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RE. i, E_E:___:EE5E5.Mm _wagEEEEE EEEEEQE“a?. 5: ...E N_M_._m_...fl._m._._..a_d_._._q.w__.a._@._m.h_a. . . , A. v.» . . ‘. a, . k‘ a p ‘ N \ _. .;\. __ . inky, ...‘ 4". , Wqimm. ,muv‘r. .Suwwi a .7 ., T .. .. , f a, ,.. 1,; ‘1&6’ kr‘wqqrwugwwnhn , ..Q Em‘ 4E :wawu 5 . . niTu TX 191 e '32.‘;- INTERNATIONAL LAW -4 - ° N_ _ AND PRACTICE WITH APPENDICES ’ ' LONDON: SW,EE-T a’ MAXWELL LTD. ‘BOSTON, MASS.: THE BOSTON BOOKf CQMPANY International Law and Practice with Appendices containing Hague Conventions of 1907 Declaration of London, 1909 (with Drafting Committee’s Report) and Materials concerning Branches thereof susceptible of Adjustment on the Termination of the War (Supplemental to “ Problems of International Practice and Diplomacy”) BY SIR THOMAS QARCLAY 0F LINCOLN’S INN, BARRISTER-A T -LAW VICE-PRESIDENT OF THE INSTITUTE OF INTERNATIONAL LAW LONDON BOSTON, MASS, U.S.A. SWEET & MAXWELL LTD. BOSTON BOOK COMPANY 3 CHANCERY LANE 83-91 FRANCIS STREET 1917 w2/ Ja-IM/v * ("14-1- 1 a n -.\ ‘l 4 11:51? i; 15; u _PREFACE IN the Introduction to Proélems of International Practice and Dzltlomaty, I gave the following account of its genesis and form :— “ The form of this volume requires explanation. It has already been privately issued, partly in fragments and partly asaconfidential memorandum, for the consideration of my colleagues of the Institute of International Law, different government departments at home and abroad, and others. The wide margins and blanks were left for the insertion of new matter and the convenience of the specialist readers whose views on different points I had solicited. As they may also prove serviceable to the readers of a book of this kind generally, and changing the form would have entailed delay and labour out of proportion to the resulting advantage, I hope I may be .MWLMMVJ L“. :“ 0L HMWHW "MM" “"t "Abering strictly to time-honoured traditions l 10 .I. an ‘.1116 Lucy» LLvb “\‘Ll-ULAAA of book-production.” The present volume owes its origin to a somewhat similar purpose. I intended issuing the translations of The Hague Conventions of 1907 as a supplement to the above-mentioned volume; in fact they have been standing in type for seven years. Meanwhile, Mr. Higgins and Mr. James Brown Scott published excellent treatises on the work of the Second Con- ference, which seemed to render their independent publication mere supererogation. I therefore deferred publication till the holding of a Third Conference came within sight. That time had come. Several Governments had already appointed their national committees, and the International Preparatory Committee recommended by the Second Conference would no doubt in due course have followed. War shattered all hope of the work of The Hague Conferences being continued for some time to come, but it has lasted long enough to prepare the reaction of horror at its cruelty and of doubt as to the genuineness of its purpose. The reaction will V vi PREFACE necessarily involve a demand for law and order in the place of the chaos, disorder and destruction war has entailed. The urgency of speedily holding the Third Hague Conference will probably be forced on Governments as soon as peace negotiations have begun and it is found that precise and stringent rules for the avoidance of international conflicts are as much a necessity of peace as destruction is a necessity of war. I have retained the same large form with ample margins for notes, hoping that the present volume will be as useful and handy for reference as its predecessor. The object of the present volume is to complete down to date the matters dealt with in the writer’s Protlems of Inter- national Practice and Dzflomacy, which was published on the eve of the opening of the Second Hague Conference in June 1907. In that volume the possible subjects for deliberation at the Conference were examined, and forms of agreement based on the existing law and practice were suggested, showing the possibility of achieving agreement on practically all controversial points within the scope of the work for which the Conference was called. There had been pessimistic anticipations, both official and unofficial, among leading Powers. Some diplomatic authorities anticipated even a general breakdown, on the ground that antagonistic interests were involved, and that the main object of the Conference, namely, the restriction of armaments or of military and naval expenditure, would be frustrated by the determined opposition of a Great Power whose concurrence in any scheme for such a purpose was indispensable. In Proélems of International Practice and .Dz_';§lomac_y the writer treated the whole question of disarmament as outside the scope of a general Conference. He endeavoured to show how, without including that subject at all, the Conference would be in a position to codify the branches of international law upon which the Powers were already mainly agreed in principle, to solve by argument or compromise difficulties of practice, and to lay the foundations of a corpusjarzkgentz'zcm, which would be of the greatest value in the determination of international difficulties by arbitra- tion, and tend, through its influence on public opinion, to hinder PREFACE vii recourse to solutions by brute force. International law might thus cease to be more or less a matter of conjecture, or, as it appears to many public men still, a sealed book of contro- versial intricacies which only a specialist can unravel. The Hague Conference of 1907 did not belie these optimistic anticipations. Meanwhile, the Institute of International Law went actively to work, on the subjects bequeathed by the Second to the Third Conference, and among the contents of the present volume will be found the original text, with a translation into English, of the Rules and Regulations adopted by that body adapting to naval war those which were adopted by the First and Second Conferences relating to War on land. In appropriate places will be found other matter with which the Institute has dealt at different periods of its now time-honoured existence. As the Institute is a closed body consisting of sixty members and sixty associates, and admission to it is granted only to experts in the practice or theory of international law, credit is due and given to its views and propositions for reform. Among the suggested drafts are also several of my own, which, as convener, I had drawn up for the consideration of committees of the Institute appointed to deal with them. I trust that the book will prove useful not only in the prepara- tion of the work of the of course still problematic Third Con- ference, but also as a compendium of international law already codified, and of the views of those best qualified to express them respecting its still uncodified materials. As the revised Conventions of 1907 have not all been ratified, and several of the Powers Have ratified none of them, I have given the original texts along with the revised texts in a way which at once shows the differences between the new wording and the old 5 the latter is still binding on States which have not yet ratified the later Conventions. Another innovation which I trust will prove serviceable is the printing, alongside the Articles of the Declaration of London, of the comments of the Drafting Committee’s Report, which is regarded as the most authoritative statement of their meaning. viii PREFACE The Declaration itself will certainly require revision, but, subject to revision, it may still be regarded as expressing the desire of maritime Powers to substitute order for disorder in the law applicable to naval war. There are some pessimists who have lost all faith in the future of law and order among mankind, but, as I have said elsewhere, to sneer at The Hague Court, at arbitration, at peace methods, at international law generally because the most terrible war the world has ever seen has broken out in spite of them, is just about as reasonable as to sneer at engineering, architecture and the science of building generally, because an earthquake or an inundation has destroyed some of man’s finest Work. The short sight of practical mediocrities, however, will always appeal to other short-sighted mediocrities just as sheep will follow their own bell-wether, and their sneers are of no ultimate effect. Wars are explosions of national anger, and, while the excite- ment lasts, nations are just about as sensible as individuals in the midst of a violent quarrel. That the excitement will exhaust itself and men will return to a normal state of mind and see things in their proper proportions is as certain as the play of action and reaction in the course of things mundane in general. After the war is at an end, international law, arbitration as established by The Hague Conventions and by treaties and the working of The Hague Court, will probably resume their operative effect just as before the war, in spite of violations on all hands by belligerents of almost every rule which had been laid down by statesmen and jurists for the protection of neutrals and civilians, and for the humanising, so far as it can be made humane, of so insensate a survival of barbarism as War. T. B. 13 OLD SQUARE, LrNcoLN’s INN. TABLE OF CONTENTS PAGE I. First and Second Hague Conferences Compared . I II. An International Prize Court . . . . 9 III. Declaration of London . . . . . I 3 IV. \Vork Achieved in 1907 and 1908-9: . . . 21 (a) Law of Naval War . . . . 21 (b) Law of War on Land . . . . 21 (0) Restriction of Casus Bellz' . . . . 22 (d) Revision Work . . . . . 22 (e) Declarations of War . . . . 23 (f) Neutral Rights and Duties in War on Land . 23 (g) Neutral Rights and Duties in Naval War . 24 (It) Belligerent Rights and Duties in Naval War . 25 (2') Projectiles from Aircraft . . . . 29 V. Restriction of Armaments . . . . 31 VI. Bequests of Work by Second Hague Conference and Matters Ripe for Consideration Generally. . 35 VII. Codification of the Law of Maritime Warfare . . 39 VIII. Proposed Court of Arbitral Justice . . . 41 IX. On a General Treaty of Arbitration . . . 45 X. Permanent Qrganisation of The Hague Peace Con- ferences . . . . . . 51 XI. Regulations concerning Territorial Waters . . 55 XII. Effects of War on the Personal Rights of Private Citizens of Belligerent States . . . 57 XIII. Aircraft in Time of War and Peace . . . 59 XIV. Lighthouses in Time of War . . . . 63 XV. Consolidation of the Law affecting the Navigation of Rivers flowing through different Countries . 65 b x TABLE OF CONTENTS XVI. Occupation of Unoccupied Territory, Annexations, Protectorates, Spheres of Interest and Influence, Hinterland, International Leases, etc. APPENDICES I. Texts of Hague Conventions of 1907 . . . Final Act of the Second International Peace Conference Schedule to the First Vcczc adopted by the Second Peace Conference. Proposed Convention relating to the Establishment of a Court of Arbitral Justice : (a) Organisation of the Court of Arbitral Justice (Articles I. to XVI.) . . . . (c) Competence and Procedure (Articles XVII. to XXXIII.) Final Provisions (Articles XXXIV. and XXXV.) (I) For the Pacific Settlement of International Disputes : (a) On the Maintenance of General Peace (Article I.) ((5) On Good Offices and Mediation (Articles II. to VIII.) . . . . . . (c) On International Commissions of Inquiry (Ar’ticles IX. to XXXVI.) . . (a’) On International Arbitration . . Arbitral Justice (Articles XXXVII. to XL.) Permanent Court of Arbitration (Articles XLI. to L.) . . . . Arbitral Procedure (Articles LI. to LXXXV.) Summary Arbitration Procedure (Articles LXXXVI. to XC.) . . . Final Provisions (Articles XCI. to end) . (2) Respecting the Limitation of the Employment of Force for the Recovery of Contractual Debts (3) Relative to the Commencement of Hostilities (4) Concerning the Laws and Customs of War on Land Appendix to Convention : Regulations respecting the Laws and Customs of War on Land : . (a) Of Belligerents (Articles I. to XXI.) Status of Belligerent (Articles I. to III.) PAGE 69 79 79 94 94 97 101 102 102 103 104 109 109 110 114 120 121 124 127 130 134 134 TABLE OF CONTENTS Prisoners of War (Articles IV. to XX.) . Sick and Wounded (Article XXI.) (b) On Hostilities (Articles XXII. to XLI.) On Means of Injuring the Enemy, Sieges, and Bombardments (Articles XXII. to XXVIII.) . . . . . Spies (Articles XXIX. to XXXI. . . Flags of Truce (Articles XXXII. to XXXIV.) . Capitulations (Article XXXV.) . . On Armistices (Articles XXXVI. to XLI.) . (a) Military Authority over Enemy Territory (Articles XLII. to LVI.) . . (a’) Internment of Belligerents and Care of the Wounded in Neutral Countries (Articles LVI I. to end, transferred to other Conventions) (5) Convention respecting the Rights and Duties of Neutral Powers and Persons in War on Land : (a) Rights and Duties of Neutral Powers (Articles I. to X.) . . . . . (6) Belligerents Interned and Wounded on Neutral Territory (Articles XI. to XV.) . (6) Neutral Persons (Articles XVI. to XVIII.) . (d) Railway Property (Article XIX.) . Final Provisions (Articles XX. to end) . (6) Relative to the Status of Enemy Merchant Ships at the Outbreak of Hostilities . . . (7) Relative to the Conversion of Merchant Ships into War Ships . . . . . . (8) Relative to the Laying of Automatic Submarine Con- tact Mines . . (9) Respecting Bombardment by Naval Forces in Time of War : . . . . (a) Bombardment of Undefended Ports, Towns, Villages, Habitations or Buildings (Articles I. to IV.) . . . (é) General Dispositions (Articles V. to VII.) Final Provisions (Articles VIII. to end) (10) For the Adaptation of the Principles of the Geneva Convention to Maritime War . . PAGE 134 I 37 I 38 I 38 I39 I39 I39 I40 142 I44 I44 146 I47 I47 I48 160 161 164 xii TABLE OF CONTENTS (11) Relative to certain Restrictions on the Exercise of the Right of Capture in Maritime War: (a) Postal Correspondence (Articles I. and II.) (6) Exemption from Capture of certain Boats (Articles III. and IV.) . . . . (6) Rules as to Crews of Enemy Merchant Ships Captured by a Belligerent (Articles V. to VIII.) Final Provisions (Articles IX. to end) (12) Convention Relative to the Establishment of an International Prize Court: . . (a) General Provisions (Articles I. to IX.) (6) Organisation of the International Prize Court (Articles X. to XXVII.) . . . (5) Procedure before the International Prize Court (Articles XXVIII. to L.) . Final Provisions (Articles LI. to LVI I.) . Schedule to Article XV. Distribution of Judges and Assistant judges according to Country for each Year of the Period of Six Years . . (13) Convention respecting the Rights and Duties of Neutral Powers in Maritime War . (I4) Declaration Prohibiting Discharge of Projectiles, etc., from Balloons 2. Declaration of London Concerning the Laws of Naval War (1909): . . ' (I) Blockade in Time of War (Articles I. to XXI.) (2) Contraband of War (Articles XXII. to XLIV.) (3) Unneutral Service (Articles XLV. to XLVII.) (4) Destruction of Neutral Prizes (Articles XLVIII. to LIV.) . . . . (5) Transfer to a Neutral Flag (Articles LV. and LVI.) . (6) Enemy Character (Articles LVII. to LX.) (7) Convoy (Articles LXI. and LXII.) (8) Resistance to Search (Article LXIII.) (9) Compensation (Article LXIV.) Final Provisions (Articles LXV. to end) Final Protocol PAGE 172 I73 173 I74 176 I76 I79 186 191 I99 201 202 208 220 222 224 226 228 228 230 230 236 TABLE OF CONTENTS . General Treaty of Arbitration between Italy and the Argentine Republic (Sefitember 18, 1907) . General Treaty of Arbitration between Italy and the United States of Mexico (October 16, 1907) . Revised Geneva Convention (july 6, 1906) : (I) Wounded and Sick (Articles I. to V.) (2) Medical Units and Establishments (Articles VI. to VIII.) (3) Personnel (Articles IX. to XIII.) (4) Material (Articles XIV. to XVI.) (5) Convoys of Evacuation (Article XVII.) (6) The Distinctive Emblem (Articles XVIII. to XXIII.) (7) Application and Carrying out of the Convention (Articles XXIV. to XXVI.) (8) Prevention of Abuses and Infractions (Articles XXVII. and XXVIII.) General Provisions (Articles XXIX. to end) . Final Protocol of the Conference for the Revision of the Geneva Convention . Declaration of Paris (April 16, 1856) . I Additional Protocol to the Convention relative to the Establishment of an International Court of Prize ‘. . Oxford Manual on Naval War (August 1913), Preamble : (1) Of the Places where Hostilities may be carried on (Article I.) . . . . . . (2) Of the Armed Forces of Belligerent States (Articles II. to XML): . . . . . (a) Ships of War (Article II .). . . . (6) Conversion of Public and Private Vessels into Ships of War (Articles III. to IX.) (c) Conversion of Ships of War into Public or Private Vessels (Article X.) (a') Belligerentpersomzel (Article XI.) . (e) Privateering, Private Vessels, Public Vessels not being Ships of War (Article XII.) 255 256 256 259 260 262 264 264 264 264 264 266 266 TABLE OF CONTENTS PAGE (f) Population of Unoccupied Territory (Article XIII.) . 266 (3) Of the Methods of Injuring the Enemy (Articles XIV. to XXX.) : . . . . 266 (a) Principles (XIV.) . . . . . 266 (5) Treacherous and Barbarous Methods (Articles XV. to XVIII.) . . . . 266 (c) Torpedoes (Article XIX.). . . . 268 (cl) Submarine Mines (Articles XX. to XXIV.) . 268 (e) Bombardment (Articles XXV. to XXIX.) . 270 (f) Blockade (Article XXX.) . . . 272 (4) Of the Rights and Duties of a Belligerent with respect to Enemy Property (Articles XXXI. to LIV.) : . . . . 272 (a) Vessels and Cargoes. Ships of War (Article XXXI.) . . . . . . 272 (6) Public and Private Vessels. Arrest, Visit and Search (Article XXXII.) . . . 272 (c) Principle of Capture (Articles XXXI II. to XXXV.) . . . . . 274 (a’) Relaxation of the Principle of Capture (Articles XXXVI. to XL.) 274 (e) Exceptions to the Principles laid down in Articles XXXI. and XXXIII. Hospital- Ships (Articles XLI. to XLIV.) . . 276 (f) Cartel-Ships (Article XLV.) . . . 278 (g) Vessels employed on Missions (Article XLVL). 280 (/1) Boats employed in Coast Fishing and Small Local Navigation (Article XLVII.) . . 280 (z') Vessels furnished with aSafe-Conduct or Licence (Article.XLVIII.) . . . . 280 (j) Cessation of Immunity (Article XLIX.) . . 280 (k) The Rights of the Belligerent within the Area of his Operations (Article L.) . . . 280 (Z) Of Enemy Character (Article LI.) . . 282 (m) Of Change of Flag (Article LII.) . . 282 (1:) Postal Correspondence (Article LIII.) . . 284 (a) Submarine Cables (Article LIV.) . . 284 'TABLE OF CONTENTS ( 5) Of the Rights and Duties of a Belligerent relating to Persons (Articles LV. to LXXXVII.) : (a) Personnel of Vessels. Ships of War (Article LV.) (b) Public or Private Vessels (Articles LVI. to LXI.) (0) Passengers (Articles LXII. and LXIII.) (d) Religious, Medical and Hospital Staff (Article LXIV.) . . . (e) Parlemem‘az'res (Article LXV.) (f) Spies (Articles LXVI. to LXVIII.) . (g) Requisitions levied on the Nationals of the Enemy State. Guides, Pilots and Hostages (Article LXIX.) . . . . (lz) Prisoners of War (Articles LXX. to LXXX.) . (z') Wounded, Sick, Shipwrecked and Dead (Articles LXXXI. to LXXXVII.) (6) Of the Rights and Duties of the Belligerent on Occupied Territory : . . . (a) Occupation: its Extent and Effect (Article LXXXVIII.) . . . . (7) Of Agreements between Belligerents (Articles LXXXIX. to XCIX.) : . . (a) General Rules (Articles LXXXIX. to XC.) (b) Capitulation (Article XCI.) (a) Armistice (Article XCII. to XCVIII.) (d) Suspension of Hostilities (Article XCIX.) (8) Of the Formalities of Seizure and Prize Judgments (Articles C. to CXV.) : . . . (a) Formalities of Seizure (Articles C. to C111.) (6) Destruction of Vessels and Merchandise liable to Confiscation (Articles CIV. and CV.) (0) Employment of Vessels seized (Article CVI.) (a’) Loss of Prizes by Sea Adventure (Article CVII.) (e) Rescue (Article CVIII.) . . . . (7') Prize Judgments (Articles CIX. to CXV.) (9) Of the Termination of Hostilities—Peace (Article CXVI.) . . . . . . Additional Article (relating to Indemnities for Violation of Regulations by Belligerents) ALPHABETICAL INDEX . XV PAGE 284 284 286 286 286 288 288 290 290 292 294 294 294 294 296 296 296 298 298 300 300 300 300 300 302 304 307 N.B.—Sir T. Barclay’s Problems of International Practice and Dzplomacy will be hereinafter referred to as Problems. xvi 1. FIRST AND SECOND HAGUE CONFERENCES COMPARED THE first Peace Conference sat at The Hague between the 18th May and the 29th July 1899. It was attended by plenipoten- tiaries of the following independent States: Great Britain, France, Germany, Austria-Hungary, Russia, Italy, Spain, Portugal, Belgium, Holland, Denmark, Sweden and Norway, Greece, Roumania, Servia, Switzerland, Montenegro, Luxemberg, Turkey (including Bulgaria), United States, Mexico, japan. Persia, Siam, and China. The result of the Conference was the adoption of— I. A Convention .or the pacific settlement of international disputes. II. A Convention relating to the laws and customs of war by land. III. A Convention for the adaptation to maritime Warfare of the principles of the Geneva Convention of the 22nd August 1864. IV. And three Declarations on the following matters : (a) Prohibition of the launching of projectiles and explosives from balloons or by other similar new methods.1 (b) Prohibition of the use of projectiles the only object of which is the diffusion of asphyxiating or deleterious gases. (c) Prohibition of the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope, of which the envelope does not entirely cover the core, or is pierced with incisions. These Conventions and Declarations formed separate Acts which the States represented could sign separately.2 The Conference furthermore adopted unanimously the fol- lowing Resolution : 1 Adopted for a period of five years only. 2 See Problems for text in full, pp. 213 et seq., and dates of ratification, p. 255. 1 “The Conference is of opinion that the restriction of military budgets, which are at present a heavy burden on the world, is extremely desirable for the increase of the material and moral welfare of mankind.” 1. The following Va'u was also unanimously adopted: “The Conference, taking into consideration the preliminary steps taken by the Swiss Federal Government for the revision of the Geneva Convention, expresses the wish that steps may be shortly taken for the assembling of a special Conference2 having for its object the revision of that Convention.” The following Vceax were adopted, but not unanimously: “ r. The Conference expresses the wish that the question of the rights and duties of neutrals may be inserted in the pro- gramme of a Conference in the near future. “2. The Conference expresses the wish that the questions with regard to rifles and naval guns, as considered by it, may be studied by the Governments with the object of coming to an agreement respecting the employment of new types and calibres. “3. The Conference expresses the wish that the Govern- ments, taking into consideration the proposals made at the Conference, may examine the possibility of an agreement as to the limitation of armed forces by land and sea, and of war budgets. “4. The Conference expresses the wish that the proposals which contemplate the declaration of the inviolability of private property in naval warfare may be referred to a subsequent Conference for consideration. “ 5. The Conference expresses the wish that the proposal to settle the question of the bombardment of ports, towns, and villages by naval forces may be referred to a subsequent Confer- ence for consideration.” Great Britain signed and became a party to the three Con~ ventions, but not to all the Declarations, etc. In March-April 1906 the Emperor of Russia issued an official invitation to hold the second Conference in July 1906. Representations from the United States and elsewhere led to the postponement of the Conference till 1907. of the letter of invitation were as follows : The chief passages “ In taking the initiative in convoking a second Peace Conference, the Imperial Government has had in view the necessity of giving a fresh develop- ment to the humanitarian principles which served as a basis for the work of the great international meeting of 1899. “ It believed at the same time that it would be opportune to increase, as far as possible, the number of States participating in the work of the pro- jected Conference ; and the enthusiasm with which this appeal has been met testifies to the depth and universality of the sentiment of solidarity which makes for the application of ideas having as their object the good of humanity as a whole. “ The first Conference separated with the conviction that its work should be completed subsequently through the regular progress of enlightenment 1 See Proélems for text of original proposals of Russian Government, pp. 123, 124- 2 This Conference was held at Geneva in June—July 1906. The revised Convention, composed of 33 Articles, is dated July 6, 1906. See Appendices, p. 247. among peoples and in accordance with the dictates of experience. Its most important creation, the International Court of Arbitration, is an institution which has already been put to the test, and has brought together in an Areopa- gus for the benefit of humanity, jurists who enjoy universal respect. It is also evident how beneficent International Commissions of Inquiry have been in the solution of difliculties between States. “None the less, there is still a need of improvement in the Convention concerning the Pacific Regulation of International Disputes. As a result of recent arbitrations, the jurists sitting as an International Court have raised certain questions of detail which must be decided so as to give the said Con- vention its necessary development. It has seemed especially desirable ‘that fixed principles should be laid down regarding the languages 1 to be used in the procedure of the Court, in view of the difficulties which might arise in the future, as the number of applications to the Court of Arbitration increased. There is also need of certain improvements in the working of the International Commissions of Inquiry. “Touching the regulation of the Laws and Practices of Land Warfare, the arrangements made by the first Conference need no less to be completed and defined in such a way as to prevent any misunderstanding. “ As regards Naval Warfare, of which the laws and usages difi‘er in certain points in different countries, it is necessary to establish fixed regulations in harmony with the requirements of the rights of belligerents and the interests of neutrals. “ An agreement touching these matters should be drawn up, and would form one of the most notable parts of the work of the coming Confer- ence. “ The Imperial Government, believing that it is necessary only to examine questions which press with particular urgency inasmuch as they arise from the experience of recent years, and without touching on those which belong to the limitation of Military and Naval Forces, proposes therefore as pro- gramme for the Conference the following principal points : I‘ ....._..-i ....._ -1‘ 1 I. Improvements to be made in the regulations u the Convention touching the pacific settlement of international disputes regarding both the Court of Arbitration and the International Commissions of Inquiry. “ 2. Additions to be made in the regulations of the Convention of 1899 touchmg the Laws and Practices of Lana’ Warfare, among others the opening of hostilities, the rights of neutrals on land, etc. Declarations of 1899, one among them being renewable—the question of its renewal. “ 3. Elaboration of a Convention touching the Laws and Practices of Naval Warfare concerning— “The special operations of naval warfare, such as the bombardment 0/’ ports, towns, and villages by a naval force, the laying of mines, etc. “ The transformation of commercial vessels into warships. “ The private property of belligerents at sea. “ The delay to be accorded to commercial vessels in leaving neutral ports or those of the enemy after the outbreak of hostilities. “ The rights and duties of neutrals at sea, among other questions that of contraband, the treatment to which the ships of belligerents should be sub- jected in neutral ports, destruction by force majeure 0}‘ neutral ships of com- merce as prizes. “ In the said Convention should be introduced arrangements relative to land warfare, which should be equally applicable to naval warfare. “ Additions to be made in the Convention of 1899 for the adaptation to naval warfare of the principles of the Geneva Convention of 1864. “As at the Conference of 1899, it should be understood that the de- liberations of the proposed Conference shall deal neither with the political relations among States, nor with the order of things established by treaties, nor with any general interests which were not directly included in the pro- gramme adopted by the Cabinets. “The Imperial Government desires to emphasise that the issue of this programme, and its eventual acceptance by the various States, must not be held to prejudice any opinion which might be formulated in the Conference regarding the solutions to be given to the questions submitted for discussion. Equally, it should belong to the projected Conference to determine the order of questions for discussions and the form to be given to its decisions, according 1 See pp. 21, 27-28. as it may be considered preferable to include certain of them in new conven- tions, or to add them as supplements to existing conventions. “ In formulating the above programme the Imperial Government has taken into account, as far as possible, the desires expressed by the first Peace Conference, notably in regard to the rights and duties of neutrals, private property of belligerents at sea, the bombardment of ports, towns, etc. It expresses the hope that the Government will see in the points proposed, taken as a whole, an expression of the desire to approach that lofty ideal of International justice which is the constant goal of the entire civilised world.” 1 The chief cause of adjournment of the Conference was the meeting of the Pan-American Congress at Rio de janeiro fixed already for the month of july,-—a Congress with which most of the North and South American experts available for The Hague Conference would be occupied. It was decided at this Congress that to the questions for discussion at The Hague Conference be added that of the enforcing by arms of commercial and financial obligations. The question of the reduction of military and naval budgets and armaments was not placed in the van of the subjects for discussion, as it was at the Conference of 1899, though the British Government steadfastly asserted the necessity of keeping this subject in the front. A serious controversy on the advis- ability of including it in the programme in fact threatened to disturb the harmony of the Governments at the outset, and caused the British Prime Minister, Sir H. Campbell-Bannerman, to publish a remarkable statement on the subject in the Nation of March 2, 1907, protesting vigorously against the suggestion that the discussion of the subject “would be fraught with danger.”2 The Conference of 1907, which sat from june r 5 to October 8, was attended by representatives of the following forty-four states : Great Britain, France, Germany, Austria-Hungary, Russia, Italy, Turkey, Spain, Portugal, Belgium, Holland, Denmark, Sweden, Norway, Greece, Switzerland, Montenegro, Roumania, Bulgaria, Servia, Luxemburg, the United States, Mexico, Argentina, Chile, Brazil, Bolivia, Peru, Paraguay, Uruguay, Venezuela, Salvador, Panama, Nicaragua, Guatemala, Ecaudor, Columbia, Cuba, Haiti, St. Domingo, japan, China, Persia, and Siam. Though, in spite of the resolution and Van on armaments handed down from the Conference of 1899, this subject made no progress, Conventions of far-reaching importance were adopted on other matters. These were as follows: I. Convention for the pacific settlement of international disputes 3 3 II. Convention respecting the limitation of the employment of force for the recovery of contract debts 5 III. Convention relative to the commencement of hostilities ; IV. Convention concerning the Laws and Customs of War on Land ;4 1 The following is, according to the Vienna Nene Frez'e Presse, the text of the circular dispatch addressed on April 3, 1907, by M. Isvolsky, Russian Minister of Foreign Affairs, to the Russian representatives abroad : “Before the summoning of the second Peace Conference, the Imperial Government considers it its duty to lay the present situation before the Powers who have accepted its invitation. All the Powers to whom the Imperial Government, in April 1906, communicated its outline of the programme for the labours of the new Conference have assented to it. The following observations, however, have been made with reference to this programme : “The Government of the United States has reserved the right to submit to the second Conference two supplementary questions, one relating to the reduction or limitation of armies, and the other relating to the securing of an obligation to observe certain limitations in the employment of force for the collection of ordinary public debts arising out of treaties. “ The Spanish Government has expressed the wish to discuss the question of the limita- tion of armaments, and has reserved to itself the right to treat this question at the next Hague meeting. “ The British Government has communicated the fact that it attaches great importance to the discussion at the Conference of the question of expenditure upon armaments, and it has reserved the right to raise this question. It has also reserved the right to abstain from participating in the discussion of any articles in the Russian programme which, in its opinion, would not lead to useful results. “japan is of the opinion that certain questions, not specially enumerated in the programme, might advantageously be taken up among the matters which are to be examined, and has reserved the right to abstain or to withdraw from any discussion which may take a direction or show a tendency which, in its judgment, would not conduce to a useful result. “The Governments of Bolivia, Denmark, Greece, and the Netherlands have likewise in general reserved the right to submit to the judgment of the Conference other matters which exhibit an analogy with those expressly adduced in the Russian programme. “ The Imperial Government deems it its duty to declare that Russia, on its part, adheres to the programme of April 1906 as the basis for the deliberations of the Conference, and in turn reserves the right to abstain from any discussion which does not appear to it to tend to a practical result. “ Observations analogous to these last have been made by the Governments of Germany and Austria-Hungary, which likewise have reserved the right to abstain from the discussion of any question which does not appear to them to tend to practical results. “ The Imperial Government, while bringing these reservations to the knowledge of the Powers, and expressing the hope that the labours of the second Peace Conference will result in fresh securities for a good understanding among the nations of the civilised world, has at the same time addressed a request to the Government of the Netherlands to summon the Conference for the early part of june.”——-Translation given in Herald qf Peace, May 1907. 2 See text of Sir H. Campbell-Bannermann’s statement in Barclay, Problems, p. 8. 3 This is an amended edition of that of 1899. 4 This is an amended edition of that of 1899. V. Convention respecting the rights and duties of neutral Powers and persons in war on land 5 VI. Convention relative to the status of enemy merchant ships at the outbreak of hostilities ; VII. Convention relative to the conversion of merchant ships into warships ; VIII. Convention relative to the laying of automatic sub- marine contact mines ; IX. Convention respecting bombardment by naval forces in time of war ,- X. Convention for the adaptation of the principles of the Geneva Convention to maritime war; 1 XI. Convention relative to certain restrictions on the exercise of the right of capture in maritime war ; XII. Convention relative to the establishment of an Inter- national Prize Court ; XIII. Convention respecting the rights and duties of neutral Powers in maritime war ; XIV. Declaration prohibiting discharge of projectiles, etc., from balloons. A draft Convention relative to the creation of a Court of Arbitral Justice was also drawn up in connection with the first of [PA-.— £_11 -- -. 77...... . IULU. lULlUWIlls rwuw ; “ 1. The Conference calls the attention of the Signatory Powers to the advisability of adopting the annexed draft Convention for the creation of a Court of Arbitral Justice, and of bringing it into force as soon as an agreement has been reached respecting the selection of the Judges and the constitu- tion of the Court ,' “2. The Conference expresses the opinion that, in case of war, the responsible authorities, civil as well as military, should make it their special duty to ensure and safeguard the mainten- ance of pacific relations, more especially of the commercialiand industrial relations between the inhabitants of the belligerent States and neutral countries ; “ 3. The Conference expresses the opinion that the Powers should regulate, by special treaties, the position, as regards military charges, of foreigners residing within their territories ; “4. The Conference expresses the opinion that the prepara- tion of regulations relative to the Laws and Customs of Naval War should figure in the programme of the next Conference, and that in any case the Powers apply, as far as possible, to war by sea the principles of the Convention relative to the Laws and Customs of War on Land” 32 Finally, the Conference recommended to the Powers “the assembling of a third Peace Conference, which might be held within a period corresponding to that which had elapsed since 1 This is an amended edition of that of 1899. 2 See the Projet on this subject of the Institute of International Law, pp. 266 et seq. the preceding Conference, at a date to be fixed by common agreement among the Powers ; and it called their attention to the necessity of preparing the programme of this third Conference a suflicient time in advance to ensure its deliberations being con- ducted with the necessary authority and expedition.” In order to attain this object the Conference considered that it “would be very desirable that, some two years before the probable date of the meeting, a preparatory Committee should be charged by the Governments with the task of collecting the various proposals to be submitted to the Conference, of ascer- taining what subjects are ripe for embodiment in an Inter- national Regulation, and of preparing a programme which the Governments should decide upon in sufficient time to enable it to be carefully examined by the countries interested,” and that this Committee should further be entrusted with the task of proposing a system of organisation and procedure for the Conference itself. A comparison of the two Conferences shows that they differed essentially as regards their immediate object. That of 1899 was essentially a Peace Conference, called for the express purpose of arresting the growth of armaments and war budgets. From the second one all discussion on this subject was deliberately excluded, though a resolution was unanimously adopted in favour of its future consideration, to which I shall revert below. Of the three Conventions adopted in 1899 one was a code of rules for the observance of armies in the field, which only gave effect, with a few modifications, to the unratified rules drawn up at the Conference called by the Czar Alexander II. and held at Brussels in 1874, rules which were afterwards carefully over- hauled by the Institution of International Law, and are known to students of International Law as the Oxford Rules of 1880, so called because adopted at the meeting of the Institute held that year at Oxford. The second merely adapted the already existing rules of the Geneva Convention to maritime warfare. The third, viz., that on arbitration, alone dealt with new matter. The work of the second Conference was of a very different kind, as has been seen from the list given above of the Conven- tions, etc., adopted. It not only embraced a thorough re- vision of these three Conventions, but covered no small pro- portion of different other branches of International Law. Without taking into account the modifications introduced by the Conventions into existing practice, the bare fact of turning the rules of International Law, hitherto sneered at as a body of theorists’ notions, into a written code, accepted by all civilised mankind, is in itself a great achievement, greater than the public seems yet to have realised. The late Lord Salisbury, who was no petty authority on questions of international practice, speak- ing, in 1887, on International Arbitration, observed: “International Law has not any existence in the sense in which the term ‘law’ is usually understood. It depends generally upon the prejudice of writers of text-books.” Still more recently, the late Lord Chief Justice Russell of Killowen, in his address at the meeting of the Bar Association at Saratoga Springs in r896, vindicating the propriety of calling International Law “law,” described the same feeling: “ It is said by some that there is no International Law, that there is only a bundle, more or less confused, of rules to which nations more or less con- form, but that International Law there is none.” This is no longer true of the matter with which The Hague Conferences have dealt. They have brought order, precision, and civilised methods into matters in which, until recently, the very idea of codification was too remote to be seriously con- sidered.1 In 1899 the Declaration of Paris2 was still the only case of any rules of law which had been adopted by an inter- national enactment as “ law ” in the sense of the late Lord Salisbury. To understand the immensity of the work of 1907 we need only compare with this short declaration the vast groundwork of international legislation laid down by the second Conference. Events have proved that there was no justification for the fear frequently expressed before the meeting of the Conference that it would prove a failure and discourage public opinion. The real danger was that, in undertaking too much, it would turn out carelessly drafted work, and this, probably, practice will ultimately show to have been the case as regards a good deal of it. If it be so, it will have been due to the fact that the work of the Conference was ill-prepared. There was un- doubtedly a great waste of time on preparatory work, which would certainly have been better carried out, had it been done, without pressure of time, before the Conference came together. The fact that the bulk of the work had to be drafted in small special committees, while over two-thirds of the delegates only came together from time to time to discuss the work handed in by these special committees, marks the way in which better preparation for such Conferences may be effected. This experience led the Conference of 1907 to express a wish that a restricted International Committee should prepare the pre- liminary drafts for submission to the third Conference in advance. 1 It is curious to see the distrust of a man of even such advanced views as the late Lord Russell of Killowen of the codification of International Law. In the above-quoted address in 1896 he said : “ It (International Law) is in a state of growth and transition. To codify it would be to crystallise it: uncodified, it is more flexible and more easily assimilates new rules. While agreeing, therefore, indeterminate points should be determined, and that we should aim at raising the ethical standard, I do not think we have yet reached the point at which codifica- tion is practicable or, if practicable, would be a public good.” 2 See the text of the Declaration, p. 259. II. AN INTERNATIONAL PRIZE COURT AMONG the Conventions adopted in 1907 was one, No. 12, providing for the establishment of an International Prize Court, a matter which will certainly become one of urgency at the close of the war. Under the system hitherto prevailing, it is the judge ap- pointed by the captor who decides whether the capture was a legitimate one or not. In Problems of international Practice and Dzjolomacy I dis- cussed different considerations for and against the project. Experience of both British and German diplomacy in con- nection with the bias shown by the Russian Prize Courts in the Russo-Japanese war had created a strong disposi 'on the Foreign Offices of these two countries antagonistic to the existing system, and both the British and German delegates had been instructed to press the subject on the Conference. Simultane- ously they presented two projects which, although making for the same goal, were inspired by different ideas. These were consolidated, and, to use the words of the rapporteur, M. Renault, “owing to real good will and a keen desire for an understanding, one project was evolved, in which it would be futile to trace the source of any of its sections from those of the two original projects.” The Commission which dealt with the subject had to cope with two difficulties—the one affected the jurisdiction of the Court. Was the Court to be a Court of first instance, or was it to possess revising powers only? It soon became apparent that as a Court of first instance much of the time of The Hague Prize Tribunal might be unnecessarily occupied by matters of detail which could be safely, and more conveniently, dealt with by the national Courts. If so, was the Court to exercise its revising jurisdiction after the finding of the national Court of first instance, or was the jurisdiction of the national Courts to be exhausted before the matter could be brought up before The Hague Prize Court? Great Britain and the United States1 favoured the latter alternative. This solution of the difficulty carried with it the presumptive safeguard that the national appellate Court might correct any error in the Court below, and 1 The appellate jurisdictions from the British and United States Prize Courts are re- spectively the Judicial Committee of the Privy Council and the United States Supreme Court. 2 10 thus render the appeal to The Hague Tribunal unnecessary ; further, if, even then, one of the parties feeling itself aggrieved carried its appeal to The Hague, the judges there would have the benefit of the decision of judges of the higher authority possessed by national Courts of Appeal.1 These considerations prevailed, and the project was adopted after provision had been made that: firstly, no more than two national jurisdictions should be competent to adjudicate upon the matters at issue; secondly, the “legislation of the belligerent captor” should be left to decide whether the litigious matter should go to The Hague after a first or appellate judgment had been given, and, in case it decided in favour of the two grades of national jurisdiction, it was still competent for it to decide on recourse to The Hague Prize Court after judgment in first instance; thirdly, should the national Courts fail to give a final judgment within two years from the date of the capture, the case might be carried direct to The Hague Prize Court. Since its adoption at the Conference, a difficulty of a con- stitutional character, standing in the way of its ratifications, has been discovered by the United States Government. Article III., section I, of the United States Constitution provides that “the judicial power of the United States shall be vested in one Supreme Court,” and it is argued that the use of the word supreme forbids any appeal against its decisions. To obviate this interference with the judicial system of the United States, it has been suggested by the United States Government that the “ question involved in the decision ” and not the judgment should be submitted to The Hague Prize Court. The proceedings there would be in the nature of a trial a’e nooo, and the decision of The Hague Prize Court would be limited to the assessment of damages in cases of illegal capture; the judgment of the national Court would thus not be directly involved or reversed. This proposal of the United States was laid before the dele- gates at the London Conference (1908-9), who unanimously agreed to call their Governments’ attention to the advantage of adopting the American suggestion at the time of the deposit of ratification of the Prize Court Convention, and an additional Protocol to this effect was signed at The Hague on September 19, 1910? The other difficulty was that there were no generally recog- nised rules of law applicable to prize. The German project provided that the Court of first instance, that is the national Prize Court, should apply the law of the capturing State, and that this law should be binding on the International Appeal Court. The British project provided that the Court should administer the International Law of naval prize; this assumed that there was a uniform law, which there is not. Eventually a clause was adopted which runs as follows; 1 See Scott, T/ze Hague Peace Conferences, vol. i. p. 475. 2 See Appendices, p. 260. 11 “ If a question of law to be decided is covered by a Treaty in force between the belligerent captor and a Power which is itself, or the subject or citizen of which is, a party to the proceedings, the Court is governed by the provisions of the said Treaty. “In the absence of such provisions, the Court shall apply the rules of International Law. If no generally recognised rule exists, the Court shall give judgment in accordance with the general principles of justice and equity.” The original British idea was “to secure the adaptation ” of the machinery of the existing Hague Court to the purposes of an “international tribunal of appeal” from decisions of belligerent Prize Courts. The official instructions published in the Corre- spondence respecting the Second Hague Conference observe in respect to this proposal that the “judgment of the Tribunal in such cases would probably prove the most rapid and efficient means which can, under existing conditions, be devised for giving form and authority to the canons of International Law in matters of prize.” The advantages, they stated, would far out- weigh any difficulty which might arise from the fact that some alterations in the municipal laws of this country and probably also of other States would be required, and that “ H.M. Govern- ment considered that if The Hague Conference accomplished no other object than the constitution of such a Tribunal, it would render an inestimable service to civilisation and mankind.” The British wish was fulfilled and a Convention creating such a Court was adopted. The fact, nevertheless, remained that the Court was estab- lished for the administering of a uniform International Law of naval war which had still to be formulated, and another Confer- ence, to enable the Powers to give effect to the Convention in question, was necessary. By invitation of the British Government it met a year later in London, and resulted in the signing of the Declaration which bears the name of that city. III. DECLARATION OF LONDON WITH a view to the creation of an International Law of prize binding on the proposed Prize Court and the avoidance of the vague uncertainty of “general principles of justice and equity,” the British Government on February 27, 1908, issued an invita- tion to the maritime Powers to hold a Conference in London with the object, as stated in the invitation, of arriving at an agreement as to what are the principles of International Law, within the meaning of paragraph 2 of Article VII. of The Hague Convention of 1907, in respect of 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 any particular case, the Court should observe in dealing with appeals brought before it for decision. In his communications to the interested Powers, Sir Edward Grey showed that on various questions connected with maritime war, divergent views and practices prevailed among the nations of the world. Upon some of these subjects an agreement had been reached at The Hague, but on others it had been found impossible, within the period for which the Conference assembled, to arrive at an understanding. The impression had been gained that the establishment of an Inter- national Prize Court would not meet with general acceptance so long as vagueness and uncertainty existed 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. The Powers invited to the Conference were Austria-Hungary, France, Germany, Italy, Japan, Russia, Spain, and the United States, and, with the concurrence of all the Powers invited to the Conference, an invitation was subsequently extended to the Government of the Netherlands. The representatives of these Powers met in London on December 4, 1908, and sat till February 26, 1909. The result of their deliberations was a uniform code of the International Law of Prize‘.1 The subjects which were submitted by the British Government as the programme of the Conference, were as follows: (a) Contraband, including the circumstances under which particular articles can be considered as contraband; the penalties for their 1 The Colonial Premiers were unanimous in supporting it as “ a great advance in Inter- national Law,” in the words of Sir Joseph Ward. This statement was made public by Mr. M‘Kinnon-Wood in his remarkable speech on the subject in the House of Commons on June 28, 1911. See also Sir Edward Grey’s reply to Mr. Balfour on July 3. 13 l4 carriage ; the immunity of a ship from search when under convoy; and the rules with regard to compensation where vessels have been seized but have been found in fact only to be carrying innocent cargo. (6) Blockade, including the questions as to the locality where seizure can be effected, and the notice that is necessary before a ship can be seized. (c) The doctrine of continuous voyage in respect both of contraband and of blockade. (d) The legality of the destruction of neutral vessels prior to their con- demnation by a Prize Court. (e) The rules as to neutral ships or persons rendering “ unneutral service” (“ assistance hostile ”). - (f) The legality of the conversion of a merchant vessel into a warship on the high seas. (g) The rules as to the transfer of merchant vessels from a belligerent to a neutral flag during or in contemplation of hostilities. (h) The question whether the nationality or the domicile of the owner should be adopted as the dominant factor in deciding whether property is enemy property. The subjects dealt with in the Declaration included the whole of these items, except the last. Of the clauses of the Declaration which have given rise to controversy, the most important are those relating to con- ditional contraband. Article XXXIII. provides that “conditional contraband is liable to capture if it is shown to be destined for the use of the armed forces or of a Government department of the enemy State, unless in this latter case the circumstances show that the goods cannot in fact be used for the purposes of the war in progress. This latter exception does not, however, apply to a consignment coming under Article XXIV. (4), i.e. gold and silver in coin or bullion or paper money.” Article XXXIV. provides that “the destination referred to in Article XXXIII. is presumed to exist if the goods are consigned to enemy authorities or to a contractor established in the enemy country who, as a matter of common knowledge, supplies articles of this kind to the enemy. A similar presump- tion arises if the