Art. 23 (h) is, I submit, incapable of rational interpretation and should be so treated by the Powers. If interpreted at all, its sense must be taken to be that which is now, somewhat tardily, put upon it by our own Government.
I am, Sir, your obedient servant,
T. E. HOLLAND
Oxford, November 6 (1911).
I may perhaps refer here to my Laws of War on Land (1908), p. 44, where I describe as "apocryphal" Art. 23 (h) of the Hague Convention No. iv. of 1907; and to my paper upon that article in the Law Quarterly Review for 1912, pp. 94-98, reproduced in the Revue de Droit Inter[049]national, the Revue Générale de Droit International Public, and the Zeitschrift für Völkerrecht und Bundesstaatsrecht, for the same year.
The view there maintained was affirmed by the Court of Appeal in Porter v. Freudenberg, [1915] 1 K.B. 857, at p. 874.
Enemy Ships in Port
Sir,—The action taken by the United States in seizing German merchant ships lying in their ports will raise several questions of interest. It is, however, important at once to realise that, apart from anything which may be contained in old treaties with Prussia, their hands are entirely free in the matter. The indulgences so often granted: to such ships during the last 60 years, notably by themselves in the Spanish War of 1898, under endlessly varying conditions, have been admittedly acts of grace, required by no established rule of international law.
The United States are also unaffected by The Hague Convention No. vi, to which they are not a party. It is therefore superfluous to inquire what construction they would have been bound to put upon the ambiguous language of Section 1 of the Convention, which proclaims that "when a merchant ship of one of the belligerent Powers is, at the commencement of hostilities, in an enemy port, it is desirable that it should be allowed to depart freely," &c. It might perhaps be argued that our own Prize Court might well have refrained from treating this section as if it were obligatory, and have founded its decisions rather upon international law, as supplemented by a non-obligatory custom. Be this as it may, it would seem that the policy of the United States has to some extent felt the influence of Convention vi. in announcing that seizure will, provisionally, only amount to requisitioning.