Now, in spite of the opinion of the British Law Officers, writers on International Law differ as to the legality of the above scheme; but, on the other hand, they are unanimous that not every scheme for a voluntary fleet is to be rejected. Russia,[130] in fact, since 1877, has possessed a voluntary fleet. France[131] has made arrangements with certain steamship companies according to which their mail-boats have to be constructed on plans approved by the Government, have to be commanded by officers of the French navy, and have to be incorporated in the French navy at the outbreak of war. Great Britain from 1887 onwards has entered into agreements with several powerful British steamship companies for the purpose of securing their vessels at the outbreak of hostilities; and the United States of America in 1892 made similar arrangements with the American Line.[132]
[130] See Dupuis, No. 85.
[131] See Dupuis, No. 86.
[132] See Lawrence, § 201, and Dupuis, Nos. 87-88. On the whole question see Pradier-Fodéré, VIII. Nos. 3102-3103.
Matters were brought to a climax in 1904, during the Russo-Japanese War, through the cases of the Peterburg and the Smolensk.[133] On July 4 and 6 of that year, these vessels, which belonged to the Russian volunteer fleet in the Black Sea, were allowed to pass the Bosphorus and the Dardanelles, which are closed[134] to men-of-war of all nations, because they were flying the Russian commercial flag. They likewise passed the Suez Canal under their commercial flag, but after leaving Suez they converted themselves into men-of-war by hoisting the Russian war flag, and began to exercise over neutral merchantmen all rights of supervision which belligerents can claim for their cruisers in time of war. On July 13 the Peterburg captured the British P. & O. steamer Malacca for alleged carriage of contraband, and put a prize-crew on board for the purpose of navigating her to Libau. But the British Government protested; the Malacca was released at Algiers on her way to Libau on July 27, and Russia agreed that the Peterburg and the Smolensk should no longer act as cruisers, and that all neutral vessels captured by them should be released.
[133] See the details of the career of these vessels in Lawrence, War, pp. 205 seq.
[134] See above, [vol. I. § 197].
This case was the cause of the question of the conversion of merchantmen into men-of-war being taken up by the Second Peace Conference in 1907, which produced Convention VII. on the matter.[135] This Convention, which is signed by all the States represented at the Conference except the United States of America, China, San Domingo, Nicaragua, and Uruguay—but Nicaragua acceded later—comprises twelve articles; its more important stipulations are the following: No converted vessel can have the status of a warship unless she is placed under the direct authority, immediate control, and responsibility of the Power whose flag she flies (article 1). Such a vessel must, therefore, bear the external marks which distinguish the warships of her nationality (article 2); the commander must be in the service of the State concerned, must be duly commissioned, and his name must figure on the list of the officers of the military fleet (article 3); and the crew must be subject to the rules of military discipline (article 4). A converted vessel must observe the laws and usages of war (article 5) and her conversion must as soon as possible be announced by the belligerent concerned in the list of the ships of his military fleet (article 6).
[135] See Wilson in A.J. II. (1908), pp. 271-275; Lémonon, pp. 607-622; Higgins, pp. 312-321; Dupuis, Nos. 48-58; Nippold, II. pp. 73-84; Scott, Conferences, pp. 568-576; Higgins, War and the Private Citizen (1912), pp. 115-168.
The opinion, which largely prevails, that through this admittance of the conversion of merchantmen into men-of-war privateering has been revived, is absolutely unfounded, for the rules stipulated by Convention VII. in no way abrogate the rule of the Declaration of Paris that privateering is and remains abolished. But the Convention does not give satisfaction in so far as it does not settle the questions where the conversion of a vessel may be performed, and whether it is permitted to reconvert, before the termination of the war, into a merchantman a vessel which during the war had been converted into a warship. The fact is, the Powers could not come to an agreement on these two points, the one party claiming that conversion could only be performed within a harbour of the converting Power, or an enemy harbour occupied by it, the other party defending the claim to convert likewise on the High Seas. One must look to the future for a compromise that will settle this vexed controversy. It is, however, important to notice the fact that the preamble of Convention VII. states expressly that the question of the place where a conversion may be performed remains open. Those Powers which claim that conversions[136] must not take place on the High Seas are not, therefore, prevented from refusing to acknowledge the public character of any vessel which had been converted on the High Seas, and from upholding their view that a converted vessel may not alternately claim the character and the privileges of a belligerent man-of-war and a merchantman.