§ LORD STRABOLGI had the following Notice on the Paper: To ask His Majesty's Government whether they have any statement to make with regard to warlike operations against peaceable merchant shipping in the North Sea trading from British ports by privateers apparently acting in the interests of Spanish rebels and basing themselves on German harbours; whether these privateers are named in the public list of the military fleet to which they are alleged to belong; whether His Majesty's Government has taken cognisance of the violations of International Law already committed by the destruction of a peaceful merchant ship on the high seas without either the plea of military necessity or the provision of safety for the passengers and crew and the seizure of another peaceful merchant vessel and her condemnation without proper process of law in a Prize Court; whether His Majesty's Government are aware of the dangers to all maritime nations of establishing precedents for such illegal acts; and to move for Papers?
The noble Lord said: My Lords, in moving the Motion which stands in my name, I wish to ask a certain indulgence of your Lordships. The noble and learned Lord, the Lord Chancellor, on more than one occasion has sought your Lordships' indulgence on the ground that he is a lawyer and not a politician. I seek your Lordships' indulgence on the ground that I am a politician and not a lawyer. The Motion I wish to move concerns legal questions and not political questions. I do not propose to discuss the political side of the problem at all. I hope that the observations I shall make and the authorities I shall cite will be of some slight assistance to the noble and learned Lord on the Woolsack in guiding his colleagues in this admittedly very complicated question. As a preliminary, it will be common to all of us that the high seas are the means of communication 86 between nations, the property of all and of none, and that it has long been recognised that there must be a rule of law governing their use. In this discussion, which concerns the enforcement of the rule of law on the high seas, the noble and learned Lord, the Lord Chancellor, and myself, in Signor Mussolini's happy phrase, will be on the same side of the barricade. When hostilities break out, whether rebellions, civil wars, or wars between sovereign States, neutrals have clearly defined rights under existing and recognised maritime laws. Combatants on the high seas have clearly defined rights and also clearly defined duties. Even non-combatant enemy seamen have certain safeguards and rights on the high seas.
The first contention I propose to argue is that unrecognised belligerents must observe the recognised, accepted, agreed law or be liable to be treated as pirates. In making the first of my quotations I would remind your Lordships that the Courts discussing International Law—Prize Courts and the like—permit the citation of the recognised authorities, international jurists, and I propose to base my arguments on the findings and opinions of such recognised authorities. The first I shall quote in this contention, which is of very great importance, is Oppenheim's International Law, 5th edition. On page 205 the distinction between legal qualification and actual power to make war is laid down. If I may quote this very weighty opinion, it is this:
It is a customary rule of the law of nations that any State may recognise insurgents as a belligerent Power, provided (1) they are in possession of a certain part of the territory of the legitimate Government; (2) they have set up a Government of their own; and—
this is the point to which I particularly draw the attention of your Lordships and of the noble and learned Lord, the Lord Chancellor—
(3) they conduct their armed contention with the legitimate Government according to the laws and usages of war.
He goes on to say:
… they are in fact making war, although their contention is by International Law not considered as war in the technical sense of the term, as long as they have not received recognition as a belligerent Power.
In other words the observance of the recognised and accepted laws is a condition of belligerency, otherwise they are pirates, or are liable to be so treated.
87
With regard to the question of piracy, let me first of all in this connection quote Lawrence's Principles of International Law, 7th edition. This, I think, is of some importance on this particular matter:
An act to be piratical must be an act of violence adequate in degree; but it need not necessarily be an act of depredation. Generally a pirate is merely a robber of the vulgarest and cruellest kind; but there have been cases in which acts done by authorised persons for political ends have been regarded as piratical, though the animus furandi was wanting, and there was no thought of indiscriminate aggression upon vessels of all nations.
In case anyone should challenge Lawrence, I reinforce myself further by Oppenheim again, 5th edition, page 370, where it is declared that:
Any merchantman of a belligerent attacking a public or private vessel of the enemy would be considered a pirate and treated as such, and the members of the crew would be liable to be treated as war criminals to the same extent as private individuals committing hostilities in land warfare.
That is an important opinion or ruling. If we do not recognise the conversion—I will come to that question in a moment—of a merchant vessel into a warship, such a vessel therefore is in law a merchant ship and if she commits acts of aggression or violence at sea against her opponents, she commits an act of piracy.
I will not trouble your Lordships by quoting another case with which I have furnished myself, but I am going to quote three actual examples where unrecognised belligerents have been treated as pirates. The first I will refer to is the case of the "Huascar." I admit at once that it is not so strong a case as the other two which I shall cite, but the case of the "Huascar" is of very great interest at the present time. There was a rebellion in Peru in 1877. The "Huascar," an ironclad, was seized by her crew and she joined the rebels on the high seas. She interfered with two British ships. There was no loss of life, but she took coal from one and removed two Peruvian officials from the other. The British Admiral on the station, Admiral de Horsey, decided that she was piratical, and in H.M.S. "Shah" he engaged her and forced her eventually to surrender to the Peruvian regular forces. This action was challenged, and the law officers of the Crown 88 in this country declared that Admiral de Horsey was justified.
There is a full account of the matter in Hall's International Law, 8th edition, part II, chapter 6. This, I admit, is not so strong a case as that of the "Ambrose Light" and the most recent case under the Nyon Agreement, as the "Huascar" had no organised political movement behind her, but I submit that it does strengthen the case for the right of intervention when rebels disregard the laws of modern war. The "Ambrose Light" is I think a very strong case indeed. The reference is 25 Federal Cases, 408. That was the case of a merchant ship fitted out as an auxiliary cruiser by one of the parties in a revolution or rebellion in one of the South American States. She had not committed an actual attack on anyone, but she was apprehended and taken to port by an American cruiser. The case was argued in the Federal Supreme Court and the action of the cruiser was justified.
Lastly—and I think this is very important—we have the Nyon Agreement itself. I hold in my hand Command Paper 5569, Treaty Series No. 39 (1937), "International Agreement for Collective Measures against Piratical Acts in the Mediterranean by Surface Vessels and Aircraft" and similar wording is used in Command Paper 5568 of the same year, "Collective Measures against Piratical Attacks in the Mediterranean by Submarines."
I am in this Motion referring particularly to attacks on the high seas by vessels claiming to be adherents of General Franco. If we admit that the attacks themselves against Government merchantmen are not piratical if conducted according to the rules of International Law, it is arguable that if his ships do not observe those rules then other Powers are entitled to treat them as pirates.
First of all, has General Franco any right to conduct naval operations in the North Sea against Spanish Government merchantmen? The answer must be that which was used in the recent case of the "Arantzazu Mendi," on which no doubt the learned Lord Chancellor will rely. This case came before the Court of Appeal on November 1, and a letter was sent from the Foreign Office which contained a statement that His Majesty's Government recognised the Insurgent 89 Government as a Government which at present exercised de facto administrative control over part of Spain. It was held that His Majesty's Government regarded the Nationalist Government as the Government of a fully sovereign State. I admit that General Franco is entitled to make these attacks on Spanish Government merchant vessels, but the vital point is that such attacks must be part of properly conducted naval operations. It is not necessary for me to exaggerate the importance of this matter. It is in our interests to maintain and strengthen the maritime law on the high seas. I do not think there will be any dispute about that at all. We may deem it inexpedient to intervene in breaches of the law on land or within territorial waters or up rivers, but when it is a case on the high seas—in this case "at our own front door," as the coxswain of the Cromer lifeboat said—we cannot possibly regard the matter with indifference.
If the law has been broken, as I shall presently, I hope, prove to your Lordships, then we come to the question of the right and indeed the duty of intervention. I again refer to Oppenheim, page 445 of the second volume. This recognised authority lays down the following:
There can be no doubt that neutral States (whether a complaint has been lodged with them or not) may, either singly, or jointly and collectively, exercise intervention, whenever illegitimate acts or omissions of warfare are committed (1) by belligerent Governments, or (2) by members of belligerent forces, if the Governments concerned do not punish the offenders and compensate the sufferers. It has already been stated that other States have a right to intervene, in case a State violates, in time of peace or war, those principles of the law of nations which are universally recognised. There is not the slightest doubt that such principles of International Law are endangered when a belligerent Government commits acts of illegitimate warfare or does not punish the offenders in case such acts are committed by members of its armed forces.
That refers to the case of a recognised belligerent, a sovereign State. How much stronger is it in the case of an unrecognised belligerent? There is just one more authority I cite, Hall's International Law, 7th edition. No, I will not trouble your Lordships with that. That is the book which the noble and learned Lord, the Lord Chancellor has.
§ THE LORD CHANCELLOR (LORD MAUGHAM)Would the noble Lord like the book?
§ THE LORD CHANCELLORIf it is relevant—
LORD STRABOLGIWhether it is relevant or not, your Lordships can decide. Of course, the leading case of intervention, or at any rate the most famous case was the intervention of the United States in the Great War, one of the principal reasons for which it will be admitted was the illegal sinking of a liner, the "Lusitania," on board winch were American subjects and property. In regard to this North Sea case it may be said that no British subjects suffered. Well, I do not know whether they did or not, and I do not know if anyone else knows. In any case that is not altogether the point. British subjects might well have been passengers on the "Cantabria" or members of the crew of the ship or of the "Rio Miera," which was captured on the high seas and taken as prize into the German port of Emden. The "Cantabria," I understand, was under time charter to a British firm. She was not engaged in Spanish trade. She was on passage in ballast between the Thames and Immingham. On board either of those ships British subjects might have been legally employed as members of the crew, or might have taken passage, or British shippers might have shipped goods on them and have been entirely within their rights and entitled to claim compensation, as I shall endeavour to show in a moment.
In case I am accused—I do not think I shall be—of basing this argument on partial affection, let me now refer your Lordships to Article 59 of the Declaration of London. Here I would refer the noble and learned Lord, the Lord Chancellor, to Hall's International Law again, part IV, chapter 9. Although under Article 59 of the Declaration of London neutral goods in an enemy ship can be presumed to be enemy goods in the absence of proof to the contrary, nevertheless when proof is forthcoming compensation must be paid or the goods restored. Amongst the citations is the "Roland" versus the "Czar Nicolai," Journal Officiel, 19 April, 1915. These rights of neutrals are recognised, but how can they be enforced if ships are sunk at sea or condemned without process of law in a Prize Court? 91 How did the master of the "Nadir"—which I understand is the name of the auxiliary warship employed by General Franco—know when he destroyed the "Cantabria" by gunfire that there were no British subjects on board and no British goods?
I want to avoid any charge of partial affection in this matter, so with your Lordships' leave I propose to quote from a leading article in The Times newspaper, which certainly supports the foreign policy, and I believe also the domestic policy, of His Majesty's Government. Under date November 4, there was a leading article in The Times headed "An Unexplained Incident." It begins:
On Wednesday afternoon the Spanish Republican merchant steamship 'Cantabria' was sunk by gunfire off the Norfolk coast near Cromer. Her assailant is reported to have been an armed merchant vessel named 'Nadir' flying the flag adopted as their national ensign by the Spanish Nationalists.I have not used the word "Nationalists," because it is not known to the law, but I presume that that word refers to the adherents of General Franco. The article in The Times goes on:The incident occurred on the high seas, outside British territorial waters, though near enough to them to be witnessed from the shore and for some survivors of the sunken ship to be rescued by the Cromer lifeboat; and Spanish ships alone were involved. There is thus no formal cause for the British, or any other non-Spanish, Government to take cognisance of the affair.Well, the English there is better than the logic or the law, as I shall endeavour to show. We have every reason to take cognisance of the affair.The article goes on:
Nevertheless, although all the relevant facts are not yet public property, there are certain aspects of it which seem to call for serious consideration in this country.I leave out a description of the "Cantabria," to which I have referred already, and I will quote further:Moreover, if the exercise of force at sea is to be recognised as a legitimate operation of war as distinct from mere piracy, compliance with certain principles of International Law is essential. For a ship to be entitled to the status of warship, her name must be included in a public list of the military fleet to which she belongs. As against merchant ships, the only rights possessed by belligerent warships on the high seas are those of visit, search, and, if the circumstances justify it, of arrest. Only in the event of resistance to these rights, or of repeated refusal to submit when summoned, may force be applied; and 92 even then only that degree of force may be used which is necessary to achieve submission, and no more. In particular a merchant vessel may not be destroyed without making genuine provision for the safety of her occupants. None of these principles appear to have been observed off Cromer on Wednesday afternoon.I believe the legal arguments there are unassailable. They cannot be disputed.The article goes on:
It may be, and no doubt will be, argued that as between two Spanish ships International Law is not applicable; and indeed the treatment of Spanish merchant ships by Spanish warships would be no particular concern of other Powers, but for one consideration.I break off there to say we cannot possibly tolerate illegal acts on the high seas, if only because of the precedents they set up. The article goes on to say:The National Government has repeatedly demanded that it should be accorded by non-Spanish Powers the status of a belligerent, in order that its warships may exercise belligerent rights at sea. Recent events have seemed to be moving towards the grant of that demand.That is The Times leader.I would go further. I am going to quote authority to show that illegal acts are a bar to the recognition of belligerency. I will quote from one other newspaper: the Daily Express, which supports, I believe, the foreign policy of the Government. Its foreign news, though presented in a lively fashion, I have always found reliable. The Daily Express of November 8, under the heading "My North Sea Patrol—by Franco," stated:
General Franco came into the open last night with an official statement that the Spanish insurgents had established a North Sea patrol off Britain. First targets of the patrol, he said, were the Spanish Government steamers 'Rio Miera' (captured on the high seas and taken to Germany), and the 'Cantabria,' shelled and sunk eight miles off Cromer. Several insurgent auxiliary cruisers are reported to be roaming the North Sea.Some of your Lordships may have been surprised that I did not refer to attacks by insurgent aircraft, or aircraft in their service, on British ships off the Spanish coast beyond the three-mile limit, and also inside the three-mile limit; or to the seizure in the recent past by rebel warships of neutral vessels, including our own, and the confiscation of their non-contraband cargoes. I do not refer to those because they have already been brought to the Government's notice and in some cases—maybe in all cases, I do 93 not know—protests have been made to the authorities in Burgos, and these protests are still going on. Furthermore, we have claimed compensation, I understand, for some of these illegal acts, thus, I assume, admitting that they are illegal acts. But the operations of the two converted cruisers, auxiliaries, or whatever they like to call themselves, the "Ciudad Alicante" and the "Nadir," and others in the North Sea, raise fresh questions of illegality.These are the illegal acts which I claim they have committed. First of all, they appear to have been illegally converted, a point of the utmost importance for the future. The Spanish Ambassador declares that they were converted in Hamburg. The usual denials, of course, have come from the German authorities. I should very much like to know what the Naval Intelligence Department have to say. I shall deal with this question of conversion, which is of the utmost importance, in a few moments. Secondly, the "Cantabria" was illegally destroyed on the high seas. There is no general agreement as to the precise degree of necessity which must exist for destruction to be permissible. It is, however, clear law that in any case the captor must place the crew, the ship's papers and, if possible, the cargo in a place of safety, and must subsequently submit the matter to a Prize Court. This well-established customary law is re-enacted by Part IV of the London Naval Treaty of 1930, which is expressed to be declaratory of International Law. A further crime was committed by obstructing British vessels carrying out their legal duty of attempting to rescue the seamen.
Thirdly, the other privateer, the "Ciudad Alicante," took the "Rio Miera" as a prize into a foreign neutral port. There is no absolute rule against taking prizes into neutral ports, but prizes must go before a Prize Court, and this Court must not be set up on neutral soil. Under the thirteenth Hague Convention, 1907, it is obligatory to enforce release of prizes brought into neutral Courts. The authority I quote there is again Hall, part IV, chapter 3, the 8th edition. One of the cases, which is well known, is that of the British ship "Appam," captured by the German raider "Moewe" and taken into a United States port. I do not rely on that case too much, as the Germans intended to lay her up in- 94 definitely, but it strengthens the general case, and the United States authorities, after due legal process, enforced her release. That indeed is the law: it is obligatory, under The Hague Convention of 1907, to enforce the release of prizes brought into neutral ports.
The next offence is that, as far as I know, no open Prize Courts have been established. The only definite information I have about the rebel Prize Courts arose out of the seizure in the Bay of Biscay of the British ship "Stanwold." She was not carrying contraband or running any blockade, and in the absence of the granting of belligerent rights her seizure was piratical. Nevertheless her owners were prepared to defend the case in the Rebel Prize Court. Despite continued telegrams to the British Consul, they were unable to discover when the prize proceedings were being held or what was the charge. These were British owners, British subjects. Finally the Court sat in secret, and neither the British owners, the master, nor the British Consul were informed by the rebel authorities or by anyone else. That is definitely against International Law, and I am certain that in this matter, again, the noble and learned Lord Chancellor and myself are on the same side.
But the most serious aspect of this whole matter, in my submission, my Lords, is the illegal conversion. There is no argument about the illegality of converting—that is, converting a merchant ship into a war vessel—in a foreign port or within foreign territorial waters. That is admitted by even the Continental adherents to the doctrine of the right of conversion. In this case it may be argued that the actual conversion took place on the high seas and that therefore no illegality was committed. If this is admitted as legal, then the whole case against it, as argued by successive British Governments whenever this matter was being raised, goes by the board. We have always resisted, and bitterly resisted, for years the right to convert merchant ships into war vessels on the high seas. Your Lordships will see at once the reason why we cannot admit that. Take the case of a Continental Power at war with His Majesty, a Continental Power without overseas bases. She has a dozen "Nadirs" lying in South American ports; they cannot be captured there, and as soon as the British 95 warships are out of the way they come out; they have guns in their holds, they mount them, and then they claim belligerent rights, the right to act as privateers and prey on our commerce. We could never admit that. No Board of Admiralty would allow that without resigning, and you would not get any other naval officers of any distinction at all to take their places.
We have enforced this view; it is very clearly laid down in the second Hague Convention, 1907, what must be done legally to convert a merchant vessel into a warship. One of the well-known cases, of course, arose during the Russo-Japanese war: the volunteer fleet cruiser "Petersburg" passed through the Dardanelles as an unarmed merchant vessel and then mounted her guns on the high seas. She captured the British ship "Malacca," on the charge of carrying contraband, and she was detained. We protested immediately, and the British merchant ship was released. Now, for conversion to be legal, in addition the commander must be in the service of the State, his name must appear in the Navy List, and he must observe the laws and customs of war. The announcement of the conversion must be made in the list of warships, and the vessel must fly the distinguishing flag or bear the external marks distinguishing warships of their nationality. In the case of the "Nadir"—I do not know anything about the other ship—photographs have been published, and they show that she was a disguised merchantship, with hidden guns. I thought that was illegal, but it is such a new thing that perhaps the Lord Chancellor will give us his opinion. To me it stems to be illegal.
Your Lordships will remember the Q-ships during the War. They did not prey upon commerce. They did not act as cruisers, but were for the purpose of decoying submarines. I had thought, from my knowledge of the law of the sea, that a merchant vessel disguised and acting as a warship was committing an illegality, but, as I have said, it is such an unknown thing that perhaps, the Lord Chancellor would give us the benefit of his great knowledge upon the subject. Of course, what I have laid down is well recognised and known, and I will only quote one reference. It is Wheaton's International Law, 6th edition, chapter 3, 96 pages 817 and 818, and the 7th edition of Hall, page 563. In Wheaton there follows an argument whether a merchantman can be converted on the high seas or not; a statement that this right has been claimed by certain Powers. Some Powers, Wheaton says,
even advocated permission to convert in neutral ports. The latter course is clearly inadmissible, as being contrary to the well-established fundamental principles of neutrality.I hope I have made myself clear. The legal conflict to-day is between maritime Powers and Continental Powers as to the right to convert at sea. There is no dispute as to the illegality of converting in a neutral harbour, and we could not tolerate it for one single moment.Now, what of the German case. The German Government have undoubtedly committed an offence also. It may be argued by Germany that there is no state of neutrality—that either Franco and his Government are allies of Germany, or that Germany is only giving hospitality to ships of a friendly Power. I understand that the German Government recognise only the Burgos authorities as the Government of Spain. If that is the argument—and I am very glad to see Lord Plymouth in his place—then there has been a clear breach of the Non-Intervention Agreement. They cannot have it both ways. Germany has made herself an accomplice of Franco in illegal acts at sea. In the analogous case of the "Alabama" we were the offenders, but it was not nearly as bad a case as the case of these Spanish auxiliary cruisers. The "Alabama" took guns on board from another ship off the Azores. She was not armed in British waters. I remember the history of the case very well. We argued before the Arbitrators that she did not take her guns on board in British ports. The Americans argued that judged by her build and speed she was obviously intended to act as a warship. She, and the "Florida" and "Shenandoah" did a great deal of damage. The result of the arbitration was that we were found guilty of this crime, and mulcted in damages to the tune of over £3,250,000.
I had not intended, out of respect for the Lord Chancellor, to refer to the nonintervention scheme. I did not wish to connect him as Lord Chancellor in any way with the doings of that curious body, the Non-Intervention Committee, and I 97 would not have done so now except that coming down in the train this morning from the Midlands, where, as your Lordships know, there is some political activity at the present time, I was reading a very respectable newspaper called the Birmingham Post, a Conservative newspaper, which I understand still supports the policy of His Majesty's present advisers. There is a most extraordinary paragraph in this newspaper which refers to the question of belligerent rights in Spain.
This paragraph says:
Mr. Francis Hemming has returned to Burgos after a brief visit to this country to acquaint members of the Non-Intervention Board with General Franco's attitude towards the withdrawal plan. The insurgent leader refuses to discuss the Non-Intervention Committee's scheme unless he is granted immediate belligerent rights. On the face of it, this seems to be a demand for radical alterations in the plan which scarcely could be proposed to the Committee. Belligerent rights were made contingent on a certain stage being reached in a continuing scheme of withdrawals. Parties to the agreement would seem debarred from according belligerent rights otherwise than jointly and in conformity with the withdrawal plan. But an ingenious argument has been put before the British Government to suggest it need not feel bound by the agreement. It is argued that the plan has ceased to apply because the Republican Government has discharged all its foreign volunteers without waiting for the Counting Commissions, and without co-operating in a proportionate withdrawal of foreigners from the other side. So the plan, it is said, is inapplicable, and there is nothing to prevent the British and other Governments from according the belligerent rights which are all General Franco needs to destroy the Republic by starvation. This specious argument is produced, not too happily, at a moment when the British Government is arranging to bring the Anglo-Italian agreement into operation. On Wednesday Lord Perth and Count Ciano will sign a declaration to that effect, and the Ambassador will present fresh letters of credence.If there is any truth in that, I never heard so impudent a demand in all my life.I suggest that there is an even stronger reason against granting belligerent rights, and that is that converted warships under Franco's command have broken International Law at sea. To show that this is continuing, I also saw in another newspaper, the Birmingham Gazette of this morning, that:
Lloyds signal station at Gibraltar telegraphed the following message last night: 'American Steamer "Erica Reed" … was intercepted by armed trawler when about four miles west of Gibraltar. Captain took no notice and vessel proceeded eastwards and passed here this evening. Following is painted on ship's sides—"American relief ship for Spain" '98 I wonder how the armed trawler in this case was converted and where. Apparently the Franco Government are attempting to consummate the marriage before the wedding ceremony. I further read in the same paper a report that:Two cargo boats belonging to the Spanish Government have put in at the port of Bergen declaring that they were pursued by an armed Spanish Nationalist trawler.I was so astonished at this news that I searched the columns of The Times and there I found a message from Reuters dated from Oslo, November 14, which confirms that these two Spanish cargo steamers were chased into Bergen by an armed Spanish Nationalist trawler. It goes on to say:They were bound for Russia with cargoes of chemical manure.It is the fashion in some quarters to pretend that all International Law perishes as soon as hostilities commence. I submit that this is a very dangerous doctrine and in any case a complete fallacy, and where the high seas are concerned we cannot admit it for a moment. As the struggle continues one side or the other becomes desperate. There is then a temptation to break away from law. Just now apparently the Spanish insurgents are desperate. They have not brought off the victory in the field which they seem to have anticipated nine months ago, and they are seeking to starve out the non-combatants in Government territory. You have a repetition of what has happened before—one side gets desperate and attempts to break through the long-establised laws of war at sea. I suggest that it is doubly necessary to resist all doctrines of military necessity as the excuse for breaking well-established maritime law. I am one of those who believe that the rule of law is the foundation of all civilisation, and that the means of communication between civilised nations on the high seas demand the most rigid application of recognised law. And surely this is a time when the authority of the law must be upheld. I beg to move.
LORD PHILLIMOREMy Lords, of course, I second every word that the noble Lord opposite has said as to the sanctity and the importance to this country of upholding International Law. I could not very well do otherwise, for it was a gentleman of my name who, I believe, acted as arbitrator in the case of the "Alabama," and gave those rather 99 thumping damages against his own country. So far we are entirely agreed, and I think we are equally agreed that we may well leave points of law to the noble and learned Lord on the Woolsack. I certainly do not propose to go into any of those points. But I followed the statement made by the noble Lord opposite, and, whilst fully agreeing with his thesis that an act of piracy depended on the breach of International Law, usages, and regulations, I could not find from anything that he said that he had, at any rate clear proof of any act of piracy having been actually committed in this case. As soon as he got at all near the point of adducing matter which showed piratical intentions he sheered off again.
In the result he has only presented us with one case which does bear very closely on the point—the case of the "Cantabria" and the other vessel. He quoted the case of the ship seized off Peru, the "Huascar," which was seized by the crew against the wishes and intentions and against the rights of the proper owners of that vessel. It so happened that both in the case of the "Cantabria" and of the other ship, one of which was sunk and the other taken into port, they were ships stolen by the crews from their rightful owners, those rightful owners being unfortunates who sympathised with the cause of General Franco. So that if the noble Lord's case proves anything at all, it proves that the crews were in the wrong in seizing these vessels, and that General Franco's armed merchant ships or auxiliaries had every right to deal with them in the way they did.
LORD STRABOLGII am much obliged to the noble Lord for his help and support, but the "Hausca" was a man-of-war, and no one pretends that these two unfortunate vessels were armed at all. The cases are not on all fours.
LORD PHILLIMOREI did not say they were. I said those vessels were taken by their crews against the wishes and the rights of their lawful possessors. The noble Lord—and I have no doubt he is sincere in this respect—professes the utmost possible devotion to International Law and he reiterated time and time again that the observance of International Law was the first interest of this country. Now is he willing to apply that principle all 100 through? I would not have brought up the question if he had not brought it up. But when he talks about the granting of belligerent rights to General Franco's Government he must realise, and I have no doubt that he does realise, that General Franco's Government have under International Law an indefeasible right to be granted the rights of a belligerent. Every case—and I can safely leave this to the noble and learned Lord on the Woolsack—every decision, and every book on the subject goes to show that that is so. The noble Lord opposite cannot have it both ways. If he is going to uphold International Law he must agree that General Franco's Government ought long ago to have been granted belligerent rights.
There is not one particular, I venture to say, in which General Franco's Government do not comply with the conditions which are rightly demanded of a belligerent. Not only does General Franco possess about two-thirds of the soil of Spain and rule over a good deal more than half the inhabitants, he conducts an orderly Government with proper administration. He is not only conducting it now but he has conducted it for the last year and a half roughly, and he has established a naval superiority in the seas adjoining Spain, which the noble Lord opposite will find it hard to deny. So that he has in all these respects, and in many others also, established a clear right to be granted recognition, and more particularly belligerent rights. I do not propose to go into the British Plan, as laid down by the Non-Intervention Committee, last June I think. If the sense of that Plan is followed and the conditions which are important to us in that Plan are pursued, it would be very hard to argue that, as a matter of International Law and of justice, General Franco should not at once be given belligerent rights. I leave the matter there, and I certainly would hesitate to embark on any theories as to the particular laws, either Continental or British, involved in the particular question of the "Cantabria" and the other vessel.
§ THE LORD CHANCELLORMy Lords, I desire in the first instance to thank the noble Lord, Lord Strabolgi, for his courtesy in informing me of the authorities which he was proposing to cite, and to admit that but for this I might have been in some difficulty in following him to-day in his various propo- 101 sitions. There are, according to the view I take of this Question, four principal matters which are involved in it. The first is that there are ships belonging to General Franco's Government which are stated to be privateers, apparently acting in the interests of the Spanish insurgents and basing themselves on German harbours. The second thing is that these privateers are not named in the public list of the fleet to which they belong. In so far as they are named, they are not privateers; that is a sort of contradiction. Thirdly, that they have been guilty of a breach of International Law committed by the destruction of a peaceful merchant ship on the high seas without considering the safety of passengers and crew. Fourthly, that the Government referred to have been guilty of seizure of another peaceful merchant vessel without the process of law in a Prize Court. Having made these four somewhat tendentious suggestions or allegations in this Question, the noble Lord then asks His Majesty's Government whether they are aware of the dangers to all maritime nations of establishing precedents for such illegal acts.
In order that I may not have to come back to it again, let me first say that His Majesty's Government have no information leading them to suppose that these ships are privateers, and no reason to suppose that they are basing themselves on German harbours in the sense that they are carrying on warlike operations from these harbours. There is nothing to prevent anybody who is treated as having the rights of a belligerent from going into a neutral harbour. What is wrong is to conduct warlike operations, using that term to include naval operations, from that harbour. His Majesty's Government have no reason at all to suppose that that has been done. Coming to the second question, whether the ships are on the public list, the Government have no information on that point at the present time. The noble Lord is quite right in saying that they ought to be on such a list. Inquiry must be made on that point, and, if necessary, proper representations must be made in regard to it.
Then there is the question whether His Majesty's Government have taken cognisance of the violation of International Law committed by the sinking of a peaceful merchant ship. His Majesty's Government have no reason to suppose 102 that there has been any violation of International Law in the sinking of a ship, a Spanish ship, which, according to the statement of the captain himself, refused to stop after having been summoned in the ordinary way by a shot being fired high across her bows. Having refused to stop, it was necessary to fire at her to stop her. She was not stopped, it is true, until she was sinking in the sea, and she is now to be seen as a wreck ten or twelve miles off the East coast. I shall come to that in a moment, but I pass on in order to state quite shortly the position in regard to the facts of the supposed law, regarding the ship taken to a German port.
We have no reason to suppose that she will be condemned without process of law. If a ship is captured off the British coast by a Spanish ship, whether it belongs to the recognised Government or to the insurgent Government, she cannot, according to the recognised rules of International Law in regard to prize, as the noble Lord practically admitted, be taken for condemnation—at least she ought not to be taken for condemnation—into a neutral port or a neutral country. In such a case there is a long and, may be, arduous journey by the prize, probably with her captor in close proximity; but at any rate the prize has got to be taken a long way. It is a long journey from the North Sea to Spain, and for all that the Government know there may have been some reason why she could not at once be taken there, though I have no doubt in my mind that the captor would have been only too anxious to take her to a Spanish port, meaning thereby a port under the control of General Franco, as soon as possible. Therefore I may say that none of the facts suggested in this Question are, so far as I know, correct; and if the question be asked why something is not done by way of remonstrance to General Franco, the answer is a very simple one—that His Majesty's Government have made a number of representations to General Franco based on facts when they have ascertained them, and in their opinion it is worse than useless to make representations to either of the contending parties in Spain based on hearsay or without real knowledge of what has taken place.
But it would not be courteous to the noble Lord to say nothing with reference to the law. If I may detain your Lordships 103 —I hope not very long—I will state so far as I can what I believe to be the general view of international lawyers on the points, which are of considerable interest, raised by the noble Lord. I should like to begin by saying that I claim no authority whatever over the noble Lord as being a lawyer, or having been a lawyer, for the reason that International Law is a very different subject from that of the municipal law of the country, in which, of course, I have spent a large part of my life. When you are dealing with International Law it is true to say that that law has no executive, no judiciary, no superior body capable of enforcing decisions, and, what is worse from the point of view of a lawyer dealing with municipal law, there is no tribunal which is capable, or can have the opportunity, of determining whether there has or has not been a breach of the alleged rules of International Law except so far as both parties choose to submit the matter to The Hague Tribunal. Therefore it differs altogether from the ordinary municipal law which is to be found in Acts of Parliament or textbooks or the Common Law of England and where there is a Judge, and possibly a jury, who together can determine whether there has been a breach and what the penalty should be. That being so, I really can claim no advantage over the noble Lord. We have both read the same textbooks, and I have had the advantage of going through those which I understood would apply to this case.
The first point is this: what is the position according to international lawyers of a revolting or insurgent party such as that of General Franco before belligerent rights are given to him. I was glad to see that the noble Lord never suggested for a moment that his ships are regarded prima facie, at any rate, as pirates—nothing of the sort. Long ago it was settled by the consensus of opinion of all international lawyers that you could not do that in such a case as General Franco's Army and Navy. This is the passage which was referred to by the noble Lord from Hall's International Law, 8th edition, page 37:
As soon, it is said, as a considerable population is arrayed in arms with the professed object of attaining political ends, it resembles a State too nearly for it to be possible to treat individuals belonging to such population as criminals; it would be inhuman 104 for the enemy to execute his prisoners; it would be still more inhuman for foreign States to capture and hang the crews of warships as pirates; humanity requires that the members of such a community shall be treated as belligerents, and if so there must be a point at which they have a right to demand what confessedly must be granted.Then a little further on it states thatforeign Governments, who deal only with external facts, and who have no right to pass judgment upon the value, from a moral or municipally legal point of view, of political occurrences taking place within other countries—cannot, if I may continue in my own words, treat the insurgent side as consisting of persons who are pirates or beyond human law in such a case.I would add that that is not only the view of Hall, high an authority as he is, but it is the view also of Lawrence, and of Westlake, and of Oppenheim. There are elaborate sections of law dealing with people in that position. One international lawyer has adopted the phrase "recognition of insurgency" as a good phrase to use in regard to ships and other warlike bodies, in order to control such a person as General Franco, although technical recognition may not yet have been afforded to them ashaving the rights of belligerents. That being the case—and the noble Lord has not disputed it—what is the position of those two ships that we have heard of in the Press, in relation to their actions they being treated as if they were belligerents? They have a right to stop and seize and capture another Spanish ship because, being belligerents, the ships of the Government of Spain are ships of an enemy. And of course you may capture the ships of an enemy when you are at war, and if a commercial ship is captured you can take her to the Prize Court in your own country. If she will not stop what can you do except to fire on her till she does stop, or, if necessary, fire on her till she sinks?
You may say it is a brutal thing to do. War is brutal. From a very early stage in our history we have claimed the right to sink an enemy ship that will not stop. That is the reason why you fire a shot across her bows, and there is no doubt, even if there happens to be neutral property on that enemy ship, the owner of that property has not got a right to complain. The owner of the property is in the same position as regards that neutral property as anybody else who has neutral 105 property in a place where the enemy is lawfully bombarding enemy houses or enemy works of a military or naval character. If you have neutral property in the neighbourhood, so much the worse for you. You have to abide what happens. If the noble Lord has any doubt as to that I can give him the reference, which is to be found on page 876 of Hall's International Law, 8th edition.
This is what he says:
It is to be noticed that though neutral property in enemy slips possesses immunity from confiscation, the neutral owner is not protected against loss arising incidentally out of the association with belligerent property in which he has chosen to involve his merchandise. Just as a neutral individual in belligerent territory must be prepared for the risks of war and cannot demand compensation for loss or damage of property resulting from military operations carried on in a legitimate manner; so, if he places his property in the custody of a belligerent at sea, he can claim no more than its bare immunity from confiscation, and he is not indemnified for the injury accruing through loss of market and time, when it is taken into the captor's port, or in some cases at any rate for loss through its destruction with the ship.That covers the case of the ship which is stopped.The noble Lord made reference to the "Huascar," a ship which in 1877 revolted from Peru. I can tell your Lordships very shortly the facts in regard to that ship. She revolted or mutinied. No property was owned by anybody on the ship in the nature of something which they possessed. It is the case of an individual mutinied ship. She stopped two British vessels on the high seas. She took coals from one of them, with no suggestion that she was ever going to pay for the coal. She stole it. She took from the other ship certain Peruvian officials who were on board the vessel. These are points to be noted: There was no political organisation at her back; there was no Provisional Government to give her a commission or to put her on the list of warships; there was no insurrection; no other ship took up her cause. She was perfectly solitary in her movements. I do not think anybody in this House will be surprised that the British Admiral on the station declared that she was a pirate, at least so far as British subjects and property were concerned. What else could he say about her?
The noble Lord has told you that there was some complaint about her, but that it was dropped. That will not help the 106 noble Lord in his proposition. I think he is quite right in saying that what he has got to show is that these two vessels were in some way not complying with the recognised law applicable to ships in time of war. Where I do not myself appreciate that he has any authority behind him, and where for my part I am unable to follow him as a matter of law, is that he seems to suggest that if he can show that a certain ship, in such circumstances of insurgency as General Franco, has committed some breach of the principles of International Law, that ship is a pirate. Nothing of the sort. So far as I know he is not correct. Of course, there are cases in which such a ship may behave in such a manner that it would be established that it was not seeking to comply with the rules of recognised warfare, and therefore might be treated as, to use the Latin tag, hostis humani generis. If it proceeded to sink vessels with innocent people on board without summoning them to stop, or otherwise behaved as if freed from any obligations of proper conduct, then you might indeed treat it as a pirate. But there is nothing known to His Majesty's Government to justify any such view as regards these two vessels. Of course, if any such facts do come to the notice of His Majesty's Government, there will be the most prompt representations made to the alleged owner or the alleged Government in charge of the ships, and if necessary further steps would be taken, but there is no reason to suppose that at all.
The Nyon Agreement, it is true, announced that certain ships were piratical if they committed certain acts, but as I have shown your Lordships, or at least as I have attempted to show, these two ships have done nothing which can be so described. They captured one ship, and we have no reason to suppose that she will not be submitted to the adjudication of a Prize Court in due course. We have never held that you must do that in a day or two. You cannot. We have no reason to suppose that in the sinking of the "Cantabria" anything improper was done. We have no reason to suppose that lives were lost. We have no reason to suppose, as was suggested this afternoon, that the crew of the "Nadir" prevented the saving of life. Indeed, as far as we know from the facts stated in the Press, it seems that eleven persons were taken off by a British cargo 107 boat, which was standing near, that the captain and his wife, two children and the second steward—that is five—were taken off by the lifeboat, and the rest of the crew, as far as we know, judging from the statements in the daily Press at the time, twenty in number—making thirty-six in all—were taken off by the attacking warship. That does not look like piratical conduct as we know it, and really if there is nothing to show that the ship attacking was guilty of any inhuman conduct or conduct contrary to the recognised rules of warfare at sea, we must be given chapter and verse and evidence on which some representation can properly be made.
That is the position as regards the conduct of that warship. But the noble Lord also said that according to information which apparently has reached him, but which I confess has not reached me, the ships were illegally converted into warships either in a neutral harbour or on the high seas. As the noble Lord said, that has been denied, but I am not concerned to assert or deny. All I am concerned to say is that the Government can make no representations with any hope of success to General Franco regarding ships of this kind unless they have information that something which is wrong in the view of the British Government has been done. Naturally in that case it is quite possible that representations would be made, though the noble Lord will observe that in general such representation should be made, not by a neutral such as this country, unless that neutral has suffered damage, but by the Power—in this case the Spanish Government—injured by the act, contrary to the conventions dealing with neutrality, which resulted in a ship, now apparently a proper ship of war, being converted either in a neutral harbour or on the high seas.
The noble Lord is quite right in saying that we as a country do not recognise the right to convert either in a neutral harbour or on the high seas, but I repeat once more that so far as facts have reached me I am unable to say that either of these things was done in relation to these ships. The prize, it is said, was taken into a neutral port. That is not necessarily wrong. The noble Lord with great fairness referred to the "Appam," which was taken into a United States port by a German ship in the late War, and 108 was released after inquiry. So far as I know it was never suggested that it was wrong to take a prize into a neutral port. You can go there for a number of reasons, want of coal, want of food, stress of weather—a number of reasons like that—and when you can get away with your prize, or when you can send your prize back to your own country, the sooner you do it the better. I am not aware at the present time that anything wrong has been done with regard to the ship that was taken into Emden. Taken there she was, I agree—everybody is at one upon that—but I do not know that she is there now. For all I know she is in Spain, and for all I know she will in due course be submitted to a Prize Court in Spain. With regard to the Prize Courts that happen to be there I know very little, and am afraid none of us know very much, but I have no reason to suppose that there will not be a Prize Court. These captures of ships belonging to the Spanish Government have been increasing, as far as I know, and there may have been some delay in setting up a Prize Court. You must remember that the position of the insurgents in Spain is a little different from that of, we may say, a great Power like this country. In case of war we can set up a Prize Court within four-and-twenty hours of the commencement of hostilities; it may take another country a great deal longer than that to do the same thing.
Then there is the question that the alleged warships themselves ought to be on a proper list of the ships of the Government of the belligerent Power in question. There, as I have already said, His Majesty's Government have no information. These ships ought to be on a list, and the captains ought to be on their Navy List, and inquiry shall be made on those points. I have, however, no information on that at all. The long and short of it is this: that there is no information in the possession of His Majesty's Government to show that these ships are not properly engaged in belligerency, or that they have done anything which in any way affects our obligations, according to the doctrines of International Law, to treat them as belligerents with belligerent rights, so far as the particular methods with which we are dealing to-day are concerned.
As the noble Lord knows—and perhaps I may remind some of your Lordships who may just for the moment have forgotten 109 it—if they were granted belligerent rights in the strict sense, then they would be entitled to stop and search all neutral vessels. That right they have not got at the present time. On the other hand, the rights which they have got at the present time, according to the opinion of all these writers on International Law, is to capture the vessels, whether naval or commercial, of the enemy from their point of view. They have got a right, if a commercial vessel will not stop when she has been summoned to do so, if necessary to sink her, using every endeavour they can to prevent undue loss of life. There has not here been any undue loss of life, because to the best of my belief there has been none—unless, indeed, there was one person who was injured in the course of the shelling, but nobody was sunk; they were all saved, as far as the information in the newspapers goes.
The noble Lord, not unnaturally from his point of view, travelled into the question of belligerent rights and of the Nonintervention Board. I think your Lordships will agree that this is really not a matter which is raised by this Question, and I do not think I am called upon to express any opinion on it, and I respectfully decline to do so. I have tried as far as I could to tell your Lordships, with complete lack of feeling on one side or the other, what I believe the law is. If anybody sitting on the Bench which the noble Lord occupies has any doubt as to my capacity to do that, I should like to say that, sitting in another place in this House, I joined in giving a most important decision in favour of the Spanish Government only a few months ago, in the case of the s.s. "Cristina," which governed the ownership of a large number of other ships in the ports of this country. In just the same way as it never occurred to me, when I was giving that decision, to consider any question of politics, or any prejudice in favour of one side or the other, so I may assure the noble Lord that, in saying what I have said to-day, I really have not in the least been guilty, as I believe, of any prejudice on the one side or the other.
I have stated exactly what I believe to be the legal position as it is conceived to be by a number of eminent jurisconsults and writers on International Law. I must state, in conclusion, that nothing that has so far been brought to my attention, or, 110 so far as I know, to the attention of His Majesty's Government, leads me to suppose that there is a necessity for any protest or complaint to the Government of General Franco. I think I may say that His Majesty's Government are aware of the dangers to maritime nations in establishing precedents for any illegal acts on the high seas, as the noble Lord said, but I am not aware that any such illegal acts have been committed.
LORD STRABOLGIMy Lords, may I first of all thank the noble Lord, Lord Phillimore, for his—if I may say so—very helpful contribution to the case that I was attempting to make? Apparently these vessels were seized by their crews, and there is therefore a dispute which ought to be settled in a civil court. Instead of that they are seized on the high seas by warlike action. I thought that was a very strong case indeed against the captors. They had taken a matter of municipal law into their own hands, and I am sure that the Lord Chancellor would agree with me that that is a very wrong thing to do.
May I thank the Lord Chancellor for the opinions he has given your Lordships on what is admittedly a matter of importance—of very great importance indeed? I am sorry that he has not information on the points I raised. I gave as long notice as I could. I should have thought that the Naval Intelligence Department would have been able to provide a good deal of the information. It may not be in the public interest to give it; that is another matter. But I thought your Lordships had the same rights in this House as the members of another place, who, when they ask for information, get all the information that can be given, unless public interest or the necessity for secrecy is pleaded. I hope I am not doing the Lord Chancellor the slightest injustice, but I should have thought it was due to your Lordships to get the naval facts, which must be in the possession of the Admiralty.
§ THE FIRST LORD OF THE ADMIRALTY (EARL STANHOPE)As far as I heard the noble and learned Lord, he gave all the information available to the Government either from naval sources or any other.
LORD STRABOLGII am very surprised to hear that. There must be something 111 wrong with the Naval Intelligence Department! The noble Earl has only been a short time at the Admiralty, and I hope he will look into the matter. The present Director of Naval Intelligence is one of the most distinguished officers in the Navy, and I am very astonished to hear that the information is not available. There must be something wrong somewhere. When, of course, the noble and learned Lord Chancellor says he has not the information, it makes it impossible for me to carry the matter any further. I believe I am right in saying that in Scotland they have a verdict of "Not Proven," and that if fresh evidence is forthcoming the case may be retried. I hope there will not be a need to retry this case, but as long as I am in your Lordships' House I hope I may always be allowed to raise matters of vital interest to this country, especially as a great maritime Power.
If I might traverse very respectfully what the noble and learned Lord Chancellor has said to your Lordships: he did not meet my argument at all that the granting of belligerent rights depends on the observance of recognised laws of war. He said that in this case he had no information that the laws of war had been broken, but he has met with other cases because otherwise he would not have asked for compensation. That was the head and front of my argument, that those who seek belligerent rights must themselves follow out the accepted laws of nations on the high seas. I think I quoted recognised authority to prove that, but the Lord Chancellor did not, perhaps for reasons of State, propose to answer me.
The second matter on which I must traverse what the noble and learned Lord said is that on which he sought to prove that there was no distinction between a neutral who suffers in his property by bombardment on land and a neutral who suffers in his property by bombardment at sea. There is all the difference in the world and that has been recognised through the ages. On the high seas neutrals have rights, and must have rights. Indeed the Lord Chancellor, if I may say so, convicted himself out of his own mouth, or rather in the words of Hall, because when he quoted Hall he read the whole passage and there it is laid down by Hall, as it is by every other 112 international jurist as well, that a neutral who suffers by enemy action in his goods in an enemy merchant ship has a right of compensation for those goods if he can prove his title.
§ THE LORD CHANCELLORI never suggested the contrary. If this Spanish ship and her very gallant Captain had been taken to Yarmouth, if there had been any neutral property on board, the neutral would have been entitled to it. But that is not the point we are considering. I was only dealing with the fact that the neutral property in question cannot be restored. The enemy ship having been sunk, for present purposes, you cannot restore the neutral property. That is all that I said.
LORD STRABOLGII am very much obliged to the noble and learned Lord. You cannot restore it when the ship is sunk, but that is why, under The Hague Convention, the captor is bound to preserve the ship's papers and the neutral is entitled, if his property has been destroyed, to compensation in money.
§ THE LORD CHANCELLORI do not know where the ship's papers are, but I think it is very likely that the Captain took them away with him. Those on board the ship that had effected the capture, never went on board the attacked ship at all, and the Captain of the latter went over the side, according to his own account, into the lifeboat. I should think he carried the whole of the ship's papers with him. If they are available and if there was neutral property on board, it will appear from the statement in the manifest.
LORD STRABOLGIIf a neutral has a claim he can go before the Prize Court and get compensation for the loss he has suffered.
§ THE LORD CHANCELLORWe do not know that any neutral goods were lost.
LORD STRABOLGIOn the other hand we do not know they were not, and that is the illegality of sinking a ship in such circumstances. Really, if I may respectfully say so, there is no difference between the interpretation of the law as I understand it and that of the Lord Chancellor. If I misunderstood his language I want to make amends at once. I dare say I misunderstood his language on this 113 question of taking a ship into a neutral port. If I understood him correctly, the captor is allowed to take his prize into a neutral port because his own ports are a long way off and it would be difficult to establish a Prize Court. During the centuries of naval warfare we have never admitted that sort of argument. We have insisted on a prize being taken to a Prize Court where her owners could appear, and if the argument were used that this ship was taken to Emden because the Spanish ports were a long way off, it would have been rejected immediately. This is really a matter of vital importance to all the maritime nations.
§ THE LORD CHANCELLORI did not say she was taken into Emden because Spain was a long way off. I was only saying that it is not wrong to take a prize into a neutral port—that that per se is not necessarily wrong. I do not know, and His Majesty's Government do not know, what circumstance led the captor to go into Emden, but I presume that there may have been reasons which have not yet been disclosed for taking her there on the way back to Spain. I mentioned "a long way off" simply as showing that very likely there was some reason why the captor took his prize into Emden. The going there was not wrong. It was not a breach of International Law to go into Emden.
LORD STRABOLGII am extremely obliged to the noble and learned Lord and I do see that I misunderstood his first words. This does, however, raise important questions of law. I have tried to deal with the matter impartially, because if this had been a Spanish insurgent ship attacked by a Spanish Government ship in this manner I should also have raised this question. I think your Lordships will agree that it is a matter of very grave importance, especially at the present time, and that my Motion has served its full purpose. I believe I am, as I anticipated might be the case, on the same side of 114 the barricade as the Lord Chancellor and therefore I ask leave to withdraw my Motion.
Motion for Papers, by leave, withdrawn.