Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 7, 1909

The Secretary of State to Messrs. Charles H. Stockton and George G. Wilson.

Gentlemen: You have been appointed delegates plenipotentiaries to represent the United States at the conference to be held at London on December 1, 1908, to formulate rules to be observed by the international prize court.

Article 7 of the convention relative to the creation of an international prize court, signed at The Hague, October 18, 1907, provides that—

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 whose subject or citizen 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 recognized rule exists, the court shall give judgment in accordance with the general principles of justice and equity.

The above provisions apply equally to questions relating to the order and mode of proof.

If, in accordance with articles 3, 2, c, the ground of appeal is the violation of an enactment issued by the belligerent captor, the court will enforce the enactment.

The court may disregard failure to comply with the procedure laid down in the enactments of the belligerent captor, when it is of opinion that the consequences of complying therewith are unjust and inequitable.

This article, proposed by the British delegation and adopted by the conference, has proved unsatisfactory to the British Government, which has called a conference of maritime powers in order to determine in advance of the establishment of the court the rules of law to govern its decisions in matters of prize submitted for its determination.

The first paragraph of article 7 is clear and explicit, providing, as it does, that the court is to be governed by the provisions of a treaty in force between the litigating nations covering the question of law involved.

The first sentence of the second paragraph of the seventh article provides that in the absence of treaties between litigating parties “the court shall apply the rules of international law.” If the rules of international law relating to prize were codified and accepted as an authoritative statement of the law of prize, the questions presented to the court for its determination would be decided with reference to a code of laws equally binding upon the signatory powers. In as far as the law of prize has been codified the provision in question is clear and definite. The absence of a general agreement upon the rules of international law is recognized in the concluding sentence of the paragraph under consideration, which provides that “if no generally recognized rule exists, the court shall give judgment in accordance with the general principles of justice and equity.” This provision of the article has given rise to great discussion and dissatisfaction, because wide divergence of view exists as to the law properly applicable in such case. For example, in Anglo-American jurisprudence the laws of contraband and blockade constitute a system recognized generally as the Anglo-American system, whereas the laws of contraband and blockade definitely understood on the Continent are applied in the continental as distinguished from the Anglo-American sense. As, therefore, it can not be said that there is any general rule regulating the subject, as the partisans of each system judge and determine for themselves each case as it arises, it necessarily follows that the court would be obliged to determine which system is considered as more conformable “with the general principles of justice and equity.”

In its note of March 27, 1908, inviting a conference, the British Government stated that—

The discussions which took place at The Hague during the recent conference 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 was reached, but on others it was not found possible, within the period for which the conference assembled, to arrive at an understanding. The impression was gained that the establishment of the international prize court would not meet with general acceptance so long as vagueness and uncertainty exist as to the principles which the court, in dealing with appeals brought before it, would apply to questions of far-reaching importance affecting naval policy and practice.

The subjects upon which an agreement was considered indispensable by the British Government in order to enable the international prize court to perform the high services expected of this establishment were the following:

(a) Contraband, including the circumstances under which particular articles can be considered as contraband; the penalties for their 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 condemnation 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 importance attached by the British Government to an agreement upon these various subjects enumerated in the program is evidenced by the fact that it is stated in the British note that “it would be difficult, if not impossible, for His Majesty’s Government to carry the legislation necessary to give effect to the convention unless they could assure both Houses of the. British Parliament that some more definite understanding had been reached as to the rules by which the new tribunal should be governed.”

In order to facilitate this agreement the British Government suggested that the governments invited to the conference “interchange memoranda setting out concisely what they regarded as the correct rule of international law on each of the above points, together with the authorities on which that view is based.”

In reply to the request of the British Government that memoranda be exchanged I stated that—

The department has given careful consideration to the suggestion that each government invited to the conference prepare and exchange memoranda setting forth its practice in the matters specifically mentioned in the tentative program for the conference submitted in the British embassy’s note of March 27.

The attitude of the United States is well known to each of the participating powers, as is their maritime practice to the delegates appointed by the United States. The delegates to the Second Hague Peace Conference were thus instructed by the Secretary of State:

“As to the framing of a convention relative to the customs of maritime warfare, you are referred to the Naval War Code promulgated in General Orders 551 of the Navy Department of June 27, 1900, which has met with general commendation by naval authorities throughout the civilized world, and which in general expresses the views of the United States, subject to a few specific amendments suggested in the volume of international law discussions of the Naval War College of the year 1903, pages 91 to 97. The order putting this code into force was revoked by the Navy Department in 1904, not because of any change of views as to the rules which it contained, but because many of those rules, being imposed upon the forces of the United States by the order, would have put our naval forces at a disadvantage as against the forces of other powers, upon whom the rules were not binding. The whole discussion of these rules contained in the volume to which I have referred is commended to your careful study.

“You will urge upon the peace conference the formation of international rules for war at sea and will offer the Naval War Code of 1900, with the suggested changes and such further changes as may be made necessary by other agreements reached at the conference, as a tentative formulation of the rules which should be considered.”

The attitude of the United States has not changed since the conference, and the relevant portion of the instructions copied for your information are as applicable to the maritime conference as they were to the Second Hague Peace Conference.

I have the honor, therefore, to transmit herewith copies of the Naval War Code of 1900 and of the volume of International Discussions of the Naval War College of the year 1903, containing the amendments to be made to the Naval War Code of 1900, to serve as a basis of discussion in the conference, subject, of course, to amendment, in lieu of the memoranda proposed to be prepared and exchanged by each power invited to the maritime conference.

A like reply was sent in acknowledging the memoranda transmitted to the Department of State by Austria-Hungary, Germany, Japan, Netherlands, Russia, Spain, copies of which you have already received in due course.

As you are familiar with the law, practice, and policy of the United States concerning each of the matters mentioned in the tentative program of the British Government, it does not seem necessary to furnish you precise instructions on each of the points with which the conference will be called to deal. You are, however, provided with a copy of the instructions to the American delegation to The Hague Conference of 1907, and you are directed to guide yourselves in the consideration of any matter discussed at the conference by the general and specific provisions of the instructions relating to maritime warfare and the rights and duties of neutrals. You are accordingly authorized and instructed to present to the conference, as a basis for discussion, the Naval War Code promulgated in General Orders 551 of the Navy Department of June 27, 1900, as modified by the specific amendments suggested in the volume of International Law Discussions of the Naval War College for the year 1903, pages 91–97, and you will endeavor, in your discretion, to secure as far as possible the adoption in conventional form of their provisions.

As the United States has not yet ratified the convention for the establishment of the international prize court, signed at The Hague on October 18, 1907, and as the ratification of the instrument is rendered difficult by reason of objections of a constitutional and internal nature not obtaining in other countries, you will be careful not to assume an attitude or position in the discussions of the conference which may seem to commit the United States to the ratification of the convention for the establishment of the court, or to commit this Government, by an acceptance of the general rules of maritime warfare to be formulated by the conference, to create the international court of prize provided for in the convention signed at The Hague on October 18, 1907.

While taking an active part in the deliberations of the conference and cooperating with the various powers represented in order to render it a success by securing the adoption of a satisfactory code of maritime warfare, you will discuss the questions presented in the light of general theory and practice, without specific reference or application to the proposed international prize court.

The department is, however, desirous that the international court of prize may be established in general accord with the provisions of the convention concluded at The Hague on October 18, 1907, and in order to facilitate its establishment you will propose to the conference an additional article or protocol for the consideration of and eventual acceptance by the conference, by which each signatory of the convention of October 18, 1907, shall possess the option, in accordance with local legislation, either to submit the general question of the rightfulness of any capture to the determination of the international prize court or to permit an appeal from the judgment of a national court in a specific case direct to the international court of prize, as contemplated by the convention of October 18, 1907.

In the view of the department the following draft would be not merely satisfactory, but calculated to remove the objections made to the establishment of the international court of prize:

Any signatory of the convention for the establishment of an international court of prize, signed at The Hague on October 18, 1907, may provide in the act of ratification thereof, that, in lieu of subjecting the judgments of the courts of such signatory powers to review upon appeal by the international court of prize, any prize case to which such signatory is a party shall be subject to examination de novo upon the question of the captor’s liability for an alleged illegal capture, and, in the event that the international court of prize finds liability upon such examination de novo, it shall determine and assess the damages to be paid by the country of the captor to the injured party by reason of the illegal capture.

Following the precedents established by international conferences, all your reports and communications to this Government will be made to the Department of State for proper consideration and eventual preservation in the archives. Should you be in doubt at any time regarding the meaning or effect of these instructions, or should you consider at any time that there is occasion for special instructions, you will communicate freely with the Department of State by telegraph,

I am, etc.,

Elihu Root.

Department of State,
Washington, November 21, 1908.