Letters To The Times Upon War And Neutrality (1881 to 1920) by Thomas Erskine Holland

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LETTERS

UPON

WAR AND NEUTRALITY

(1881-1920)

LETTERS TO "THE TIMES"

UPON

WAR AND NEUTRALITY

(1881-1920)

WITH SOME COMMENTARY

BY

SIR THOMAS ERSKINE HOLLAND
K.C., D.C.L., F.B.A.

FELLOW OF ALL SOULS COLLEGE
SOMETIME CHICHELE PROFESSOR OF INTERNATIONAL LAW
MEMBRE (PRESIDENT 1913) DE L'INSTITUT DE DROIT INTERNATIONAL
ETC., ETC.

THIRD EDITION

LONGMANS, GREEN, AND CO.
39 PATERNOSTER ROW, LONDON

FOURTH AVENUE & 30TH STREET, NEW YORK
BOMBAY, CALCUTTA, AND MADRAS

1921

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 repetition, 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 illustrate. 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.

CONTENTS

CHAPTER I

MEASURES SHORT OF WAR FOR THE SETTLEMENT
OF INTERNATIONAL CONTROVERSIES 1

SECTION 1
_Friendly Measures_ 1

The Petition to the President of the United States (1899) 2
Commissions of Enquiry and The Hague Convention (1904) 3
The League of Nations (1919) 7
" " " " ( " ) 8
" " " " (1920) 9

SECTION 2
_Pacific Reprisals_ 9

The Blockade of the Menam (1893) 10
Pacific Blockade (1897) 11
The Venezuelan Controversy (1902) 13
The Venezuela Protocol (1903) 18
War and Reprisals (1908) 18

CHAPTER II
STEPS TOWARDS A WRITTEN LAW OF WAR 22

Count von Moltke on the Laws of Warfare (1881) 23
Professor Bluntschli's Reply to Count von Moltke (1881) 26
The United States Naval War Code (1901) 29
A Naval War Code (1902) 31

CHAPTER III

TERMINOLOGY 33

International Terminology (1918) 33

CHAPTER IV

CONVENTIONS AND LEGISLATION 36

Government Bills and International Conventions (1911) 36
The present Bill in Parliament (1914) 38
The Foreign Enlistment Bill (1912) 39

CHAPTER V

THE COMMENCEMENT OF WAR 41

SECTION 1
_Declaration of War_ 41

The Sinking of the _Kowshing_ (1894) 41

SECTION 2
_The Immediate Effects of the Outbreak of War_ 44

Foreign Soldiers in England (1909) 45
The Naval Prize Bill: Civil Disabilities of Enemy
Subjects (1911) 47
Enemy Ships in Port (1917) 49

CHAPTER VI

THE CONDUCT OF WARFARE 50

SECTION 1
_On the Open Sea_ 51

The Freedom of the Seas? (1917) 51

SECTION 2
_In Other Waters_ 51

The Suez Canal (1898) 51
" " " ( " ) 51
" " " ( " ) 53
" " " ( " ) 54
The Closing of the Dardanelles (1912) 55
" " " " " ( " ) 58

SECTION 3
_In a Special Danger Zone?_ 59

The German Threat (1915) 59

SECTION 4
_Aerial Warfare_ 61

The Debate on Aeronautics (1909) 61
The Aerial Navigation Act (1913) 63
Sovereignty over the Air (1913) 65
Attack from the Air: The Enforcement of International Law (1914) 66
" " " " The Rules of International Law (1914) 67

SECTION 5
_Submarines_ 69

Germany and the Hague (1914) 69
The "Pirates" (March 13, 1915) 70
Submarine Crews (March 22, 1915) 71
Mr. Wilson's Note (May 16, 1915) 72

SECTION 6
_Lawful Belligerents_ 73

Guerilla Warfare (1906) 73
The Russian Use of Chinese Clothing (1904) 75
The Rights of Armed Civilians (1914) 77
Civilians in Warfare: The Right to take up Arms (1914) 78
Civilians and a Raid (1914) 79
Miss Cavell's Case (1915) 79

SECTION 7
_Privateering and the Declaration of Paris_ 80

Our Mercantile Marine in War Time (1898) 81
" " " " " " ( " ) 84
Our Mercantile Marine in War (1898) 87
The Declaration of Paris (1911) 87
" " " " (1914) 89
" " " " (1916) 91
" " " " (1916) 92

SECTION 8
_Assassination_ 93

The Natal Proclamation (1906) 93

SECTION 9
_The Choice of Means of Injuring_ 94

Bullets in Savage Warfare (1903) 94
Gases (1918) 97

SECTION 10
_The Geneva Convention_ 98

Wounded Horses in War (1899) 98

SECTION 11
_Enemy Property in Occupied Territory_ 100

International "Usufruct" (1898) 101
Requisitions in Warfare (1902) 103

SECTION 12
_Enemy Property at Sea_ 104

Private Property at Sea (1913) 104

SECTION 13
_Martial Law_ 105

The Executions at Pretoria (1901) 106
The Petition of Right (1901) 108
The Petition of Right (1902) 109
Martial Law in Natal (1906) 111

SECTION 14
_The Naval Bombardment of Open Coast Towns_ 112

Naval Atrocities (1888) 113
The Naval Manoeuvres (1888) 113
" " " ( " ) 117
Naval Bombardments of Unfortified Places (1904) 120

SECTION 15
_Belligerent Reprisals_ 123

Reprisals (1917) 123
" ( " ) 124

SECTION 16
_Peace_ 124

Undesirable Peace Talk (1915) 124

CHAPTER VII

THE RIGHTS AND DUTIES OF NEUTRALS 126

SECTION 1
_The Criterion of Neutral Conduct_ 126

Professor de Martens on the Situation (1905) 126
Neutrals and the Laws of War (1915) 127

SECTION 2
_The Duties of Neutral States, and the Liabilities of Neutral
Individuals, distinguished_ 129

Contraband of War (1904) 130
Coal for the Russian Fleet (1904) 132
German War Material for Turkey (1911) 135

SECTION 3

_Neutrality Proclamations_ 135

The British Proclamation of Neutrality (1904) 136
" " " " ( " ) 138
" " " " (1911) 141
The Proclamation of Neutrality (1911) 143

SECTION 4

_Neutral Hospitality_ 143

Belligerent Fleets in Neutral Waters (1905) 144
The _Appam_ (1916) 146

SECTION 5

_Carriage of Contraband_ 147

_Absolute and Conditional Contraband_ 147
Contraband of War (1898) 147
Is Coal Contraband of War? (1904) 149
Cotton as Contraband of War (1905) 151
" " " " (1916) 154
Japanese Prize Law (1905) 155
" " " (1915) 157

_Continuous Voyages_ 157
Prize Law (1900) 158
The _Allanton_ (1904) 161

_Unqualified Captors_ 162
The _Allanton_ (1904) 162

SECTION 6

_Methods of Warfare as affecting Neutrals_ 164

_Mines_ 164
Mines in the Open Sea (1904) 164
Territorial Waters (1904) 166

_Cable-cutting_ 168
Submarine Cables (1881) 168
" " in Time of War (1897) 169
" " " " " " ( " ) 171

SECTION 7

_Destruction of Neutral Prizes_ 173

Russian Prize Law (1904) 174
" " " ( " ) 177
" " " ( " ) 178
The Sinking of Neutral Prizes (1905) 179

SECTION 8

_An International Prize Court_ 181

An International Prize Court (1907) 182
A New Prize Law (1907) 183
" " " " ( " ) 186
" " " " ( " ) 189

SECTION 9

_The Naval Prize Bill_ 191

The Naval Prize Bill (1910) 192
" " " " (1911) 194
Naval Prize Money (1918) 195

SECTION 10

_The Declaration of London_ 196

The Declaration of London (1909) 196
" " " " (1910) 197
" " " " (1911) 199
" " " " ( " ) 202
" " " " ( " ) 203
" " " " (1915) 204
" " " " (1916) 205
Germany wrong again (1917) 207

INDEX 209

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
petition 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 fishing 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 PETITION TO THE PRESIDENT OF THE UNITED STATES

Sir,--It seems that a respectably, though perhaps thoughtlessly signed
petition 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 petition:--

(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 unobjectionable 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 petition 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
circumstances 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 circumstances 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 assure the reference to that tribunal of certain
classes 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.

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

_Pars._ 1-3.--The topic of "Commissions of Enquiry," which
occupied Arts. 9-13 of the Convention of 1899 "For the Peaceful
Settlement of International Disputes," is more fully dealt with
in Arts. 9-36 of the Convention as amended in 1907.

_Par._ 4.--The amended Convention, as a whole, is still, like
its predecessor, purely facultative. The Russian proposal to
make resort to arbitration universally obligatory in a list of
specified cases, unless when the "vital interests or national
honour" of States might be involved, though negatived in 1899,
was renewed in 1907, in different forms, by several Powers,
which eventually concurred in supporting the
Anglo-Portuguese-American proposal, according to which,
differences of a juridical character, and especially those
relating to the interpretation of treaties, are to be submitted
to arbitration, unless they affect the vital interests,
independence, or honour, of the States concerned, or the
interests of third States; while all differences as to the
interpretation of treaties relating to a scheduled list of
topics, or as to the amount of damages payable, where liability
to some extent is undisputed, are to be so submitted without
any such reservation. This proposal was accepted by thirty-two
Powers, but as nine Powers opposed it, and three abstained from
voting, it failed to become a convention. The delegates to the
Conference of 1907 went, however, so far as to include in their
"Final Act" a statement to the effect that they were unanimous:
(1) "in recognising the principle of obligatory arbitration";
(2) "in declaring that certain differences, and, in particular,
such as relate to the interpretation and application of the
provisions of International Conventions, are suitable for being
submitted to obligatory arbitration, without any reservations."

_Par._ 5.--The Convention between France and Great Britain,
concluded on October 14, 1903, for five years, and renewed in
1908, and again in 1913, for a like period, by which the
parties agree to submit to The Hague tribunal any differences
which may arise between them, on condition "that they do not
involve either the vital interests, or the independence, or
honour of the two contracting States, and that they do not
affect the interests of a third Power," has served as a model
or "common form," for a very large number of conventions to the
same effect, entered into between one State and another. The
Convention of April 11, 1908, between Great Britain and the
United States is substantially of this type.

But see now the three letters which follow.

THE LEAGUE OF NATIONS

Sir,--The League is unquestionably "a brave design." Sympathy with its
objects and some hope that they may be realised have induced myself, as,
doubtless many others, to abstain from criticising the way in which the
topic has been handled by the representatives of the victorious Powers.
Recent discussions seem, however, to render such reticence no longer
desirable.

It begins to be recognised that, as some of us have all along held to be
the case, a serious mistake was made by the Paris delegates when they
combined in one and the same document provisions needed for putting an
end to an existing state of war with other provisions aiming at the
creation in the future of a new supernational society. Two matters so
wholly incongruous in character should surely have been dealt with
separately. Whether it is now too late to attempt a remedy for the
consequences of this unfortunate combination is a question which can be
answered only by the diplomatists whose business it is to be intimately
in touch with the susceptibilities of the various nations concerned. In
the meantime, however, on the assumption that this state of things is
productive of regrettable results, I may perhaps venture to indicate,
recommending their adoption, the steps which appear to be required for
the reformation of the Treaty as drafted. My suggestions would run as
follows:--

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