A 7968/14/51
FOREIGN OFFICE,
S.W.I.
6th December, 1958.
Sir,
I am directed by Viscount Halifax to transmit
to you herewith, for the information of the lords
Commissioners of the Admiralty, copy of a despatch from Kis
Majesty's Minister at Panama dated the 7th October together
with copy of a memorandum prepared in this Department on
the subject of the amount of fuel to be supplied to
belligerent warships in neutral waters.
2.        It appears from this memorandum that His Majesty's
Government have supported the rule that a warship in a
neutral port should be allowed to take on board the fuel
necessary to enable her to reach her nearest home port, but
it seems clear that in supporting this rule they assumed
that the nearest home port would not be very distant, since
they seem to have objected to the alternative rule also
embodied in Article 19 of the relevant Hague Convention that
belligerent warships might be allowed to take on board
enough fuel to fill up their bunkers.     As Lord Halifax
understands it, it was because of the inclusion of this rule
as an alternative to the other rule that His Majesty's
Government entered a reservation against Article 19.   Unless !
qualified as suggested above, the rule about the nearest
home port would be meaningless in those cases (very likely to
be of frequent occurrence) where the nearest home port was
so far distant that it could only be reached, if at all, by
/filling
The Secretary
of the Admiralty.
filling all bunkers.
3. It also appears from the memorandum that what the
delegates to the conference had principally in mind was that
it would "be impracticable to make a rule about taking fuel
on board which was of so narrow and rigid a character that
warships visiting a neutral port would either become
immobilised there- for want of fuel or alternatively would
become derelict on the high seas because they were not
allowed to take on board enough fuel to proceed to some other
destination.     On the other hand it does not appear to have
been the intention to allow a warship to take on board so
much that she could proceed untrammelled with her belligerent
operations; and it is clear that there may be a very narrow
margin between a bona fide refuelling and the use in effect
of a neutral port as a base.   This applies especially in the
case of commerce raiders operating at a great distance from
any port of their own flag, particularly now when the
cruising radius of a fully fuelled ship is presumably much
greater than at the date of the Hague Convention.
4. It would appear therefore that neither of the
rules embodied in Article 19 is satisfactory as they fail to
bring out the duty of a neutral not to allow refuelling in
such circianstances or on such a scale as in effect to permit
their ports to be used as a base.     It is for consideration
therefore, whether in time of war Kis Majesty's Government
should not rely on their reservation to Article 19 for the
purpose of contending vis-a-vis neutrals that the correct
rule of international law is that, while a belligerent
warship should generally speaking be allowed to take on board
enough fuel to save her from immobilisation or from becoming
/derelict
derelict on the high seas, it would be contrary to the
obligations of a neutral to allow her to take on "board enough
to render hex* fully efficient for warlike purposes.
Consequently, save in very exceptional circumstances, His
Majesty's Government could not agree to the rule about filling
S
the "bunkers and must interpret the alternative rule about tne
nearest home port as being based on the assumption that a
home port exists within such a limited distance that a
warship could reach it by taking on board a.moderate quantity
of fuel.     It might also be necessary, where commerce raiders
are making regular use of neutral ports for refuelling, to
raise the question whether a neutral which allows such
refuelling with knowledge of the circumstances is acting in
conformity with neutral obligations.
5*      An ihtere sting commentary on the failure of the
Hague Convention to provide a satisfactory solution of the
question is furnished by the case of Chile, which in 1914
adopted the rule of supplying coal in sufficient quantity to
enable belligerent warships to reach the nearest coaling port
of the neighbouring nation.   The preamble to the relevant
decree (State Papers, Volume 108, page 805) stated that the
application of the Hague Convention rules was producing
results clearly contrary to its spirit because belligerent
warships took advantage of the considerable quantity of coal
permitted to be supplied to them for reaching their distant
countries, in order to continue their warlike operations in
American waters, instead of proceeding to their own countries.
6.       Lord Halifax would be grateful for an expression
of Their Lordships' views on the points raised in this letter.
I am,
Sir,
Your obedient Servant,
(Sd.) J. BALFOUR
(A 7968/14/51).
Amount of coal to be supplied to belligerent warships
in neutral waters.      (Hague Conference proceedings)
In the general instructions addressed to His Majesty's
First Plenipotentiary to the Second Peace Conference at The
Hague on June 12, 1907 it was stated, as regards the rights
and duties of neutrals at sea, that nations were agreed on
general principles but that there was bound to be great
divergence in their application;   it was suggested that
rules based on certain principles would help to clear the
situation, and among these rules the following were
included:-
"¦(a)     Neutrals shall not allow their terrltoral waters
to be used for purposes which will directly assist a
belligerent in operations of war.
.««.«..•«.
(c)     The customary maritime facilities known as
'hospitality' shall not be withheld."
In this connexion a distinction was made between Great
Britain as a belligerent and as a neutral:   In the former
capacity it was unlikely that she would have to depend upon
the assistance of neutrals in the direct carrying out of
operations of war;   as a neutral, her interests required
uniformity of practice on the part of neutrals generally and
it would be desirable that the rules obtaining in this country
should obtain international sanction at the Conference.
2.     Rules of neutrality had been drawn up in this country
in 1862 (during the American civil war) in which were included
those dealing with the supply of coal to belligerent
warships./
warships.   These permitted the supply of sufficient coal to
enable warships to reach the nearest point of their own
country or to some nearer destination;   *port" was
subsequently substituted for "point1* in this phrase, which
in the rule issued during the Russo-Japanese war read as
follows:-   *to the nearest port of her own country, or to
"some nearer-named neutral destination."
3*     In July 1907, Mr.-(now Sir C.) Hurst drew up a
draft convention on the subject of neutrality during naval
war for submission by the British delegation to The Hague
Conference.   This draft included the following two rules:-
"XVI.      A neutral Power must not knowingly allow a
belligerent war-ship to take on board within its
jurisdiction any stores, fuel or supplies, for
the purpose of enabling It to proceed against
the enemy, or to carry out belligerent
operations.
"XVII.      A neutral Power must not knowingly allow a
belligerent war-ship to take on board within its
jurisdiction any stores, fuel, or supplies,
unless the stores, fuel, or supplies already on
board are Insufficient to enable it to proceed to
the nearest port of its own country;   nor in
any case shall the stores, fuel, or supplies
shipped within neutral jurisdiction exceed the
amount required, including those already on
board, to take the war-ship to the nearest port
of its own country,*
In an accompanying memorandum, Mr. Hurst pointed out that
in Rule XVII he had omitted the phrase "nearer named neutral
"destination" used in 1904 as, theoretically, under
Rule XVI the vessel could not be intending to commit
hostile acts;   and he expressed the view that no "breach of
neutrality would be caused by supplying a vessel up to the
limit required to take her to her own country.    (It may be
noted here that Admiralty letter of July 23, 1907, commenting
upon the draft convention made no mention of these particular
rules).
4.     The question of the rights and duties of neutrals
in a maritime war was referred to a sub-committee (the Second
Sub-Committee of the Third Commission), at the third meeting
of which, on July 27th, there was general agreement as to
the desirability of limiting the amount of coal supplied to
belligerent warships, although there were differences of
opinion as to the extent of such limitation*   At the next
meeting of the sub-committee, held on July 30, the Netherlands
representative, discussing proposals formulated by the
Spanish and Japanese Governments, called attention to the
impossibility of a neutral Power ascertaining at the time
whether or not a warship was proceeding on work of a
belligerent nature, stating that in time of war every
belligerent vessel must be regarded as having a doubtful or
unknown destination;    he stressed the desirability of
establishing definite rules for safeguarding the position of
neutral States and suggested rules for the supply of sufficient
fuel for the warship to reach the nearest non-enemy port, with
the...
I
I
the exception of the period at the outbreak of hostilities,
when sufficient might be supplied for the voyage to a home
port.
5.     The question was more fully discussed at the meeting
of the sub-committee on August 1st.   On this occasion the
Russian representative made a statement containing the
argument that while all were agreed that a neutral State must
not allow its ports to be used for increasing the belligerent
power of warships, it would be an equal breach of neutrality
(in favour of the other belligerent) to decrease that power
by refusing supplies within certain limits, and recommending
the adoption of the phrase
Mans la mesure fixe*e par la legislation inte'rieure de
"l'Etat neutre et dans les limites exige*es par les
"interests de ces batiraents."
At this same meeting the Japanese representative discussed
the question of the destination of belligerent warships after
leaving a neutral port and expressed the view that they
should be obliged to declare their destination as a prior
condition to the grant of hospitality in neutral ports.
The discussions having brought to light a number of different
points of view, the whole question of the rights and duties
of neutrals in naval warfare was referred to a Comlte*
d'Bxamen.
6.     The Comite* d'Examen produced in September a draft
convention, Article XIX of which read as follows, with
alternatives as showns-
wLes.##
nLes navires de guerre bellige'rants ne peuvent se
ravitailler dans les ports et rades neutres que pour
completer leur approvisionnement normal du temps de
paix;   le ravitaillement ne donne pas droit a prolonger
la dure"e legale du sejour.
Ces navires ne peuvent
de mSme prendre du
combustible que pour
gagner le port le plus
proche de leur propre
pays.
Ces navires ne peuvent
de mdme prendre du
combustible que pour
completer leur piein
normal de temps de paix
•       ••••••••••       •"
(In examining this particular article it is of course
necessary to have regard to the provisions of the draft
convention as a whole, e.g. the preamble, which provided for
its application impartially to all belligerents, and
Article V which prohibited the use of neutral ports and
waters as a base of naval operations.)
Article XIX of the draft convention was discussed at a
meeting of the Comite* d'Bxamen on September 11-12, when
Sir Brne8t Satow maintained that a neutral had no right to
give aid and assistance to a belligerent to meet its adversary
and urged the adoption of the original British proposal,
expressing the view that the sole reason for supplying coal
to a warship was to prevent its becoming a wreck on the high
seas.   He was followed by the German representative, who
supported..
supported the second alternative;   in the course of his
argument he mentioned that against this it had been
maintained that a belligerent vessel would thus be enabled
to obtain sufficient fuel to enable her to remain on the
high seas and undertake belligerent operations, especially
when the vessel was in the neighbourhood of several neutral
States;   he argued however that this would apply only to
some parts of the world as in vast regions the ports with
coaling facilities were far distant from each other; he
went on to say that the same objection applied to the first
alternative, as the supply of coal by neutrals to warships
far from their own country might even exceed the normal
amount;   finally, he pointed out that a neutral oould
forbid the use of its ports to any wayship which endeavoured
to use them as a base of operations, adding however that the
neutral had not the right to prejudge the intentions of a
belligerent warship on its first visiting its waters.
7*     After further discussion the Russian representative
finally suggested the following wordingj-
*Ces navires ne peuvent de m3me prendre du
"combustible que pour gagner le port le plus proche
*de leur propre pays.   lis peuvent prendre du
"combustible pour completer leur plein de soutes
*proprement dites dans les ports d'Etats neutres
"qui donnent la pre'fe'rence a ce moyen de de*finir la
"quantlte* de combustible requise.1*
This wording was put to the vote in the Comite* d'Rxamen
and carried, Great Britain, the United States and Japan
abstaining...
15
abstaining.   At the close of the meeting, the Russian
representative summed up in the following words
"Nous avons discute* sur la quantity du charbon;
*mais quelle que soit eette quantity, il faut laisser
*aux inte*resse*s le temps ne*cessaire pour la charger.
*Sans cela cette disposition serait un leurre et une
"source de malentendus.   Or, nous avons tous reconnu
*que c'est un droit pour le navire que de pou^voir vivre
*en mer, et qu'il n'entre pas dans les attributions d'un
*Etat neutre de re*duire un navire bellige'rant a l,e*tat
Hd'e*pave.w
Subsequent discussion of the question in the Third Committee
on October 4 brought forward no new argument, and on the final
vote Great Britain (who had already made a general reservation)
was in a minority against the wording of the draft article
and there were a number of abstentions (including the
United States who, having made a general reservation,
abstained from voting on separate articles).
-->nvenient summary of the attitude of His Majesty's
Government in this matter will be found in the final report
of an interdepartmental committee submitted to the Secretary
of State on May 28, 1908, in which were included the following
points:-
(a)   The extent of Great Britain's coast lines and the
number of her ports in all parts of the world make it
certain that in a war, during which she is a neutral,
belligerents will frequently desire to obtain shelter
and supplies for their warships in her waters or ports;
equally...

r
equally, with Great Britain as a "belligerent, it
is essential that she should know what assistance
of this character it is permissible   to neutrals to
render her or her adversary.
(b) The interests of nations differently situated
either as to their possessions, as to their strength
at sea, and as to the probabilities of their being
engaged in maritime war diverge seriously.
(c) In the past it suited the interests of
Great Britain to take a strict view as to the
obligations of a neutral State because she was to
a very small extend dependent on the right to use
neutral ports and her strength at sea enabled her,
generally speaking, to insist on her own rules;
general agreement would however be improbable unless
Great Britain were prepared to make some concessions
to those countries to whom her rules would be
inconvenient when belligerent or burdensome when
neutral.
(d) Article XIX;-   The argument usually brought
against any rule which makes the amount of coal
dependent on the port to which the ship is going is
that the neutral has no means of testing the accuracy
of the statements made and that the captain himself
does not always know the port to which he will next
be ordered.   In practice however the rule as
enforced by this country had worked well.   It must
be assumed that there was little hope1 of securing
the general adoption of the British rule, and, as
there.i!
mm
there would be advantage in having the same rules
adopted by as many nations as possible, it was not
considered wise for Great Britain to stand out alone
against acceptance of the article.   The committee
therefore recommended that if the convention were
signed a reservation should be entered against this
article, which could be maintained or not as thought
fit (in the light of the attitude of other Powers)
when the time came for ratification*
The convention was eventually signed (but not ratified)
by this country, with reservations of Article XIX (and of
Article XXIII).
FOREIGN OFFICE,
November 8, 1958.