The Declaration of London
Sir,—I have read Professor Westlake’s letters upon the Declaration of London with the attention due to anything written by my very learned friend, but, although myself opposed to the ratification alike of the Prize Court Convention and of its complement, the Declaration, do not at present wish to enter upon the demerits of either instrument.
There is, however, a preliminary question upon which, with your permission, I should like to say a few words. My friend justly observes that in dealing with the Declaration “the first necessity is to know what it is that we have before us”; and he devotes his letter of January 31 to maintaining that the Declaration must be read as interpreted by the explanations of it given to the full Conference by the Drafting Committee, of which M. Renault was president. Professor Westlake supports his opinion by a quotation from the reply of the Foreign Office in November last to the Edinburgh Chamber of Commerce (Miscell. 1910, No. 4, p. 21). I may mention that a similar reply had been given, a year previously, by Mr. McKinnon Wood to a question in the House of Commons. The source of these replies is doubtless to be found in a paragraph of the Report, addressed on March 1, 1909, to Sir Edward Grey, of the British Delegates to the London Conference, which runs as follows:—
“It should be borne in mind that, in accordance with the principles and practice of Continental jurisprudence, such a Report is considered an authoritative statement of the meaning and intention of the instrument which it explains, and that consequently foreign Governments and Courts, and no doubt also the International Prize Court, will construe and interpret the provisions of the Declaration by the light of the Commentary given in the Report.” (Miscell. 1909, No. 4, p. 94.)
It is desirable to know upon what authority this statement rests. I am aware of none. The nearest approach to an assertion of anything like it occurred at The Hague Conference of 1899, when the “approval” accorded to “the work of the Second Committee, as embodied in the articles voted and in the interpretative Report which accompanies them” was alleged by M. de Martens to amount to an acceptance of the Report “comme un commentaire interprétatif authentique des articles votés.” (Miscell. 1899, No. 1, p. 165.) The drafting Report presented to the Geneva Conference of 1906 is merely said to have been “adopted” (Actes, p. 286); and M. Renault’s Report to the Conference of London was similarly merely “accepted,” although he presented it as containing
“Un commentaire précis, dégagé de tout controverse, qui, devenu commentaire officiel par l’approbation de la Conférence, soit de nature à guider les autorités diverses, administratives, militaires, judiciaires, qui pourront avoir à l’appliquer.” (Miscell. 1909, No. 5, p. 344.)
It would seem that in each of these cases the adoption of the Report, and even a suggestion or two for a change in its phraseology, amounted to nothing more than an expression of opinion on the part of the Delegates to the Conference that the Report contained explanations which had satisfied themselves, and might satisfy their Governments, that the Convention which they were about to forward to those Governments might safely be accepted.
So far as Governments are concerned, the adoption of a Report by their Delegates is res inter alios acta. An “authentic interpretation” of a contract can be given only by the parties to it, who, in the case of a treaty, are the States concerned. If these States desire to give to the report of a drafting committee the force of an authentic interpretation of their contract, they can surely do so only by something amounting to a supplementary convention. Writers upon international law naturally throw but little light upon questions to which the somewhat novel practice of argumentative drafting Reports has given rise; but I may cite Professor Ullmann, of Vienna, as saying:—
“Eine authentische Interpretation kann nur die durch Kontrahenten selbst, in einem gemeinschaftlichen, ihren Willen ausser Zweifel setzenden Acte (einem Nachtrags-oder Erlauterungsvertrage), erfolgen” (Volkerrecht, p. 282); and Professor Fiore, of Naples, to the effect that what is called “authentic interpretation” is not
“interpretazione propriamente detta, ma una dichiarazione di quello che fu gia concordato, o un nuovo trattato” (Diritto Internazionale, ss. 1, 118); and that
“il trattato non può essere interpretato che dalle stesse Parti (i.e. Stati) contrahenti; e per la validità dell’ atto è indispensabile che la relativa convenzione di interpretazione abbia gli stessi requisiti... di ogni altra convenzione tra Stato e Stato” (Il Dir. Int. Codif., § 816).
I would submit that such a Report as that which accompanies the Declaration of London has no claim to the sort of interpretative authority which has been attributed to it; nor is it desirable that the requisite steps should be taken for giving it that authority. It would be calamitous should a practice be introduced of attempting to cure the imperfect expression of a treaty by tacking on to it an equally authoritative reasoned commentary, likely, as in the present case, to be enormously longer than the test to which it relates.
It is a wholly different question whether Governments or Courts would be inclined to take notice of such a Report, among other facts antecedent to a Convention, or Declaration, which they might be called upon to construe. A British Court would not, I conceive, be so inclined. On the probable inclinations of Continental Courts, and of an International Prize Court, should one be instituted, further expert information would seem to be called for.
The fact is that the vitally important questions of theory and practice raised by the Convention and the Declaration need calmer and better instructed discussion than they have yet received. Ought they not to be referred to a Royal Commission, on which should be placed representatives of the Navy and Merchant Service, of the corn trade, and of the Colonies, together with international lawyers, in touch with the views of their Continental colleagues?
I am, Sir, your obedient servant,
T. E. HOLLAND
Oxford, February 16 (1911).