III. DECLARATION OF LONDO 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 invitation 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 International 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 national Law," in the words of Sir Joseph W Mr. M'Kinnon-Wood in his remarkable speech June 28, 1911. See also Sir Edward Grey's rep 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. (b) 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 "). (ƒ) 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 conditional 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 presumption arises if the goods are consigned to a fortified place belonging to the enemy, or other place serving as a base for the armed forces of the enemy." The controverted passage (italicised above) is in the original text as follows: "Il en est de même si l'envoi est à destination d'une place fortifiée ennemie ou d'une autre place servant de base aux opérations des armées ennemies." With justice it has been contended, that any place in narrow islands like those of the United Kingdom may be regarded as serving as a base for war operations, and that, therefore, food-stuffs destined for any port thereof might under this Article be held to be conditional contraband. On the other hand, there is nothing in existing conditions to prevent the enemy from declaring food supplied to the British island population to be absolute contraband, on the ground that, being indispensable to national defence, it has one of the essential characteristics distinguishing absolute from conditional contraband. In the Russo-Japanese war, Russia in her proclamation included among articles unconditionally contraband, "rice, provisions, . . . which may be used for a warlike purpose, if they are transported on the account of, or are destined for, the enemy"-she did not say for the enemy's forces. In answer to Lord Lansdowne's protest, Count Lamsdorff, the Russian Foreign Minister, remarked that in the absence of any international decision as to what was or was not contraband of war, it appeared to be within the power of a belligerent arbitrarily to decide what articles were to be so considered. Great Britain's protest certainly led to an alteration of the then Russian rules.1 The point, however, is that Count Lamsdorff, on behalf of Russia, took a view, which is not that held in this country, of the nature of absolute contraband. The Declaration of London would, of course, be a bar to the contention that food can be included among absolute contraband, and in case of any future war, no such contention could be set up against the plain terms of the Declaration. What has been done once, however, may be done again, and perhaps in this connection we ought not to forget that at the end of the eighteenth century, during the war of the French Revolution, the British Government took advantage of the then prevailing scarcity of food to seize all ships carrying provisions to French ports. Ambiguity might be removed by inserting an agreed interpretation in the Protocol of ratification in some such form as the following: "Ratified, subject to the sense of the words, 'une autre place servant de base aux forces ennemies,' being agreed not to apply to commercial ports unless in the actual occupation of the enemy's forces." 2 It cannot be denied that on all other points the changes which have been made for securing homogeneity of practice seem advantageous to neutrals. To put an end to uncertainty is in itself an advantage to neutrals, and, as this country has the largest shipping interest in the world, it also has the largest neutral interest in any war between other countries. On the other hand, the creation of a non-contraband list, to which additions can be made at future dates, the restriction of absolute contraband to certain fixed articles, the fixing of certain articles as conditional contraband without notice, are of first-class importance to neutrals in general, and the provisions forbidding the classification of food-stuffs as absolute contraband and of raw cotton even as conditional contraband of war are of value to this country qua belligerent. Thus, as regards raw cotton, during the Russo-Japanese war, this material gave rise to a controversy between the British and Russian Governments. An Imperial Order, dated April 1, 1904, added cotton to the list of absolute contraband. The Russian Government (May 18, 1904) explained that the prohibition applied only to raw cotton suitable for the manufacture of explosives, and not to yarns and other manufactured articles. "The object of the prohibition," it stated, "was to prevent the importation of an article which could be used for the manufacture of munitions of war, and as it was impossible to distinguish between the cotton imported for innocent purposes and cotton imported for use as munitions of war, it had been found necessary to issue the proclamation in question. There was no intention of introducing a new doctrine of contraband of war." Sir Charles Hardinge pointed out to Count Lamsdorff that British India is a large exporter of raw cotton to Japan, and that the quantity of raw cotton utilisable for explosives would be only a very small proportion compared with that exported for peace purposes. The importance of raw cotton to this country is incomparably greater than to India. Under the existing practice, it would be impossible to distinguish between purposes which even the importer himself might not know, and an enemy might very reasonably contend that owing to this doubt all raw cotton imported into these islands must be considered as contraband. Under the Declaration no raw cotton, in any circumstances, cannot be treated as contraband. In recent discussions on the Declaration the tendency has been to forget that "necessity of war" plays a part which enables the belligerent to construe existing practice liberally to his own advantage. "The reasonable necessities of war," said the late W. F. Hall, "are marked out in a broad way by the immediate objects at which a belligerent aims in attacking the person of his enemy. He endeavours to break down armed resistance, because upon the ability of his enemy to offer it depends the power of the latter to reject the terms to which it is sought to bring him." "The object of war from a military point of view," says the British Officers' Manual, " is to procure the complete submission of the enemy at the earliest period with the least possible expenditure of men and money." It cannot be denied that an island belligerent is in a different position from a continental belligerent. It has been impossible, in a war to which Great Britain is a party, to do otherwise than adopt Count Lamsdorff's contention that "in the absence of any international decisions as to what is or is not contraband of war, it appears to be within the power of a belligerent arbitrarily to decide what articles may be treated as absolute contraband." There is still the question of "military necessity," which seems to cover any disregard for the rules of warfare affecting property. Commentators cannot rely absolutely on agreements made in time of peace for the protection of property in time of war. As regards the doctrine of "continuous voyage" there are "political" considerations which, like those which I have just insisted upon, have no doubt not escaped the official notice. The doctrine of continuous voyage is that destination to a neutral port is not conclusive evidence of the non-contraband character of goods, that ultimate destination to the enemy may be proved and the goods condemned as contraband though carried between two neutral ports. The Declaration of London (Art. XXXV.) forbids the application of the doctrine to conditional contraband. Thus, food-stuffs shipped on neutral bottoms to Antwerp or Rotterdam, though they may have an ultimate enemy destination, cease under the Declaration to be liable to seizure as contraband. This had been dealt with by commentators as a provision favourable to this country, but it had not been dealt with in the aspect in which it is still more favourable to an enemy of this country. The growth of population tends to reduce the surplus of foodstuffs available for export, and in a thickly populated part of the world like Europe, States are necessarily bound to keep their eyes open to possibilities of shortage. In the event of a war between Great Britain and a continental Power, the abolition of the doctrine of continuous voyage, in respect of conditional contraband, would have placed the enemy of this country beyond the scope of any attempt to cut off his supply of food from countries which have a steady surplus. American wheat shipped to Denmark, Holland, or Belgium would have been free, though destined for discharge into trucks ready to carry it to any country of Europe with which Great Britain was at war. This provision of the Declaration was, therefore, regarded as of considerable value to continental Europe, and especially to Germany. To this country it was also supposed to have its value, inasmuch as it might have restricted the area over which Great Britain in ultimate emergencies might be obliged to protect her transoceanic food supply, to the North Sea and British Channel. Of other subjects which have given rise to controversy, the provisions relating to the sinking of ships carrying contraband and those restricting blockade to the enemy coast are simply a re-enactment of existing practice, and the omission to deal with the question of conversion of merchant vessels into warships on the high seas alters nothing. In a Naval Prize Bill which was passed by the House of Commons, by a majority of forty-seven, on December 8, 1911, and rejected on the 13th of the same month by the House of Lords, provision was made for the appointment of a Judge and deputy-Judge to the International Prize Court, "in the event of its being constituted," and for the payment of any contribution towards its general expenses out of the Consolidated Fund. It was also provided that "the High Court and every Prize Court in a British possession should enforce within its jurisdic |