Letters to "The Times" upon War and Neutrality (1881-1920) Part 1

Letters To "The Times" Upon War And Neutrality (1881-1920).

by Thomas Erskine Holland.

PREFACE TO THE FIRST EDITION

For a good many years past I have been allowed to comment, in letters to _The Times_, upon points of International Law, as they have been raised by the events of the day. These letters have been fortunate enough to attract some attention, both at home and abroad, and requests have frequently reached me that they should be rendered more easily accessible than they can be in the files of the newspaper in which they originally appeared.

I have, accordingly, thought that it might be worth while to select, from a greater number, such of my letters as bear upon those questions of War and Neutrality of which so much has been heard in recent years, and to group them for republication, with some elucidatory matter (more especially with reference to changes introduced by the Geneva Convention of 1906, The Hague Conventions of 1907, and the Declaration of London of the present year) under the topics to which they respectively relate.

The present volume has been put together in accordance with this plan; and my best thanks are due to the proprietors of The Times for permitting the reissue of the letters in a collected form.

Cross-references and a full Index will, I hope, to some extent remove the difficulties which might otherwise be caused by the fragmentary character, and the chances of repet.i.tion, inseparable from such a work.

T. E. H.

EGGISHORN, SWITZERLAND, _September_ 14, 1909.

PREFACE TO THE SECOND EDITION

I have again to thank _The Times_ for permission to print in this new edition letters which have appeared in its columns during the past four years. They will be found to deal largely with still unsettled questions suggested by the work of the Second Peace Conference, by the Declaration of London, and by the, unfortunately conceived, Naval Prize Bill of 1911.

I have no reason to complain of the reception which has so far been accorded to the views which I have thought it my duty to put forward.

T. E. H.

OXFORD, _January_ 10, 1914.

PREFACE TO THE THIRD EDITION

This, doubtless final, edition of my letters upon War and Neutrality contains, by renewed kind permission of _The Times_, the whole series of such letters, covering a period of no less than forty years. To the letters which have already appeared in former editions, I have now added those contained in the "Supplement" of 1916 (for some time out of print) to my second edition; as also others of still more recent date. All these have been grouped, as were their predecessors, under the various topics which they were intended to ill.u.s.trate. The explanatory commentaries have been carefully brought up to date, and a perhaps superfluously full Index should facilitate reference for those interested in matters of the kind. Such persons may not be sorry to have their attention recalled to many questions which have demanded practical treatment of late years, more especially during the years of the great war.

Not a few of these questions are sure again to come to the front, so soon as the rehabilitation of International Law, rendered necessary by the conduct of that War, shall be seriously taken in hand.

T. E. H.

OXFORD, _April_ 25, 1921.

CHAPTER I

MEASURES SHORT OF WAR FOR THE SETTLEMENT OF INTERNATIONAL CONTROVERSIES

SECTION 1

_Friendly Measures_

Of the letters which follow, the first was suggested by a pet.i.tion presented in October, 1899, to the President of the United States, asking him to use his good offices to terminate the war in South Africa; the second by discussions as to the advisability of employing, for the first time, an International Commission of Enquiry, for the purpose of ascertaining the facts of the lamentable attack perpetrated by the Russian fleet upon British fis.h.i.+ng vessels off the Dogger Bank, on October 21, 1905. The Commission sat from January 19 to February 25, 1905, and its report was the means of terminating a period of great tension in the relations of the two Powers concerned (see _Parl. Paper_, Russia, 1905, No. 3): this letter deals also with Arbitration, under The Hague Convention of 1899.

It may be worth while here to point out that besides direct negotiation between the Powers concerned, four friendly methods for the settlement of questions at issue between them are now recognised, _viz_ (1) Good offices and mediation of third Powers; (2) "Special mediation"; (3) "International Commissions of Enquiry"; (4) Arbitration. All four were recommended by The Hague Convention of 1899 "For the Peaceful Settlement of International Disputes" (by which, indeed, (2) and (3) were first suggested), as also by the amended re-issue of that convention in 1907. It must be noticed that resort to any of these methods is entirely discretionary, so far as any rule of International Law is concerned; all efforts to render it universally and unconditionally obligatory having, perhaps fortunately, hitherto failed.

It remains to be seen how far the settlement of international controversies has been facilitated by the establishment of a "League of Nations" (to which reference is made in the concluding letters of this chapter), and, in particular, by the plan for the establishment of a "Permanent Court of International Justice," formulated by the League, in pursuance of Art. 14 of the Treaty of Versailles, and submitted to its members in December, 1920.

THE PEt.i.tION TO THE PRESIDENT OF THE UNITED STATES

Sir,--It seems that a respectably, though perhaps thoughtlessly signed pet.i.tion was on Thursday presented to President McKinley, urging him to offer his good offices to bring to an end the war now being waged in South Africa. From the _New York World_ cablegram, it would appear that the President was requested to take this step "in accordance with Art. 3 of the protocol of the Peace Conference at The Hague." The reference intended is doubtless to the _Convention pour le reglement pacifique des conflits internationaux_, prepared at the Conference [of 1899], Art. 3 of which is to the following effect:--

"Les Puissances signataires jugent utile qu'une ou plusieurs Puissances etrangeres au conflit offrent de leur propre initiative, en tant que les circonstances s'y pretent, leurs bons offices ou leur mediation aux etats en conflit.

"Le droit d'offrir les bons offices ou la mediation appartient aux Puissances etrangeres au conflit, meme pendant le cours des hostilites.

"L'exercice de ce droit ne peut jamais etre considere par l'une ou l'autre des parties en litige comme un acte peu amical."

Several remarks are suggested by the presentation of this pet.i.tion:--

(1) One might suppose from the glib reference here and elsewhere made to The Hague Convention, that this convention is already in force, whereas it is [1899], in the case of most, if not all, of the Powers represented at the conference, a mere unratified draft, under the consideration of the respective Governments.

(2) The article, if it were in force, would impose no duty of offering good offices, but amounts merely to the expression of opinion that an offer of good offices is a useful and un.o.bjectionable proceeding, in suitable cases (_en tant que les circonstances s'y pretent_). It cannot for a moment be supposed that the President would consider that an opportunity of the kind contemplated was offered by the war in South Africa.

(3) One would like to know at what date, if at all, the Prime Minister of the British colony of the Cape was pleased, as is alleged, to follow the lead of the Presidents of the two Boer Republics in bestowing his grateful approval upon the pet.i.tion in question.

Your obedient servant, T. E. HOLLAND.

Oxford, October 28 (1899).

_Par._ 2 (1).--The Convention of 1899 was ratified by Great Britain, on September 4, 1900; and between that year and 1907 practically all civilised Powers ratified or acceded to it. It is now, for almost all Powers, superseded by The Hague Convention, No. i. of 1907, which, reproduces Art. 3 of the older Convention, inserting, however, after the word "utile,"

the words "et desirable."

_Ib._ (2).--On March 6, 1900, the two Boer Republics proposed that peace should be made on terms which included the recognition of their independence. Great Britain having, on March 11, declared such recognition to be inadmissible, the European Powers which were requested to use their good offices to bring this about declined so to intervene. The President of the United States, however, in a note delivered in London on March 13, went so far as to "express an earnest hope that a way to bring about peace might be found," and to say that he would aid "in any friendly manner to bring about so happy a result."

Lord Salisbury, on the following day, while thanking the United States Government, replied that "H.M. Government does not propose to accept the intervention of any Power in the South African War." Similar replies to similar offers had been made both by France and Prussia in 1870, and by the United States in 1898.

COMMISSIONS OF ENQUIRY AND THE HAGUE CONVENTION

Sir,--It is just now [1904] especially desirable that the purport of those provisions of The Hague Convention "for the peaceful settlement of international controversies" which deal with "international commissions of enquiry" should be clearly understood. It is probably also desirable that a more correct idea should be formed of the effect of that convention, as a whole, than seems to be generally prevalent. You may, therefore, perhaps, allow me to say a few words upon each of these topics.

Art. 9 of the convention contains an expression of opinion to the effect that recourse to an international commission of enquiry into disputed questions of fact would be useful. This recommendation is, however, restricted to "controversies in which neither honour nor essential interests are involved," and is further limited by the phrase "so far as circ.u.mstances permit." Two points are here deserving of notice.

In the first place, neither "the honour and vital interests clause," as seems to be supposed by your correspondent Mr. Schidrowitz, nor the clause as to circ.u.mstances permitting, is in any way modified by the article which follows. Art. 10 does not enlarge the scope of Art. 9, but merely indicates the procedure to be followed by Powers desirous of acting under it. In the second place, it is wholly unimportant whether or no the scope of Art. 9 is enlarged by Art. 10. The entire liberty of the Powers to make any arrangement which may seem good to them for clearing up their differences is neither given, nor impaired, by the articles in question, to which the good sense of the Conference declined to attach any such obligatory force as had been proposed by Russia. It may well be that disputant Powers may at any time choose to agree to employ the machinery suggested by those articles, or something resembling it, in cases of a far more serious kind than those to which alone the convention ventured to make its recommendation applicable; and this is the course which seems to have been followed by the Powers interested with reference to the recent lamentable occurrence in the North Sea.

As to the convention as a whole, it is important to bear in mind that, differing in this respect from the two other conventions concluded at The Hague, it is of a non-obligatory character, except in so far as it provides for the establishment of a permanent tribunal at The Hague, to which, however, no Power is bound to resort. It resembles not so much a treaty as a collection of "pious wishes" (_voeux_), such as those which were also adopted at The Hague. The operative phrases of most usual occurrence in the convention are, accordingly, such as "jugent utile"; "sont d'accord pour recommander"; "est reconnu comme le moyen le plus efficace"; "se reservent de conclure des accords nouveaux, en vue d'etendre l'arbitrage obligatoire a tous les cas qu'elles jugeront possible de lui soumettre."

It is a matter for rejoicing that, in accordance with the suggestion contained in the phrase last quoted, so many treaties, of which that between Great Britain and Portugal is the most recent, have been entered into for referring to The Hague tribunal "differences of a juridical nature, or such as relate to the interpretation of treaties; on condition that they do not involve either the vital interests or the independence or honour of the two contracting States." Such treaties, conforming as they all do to one carefully defined type, may be productive of much good. They testify to, and may promote, a very widely spread _entente cordiale_, they enhance the prestige of the tribunal of The Hague, and they a.s.sure the reference to that tribunal of certain cla.s.ses of questions which might otherwise give rise to international complications. Beyond this it would surely be unwise to proceed. It is beginning to be realised that what are called "general" treaties of arbitration, by which States would bind themselves beforehand to submit to external decision questions which might involve high political issues, will not be made between Powers of the first importance; also, that such treaties, if made, would be more likely to lead to fresh misunderstandings than to secure the peaceful settlement of disputed questions.