File No. 12655/383–384.
[Inclosure.]
Foreign Office, September 22, 1909.
Circular.]
Sir: 1. The failure of the Second Peace
Conference to arrive at an understanding respecting the questions of
contraband and blockade and other important subjects connected with
naval warfare has constituted a serious obstacle in the way of
securing general submission to the jurisdiction of the International
Prize Court which was to be established under the convention
negotiated to this effect at The Hague in 1907. It is provided in
article 7 of that convention that, in the absence of treaty
stipulations applicable to the case, the court shall apply the rules
of international law, and, if no generally recognized rule exists,
give judgment in accordance with the principles of justice and
equity. It seems hardly necessary to enlarge upon the importance of
the point that if, in the unhappy event of a naval war, the
International Prize Court is to fulfill to general satisfaction the
great duties imposed upon it, there must be substantial agreement as
to the rules which are to govern the decisions in the cases brought
before it. It was not until the phraseology of article 7 had been
accepted at the Second Peace Conference that the serious divergences
between the powers on many of the questions on which the court would
have to adjudicate made themselves felt, and it therefore became a
matter of great concern to all who were interested in its creation
that an agreement should, if possible, be arrived at on those
questions.
2. The protracted and unfruitful discussions which ensued at The
Hague made it apparent that there was little prospect of such an
agreement being realized by any attempts—such as were unsuccessfully
made in the committees and subcommittees of the peace conference—to
secure general acceptance for a series of propositions or
stipulations to be arrived at by way of deductions from abstract
theories of international law and advocated largely for reasons of
policy or particular national interests. A renewed and detailed
examination of the question convinced His Majesty’s Government that
the only practicable means of at present bringing about an agreement
would be to endeavor to formulate the rules actually applied by
belligerents and generally accepted in the past. These
considerations prompted His Majesty’s Government to invite to a
conference in London the principal naval powers in whose prize
courts the decisions have been given which constitute the main
source of our knowledge and guidance in these matters, and whose
rights as belligerents would, moreover, be most seriously affected
by the contemplated appeals from national tribunals to the
international court. The invitation was also extended to the
Netherlands, in due recognition of the exceptional position occupied
by the country whose capital has been the meeting place of the two
peace conferences, and is to become the seat of the International
Prize Court.
3. With the object of facilitating the task of preparing a set of
rules respecting naval warfare which should embody the common
principles of international law as hitherto observed in practice,
the several Governments were invited before the conference met to
exchange memoranda setting out concisely what each held to be the
existing law on the subject. The information so obtained revealed an
extent of common ground which enabled the British Government to
prepare, as a basis for the discussions of the conference, a draft
declaration, in which they endeavored to harmonize as far as
possible the views and interpretations of the accepted law of
nations to which the several Governments had given expression. In
the process of settling the terms of this document it was
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found—as had been
anticipated—that certain divergences apparent in the theories and
doctrines upheld in various countries had in many cases not been
maintained in the practice actually followed at least in more recent
times. It also became manifest that the fresh interpretation which
must inevitably be placed on many old rules under the altered
conditions of modern navigation and warfare had the effect of still
further diminishing differences which formerly had been acute, but
which, under the influence of changed circumstances, seemed no
longer incapable of reconciliation. Most of the existing rules dated
from a time when the operations of naval war, as well as all over
sea commerce, were carried on in sailing vessels of comparatively
modest dimensions, and when transport by rail and communication by
electric telegram were unknown. Opposing sets of rules evolved under
such conditions and tenaciously upheld and developed by rival
schools of national jurisprudence during long periods happily marked
by an absence of any occasion to put them afresh to the real and
only effective test of war could be shown in not a few instances to
have become practically meaningless and inapplicable. In many such
cases it sufficed to go back to first principles in order to see
that the opposition, of doctrines had become unreal and that the
apparent discord readily dissolved to give way to a harmony of
conception which naturally and logically involved a close approach
to unity of practice.
4. The draft prepared by His Majesty’s Government having met with a
favorable reception on the part of the powers consulted, the
conference met in London on the 4th December last. Its labors
culminated in the unanimous adoption, and the signature by all the
powers represented of an instrument known as the “Declaration of
London,” containing the rules which the signatory powers agree
henceforth to observe and to regard as in substance corresponding
with the general recognized principles of international law
applicable to the questions of blockage, contraband, unneutral
service, the destruction of neutral prizes, transfers to a neutral
flag, and various minor matters. On two questions only did the
conference fail to reach an agreement, namely, the question of the
legality of the conversion of merchantmen into warships on the high
seas, and the question whether the nationality or the domicile of
the owner should be regarded as the dominant factor in deciding
whether property has a neutral or enemy character.
5. In article 70 of the declaration the signatory powers have
formally recorded the particular importance which they attach to the
general recognition of the rules as now formulated, and the
Government of His Britannic Majesty is charged with the duty of
inviting the powers not represented at the conference to accede to
the declaration. In pursuance of this provision, I request you to
communicate the accompanying copies of the records of proceedings of
the conference, together with the text of the declaration, to the
government to which you are accredited and to express the earnest
hope that, recognizing the correctness, justice, and impartiality of
the conclusions therein embodied, and mindful of the value of
investing the rules of naval warfare with the supreme authority of
the general assent of all nations, they will be ready to cooperate
to this end by acceding to the declaration in due time. I shall not
fail to notify at the earliest possible moment the date of the first
deposit of ratifications, which must, of course, precede any formal
acts of accession.
6. It will no doubt be observed that the provisions now submitted for
the acceptance of the nonsignatory powers differ in many respects
from the proposals on the same subjects which were laid before the
Second Peace Conference in 1907. Speaking for themselves, His
Majesty’s Government desires to explain that in making this apparent
departure from their previous attitude they have been actuated by
the considerations above explained in favor of seeking a definite
and immediate agreement on the basis of the existing law. But they
hold that assent to the declaration of London in no way precludes
the signatory or acceding powers from entering at a future date into
fresh agreements introducing, as between the contracting parties,
such changes or developments of the rules now acknowledged to be in
force, as further deliberations and a renewed study of the issues
involved may convince them to be desirable and practicable.
7. You are authorized to communicate a copy of this dispatch to the
minister for foreign affairs.
I am, etc.
