Declaration of London revoked

On 7 July 1916, at Buckingham Palace, King George V signed at a meeting of the Privy Council an order that went down in history as the Maritime Rights Order in Council. It revoked all the earlier orders under which Britain had, since the beginning of the war, applied the Declaration of London on the law of naval warfare, with modifications. On the same day France took a similar step, and its decree appeared in the official gazette on 8 July. The British order was also published on 8 July. Both governments simultaneously informed the neutral states that from now on they would be guided solely by the long-recognised principles of the law of nations.

A code that never came into force

The Declaration was signed in London on 26 February 1909 by ten maritime powers, including Britain, Germany, France, Russia and the United States. It was meant to be the code of law to be applied by the planned International Prize Court in The Hague, and it laid down precisely when a belligerent could stop a neutral ship, what constituted contraband and how a blockade was to be conducted. In Britain, however, it met fierce opposition from those who believed it deprived the navy of its most effective weapon. The bill that was to bring the Declaration into force was rejected in 1911 by the House of Lords. No state ratified the Declaration.

Nevertheless, in August 1914 the British and French announced that they would apply it, albeit with significant modifications. With successive orders, in October 1914, October 1915 and March 1916, the modifications multiplied. The last of them revoked in its entirety Article 19, which did not allow a ship to be seized for breach of blockade if it was sailing to a port that was not blockaded, regardless of the ultimate destination of the cargo. The most important instrument of the blockade of Germany, the Reprisals Order of March 1915, was not based on the Declaration at all, but on the old customary law.

Why the Declaration was abandoned

According to the British official history of the blockade, the change was initiated by the Minister of Blockade, Lord Robert Cecil. He believed that keeping the Declaration alive and constantly amending it by further orders did most to fuel the distrust of the neutral states, which never knew what rules would apply tomorrow. At the end of March the Foreign Office sent the Admiralty a draft of the new order. Soon afterwards, on 7 April 1916, the Judicial Committee of the Privy Council ruled in the case of the ship Zamora that a British prize court was not bound by orders of the Crown if they were contrary to the law of nations. This was a further argument for announcing clearly on what principles the government intended to act. After a few weeks the Admiralty agreed with Cecil, although it doubted that the change would bring the navy any practical benefit.

The French were harder to persuade. Their lawyers and naval officers regarded the Declaration as a victory for the continental school of law and feared that a return to customs on which the English and French had differed for centuries would revive old disputes between the allies. Cecil went to Paris, where the talks with the French delegation were conducted by Denys Cochin. The French finally gave way, and the Minister of Marine, Admiral Lucien Lacaze, proposed a compromise: a joint memorandum to the neutral states, not published as part of the order. In it the Allies explained that at the beginning of the war they had adopted the Declaration as a convenient body of rules, but the unforeseen course of the war and German devices to evade the blockade had forced them to make successive changes, which might have given a mistaken impression of their intentions. They solemnly assured that they would observe the conventions on the laws of war, would not endanger the lives of non-combatants and would pay compensation to merchants acting in good faith if they suffered losses.

The new rules

The order did not stop at revoking the Declaration. It listed the principles that Britain and its allies regarded as consistent with the law of nations. A hostile destination of contraband was presumed, until the contrary was proved, if the goods were consigned to the authorities or agents of an enemy state, to someone in enemy territory or to a person who had already sent contraband to the enemy during the war. Cargoes shipped “to order” without naming a consignee, or those for which the ship’s papers did not show who the real consignee was, were treated in the same way. The doctrine of continuous voyage, that is, of the ultimate destination of the goods, was henceforth to apply both to contraband and to blockade. A neutral ship which, despite papers naming a neutral port, had sailed with contraband to an enemy port could be seized right up to the end of her next voyage. A ship carrying contraband that made up more than half of her cargo by value, weight, volume or freight was liable to condemnation together with the whole cargo, as the Declaration itself had already provided. The French decree contained similar provisions.

The change did not provoke the storm that had been feared. According to the British official history, it was hardly commented on in the neutral countries, and their governments confined themselves to reserving the right to claim compensation if Allied practice infringed the rights of their citizens. In reality little changed, since neutral trade with Germany was already controlled above all through agreements with merchants in neutral countries and through blacklists. On 20 July the Russian ambassador in Washington informed the Americans that Russia too was abandoning the Declaration. Germany, which in September 1914 had agreed to apply it on condition of reciprocity, responded by amending its prize regulations and introducing new contraband lists, calling this a reprisal.