One hundred and ten years ago, Tsar Nicholas II invited the leading nations of the world to an international conference. The Tsar’s invitation – and Britain’s acceptance – opened the door to international discussion of the laws of naval warfare. For most of the nineteenth century, Great Britain had been the de facto arbiter of the laws of naval warfare, refusing to participate in any international conference where the topic might arise during the last half of the century. To the astonishment of the Admiralty and Royal Navy, Great Britain not only accepted the Tsar’s invitation, but also agreed to attend even though the proposed topics for the conference mainly pertained to maritime warfare. The Tsar’s invitation and Great Britain’s decision opened an intense ten-year period during which the laws of naval warfare were formulated.
On 24 August 1898 the ambassadors and ministers to the court of Tsar Nicholas II went to the Foreign Ministry expecting their regular weekly meeting. Instead, they received a ‘mighty surprise’. Foreign Minister Count Mikhail Muraviev informed them, ‘The maintenance of general peace and a possible reduction of the excessive armaments which weigh upon all nations present themselves, in the existing condition of the whole world, as the ideal towards which the endeavours of all Governments should be directed.’ Nicholas II wanted to convene an international conference to seek ‘the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and above all of limiting the progressive development of existing armaments.’ Indeed, most of the official message handed to the foreign representatives emphasized the economic burdens being imposed by increasing armaments.
Nicholas II’s invitation generally was met with scepticism among the various heads of state and their senior ministers. The ‘chancelleries of Europe handled it like a parcel that might contain a bomb.’ Nevertheless, no nation wanted to be the one to say ‘no’. Great Britain’s decision to accept the Tsar’s invitation had far-reaching implications for the Royal Navy and the conduct of naval warfare. Although unintended, the Tsar’s invitation and Britain’s acceptance opened the door to the development of agreements and conventions regulating the conduct of naval warfare. In the ten years after the Tsar’s invitation, at the international ‘peace’ conferences held at The Hague in 1899 and 1907, and at the naval conference held in London in 1908-1909, the international community debated and ultimately adopted various limitations and regulations on the conduct of naval warfare, many of which remain in effect today.
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Prior to the Tsar’s invitation – with one major exception – the laws of naval warfare had developed based primarily on decisions by prize and appellate courts deciding the legality of the seizure or confiscation of ships or their cargoes during time of war and bilateral treaties and agreements between nations. Often, the judicial decisions were accepted by other countries and became agreed ‘customary’ international law, either through treaties or stated or unstated agreement. Of course, the term ‘the laws of naval warfare’ is a misnomer. There are no such ‘laws’ as that word is commonly understood. No central governmental entity exists that promulgates regulations and imposes them even on unwilling subjects. No international police force or prosecutorial entity exists to detain violators and to prosecute miscreants. ‘[I]nternational law is best understood from its starting point as a set of rules created and respected by nations in their relations with each other.’ International law may be analogized to ‘House Rules’, as in a condominium building, established by owners of the units. The unit owners adopt rules to govern the conduct of everyone in the building. Some rules are more important than others, but they work so long as the tenants recognize the need to follow them, because no formal enforcement mechanism exists. This analogy is especially apt with regard to the development of the laws of naval warfare, because Britain played the role of the largest tenant in the building as the world’s leading sea power.
By the beginning of the nineteenth century, some general understandings – and general disagreements – regarding the conduct of naval warfare existed. Some of the most critical concepts and issues were the Rule of 1756 (a neutral could not engage in trade during wartime that it had not engaged in during peacetime – announced by Great Britain during the Seven Years’ War); blockade (what was required to impose a lawful blockade); the continuous voyage doctrine (preventing a ship from avoiding a lawful blockade simply by stopping at an intermediate non-blockaded port on its voyage); contraband (what goods were considered contraband and therefore subject to seizure if destined for the enemy); and free ships = free goods/enemy ships = enemy goods (goods on a non-belligerent ship were, unless contraband, not subject to seizure, goods on an enemy-flagged ship could be seized regardless). Whether a nation supported pro-belligerent or pro-neutral rights usually depended on whether it was a maritime or continental power. Britain was a maritime power and so supported expansive belligerent rights. France and the other European nations – certainly by the end of the Napoleonic Wars – were continental powers whose views tilted toward the side of neutrals.
The one exception to the judicial and bilateral treaty-based development of the laws of naval warfare arose out of the Crimean War. In March 1854, Great Britain and France declared war on Russia, joining the Ottoman Empire in the Crimean War. Though now allies, Britain and France had long maintained different positions regarding the treatment of enemy and neutral property on board merchant ships during war. To resolve these conflicts, the two countries compromised, with each nation giving up one of its positions. For the duration of the war, neutral property on enemy ships would be free from seizure, as would enemy property on neutral ships – subject to the exceptions for contraband and attempting to breach a blockade. Britain and France also agreed not to authorize privateers during the war. England reserved the right to return to its previous position regarding enemy property on neutral ships in the future. However, a right once surrendered is very difficult to get back.
On 30 March 1856, Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey signed the Treaty of Paris ending the Crimean War. At the ‘after congress’ on 8 April, France offered a major revision to the laws of naval warfare – a surprise to the delegates other than from Britain. France proposed to make permanent the temporary agreement with Britain regarding the treatment of property on board neutral and enemy merchant ships, to ban privateering, and to define an effective blockade. The British government recognized that having given up long-held belligerent rights two years earlier it would be virtually impossible to restore them. However, the abolition of privateering offered a significant benefit to Britain. Less than two weeks after France made its proposal, the same seven nations that had signed the Treaty of Paris executed the Declaration of Paris.
The British government had not consulted with the Admiralty prior to signing the Declaration. Discussion of the proposed terms in the Cabinet occurred over less than two weeks. The treaty seemed to deny Britain significant belligerent rights on which it had relied for its protection in previous wars. Although liberals and commercial interests supported the Declaration, others condemned the treaty in almost hysterical terms.
Throughout the remainder of the nineteenth century – perhaps because of the backlash from the Declaration of Paris – England assiduously avoided even any discussion of the laws of naval warfare. For example, Russia proposed in 1874 that an international conference take place in Brussels to discuss an ‘International Convention on the Laws and Customs of War.’ However, the British government was ‘firmly determined not to enter into any discussion of the rules of international law by which the relations of belligerents are guided, or to undertake any new obligations or engagements of any kind in regard to general principles.’ After meticulously obtaining responses from each invited nation, Britain accepted the invitation, based on ‘the assurances thus given by the Russian and other Governments that the Conference will not entertain any questions relating to maritime operations or naval warfare; and … there is no intention of enlarging the scope of the Conference so as to include the discussion of general principles of International Law.’
Less than twenty years later, The Netherlands approached Britain and suggested an international conference to discuss extension of the Declaration of Paris ‘by agreeing to the principle that private property of subjects or citizens of a belligerent on the high seas should be exempt from seizure.’ Prime Minister Lord Rosebery’s response was a curt instruction to tell The Netherlands that ‘Her Majesty’s Government regret that they do not see their way to accede to such a proposal.’ Thus, Great Britain essentially controlled whether any discussion of the laws of naval warfare would occur amongst the international community. Without its concurrence, no discussion could happen. Its response to the Tsar’s invitation, therefore, was surprising, especially to the Royal Navy.
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Great Britain was one of the last invited countries to accept the Tsar’s invitation. It did not formally respond until late October 1898, after most other nations had agreed to attend. In instructing his minister in St. Petersburg to accept the Tsar’s invitation, Prime Minister Lord Salisbury clearly believed the focus of the proposed conference would be on reducing the ever-increasing and burdensome expenditures on arms. It was not until January 1899 that the Tsar proposed specific topics. While ostensibly focused on reducing the ongoing international arms race and promoting means for the peaceful resolution of international disputes, five of the eight specific topics related to naval warfare either in whole or in part.
The British Admiralty’s reaction to the list of topics was predictable. After receiving the Tsar’s proposed agenda from the Foreign Office for comment, First Lord of the Admiralty George Goschen wrote to Prime Minister Salisbury saying,‘The F.O. have sent us the Russian circular & asked for our observations thereon. Need we communicate on the document at present? We should have to point out absurdities & impossibilities in every line, so is it necessary, or even expedient, to do so early & to put all our objections on record?’ Long before the Admiralty presented its ‘observations’ to the Foreign Office, the Cabinet ‘gladly accept[ed]’ the Tsar’s invitation for a conference to discuss reduction of land and sea armaments and means for preventing armed conflicts by diplomacy. Great Britain thereby joined the international community in accepting the eight topics for consideration at the conference. While the Admiralty and the Royal Navy may have thought the Foreign Office’s request for ‘observations’ questionable, they now would have to take the upcoming conference seriously.
As First Lord of the Admiralty Goschen recognized, the government had implicitly agreed to consider questions affecting the Royal Navy, contrary to previous international conferences such as the Brussels Conference of 1874. Unlike the 1856 Declaration of Paris, which was adopted without its consultation, the Royal Navy now was forced for the first time – begrudgingly and against its will – to participate in an international conference at which limitations on the conduct of naval warfare would be considered. Those discussions would continue over the next ten years, at two international ‘peace’ conferences and a separate conference of the leading naval powers. Tsar Nicholas II’s unexpected invitation of 24 August 1898 and Great Britain’s subsequent acceptance had opened the door to international discussion of the laws of naval warfare – a door that would never be closed again.
Geoffrey Best, ‘Peace Conferences and the Century of Total War: The 1899 Hague Conference and What Came After’, International Affairs75, no. 3 (July 1999): 621.
James Brown Scott, ed., Instructions to the American Delegates to the Hague Peace Conferences and their Official Reports(New York: Oxford University Press, 1916), 1-2.
Best, ‘Peace Conferences’, 622.
For a contemporary discussion of the development of the laws of war generally, see Thomas E. Holland, Studies in International Law(Oxford, UK: Clarendon Press, 1898), 40-95.
Jan Martin Lemnitzer, Power, Law and the End of Privateering(Basingstoke, UK: Palgrave Macmillan, 2014), 2-3, 6-8.
See generally T.J. Lawrence, The Principles of International Law(Boston: D.C. Heath, 1895), 397-417, 576-636; Lassa Oppenheim, War and Neutrality, vol. II of International Law: A Treatise(London: Longmans, Green, 1906), 179-225, 398-482.
Lemnitzer, End of Privateering, 17-25, 36-43.
Ibid., 62-70. See Adam Roberts and Richard Guelff, eds., Documents on the Laws of War, 3rded. (Oxford, UK: Oxford University Press, 2000), 49. By allowing additional countries to accede to the Declaration without being an original signatory, the treaty changed, positively and forever, the means by which international law could be established. This change is the most significant and long-lasting legacy of the Declaration. Lemnitzer, End of Privateering, 1-10.
Bernard Semmel, Liberalism & Naval Strategy: Ideology, Interest, and Sea Power during the Pax Britannica(Boston: Allen & Unwin, 1986), 57.
Inclosure to Gortchakow to Brunnow, 17 Apr. 1874, in Foreign Office, Correspondence Respecting the Proposed Conference at Brussels on the Rules of Military Warfare(Miscellaneous No. 1 (1874)) (London: HMSO, 1874), 5-6, 12-17.
Derby to Loftus, 4 July 1874, ibid., 27-28.
Derby to Her Majesty’s Representatives, 27 July 1874, in Foreign Office, Correspondence Respecting the Proposed Conference at Brussels on the Rules of Military Warfare, Part II(Miscellaneous No. 2 (1874)) (London: HMSO, 1874), 19.
Villiers to Rosebery, 28 Jan. 1893, CAB 17/85, f. 230, The National Archives, Kew, England.
Rosebery, Minute on Villiers to Rosebery, ibid.
Salisbury to Scott, 24 Oct. 1898, FO 412/65, at 17, The National Archives, Kew, England. See also Best, ‘Peace Conferences’, 621-623.
See Inclosure, Scott to Salisbury, 12 Jan. 1899, in Correspondence Respecting the Peace Conference Held at The Hague in 1899(Miscellaneous No. 1) (London: HMSO, 1899), 3-4.
Goschen to Salisbury, 22 Jan. 1899, Series E, ‘G. Goschen correspondence, 1899-1900’, ff. 1-4, Papers of Robert Arthur Talbot Gascoyne-Cecil, 3rd Marquess of Salisbury, Hatfield House, Hatfield, Hertfordshire, England.
Salisbury to Scott, 14 Feb. 1899, FO 412/65 at 30, The National Archives, Kew, England.
Goschen, Minute, 14 May 1899, ADM 116/98, f. 21, The National Archives, Kew, England.