Letters to "The Times" upon War and Neutrality (1881-1920) Part 23

A NEW PRIZE LAW

Sir,--The speech of the Prime Minister at the Guildhall contains a paragraph which will be read with a sense of relief by those who, like myself, have all along viewed with surprise and apprehension The Hague proposals for an international prize Court.

Sir H. Campbell-Bannerman admits that "it is desirable, and it may be essential, that, before legislation can be undertaken to make such a Court effective, the leading maritime nations should come to an agreement as to the rules regarding some of the more important subjects of warfare which are to be administered by the Court"; and his subsequent eulogy of the Court presupposes that it is provided with "a body of rules which has received the sanction of the great maritime Powers." What is said as to the necessary postponement of any legislation in the sense of The Hague Convention must, of course, apply _a fortiori_ to the ratification of the Convention.

We have here, for the first time, an authoritative repudiation of the notion that fifteen gentlemen of mixed nationality composing an international prize Court, are to be let loose to "make law," in accordance with what may happen to be their conceptions of "justice and equity." It seems at last to be recognised that such a Court cannot be set to work unless, and until, the great maritime Powers shall have come to an agreement upon the rules of law which the Court is to administer.

I may add that it is surely too much to expect that the rules in question will be discussed by the Powers, to use Sir H.

Campbell-Bannerman's phrase, "without any political _arriere pensee._"

Compromise between opposing political interests must ever remain one of the most important factors in the development of the law of nations.

I am, Sir, your obedient servant, T. E. HOLLAND.

Oxford, November 11 (1907).

Although the establishment of an International Prize Court of Appeal was not one of the topics included in the programme of the Russian invitation; to a second Peace Conference, no objection was made to its being taken into consideration, when proposals to that effect were made by the British and American delegates to the Conference. The idea seems first to have been suggested by Hubner, who proposed to confer jurisdiction in cases of neutral prize on Courts composed of ministers or consuls, accredited by neutrals to the belligerents, together with commissioners appointed by the Sovereign of the captors or of the country to which the prize has been brought, as also, perhaps, "des personnes pleines de probite et de connaissances dans tout ce qui concerne les Loix des Nations et les Traites des Puissances modernes." The Court is to decide in accordance with treaties, "ou, a leur defaut, la loi universelle des nations." _De la Saisie des Batiments neutres_ (1759), ii. pp.

45-61. The Inst.i.tut de Droit International, after discussions extending over several years, accepted the principle of an International Court of Appeal, though only in combination with a complete scheme of prize law, in its _Code des Prises maritimes_, completed in 1887, section 100.

At the Conference of 1907, the work of several committees, and a masterly report by Professor Renault, _Parl. Papers_, No. iv.

(1908), p. 9, resulted in The Hague Convention, No. xii. of that year, providing for the establishment of a mixed Court of Appeal from national prize Courts.

According to Art. 7 of this Convention, in default of any relevant treaty between the Governments of the litigant parties, and of generally recognised rules of international law bearing upon the question at issue, the Court is to decide "in accordance with the general principles of justice and equity."

It seems, however, to have been soon perceived that the proposal to inst.i.tute a Court, unprovided with any fixed system of law by which to decide the cases which might be brought before it, could not well be entertained, and the Final Act of the Conference accordingly expresses a wish that "the preparation of a _Reglement_, relative to the laws and customs of maritime war, may be mentioned in the programme of the next Conference."

Thereupon, without waiting for the meeting of a third Hague Conference, the British Government on February 27, 1908, addressed a circular to the great maritime Powers, which, after alluding to the impression gained "that the establishment of the International Prize Court would not meet with general acceptance so long as vagueness and uncertainty exist as to the principles which the Court, in dealing with appeals brought before it, would apply to questions of far-reaching importance, affecting naval policy and practice," went on to propose that another Conference should meet in London, in the autumn of the same year, "with the object of arriving at an agreement as to what are the generally recognised principles of international law within the meaning of paragraph 2 of Article 7 of the Convention, as to those matters wherein the practice of nations has varied, and of then formulating the rules which, in the absence of special treaty provisions applicable to a particular case, the Court should observe in dealing with appeals brought before it for decision.... It would be difficult, if not impossible, for H.M. Government to carry the legislation necessary to give effect to the Convention, unless they could a.s.sure both Houses of the British Parliament that some more definite understanding had been reached as to the rules by which the new Tribunal should be governed."

In response to this invitation, delegates from ten princ.i.p.al maritime States a.s.sembled at the Foreign Office on December 4, 1908, and after discussing the topics to which their attention was directed, viz.: (1) Contraband; (2) Blockade; (3) Continuous voyage; (4) Destruction of neutral prizes; (5) Unneutral service; (6) Conversion of merchant vessels into wars.h.i.+ps on the high seas; (7) Transfer to a neutral flag; (8) Nationality or domicil, as the test of enemy property; signed on February 26, 1909, the Declaration of London.

The Convention No. xii. of 1907 and the Declaration of London of 1909 have alike failed to obtain ratification. _Cf._ now the two immediately following sections, 9 and 10.

An ultimate Court of Appeal in cases of Prize seems now likely to be provided by the "Permanent Court of International Justice," proposed by the League of Nations in pursuance of Art. 14 of the Treaty of Versailles. See also Art. 24 of the Treaty. _Cf. supra_, p. 2.

SECTION 9

_The Naval Prize Bill_

The first two letters in this section contain the criticisms of the Bill to which allusion is made in the first lines of a letter of later date, q.v. _supra_, p. 36. On the rejection of the Bill, see _ib._, note 1.

THE NAVAL PRIZE BILL

Sir--A paternal interest in the Naval Prize Bill may perhaps be thought a sufficient excuse for the few remarks which I am about to make upon it. The Bill owes its existence to a suggestion made by me, just ten years ago, while engaged in bringing up to date for the Admiralty my _Manual of Naval Prise Law_ of 1888. It was drafted by me, after prolonged communications with Judges, Law Officers, and the Government Departments concerned, so as not only to reproduce the provisions of several "cross and cuffing" statutes dealing with the subject, but also to exhibit them in a more logical order than is always to be met with in Acts of Parliament.

The Bill was thought of sufficient importance to be mentioned on two occasions in the King's Speech, and has been several times pa.s.sed, after careful consideration, by the House of Lords; but pressure of other business has. .h.i.therto impeded its pa.s.sage through the House of Commons.

It has now been reintroduced, this time in the Lower House, with an imposing backing of Government support; primarily, no doubt, with a view to facilitating the ratification of The Hague Convention for the establishment of an International Prize Court of Appeal. For this purpose, several pieces of new cloth have been sewn into the old garment, and I may perhaps be allowed to call attention to three or four points in which, on a first reading, the new clauses strike one as needing reconsideration.

Tactical reasons have, no doubt, operated to induce the Government to include in the Consolidation Bill the provisions for which statutory authority must be obtained before it will be possible to ratify the Convention; instead of first introducing a Bill having this sole object in view, and afterwards, should this be pa.s.sed, inserting the new law in a reintroduced Consolidation Bill.

The course adopted necessitates an otherwise unnecessary preamble, and the qualification of the new Part III. by the words "in the event of an International Prize Court being established" (Clause 23). The reference, by the by, in this clause to "the said Convention" is somewhat awkward, no mention of any Convention having occurred previously, except in the preamble of the Bill. Is not also the statutory approval given by this clause, not only to the Convention of 1907 but also to "any Convention amending the same," somewhat startling, as tending to exclude Parliamentary criticism of such an amending Convention before its ratification?

By Clause 9, the members of the Judicial Committee who are to be nominated to act as the British Court of Appeal in cases of prize are to be described by the novel t.i.tle of "the Supreme Prize Court." Is not the use made of the term "Supreme" in the Judicature Acts, as covering both the High Court and the Court of Appeal, already sufficiently unsatisfactory?

But the question which, of all others _saute aux yeux_, in reading the new Part III., is whether the Convention is to be approved as it stands, irrespectively of a general acceptance of the new Code of Prize Law contained in the Declaration of London of 1909. The objections to Art. 7 of the Contention, providing that, in the absence of rules of International Law generally recognised (and on many points of Prize Law there are no such rules), the Court is to decide in accordance with (what it may be pleased to consider) "the general principles of law and equity," are well known. The purpose of the Declaration of London (itself the subject of much difference of opinion) was to curtail this licence of decision, by providing the Court with so much ascertained Prize Law as to render action under the too-elastic phrase above quoted almost inconceivable.

Is it too much of a counsel of perfection to suggest that the debatable questions arising under the Convention of 1907 and the Declaration of 1909 should first be threshed out in discussions on a Bill dealing with those questions only; and that the decision, if any, thus arrived at should be subsequently inserted, freed from hypothesis, in the Consolidation Bill which has so long awaited the leisure of the House of Commons?

I am, Sir, your obedient servant, T. E. HOLLAND.

Oxford, July 10 (1910).

THE NAVAL PRIZE BILL

Sir,--The Government has so far yielded to the representations of the Opposition as to have refrained from forcing on Friday night a division upon the Naval Prize Bill. Is it too much to hope that the Government may even now withdraw altogether a measure so ill adapted to place fairly before Parliament the question of the desirability of ratifying two doc.u.ments held by a large body of competent opinion to be certain, if ratified, seriously to endanger the vital interests of the country?

The Bill, as I have already pointed out, as originally drawn, was a careful consolidation of the law and procedure governing British Courts of Prize. Into this has now been incongruously thrust a set of clauses intended to give effect to a novel and highly controversial proposal for the creation of an International Prize Court. About the Declaration of London, alleged to contain a body of law which would adequately equip such a Court for the performance of its duties, not a word is said in the Bill; yet, should approval of the Bill be s.n.a.t.c.hed by a purely party majority, the intention of the Government is to proceed straightway to the ratification both of the Prize Court Convention and the Declaration.

Whether they intend also to endeavour to obtain the ratification, as an auxiliary Convention, of the lengthy covering commentary upon the Declaration, supplied by the committee by which the Declaration was drafted, does not yet appear. Of such a step I have already written that it "would be calamitous should a practice be introduced of attempting to cure the imperfect expression of a treaty by tacking on to it an equally authoritative reasoned commentary. The result would be _obscurum per obscurius_, a remedy worse than the disease."

The alternatives before Parliament on Monday next will be either, by reading the Naval Prize Bill a second time, to bring about, in the teeth of protests from those best qualified to express an independent opinion upon the subject, the immediate ratification of the Convention and the Declaration, or to ask that before, this momentous step is taken the infinitely complex and delicate questions involved should be examined and pa.s.sed upon by a Commission of representative experts. Which shall it be?

Your obedient servant, T. E. HOLLAND.

Oxford, July I (1911).

_Cf._ a letter of July 7, 1911, _supra_, p. 36.

NAVAL PRIZE MONEY

Sir,--The existing enactments as to prize bounty are, it seems, unsuitable to present conditions of naval warfare, and are accordingly to be varied by a bill shortly to be introduced.

May I venture to recommend that the Bill should contain merely the half-dozen clauses needed for this purpose, leaving untouched for subsequent uncontroversial pa.s.sage, the Naval Prize Consolidation with Amendments Bill? This Bill, suggested and drafted by myself, in the s.p.a.cious times of peace, in consultation with the Admiralty and other Government Departments, as also with the Judge of the Admiralty Division and the Law Officers (including the present Lord Chancellor), was twice mentioned in the King's Speech, and several times, after careful consideration, pa.s.sed by the House of Lords, but still awaits the leisure of the Lower House. It deserved a better fate than to have been used, in 1911, as a corpus vile for facilitating the ratification of the Convention for an International Prize Court and of the Declaration of London; receiving, most fortunately, as so perverted, its _coup de grace_ from the Lords. It should be pa.s.sed as an artistic whole, apart from any contentious matter, account having, of course, been taken of recent legislation by which it may have been, here and there, affected.

I am, Sir, your obedient servant, T. E. HOLLAND.

Oxford, May 23 (1918).

SECTION 10

The Declaration of London

For incidental mentions of the Declaration in earlier sections see _supra_, pp. 22, 36, 39, 55, 58, 80, 90, 92, 148, 149, 154, 155, 156, 158, 163, 164, 174, 181, 191, 193, 194, 195, 196.

See also my paper upon _Proposed Changes in the Law of Naval Prize_, read to the British Academy on May 31, 1911, _Transactions_, vol. v., of which a translation appeared in the _Revue de Droit International_, N.S., t. xiii, pp. 336-355.

THE DECLARATION OF LONDON