Letters to "The Times" upon War and Neutrality (1881-1920) Part 4

The matter is, however, not quite so simple as might be inferred from some of the allusions to it which occurred during last night's debate upon the Navy Estimates. Upon several disputable and delicate questions the Government of the United States has not hesitated to express definite views; and they are not always views which the Government of our own country would be prepared to endorse. For some remarks upon these questions in detail, and upon the code generally, I must refer to my former letter, but may perhaps be allowed to quote its concluding words, which were to the following effect:--

"Our code might be better arranged than its predecessor, and would differ from it on certain questions, but should resemble it in clearness of expression, in brevity, and, above all things, in frank acceptance of responsibility. What naval men most want is definite guidance, in categorical language, upon those points of maritime international law upon which our Government has made up its own mind."

Before issuing such a code our authorities would have to decide--first, what are the cla.s.ses of topics as to which it is desirable to give definite instructions to naval officers; and, secondly, with reference to topics, to be included in the instructions, as to which there exist international differences of view, what is, in each case, the view by which the British Government is prepared to stand.

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

Oxford, March 12 (1902).

CHAPTER III

TERMINOLOGY

INTERNATIONAL TERMINOLOGY

Sir,--Demands for the punishment of the ex-Kaiser have produced many "curiosities of literature," sometimes even over the signatures of men deservedly respected as authorities upon subjects which they have made their own; but _ne sutor supra crepidam_. A.B.,[1] for instance, wrote of the Kaiser as guilty of "an indictable offence." X.Y.[1] naturally protests against this misuse of terminology, which is, indeed, far more specifically erroneous than was the popular application, which you allowed me to criticise, of the terms "murder" and "piracy" to certain detestable acts perpetrated under Government authority.[2] He goes on to give an elaborate, though perhaps hardly necessary, explanation that breaches of that generally accepted body of rules to be followed by States _inter se_, which is known as "international law," can be enforced, in the last resort, only by hostile State action--a fact which he seems to suppose may ent.i.tle him to qualify the rules as "a mockery."

X.Y.[1] then proceeds to give an account of the so-called "private international law" which surely needs revision for the benefit of any "man in the street" who may care to hear about it. X.Y.[1] defines it as "that part of the law of each separate country, as administered in its own Courts, which deals with international matters," and he enumerates as such matters "prize, contraband, blockade, the rights of amba.s.sadors." In fact none of these matters are within the scope of "private international law," but are governed by "(public) international law," non-compliance with which by the Courts or subjects of any State is ground of complaint for the Government of any other State thereby wrongfully affected.

The so-called "private international law," better described as "the conflict of laws," deals, in reality, with the rules which the Courts of each country apply, apart from any international obligation, to the solution of questions, usually between private litigants, in which doubt may arise as to the national law by which a given transaction ought to be governed--e.g. with reference to a contract made in France, but to be performed in England. There is here a "conflict," or "collision," of laws, and it is decided in accordance with rules adopted in the country in which the litigation occurs. These rules have no "international"

validity, and the term is applied to them, merely in a popular way, to indicate that a Court may have in some cases to apply the law of a country other than that in which it is sitting. The unfortunate opposition of "public" to "private" international law has to answer for much confusion of thought. "International law," properly so called, has, of course, no need to be described as "public" to distinguish it from rules for solving the "conflicts" of private laws, which are "international" rules only in the sense that laws are sometimes applied in countries other than those in which they are primarily binding.

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

Oxford, December 19 (1918).

NOTES - 1: Writer's names are omitted as immaterial.

- 2: _Infra_, p. 70.

A full discussion of the topics dealt with in the last paragraph of this letter may be found in my _Elements of Jurisprudence_, edit. xii., pp. 409-425. A translation, by Professor Nys, of the chapter in which those pages occur, as it stood in edit. i., appeared in the _Revue de Droit International_, t. xii., pp. 565, &c.

CHAPTER IV

CONVENTIONS AND LEGISLATION

Not a few International Conventions necessitate, before they can be ratified, in order that their provisions may be carried into effect, a certain amount of munic.i.p.al legislation.

The letters which follow are concerned with some measures introduced into the British Parliament for this purpose, relating respectively to Naval Prize, to the Geneva Convention of 1906, and to Conventions signed at The Hague Peace Conference of 1907. It is with criticisms of Bills dealing with the last-mentioned topic that this chapter is mainly occupied.

GOVERNMENT BILLS AND INTERNATIONAL CONVENTIONS

Sir,--You have already allowed me to point out how singularly ill-adapted is the resuscitated "Naval Prize Consolidation Bill"[1] to inform Parliament upon the highly technical points as to which a vote in favour of the Bill might be supposed to imply approval of the Government policy.

Two other Bills have now been presented to the House of Commons in such a shape as to raise a doubt whether the wish of the Government, or of the draftsman, has been that the topics to which they relate shall be discussed _en pleine connaissance de cause_.

The "Geneva Convention Bill"[2] is intended to facilitate the withdrawal of reservations subject to which the Convention was ratified by Great Britain. These reservations, upon which I insisted at Geneva, somewhat to the surprise of my French and Russian colleagues, relate to Arts. 23, 27, and 28 of the Convention, one of the effects of which would have been to impose upon our Government an obligation to carry through, within five years, an Act of Parliament, making the employment of the Geneva emblem or name, except for military purposes, a criminal offence.

Any one who knows something of the difficulties which beset legislation in this country, especially where commercial interests are involved, will see that the performance of such an undertaking might well have proved to be impossible. Though myself strongly in favour of placing, at the proper time and in an appropriate manner, legislative restrictions upon the general use of the emblem and name, I can hardly think the Bill now before Parliament to be well adapted for its purpose. The "Memorandum" prefixed to it ought surely to have stated, in plain language, the effect of the articles in question and the reasons which prevented them from being ratified together with the rest of the Convention. Instead of this, only one of those articles is cited, and few members of Parliament will be aware that an omitted paragraph of that article requires that the use of the emblem or name should be penalised by British law at the latest five years and six months from the date of the British ratification, which was deposited on April 16, 1907--_i.e._, not later than October 16, 1912. This requirement is not satisfied by the Bill, which, even if pa.s.sed in the present Session, would preserve intact till 1915 the rights of proprietors of trade-marks, while somewhat harshly rendering forthwith illegal the user of the emblem or name by all other persons.

On the drafting of the "Second Peace Conference Conventions Bill," I will only remark that neither in the preamble nor elsewhere is any information vouchsafed as to the Conventions, out of thirteen drafted at The Hague, which are within the purview of the Bill. The reader is left to puzzle out for himself, supposing him to have the necessary materials at hand, that certain clauses of the Bill relate respectively to certain articles which must be looked for in the Conventions numbered I., V., X., XII., and XIII.

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

The Athenaeum, July 7 (1911).

NOTES - 1: This Bill, originally introduced in the House of Commons on June 23 1910, to enable the Government to ratify Hague Convention No xii.

of 1907 and the Declaration of London of 1909, was pa.s.sed by that House on December 7, 1911, but rejected on the 12th of the same month, by 145 to 53 votes, in the House of Lords. Cf. _infra_, pp. 191-196.

- 2: Cf. _infra_, p. 98. The Bill became an Act, 1 & 2 Geo. 5, c. 20.

Questions were put and objections raised, in the sense of my criticisms upon the drafting of the "Second Peace Conference (Conventions) Bill" of 1911, upon several occasions in the House of Commons, especially in August of that year, and on December 16 the Bill was finally withdrawn. On the re-introduction of the Bill in 1914, see the following letter.

THE PRESENT BILL IN PARLIAMENT

Sir,--In reintroducing their Bill "to make such amendments in the law as are necessary in order to enable certain conventions to be carried into effect," the Government has justified the criticisms which I addressed to you upon the way in which this measure was first presented to Parliament.

I pointed out that neither in the preamble nor elsewhere was any information vouchsafed as to which of "the various conventions drawn up at the second Peace Conference" were within the purview of the Bill.

Still less was any clue given to those articles, out of nearly 400 contained in the 13 conventions in question, which are relevant to the proposed legislation. Members of Parliament sufficiently inquisitive not to be inclined to take the measure on trust, were left to puzzle out all this for themselves, but proved so restive under the treatment that the Bill, which was introduced in June, 1911, had to be withdrawn in the following December.

As now resuscitated, the Bill is accompanied by a memorandum containing information which will enable the reader, even though no specialist, supposing him to have the necessary doc.u.ments at hand, though probably only after several hours of labour, to ascertain what would be the result of pa.s.sing it. Is it too much to hope that similar aids to the understanding of complicated legislative proposals will be systematically provided in the future?

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

Oxford, April 13, 1914.

This Bill was introduced into the House of Commons on April 8, 1914, with a memorandum proposed in compliance with the criticisms, which had led to the withdrawal of its predecessor of 1911. _Cf. supra_, p. 37. It also was withdrawn, after sustaining much renewed criticism, on July 17, 1914.

THE FOREIGN ENLISTMENT BILL

Sir,--It is doubtless the case, as stated in your leading article of to-day, that the Foreign Enlistment Bill has not received the attention which it deserves. It may perhaps be worth while to mention, as affording some explanation of this neglect, the fact that the memorandum prefixed to the Bill vaguely describes its main object as being to bring our law into conformity with "The Hague Conventions" at large. An ordinary member of Parliament would surely be grateful to be referred specifically to Convention No. xiii., Arts. 8, 17, and 25. He might well shrink from the labour of exploring the hundreds of articles contained in "The Hague Conventions" in order to ascertain which of the articles suggest some modification of the English statute.

I would also venture to suggest that, in Article 1 (1) (b) of the Bill the words "or allows to depart," carried over from the old Act, should be omitted, as of doubtful interpretation. Would it not also be desirable to take this opportunity of severing the enlistment articles of the overgrown princ.i.p.al Act from those forbidding the despatch of s.h.i.+ps fitted for hostilities and restricting the hospitality which may be extended to belligerent war s.h.i.+ps?

Upon quite a different subject, I should like to answer the question propounded in your article, as to the weight now to be given to the Declaration of London, by saying that no weight should be given to it, except as between Powers who may have ratified it or may have agreed to be temporarily bound by its provisions. One has of late been surprised to read of vessels carrying contraband being allowed to continue their voyage after surrendering the contraband goods, in accordance with a new rule suggested by the Declaration, whereas, under still existing international law, the duty of a captor is to bring in the vessel together with her cargo, in order that the rightfulness of the seizure may be investigated by a Prize Court.

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

Oxford, November 23 (1912).

The Bill of 1912 "to amend the Foreign Enlistment Act, 1870,"

pa.s.sed the House of Lords with little comment, but was withdrawn, after much adverse criticism, in the House of Commons on February 12, 1913.