence, Turkey can hardly be blamed for disregarding them. As was said long ago, "Ius commerciorum aequum est, at hoc acquius, tuendae salutis." The imperious necessities of self-preservation were recognised both by Lord Morley and by Lord Lansdowne in the debate which took place on May 3, although Lord Lansdowne intimated that

"the real question, which will have to be considered sooner or later, is the extent to which a belligerent Power, controlling narrow waters which form a great trade avenue for the commerce of the world, is justified in entirely closing such an avenue in order to facilitate the hostile operations in which the Power finds itself involved."

It is, I think, clear that the solution of a question at once so novel and so delicate must be undertaken, not by any one Power, but by the Concert of Europe, or of the civilised world, which must devise some guarantee for the safety of any littoral Power which would be called upon in the general interest to restrict its measures of self-defence. In the meantime, we may surely say that the case is provided for neither by established international law nor by "European" Treaties; and, further, that the Treaties between Russia and Turkey, which do provide for it, are not such as it is desirable to perpetuate.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, May 22 (1912).

THE CLOSING OF THE DARDANELLES

Sir,—I am reminded by Mr. Lucien Wolf's courteous letter that I ought probably to have mentioned, in alluding to the Treaty of San Stefano, that it is doubtful whether Art. 24 of that Treaty is in force. It was certainly left untouched by the Treaty of Berlin, but the language of the relevant article (3) of the definitive Treaty of Peace of 1879 is somewhat obscure, nor is much light to be gained upon the point from the protocol of the 14th seance of the Congress of Berlin, at which Art. 24 came up for discussion.

The earlier Treaties, however, which were revived beyond question by Art. 10 of the Treaty of 1879, grant to Russian merchant vessels full rights of passage between the Black Sea and the AEgean, exercisable, for all that appears, in time of war as well as of peace, although these Treaties contain no express words to that effect. Such rights, I would again urge, if enjoyed by one Power, should be enjoyed by all; upon terms to be settled, not by any pair of Powers but by the Powers collectively.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, June 5 (1912).

* * * * *

SECTION 3

In a Special Danger Zone?

THE GERMAN THREAT

Sir,—It may perhaps be desirable, for the benefit of the general reader, to distinguish clearly between the two topics dealt with in the recent announcement of German naval policy.

1. We find in it what may, at first sight, suggest the establishment of a gigantic "paper blockade," such as was proclaimed in the Berlin Decree of 1806, stating that "Les iles Britanniques sont declarees en etat de blocus." But in the new decree the term "blockade" does not occur, nor is there any indication of an intention to comply with the prescriptions of the Declaration of Paris of 1856 as to the mode in which such an operation must be conducted. What we really find in the announcement is the specification of certain large spaces of water, including the whole of the British Channel, within which German ships will endeavour to perpetrate the atrocities about to be mentioned.

2. These promised, and already perpetrated, atrocities consist in the destruction of merchant shipping without any of those decent preliminary steps, for the protection of human life and neutral property, which are insisted on by long established rules of international law. Under these rules, the exercise of violence against a merchant vessel is permissible, in the first instance, only in case of her attempting by resistance or flight to frustrate the right of visit which belongs to every belligerent cruiser. Should she obey the cruiser's summons to stop, and allow its officers to come on board, they will satisfy themselves, by examination of her papers, and, if necessary, by further search, of the nationality of ship and cargo, of the destination of each, and of the character of the latter. They will then decide whether or no they should make prize of the ship, and in some cases may feel justified in sending a prize to the bottom, instead of taking her into port. Before doing so it is their bounden duty to preserve the ship papers, and, what is far more important, to provide for the safety of all on board.

This procedure seems to have been followed, more or less, by the submarines which sank the Durward in the North Sea, and several small vessels near the Mersey, but is obviously possible to such craft only under very exceptional circumstances. It was scandalously not followed in the cases of the Tokomaru, the Ikaria, and the hospital ship (!) Asturias, against which a submarine fired torpedoes, off Havre, without warning or inquiry, and, of course, regardless of the fate of those on board. The threat that similar methods of attack will be systematically employed, on a large scale, on and after the 18th inst., naturally excites as much indignation among neutrals as among the Allies of the Entente.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, February 12 (1915).

* * * * *

SECTION 4

Aerial Warfare

It may be desirable to supplement what is said in the following letters by mentioning that the Declaration of 1899 (to remain in force for five years) was largely ratified, though not by Great Britain; that of 1907 (to remain in force till the termination of the third Peace Conference) was ratified by Great Britain and by most of the other great Powers in 1909, not, however, by Germany or Austria; that aerial navigation is regulated by the Acts, I & 2 Geo. 5, c. 4, and 2 & 3 Geo. 5, c. 22; and that an agreement upon the subject was entered into between France and Germany, on July 26, 1913, by exchange of notes, "en attendant la conclusion d'une convention sur cette matiere entre un plus grand nombre d'etats" (the international Conference held at Paris in 1910 had failed to agree upon the terms of such a Convention); and that Art. 25 of The Hague Convention of 1907, No. iv., was ratified by Great Britain, and generally.

THE DEBATE ON AERONAUTICS

Sir,—It is not to be wondered at that the Chairman of Committees declined to allow yesterday's debate on aviation to diverge into an enquiry whether the Powers could be induced to prohibit, or limit, the dropping of high explosives from aerial machines in war time. The question is, however, one of great interest, and it may be desirable, with a view to future discussions, to state precisely, since little seems to be generally known upon the subject, what has already been attempted in this direction.

In the Reglement annexed to The Hague Convention of 1899, as to the "Laws and Customs of War on Land," Art. 23, which specifically prohibits certain "means of injuring the enemy," makes no mention of aerial methods; but Art. 25, which prohibits "the bombardment of towns, villages, habitations, or buildings, which are not defended," was strengthened, when the Reglement was reissued in 1907 as an annexe to the, as yet not generally ratified, Hague Convention No. iv. of that year, by the insertion, after the word "bombardment," of the words "by any means whatever," with the expressed intention of including in the prohibition the throwing of projectiles from balloons.

The Hague Convention No. ix. of 1907, also not yet generally ratified, purports to close a long controversy, in accordance with the view which you allowed me to advocate, with reference to the naval manoeuvres of 1888, by prohibiting the "naval bombardment of ports, towns, villages, habitations, or buildings, which are not defended." The words "by any means whatever" have not been here inserted, one would incline to think by inadvertence, having regard to what passed in Committee, and to the recital of the Convention, which sets out the propriety of extending to naval bombardments the principles of the Reglement (cited, perhaps again by inadvertence, as that of 1899) as to the Laws and Customs of War on Land.

But the topic was first squarely dealt with by the first of the three Hague Declarations of 1899, by which the Powers agreed to prohibit, for five years, "the throwing of projectiles and explosives from balloons, or by other analogous new methods." The Declaration was signed and ratified by almost all the Powers concerned; not, however, by Great Britain.

At The Hague Conference of 1907, when the Belgian delegates proposed that this Declaration, which had expired by efflux of time, should be renewed, some curious changes of opinion were found to have occurred. Twenty-nine Powers, of which Great Britain was one, voted for renewal, but eight Powers, including Germany, Spain, France, and Russia, were opposed to it, while seven Powers, one of which was Japan, abstained from voting. The Japanese delegation had previously intimated that, "in view of the absence of unanimity on the part of the great military Powers, there seemed to be no great use in binding their country as against certain Powers, while, as against the rest, it would still be necessary to study and bring to perfection this mode of making war." Although the Declaration, as renewed, was allowed to figure in the "Acte final" of the Conference of 1907, the dissent from it of several Powers of the first importance must render its ratification by the others highly improbable; nor would it seem worth while to renew, for some time to come, a proposal which, only two years ago, was so ill received.

I may perhaps add, with reference to what was said by one of yesterday's speakers, that any provision on the topic under discussion would be quite out of place in the Geneva Convention, which deals, not with permissible means of inflicting injury, but exclusively with the treatment of those who are suffering from injuries inflicted.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, August 3 (1909).

THE AERIAL NAVIGATION ACT

PRACTICAL DIFFICULTIES

Sir,—The haste with which Colonel Seely's Bill, authorising resort to extreme measures for the prevention of aerial trespass under suspicious circumstances, has been passed through all its stages, was amply justified by the urgent need for such legislation, which Russia seems to have been the first to recognise. The task of those responsible for framing regulations for the working of the new Act will be no easy one. They will be brought face to face with practical difficulties, such as led to the adjournment of the Paris Conference of 1910.

In the meantime, it may interest your readers to have some clue to what has taken place, with reference to the more theoretical aspects of the questions involved, in so competent and representative a body as the Institut de Droit International. The Institut has had the topic under consideration ever since 1900, more especially at its sessions for the years 1902, 1906, 1910, and 1911. In the volumes of its "Annuaire" for those years will be found not only the text of the resolutions adopted on each occasion, together with a summary account of the debates which preceded their adoption, but also, fully set out, the material which had been previously circulated for the information of members, in the shape of reports and counter-reports from inter-sessional committees, draft resolutions, and such critical observations upon these documents as had been received by the secretary. The special committee upon the subject, of which M. Fauchille is Rapporteur, is still sitting, and the topic will doubtless be further debated at the session of the Institut, which will this year be held at Oxford. No success has attended efforts to pass resolutions in favour of any interference with the employment of aeronefs in time of war, such as was proposed by The (now discredited) Hague Declaration, prohibiting the throwing of projectiles and explosives from airships. With reference to the use of these machines in time of peace, the debates have all along revealed a fundamental divergence of opinion between the majority of the Institut and a minority, comprising those English members who have made known their views. Both parties are agreed that aerial navigation must submit to some restrictions, but the majority, starting from the Roman law dictum, "Naturali iure omnium communia sunt aer, aqua profluens, et mare," would always presume in favour of freedom of passage. The minority, on the other hand, citing sometimes the old English saying, "Cuius est solum eius est usque ad coelum," hold that the presumption must be in favour of sovereignty and ownership as applicable to superimposed air space.

It is hardly necessary to observe that neither of the maxims just mentioned was formulated with reference to problems which have only presented themselves within the last few years. The Romans, in the passage quoted, were thinking not of aerial space, but of the element which fills it. The old English lawyers were preoccupied with questions as to projecting roofs and overhanging boughs of trees. The problems now raised are admittedly incapable of solution a priori, but the difference between the two schools of thinkers is instructive, as bearing upon the extent to which those who belong to one or the other school would incline towards measures of precaution against abuses of the novel art. This difference was well summed up at one of our meetings by Professor Westlake as follows: "Conservation et passage, comment combiner ces deux droits? Lequel des deux est la regle? Lequel l'exception? Pour le Rapporteur (M. Fauchille) c'est le droit de passage qui prime. Pour moi c'est le droit de conservation."

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, February 15 (1913).

SOVEREIGNTY OVER THE AIR

Sir,—Mr. Arthur Cohen has done good service by explaining that Great Britain has practically asserted the right of a State to absolute control of the airspace vertically above its territory. I may, however, perhaps be permitted to remark that he seems to have been misinformed when he states that the Institute of International Law has arrived at no decision upon the subject. The facts are as follows: The problems presented by the new art of aerostation have been under the consideration of the Institute since 1900, producing a large literature of reports, counter-reports, observations, and draft rules, to debates upon which no fewer than four sittings were devoted at the Madrid meeting in 1911. Wide differences of opinion then disclosed themselves as to territorial rights over the air, the radical opposition being between those members who, with M. Fauchille, the Reporter of the Committee, would presume in favour of freedom of aerial navigation, subject, as they would admit, to some measures of territorial precaution, and those who, like the present writer ("il se proclame oppose au principe de la liberte de la navigation aerienne, et s'en tiendrait[A] plutot au principe cuius est solum, huius est usque ad coelum, en y apportant au besoin quelques restrictions," "Annuaire," p. 821), would subject all aerial access to the discretion of the territorial Power.

The discussion took place upon certain bases, and No. 3 of these was ultimately adopted, though only by 21 against 10 votes, to the following effect: "La circulation aerienne internationale est libre, sauf le droit pour les etats sous-jacents de prendre certaines mesures a determiner, en vue de leur securite et de celle des personnes et des biens de leur territoire."

The Institut then proceeded to deal with bases relating to a time of war, but was unable to make much progress with them in the time available. The debate upon the "Regime juridique des aerostats" was not resumed at Christiania in 1911, nor is it likely to be at Oxford "in the autumn of the present year," as Mr. Cohen has been led to suppose. Other arrangements were found to be necessary, at a meeting which took place a week ago between myself and the other members of our bureau.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, May 30 (1913).

ATTACK FROM THE AIR

THE ENFORCEMENT OF INTERNATIONAL LAW

Sir,—In his interesting and important address at the Royal United Service Institution, Colonel Jackson inquired: "Can any student of international law tell us definitely that such a thing as aerial attack on London is outside the rules; and, further, that there exists an authority by which the rules can be enforced?" As one of the students to whom the Colonel appeals I should be glad to be allowed to reply to the first of his questions.

The "Geneva Convention" mentioned in the address has, of course, no bearing upon aerial dangers. The answer to the question is contained in the, now generally ratified, Hague Convention No. iv. of 1907. Art. 25 of the regulations annexed to this Convention runs as follows:

"It is forbidden to attack or to bombard by any means whatever (par quelque moyen que ce soit) towns, villages, habitations, or buildings which are not defended."

It clearly appears from the "Actes de la Conference," e.g. T. i., pp. 106, 109, that the words which I have italicised were inserted in the article, deliberately and after considerable discussion, in order to render illegal any attack from the air upon undefended localities; among which I conceive that London would unquestionably be included.

I cannot venture to ask the hospitality of your columns for an adequate discussion of the gallant officer's second question, as to the binding force attributable to international law. Upon this I may, however, perhaps venture to refer him to some brief remarks, addressed to you a good many years ago, and now to be found at pp. 101 and 105 of the new edition of my "Letters to The Times upon War and Neutrality (1881-1918)."

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 24 (1914).

ATTACK FROM THE AIR

THE RULES OF INTERNATIONAL LAW

Sir,—In reply to Colonel Jackson's inquiry as to any rule of international law bearing upon aerial attack upon London, I referred him to the, now generally accepted, prohibition of the "bombardment, by any means whatever, of towns, &c., which are not defended." This rule has been growing into its present form ever since the Brussels Conference of 1874. The words italicised were added to it in 1907, to show that it applies to the action of aeronefs as well as to that of land batteries. It clearly prohibits any wanton bombardment, undertaken with no distinctly military object in view, and the prohibition is much more sweeping, for reasons not far to seek, than that imposed by Convention No. ix. of 1907 upon the treatment of coast towns by hostile fleets.

So far good; but further questions arise, as to which no diplomatically authoritative answers are as yet available; and I, for one, am not wise above that which is written. One asks, for instance, what places are prima facie "undefended." Can a "great centre of population" claim this character, although it contains barracks, stores, and bodies of troops? For the affirmative I can vouch only the authority of the Institut de Droit International, which in 1896, in the course of the discussion of a draft prepared by General Den Beer Pourtugael and myself, adopted a statement to that effect. A different view seems to be taken in the German Kriegsbrauch, p. 22. One also asks: Under what circumstances does a place, prima facie, "undefended," cease to possess that character? Doubtless so soon as access to it is forcibly denied to the land forces of the enemy; hardly, to borrow an illustration from Colonel Jackson's letter of Thursday last, should the place merely decline to submit to the dictation of two men in an aeroplane.

I read with great pleasure the colonel's warning, addressed to the United Service Institution, and am as little desirous as he is that London should rely for protection upon The Hague article, ambiguous as I have confessed it to be; trusting, indeed, that our capital may be enabled so to act at once in case of danger as wholly to forfeit such claim as it may in ordinary times possess to be considered an "undefended" town. Let the principle involved in Art. 25 be carried into much further detail, should that be found feasible, but, in the meantime, let us not for a moment relax our preparation of vertical firing guns and defensive aeroplanes.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, May 2 (1914).

The war of 1914 has definitely established the employment of aircraft for hostile purposes, and, as evidenced by the reception given by belligerents to neutral protests, the sovereignty of a state over its superincumbent air-spaces.

On the bombardment of undefended places, cf. supra, pp. 30, 62, 67, 68; infra, pp. 97, 109, 112-123.

On the authority of International Law, supra, pp. 25, 66, 67; infra, pp. 77, 114, 115, 137, 169.

* * * * *

SECTION 5

Submarines

GERMANY AND THE HAGUE

Sir,—One excuse for German atrocities put forward, as you report, in the Kolnische Zeitung, ought probably not to pass unnoticed, denying, as it does, any binding authority to the restrictions imposed upon the conduct of warfare, on land or at sea, by The Hague Conventions of 1907. It is true that each of these Conventions contains an article to the effect that its provisions "are applicable only between the contracting Powers, and only if all the belligerents are parties to the Convention." It is also true that three of the belligerents in the world-war now raging—namely, Serbia, Montenegro, and, recently, Turkey—although they have (through their delegates) signed these Conventions, have not yet ratified them. Therefore, urges the Zeitung, the Conventions are, for present purposes, waste paper. The argument is as technically correct as its application would be unreasonable; and I should like to recall the fact that, in the important prize case of the Moewe, Sir Samuel Evans, in a considered judgment, pointed out the undesirability of refusing application to the maritime conventions because they had not been ratified by Montenegro, which has no navy, or by Serbia, which has no seaboard; and accordingly, even after Turkey, which also has not ratified, had become a belligerent, declined to deprive a German shipowner of an indulgence to which he was entitled under the Sixth Hague Convention.

Admiral von Tirpitz was perhaps not serious when he intimated to the representative of the United Press of America that German submarines might be instructed to torpedo all trading vessels of the Allies which approach the British coasts. The first duty of a ship of war which proposes to sink an enemy vessel is admittedly, before so doing, to provide for the safety of all its occupants, which (except in certain rare eventualities) can only be secured by their being taken on board of the warship. A submarine has obviously no space to spare for such an addition to its own staff.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 26 (1914).

The charitable view taken in the last paragraph has, of course, not been justified.

For the Moewe, see 2 Lloyd, 70. On the restrictive article in The Hague Convention, cf. passim.

"THE PIRATES"

Sir,—Would it not be desirable, in discussing the execrable tactics of the German submarines, to abandon the employment of the terms "piracy" and "murder," unless with a distinct understanding that they are used merely as terms of abuse?

A ship is regarded by international law as "piratical" only if, upon the high seas, she either attacks other vessels, without being commissioned by any State so to do (nullius Principis auctoritate, as Bynkershoek puts it), or wrongfully displaces the authority of her own commander. The essence of the offence is absence of authority, although certain countries, for their own purposes, have, by treaty or legislation, given a wider meaning to the term, e.g., by applying it to the slave-trade. "Murder" is such slaying as is forbidden by the national law of the country which takes cognizance of it.

In ordering the conduct of which we complain, Germany commits an atrocious crime against humanity and public law; but those who, being duly commissioned, carry out her orders, are neither pirates nor murderers. The question of the treatment appropriate to such persons, when they fall into our hands, is a new one, needing careful consideration. In any case, it is not for us to rival the barbarism of their Government by allowing them to drown.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 13 (1915)

SUBMARINE CREWS

Sir,—My letter in The Times of March 15 with reference to the conduct of certain of the German submarines has been followed by a good many other letters upon the same subject. Some of your correspondents have travelled far from the question at issue into the general question of permissible reprisals, into which I have no intention of following them. But others, by exhibiting what I may venture to describe as an ignoratio elenchi, have made it desirable to recall attention to the specific purport of my former letter. It was to the effect—(1) that the acts of those who, in pursuance of a Government commission, sink merchant vessels without warning are not "piracy," the essence of that offence at international law being that it is committed under no recognised authority; and that neither is it "murder" under English law; (2) that the question of the treatment appropriate to the perpetrators of such acts, even under the orders of their Government, is a new one, needing careful consideration. I was, of course, far from stating, as a general rule, that Government authority exempts all who act under it from penal consequences. The long-established treatment of spies is sufficient proof to the contrary.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 22 (1915).

MR. WILSON'S NOTE

Sir,—I may perhaps be permitted to endorse every word of the high praise bestowed in your leading article of this morning upon the Note addressed to Germany by the Government of the United States. The frequent mentions which it contains of "American ships," "American citizens," and the like, were, no doubt, natural and necessary, as establishing the locus standi of that Government in the controversy which it is carrying on. But we find also in the Note matters of even more transcendent interest, relating to the hitherto universally accepted doctrines of international law, applicable to the treatment of enemy as well as of neutral vessels.

It may suffice to cite the paragraph which assumes as indisputable

"the rule that the lives of non-combatants, whether they be of neutral citizenship or citizens of one of the nations at war, cannot lawfully or rightfully be put in jeopardy by the capture or destruction of unarmed merchantmen,"

as also

"the obligation to take the usual precaution of visit and search to ascertain whether a suspected merchantman is in fact of belligerent nationality, or is in fact carrying contraband under a neutral flag."

[I assume that the word "unarmed" here does not exclude the case of a vessel carrying arms solely for defence.]

The Note also recognises, what you some time ago allowed me to point out,

"the practical impossibility of employing submarines in the destruction of commerce without disregarding those rules of fairness, reason, justice, and humanity which modern opinion regards as imperative."

Adding:—

"It is practically impossible for them to make a prize of her, and if they cannot put a prize crew on board, they cannot sink her without leaving her crew and all on board her to the mercy of the sea in her small boats."

Nothing could be more satisfactory than the views thus authoritatively put forth, first as to the applicable law, and secondly as to the means by which its prescriptions can be carried out.

I am, Sir, your obedient servant, T. E. HOLLAND. Brighton, May 15 (1915).

Cf. supra, p. 70.

* * * * *

SECTION 6

Lawful Belligerents

GUERILLA WARFARE

Sir,—When Mr. Balfour last night quoted certain articles of the "Instructions for the Government of Armies of the United States in the Field" with reference to guerilla warfare, some observations were made, and questions put, upon which you will perhaps allow me to say a word or two.

1. Mr. Healy seemed to think that something turned upon the date (May, 1898) at which these articles were promulgated. In point of fact they were a mere reissue of articles drawn by the well-known jurist Francis Lieber, and, after revision by a military board, issued in April, 1868 by President Lincoln.

2. To Mr. Morley's enquiry, "Have we no rules of our own?" the answer must be in the negative. The traditional policy of our War Office has been to "trust to the good sense of the British officer." This policy, though surprisingly justified by results, is so opposed to modern practice and opinion that, as far back as 1878-80, I endeavoured, without success, to induce the Office to issue to the Army some authoritative, though simple, body of instructions such as have been issued on the Continent of Europe and in America. The War Office was, however, content to include in its "Manual of Military Law," published in 1888, a chapter which is avowedly unauthoritative, and expressly stated to contain only "the opinions of the compiler, as drawn from the authorities cited."

3. The answer to Sir William Harcourt's unanswered question, "Were there no rules settled at the Hague?" must be as follows. The Hague Convention of 1899, upon "the laws and customs of warfare," ratified by this country on September 4 last, binds the contracting parties to give to their respective armies instructions in conformity with the Reglement annexed to the Convention. This Reglement, which is substantially a reproduction of the unratified projet of the Brussels Conference of 1874, does deal, in Arts. 1-3, with guerilla warfare. It is no doubt highly desirable that, as soon as may be, the drafting of rules in accordance with the Reglement should be seriously taken in hand, our Government having now abandoned its non possumus attitude in the matter. It will, however, be found to be the case, as was pointed out by Mr. Balfour, that the sharp distinction between combatants and non-combatants contemplated by the ordinary laws of war is inapplicable (without the exercise of undue severity) to operations such as those now being carried out in South Africa.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, December 7 (1900).

"Lieber's Instructions," issued in 1863 and reissued in 1898, will doubtless be superseded, or modified, in consequence of the United States having, on April 9, 1902, ratified the Convention of 1899, and on March 10, 1908, that of 1907, as to the Laws and Customs of War on Land.

The answer to Mr. Morley's enquiry in 1900 would not now be in the negative. The present writer's representations resulted in Mr. Brodrick, when Secretary for War, commissioning him to prepare a Handbook of the Laws and Customs of War on Land, which was issued to the Army by authority in 1904. On the instructions issued by other National Governments, see the author's Laws of War on Land, 1908, pp. 71-73.

The answer, given in the letter, to Sir William Harcourt's question must now be supplemented by a reference to the Handbook above mentioned as having contained rules founded upon the Reglement annexed to the Convention of 1899, and by a statement that that Convention, with its Reglement, is now superseded by Conventions No. iv. (with its Reglement) and No. v. of 1907, of which account has been taken in a new Handbook upon Land Warfare, issued by the War Office in 1913.

As to what is required from a lawful belligerent, see Arts. 1 and 2 of the Reglement of 1899, practically repeated in that of 1907. The substance of Art. 1 is set out in the letter which follows.

Art. 2 grants some indulgence to "the population of a territory which has not been occupied who, on the approach of the enemy, spontaneously take up arms to resist the invading troops, without having had time to organise themselves in accordance with Art. 1." Cf. infra, pp. 76, 79.

THE RUSSIAN USE OF CHINESE CLOTHING

Sir,—If Russian troops have actually attacked while disguised in Chinese costume, they have certainly violated the laws of war. It may, however, be worth while, to point out that the case is not covered, as might be inferred from the telegram forwarded to you from Tokio on Wednesday last, by the text of Art. 23 (f) of the Reglement annexed to The Hague Convention "on the laws and customs of war on land." This article merely prohibits "making improper use of the flag of truce, of the national flag or the military distinguishing marks and the uniform of the enemy, as well as of the distinguishing signs of the Geneva Convention."

Art. 1 of the Reglement is more nearly in point, insisting, as it does, that even bodies not belonging to the regular army, which, it is assumed, would be in uniform (except in the case of a hasty rising to resist invasion), shall, in order to be treated as "lawful belligerents," satisfy the following requirements, viz.:—

"(1) That of being commanded by a person responsible for his subordinates;

"(2) That of having a distinctive mark, recognisable at a distance;

"(3) That of carrying their arms openly; and

"(4) That of conducting their operations in accordance with the laws and customs of war."

The fact that, in special circumstances, as in the Boer war, marks in the nature of uniform have not been insisted upon, has, of course, no bearing upon the complaint now made by the Japanese Government.

All signatories of The Hague Convention are bound to issue to their troops instructions in conformity with the Reglement annexed to it. The only countries which, so far as I am aware, have as yet fulfilled their obligations in this respect are Italy, which has circulated the French text of the Reglement without comment; Russia, which has prepared a little pamphlet of sixteen pages for the use of its armies in the Far East; and Great Britain, which has issued a Handbook, containing explanatory and supplementary matter, besides the text of the relevant diplomatic Acts.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, October 21 (1904).

THE RIGHTS OF ARMED CIVILIANS

Sir,—It is interesting to be reminded by Sir Edward Ridley of the view taken by Sir Walter Scott of the right and duty of civilians to defend themselves against an invading enemy. International law is, however, made neither by the ruling of an "impartial historian," on the one hand, nor by the ipse dixit of an Emperor, on the other.

In point of fact, the question raised by Sir Edward is not an open one, and, even in our own favoured country, it is most desirable that every one should know exactly how matters stand. The universally accepted rules as to the persons who alone can claim to act with impunity as belligerents are set forth in that well-known "scrap of paper" The Hague Convention No. iv. of 1907; to the effect that members of "an army" (in which term militia and bodies of volunteers are included) must (1) be responsibly commanded, (2) bear distinctive marks, visible at a distance, (3) carry their arms openly, and (4) conform to the laws of war. By way of concession, inhabitants of a district not yet "occupied" who spontaneously rise to resist invasion, without having had time to become organised, will be privileged if they conform to requirements (3) and (4). These rules are practically a republication of those of The Hague Convention of 1899, which again were founded upon the recommendations of the Brussels Conference of 1874, although, at the Conference, Baron Lambermont regretted that "si les citoyens doivent etre conduits au supplice pour avoir tente de defendre leur pays, au peril de leur vie, ils trouvent inscrit, sur le poteau au pied duquel ils seront fusilles, l'article d'un Traite signe par leur propre gouvernement qui d'avance les condamnait a mort."

An Englishman's Home was a play accurately representing the accepted practice, shocking as it must be. I remember the strength of an epithet which was launched from the gallery at the German officer on his ordering the shooting of the offending householder. It may be hardly necessary to add that nothing in international usage justifies execution of innocent wives and children.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, September 17 (1914).

This letter was, it seems, perverted in the Kreuz Zeitung.

CIVILIANS IN WARFARE

THE RIGHT TO TAKE UP ARMS

Sir,—I have read with some surprise so much of Sir Ronald Ross's letter of to-day as states that "the issue still remains dark" as to the right of civilians to bear arms in case of invasion. It has long been settled that non-molestation of civilians by an invader is only possible upon the understanding that they abstain from acts of violence against him. Modern written international law has defined, with increasing liberality, by the draft Declaration of 1874 and the Conventions of 1899 and 1907, the persons who will be treated as lawful belligerents. Art. 1 of The Hague Regulations of 1907 recognises as such, not only the regular army, but also militia and volunteers. Art. 2 grants indulgence to a levee en masse of "la population" (officially mistranslated "the inhabitants") of a territory not yet occupied. Art. 3, also cited by Sir Ronald, has no bearing upon the question.

The rules are, I submit, as clear as they could well be made, and are decisive against the legality of resistance by individual civilians, the sad, but inevitable consequence of which was, as I pointed out in The Times of September 19 last, truthfully represented on the stage in An Englishman's Home.

In the same letter I wrote that "even in our own favoured country it is most desirable that every one should know exactly how matters stand." There are, however, obvious objections, possibly not insuperable, to this result being brought about, as is proposed by Sir Ronald Ross, by Government action.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, October 26 (1914).

CIVILIANS AND A RAID

Sir,—It is satisfactory to learn, from Mr. McKenna's answer to a question last night, that the duty of the civilian population, at any rate in certain counties, is engaging the attention of Government. I confess, however, to having read with surprise Mr. Tennant's announcement that "it was provided by The Hague Convention that the wearing of a brassard ensured that the wearer would be regarded as a belligerent." It ought surely to be now generally known that, among the four conditions imposed by the Convention upon Militia and bodies of Volunteers, in order to their being treated as belligerents, the third is "that they shall bear a distinctive mark, fixed and recognisable at a distance." Whether an enemy would accept the mere wearing of a brassard as fulfilling this condition is perhaps an open question upon which some light may be thrown by the controversies of 1871 with reference to francs-tireurs.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, November 24 (1914).

MISS CAVELL'S CASE

Sir,—The world-wide abhorrence of the execution of Miss Cavell, aggravated as it was by the indecent and stealthy haste with which it was carried out, is in no need of enhancement by questionable arguments, such as, I venture to say, are those addressed to you by Sir James Swettenham.

It is, of course, the case that Germany is in Belgium only as the result of her deliberate violation of solemnly contracted treaties, but she is in military "occupation" of the territory. From such "occupation" it cannot be disputed that there flow certain rights of self-defence. No one, for instance, would have complained of her stern repression of civilian attacks upon her troops, so long as it was confined to actual offenders. The passages quoted by Sir James from Hague Convention v., and from the Kriegsbrauch, relate entirely to the rights and duties of Governments, and have no bearing upon the tragical abuse of jurisdiction which is occupying the minds of all of us.

May I take this opportunity of calling attention to the fresh evidence afforded by the new Order in Council of our good fortune in not being bound by the Declaration of London, which erroneously professed to "correspond in substance with the generally recognised principles of International Law"? Is it too late, even now, to announce, by a comprehensive Order in Council, any relaxations which we and our Allies think proper to make of well-established rules of Prize Law, without any reference to the more and more discredited provisions of the Declaration, the partial and provisional adoption of which seems, at the outbreak of the war, to have been thought likely to save trouble?

Your obedient servant, T. E. HOLLAND. Oxford, October 26 (1915).

* * * * *

SECTION 7

Privateering

The three letters which immediately follow were written to point out that neither belligerent in the war of 1898 was under any obligation not to employ privateers. Within, however, a few days after the date of the second of these letters, both the United States and Spain, though both still to be reckoned among the few powers which had not acceded to the Declaration of Paris, announced their intention to conduct the war in accordance with the rules laid down by the Declaration.

Art. 3 of the Spanish Royal Decree of April 23 was to the effect that "notwithstanding that Spain is not bound by the Declaration signed in Paris on April 16, 1856, as she expressly stated her wish not to adhere to it, my Government, guided by the principles of international law, intends to observe, and hereby orders that the following regulations for maritime law be observed," viz. Arts. 2, 3, and 4 of the Declaration, after setting out which, the Decree proceeds to state that the Government, while maintaining "their right to issue letters of marque, ... will organise, for the present, a service of auxiliary cruisers ... subject to the statutes and jurisdiction of the Navy."

The Proclamation of the President of the United States of April 26 recited the desirability of the war being "conducted upon principles in harmony with the present views of nations, and sanctioned by their recent practice," and that it "has already been announced that the policy of the Government will not be to resort to privateering, but to adhere to the rules of the Declaration of Paris," and goes on to adopt rules 2, 3, and 4 of the Declaration.

Ten years afterwards, viz. on January 18, 1908, Spain signified "her entire and definitive adhesion to the four clauses contained in the Declaration," undertaking scrupulously to conduct herself accordingly. Mexico followed suit on February 13, 1909. The United States are therefore now the only important Power which has not formally bound itself not to employ privateers. It seems unlikely that privateers, in the old sense of the term, will be much heard of in the future, though many questions may arise as to "volunteer navies" and subsidised liners, such as those touched upon in the last section, with reference to captures made by the Malacca; possibly also as to ships "converted" on the High Seas.

OUR MERCANTILE MARINE IN WAR TIME

Sir,—There can be no doubt that serious loss would be occasioned to British commerce by a war between the United States and Spain in which either of those Powers should exercise its right of employing privateers or of confiscating enemy goods in neutral bottoms.

Before, however, adopting the measures recommended, with a view to the prevention of this loss, by Sir George Baden-Powell in your issue of this morning, it would be desirable to enquire how far they would be in accordance with international law, and what would be the net amount of the relief which they would afford.

It is hardly necessary to say that non-compliance with the provisions of the Declaration of Paris by a non-signatory carries with it none of the consequences of a breach of the law of nations. The framers of that somewhat hastily conceived attempt to engraft a paper amendment upon the slowly matured product of oecumenical opinion, far from professing to make general law, expressly state that the Declaration "shall not be binding except upon those Powers who have acceded, or shall accede, to it." As regards Spain and the United States the Declaration is res inter alios acta.

It follows that, in recommending that any action taken by privateers against British vessels should be treated as an act of piracy, Sir George Baden-Powell is advocating an inadmissible atrocity, which derives no countenance from the view theoretically maintained by the United States, at the outset of the Civil War, of the illegality of commissions granted by the Southern Confederation. His recommendation that our ports should be "closed" to privateers is not very intelligible. Privateers would, of course, be placed under the restrictions which were imposed in 1870, in accordance with Lord Granville's instructions, even on the men-of-war of belligerents. They would be forbidden to bring in prizes, to stay more than twenty-four hours, to leave within twenty-four hours of the start of a ship of the other belligerent, to take more coal than enough to carry them to the nearest home port, and to take any further supply of coal within three months. We might, no doubt, carry discouragement of privateers by so much further as to make refusal of coal absolute in their case, but hardly so far as to deny entry to them under stress of weather.

The difficulties in the way of accepting Sir G. Baden-Powell's other suggestion are of a different order. Although we could not complain of the confiscation by either of the supposed belligerents of enemy property found in British vessels, as being a violation of international duty, we might, at our own proper peril, announce that we should treat such confiscation as "an act of war." International law has long abandoned the attempt to define a "just cause of war." That must be left to the appreciation of the nations concerned. So to announce would be, in effect, to say: "Although by acting as you propose you would violate no rule, yet the consequences would be so injurious to me that I should throw my sword into the opposite scale." We should be acting in the spirit of the "Armed Neutralities" of 1780 and 1800. The expediency of so doing depends, first, upon the extent to which the success of our action would obviate the mischief against which it would be directed; and, secondly, upon the likelihood that the benefit which could be obtained only by imposing a new rule of international law in invitos would counterbalance the odium incurred by its imposition. On the former question it may be worth while to remind the mercantile community that, even under the Declaration of Paris, neutral trade must inevitably be put to much inconvenience. Any merchant vessel may be stopped with a view to the verification of her national character, of which the flag is no conclusive evidence. She is further liable to be visited and searched on suspicion of being engaged in the carriage of contraband, or of enemy military persons, or of despatches, or in running a blockade. Should the commander of the visiting cruiser "have probable cause" for suspecting any of these things, though the vessel is in fact innocent of them, he is justified in putting a prize crew on board and sending her into port, with a view to the institution of proceedings against her in a prize Court. A non-signatory of the Declaration of Paris may investigate and penalise, in addition to the above-mentioned list of offences, the carriage of enemy goods. This is, no doubt, by far the most important branch of the trade which is carried on for belligerents by neutrals, but it must not be forgotten that even were this branch of trade universally indulged, in accordance with the Declaration of Paris neutral commerce would still remain liable to infinite annoyance from visit and search, with its possible sequel in a prize Court.

The question of the balance between benefit to be gained and odium to be incurred by insisting upon freedom to carry the goods of belligerents I leave to the politicians.

I am, Sir, your obedient servant, T. E. HOLLAND. The Athenaeum, April 16 (1898).

OUR MERCANTILE MARINE IN WAR TIME

Sir,—To-day's debate should throw some light upon the views of the Government, both as to existing rules of international law and as to the policy demanded by the interests of British trade. It is, however, possible that the Government may decline to anticipate the terms of the Declaration of Neutrality which they may too probably find themselves obliged to issue in the course of the next few days, and it is not unlikely that the law officers may decline to advise shipowners upon questions to which authoritative replies can be given only with reference to concrete cases by a prize Court.

You may perhaps, therefore, allow me in the meantime to supplement my former letter by a few remarks, partly suggested by what has since been written upon the subject.

It is really too clear for argument that privateers are not, and cannot be treated as, pirates.

Sir George Baden-Powell still fails to see that the Declaration of Paris was not a piece of legislation, but a contract, producing no effect upon the rights and duties of nations which were not parties to it. We did not thereby, as he supposes, "decline to recognise private vessels of war as competent to use force on neutral merchantmen." We merely bound ourselves not to use such vessels for such a purpose. Sir George is still unable to discover for privateers any other category than the "status of pirate." He admits that it would not be necessary for their benefit to resort to "the universal use of the fore-yard-arm." Let me assure him that the bearer of a United States private commission of war would run no risk even of being hanged at Newgate. President Lincoln, it is true, at the outset of the Civil War, threatened to treat as pirates vessels operating under the "pretended authority" of the rebel States; but he was speedily instructed by his own law Courts—e.g. in the Savannah and in the Golden Rocket (insurance) cases—that even such vessels were not pirates iure gentium. It is also tolerably self-evident that we cannot absolutely "close" our ports to any class of vessels. There is no inconsistency here between my friend Sir Sherston Baker and myself. We can discourage access, and of course, by refusal of coal, render egress impossible for privateers. Mr. Coltman would apparently be inclined to carry this policy so far that he would disarm and intern even belligerent ships of war which should visit our ports: a somewhat hazardous innovation, one would think.

It is quite possible that the question of privateering may not become a practical one during the approaching war. Both parties may expressly renounce the practice, or they may follow the example of Prussia in 1870, and Russia at a later date, in commissioning fast liners under the command of naval officers—a practice, by the by, which is not, as Sir George seems to think, "right in the teeth of the Declaration of Paris." See Lord Granville's despatch in 1870.

On Sir George's proposals with reference to the carriage of enemy goods, little more need be said, except to deprecate arguments founded upon the metaphorical statement that "a vessel is part of the territory covered by her flag," a statement which Lord Stowell found it necessary to meet by the assertion that a ship is a "mere movable." There can be no possible doubt of the right, under international law, of Spain and the United States to visit and search neutral ships carrying enemy's goods, and to confiscate such goods when found. They may also visit and search on many other grounds, and the question (one of policy) is whether, rather than permit this addition to the list, we choose to take a step which would practically make us belligerent. This question also, it may be hoped, will not press for solution.

In any case, let me express my cordial concurrence with your hope that, when hostilities are over, some really universal and lasting agreement may be arrived at with reference to the matters dealt with, as I venture to think prematurely, by the Declaration of Paris. A reform of maritime law to which the United States are not a party is of little worth. That search for contraband of war can ever be suppressed I do not believe, and fear that it may be many years before divergent national interests can be so far reconciled as to secure an agreement as to the list of contraband articles. In the meantime this country is unfortunately a party to that astonishing piece of draftsmanship, the "three rules" of the Treaty of Washington, to which less reference than might have been expected has been made in recent discussions. The ambiguities of this document, which have prevented it from ever being, as was intended, brought to the notice of the other Powers, with a view to their acceptance of it, are such that, its redrafting, or, better still, its cancellation, should be the first care of both contracting parties when the wished for congress shall take place.

May I add that no serious student of international law is likely either to overrate the authority which it most beneficially exercises, or to conceive of it as an unalterable body of theory.

I am, Sir, your obedient servant, T. E. HOLLAND. Brighton, April 21 (1898).

OUR MERCANTILE MARINE IN WAR

Sir,—Let me assure Sir George Baden-Powell that if, as he seems to think, I have been unsuccessful in grasping the meaning of his very interesting letters, it has not been from neglect to study them with the attention which is due to anything which he may write. How privateering, previously innocent, can have become piratical, i.e. an offence, everywhere justiciable, against the Law of Nations, if the Declaration of Paris was not in the nature of a piece of legislation, I confess myself unable to understand; but have no wish to repeat the remarks which you have already allowed me to make upon the subject.

I shall, however, be glad at once to remove the impression suggested by Sir George's letter of this morning, that Art. 7 of the Spanish Decree of April 24 has any bearing upon the legitimacy of privateering generally. The article in question (following, by the by, the very questionable precedent of a notification issued by Admiral Baudin, during the war between France and Mexico in 1889) merely threatens with punishment neutrals who may accept letters of marque from a belligerent Government.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 27 (1898).

THE DECLARATION OF PARIS

Sir,—There is really no question at issue between your two correspondents Mr. Gibson Bowles and "Anglo-Saxon" as to the attitude of the United States towards the Declaration of Paris.

Mr. Bowles rightly maintains that the United States has not acceded to the Declaration as a whole, or to its second article, which exempts from capture enemy property in neutral ships. He means, of course, that neither the whole nor any part of that Declaration has been ratified by the President with the advice and consent of the Senate. The whole contains, indeed, an article on privateering, to which, as it stands, the United States have always objected, and no part of the Declaration can be accepted separately.

"Anglo-Saxon," on the other hand, is equally justified in asserting that the "officially-recorded policy" of the States, i.e. of the Executive, is in accordance with Art. 2 of the Declaration. This policy has been consistently followed for more than half a century. Its strongest expression is perhaps to be found in the President's Proclamation of April 26, 1898, in which, after reciting that it being desirable that the war with Spain "should be conducted upon principles in harmony with the present views of nations and sanctioned by their recent practice, it has already been announced that the policy of the Government will not be to resort to privateering, but to adhere to the rules for the Declaration of Paris," he goes on to "declare and proclaim" the three other articles of the Declaration. The rule of Art. 2, as to exemption of enemy goods in neutral ships, was embodied in Art. 19 of the Naval War Code of 1900 (withdrawn in 1904, for reasons not affecting the article in question), and reappears in Art. 17, amended only by the addition of a few words relating to "hostile assistance" in the draft Code which the United States delegates to the Conferences of 1907 and 1908 were instructed to bring forward "with the suggested changes, and such further changes as may be made necessary by other agreements reached at the Conference, as a tentative formulation of the rules which should be considered." (My quotation is from the instructions as originally issued in English.) Such changes as have been made in the Code are due to discussions which have taken place between high naval and legal authorities at the Naval War College. I do not know whether the annual reports of these discussions, with which I am kindly supplied, are generally accessible, but would refer, especially with reference to the Declaration of Paris, to the volumes for 1904 and 1906.

It can hardly be necessary to add that no acts of the Executive, such as the Proclamation of 1898, the order putting in force the Code of 1900, or the instructions to delegates in 1907 and 1909, amount to anything like a ratification of the Declaration in the manner prescribed by the Constitution of the United States.

I have the honour to be, Sir, Your obedient servant, T. E. HOLLAND. Oxford, January 4 (1911).

THE DECLARATION OF PARIS

Sir,—Mr. Gibson Bowles resuscitates this morning his crusade against the Declaration of 1856. It is really superfluous to argue in support of rules which have met with general acceptance for nearly sixty years past, to all of which Spain and Mexico, who were not originally parties to the Declaration, announced their formal adhesion in 1907, while the United States, which for well-known reasons declined to accede to the Declaration, described, in 1898, all the articles except that dealing with privateering as "recognised rules of International Law."

It may, however, be worth while to point out why it was that no provision was made for the ratification of the Declaration of 1856, or for that of 1868 relating to the use of explosive bullets. At those dates, when the first steps were being taken towards the general adoption of written rules for the conduct of warfare, it was, curiously enough, supposed that agreement upon such rules might be sufficiently recorded without the solemnity of a treaty. This was, in my opinion, a mistake, which has been avoided in more recent times, in which the written law of war has been developed with such marvellous rapidity. Not only have codes of such rules been promulgated in regular "Conventions," made in 1899, 1906, and 1907, but the so-called "Declarations," dealing with the same topic, of 1899, 1907, and 1909 have been as fully equipped as were those Conventions with provisions for ratification. The distinction between a "Convention" and a "Declaration" is therefore now one without a difference, and should no longer be drawn. Nothing in the nature of rules for the conduct of warfare can prevent their expression in Conventions, and the reason which seems to have promoted the misdescription of the work of the London Conference of 1908-9 as a "Declaration"—viz. an imaginary difference between rules for the application of accepted principles and wholly new rules—is founded in error. Much of the contents of The Hague "Conventions" is as old as the hills while much of the "Declaration" of London is revolutionary.

This by the way. It is not very clear whether Mr. Gibson Bowles, in exhorting us to denounce the Declaration, relies upon its original lack of ratification, or upon some alleged "privateering" on the part of the Germans. Nothing of the kind has been reported. The commissioning of warships on the high seas is a different thing, which may possibly be regarded as an offence of a graver nature. Great Britain is not going to imitate the cynical contempt for treaties, evidenced by the action of Germany in Belgium and Luxemburg, in disregard not only of the well-known treaties of 1889 and 1867, but of a quite recent solemn undertaking, to which I have not noticed any reference. Art. 2 of The Hague Convention No. v. of 1907, ratified by her in 1909, is to the following effect:—

"Belligerents are forbidden to move across the territory of a neutral Power troops or convoys, whether of munitions or of supplies."

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, August 12 (1914).

The true ground for objecting to the legality of the purchase by Turkey of the German warships which have been forced to take refuge in her waters is no doubt that stated by Sir William Scott in the Minerva, 6 C. Rob. at p. 400—viz. that it would enable the belligerent to whom the ships belong "so far to rescue himself from the disadvantage into which he has fallen as to have the value at least restored to him by a neutral purchaser." The point is not touched upon in the (draft) Declaration of London.

Even supposing the purchase to be unobjectionable, the duty of Turkey to remove all belligerents from the ships would be unquestionable.

Cf. on the Declaration of Paris, passim, see Index; on the misuse of Declarations, infra, p. 92; on privateering, supra, pp. 80-84.

THE DECLARATION OF PARIS

Sir,—The resuscitation, a few days ago, in the House of Commons of an old controversy reminds one of the mistaken procedure which made such a controversy possible. It can hardly now be doubted that the rules set forth in the Declaration of Paris of 1856, except possibly the prohibition of privateering, have by general acceptance during sixty years, strengthened by express accessions on the part of so many Governments, become a portion of international law, and are thus binding upon Great Britain, notwithstanding her omission to ratify the Declaration. This omission is now seen to have been a mistake. So also was the description of the document as a "declaration." Both mistakes were repeated in 1868 with reference to the "Declaration" of St. Petersburg (as to explosive bullets).

In those early attempts at legislation for the conduct of warfare it seems to have been thought sufficient that the conclusions arrived at by authorised delegates should be announced without being embodied in a treaty. Surely, however, what purported to be international agreements upon vastly important topics ought to have been accompanied by all the formalities required for "conventions," and should have been so entitled. In later times this has become the general rule for the increasingly numerous agreements which bear upon the conduct of hostilities. Thus we have The Hague "conventions" of 1899 and 1907, and the Geneva "convention" of 1906, all duly equipped with provisions for ratification. Such provisions are also inserted in certain other recent agreements dealing with aerial bombardments, gases, and expanding bullets, which it has nevertheless pleased their contrivers to misdescribe as "declarations." Equally so misdescribed was the deceased Declaration of London, with a view, apparently, to suggesting, as was far from being the case, that it was a mere orderly statement of universally accepted principles, creating no new obligations.

Is it not to be desired that all future attempts for the international regulation of warfare should not only be specifically made subject to ratification, but should also, in accordance with fact, be described as "conventions"?

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, August 13 (1916).

THE DECLARATION OF PARIS

Sir,—If Mr. Gibson Bowles, whose courteous letter I have just been reading, will look again at my letter of the 18th, I think he will see that I there carefully distinguished between the Declaration of Paris, which, as is notorious, must be accepted as a whole or not at all, and the rules set forth in it, "except, possibly, the prohibition of privateering," which I thought, for the reasons which I stated, might be taken to have become a portion of International Law.

I must be excused from following Mr. Bowles into a discussion of the bearing of those rules upon the Order in Council of March 11, 1915—a large and delicate topic, which must be studied in elaborate dispatches exchanged between this country and the United States.