R
Attached to 31501
PUBLIC RECORD OFFICE
Reference :-
CO. 885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
15 PUBLIC RECORD OFFICE, LONDON
No. 220A.
(CANADA: GENERAL.)
FOREIGN OFFICE to LAW OFFICERS.
Russo-Japanese War.—Carriage of Flour to Newchwang by Chinese Government Railway.
GENTLEMEN,
Foreign Office, March 29, 1904. WITH reference to my letter of the 17th instant, relating to the shipment of contraband from China in Chinese or British vessels, I have the honour, by direction of the Marquess of Lansdowne, to transmit, for your consideration, a telegram* which His Lordship has received from His Majesty's Minister at Peking, inquiring whether the transport to Newchwang of 190 tons of flour on behalf of a British firm by a Chinese Government railway would be a breach of neutrality on the part of the Chinese Government, assuming that the flour was intended for the consumption of the Russian naval or military forces.
The question thus raised would appear to be one not decided by authority or precedent, but Lord Lansdowne inclines to the view that the Chinese Government would incur no responsibility if the railway were owned by a commercial Company of the ordinary character, and that, even assuming the circumstances attending the sale by the consigners and the carriage by the Company of the flour to constitute trade in contraband, the transaction would, nevertheless, be legitimate commercially although undertaken by the consigners and by the Company respectively at the risk of seizure of the flour and of the rolling-stock which was conveying it by the Japanese forces, if the latter should be able to intercept the contraband goods in transit.
The generally accepted rules with regard to contraband do not apply directly to trade by land, since the belligerent Power can only interfere with such trade either (a) in the actual theatre of war, or (b) within its own territories, and in either case it can, should it so desire, prohibit trading altogether. Lord Lansdowne, however, presumes that he is right in thinking that, as an admitted principle of international law, a neutral State must not itself, during the continuance of hostilities between two Powers, sell or supply contraband articles to one of the belligerents.
The point that arises in this case is, whether conveyance of such articles by a Government railway would be contrary to international law.
Questions of an analogous nature are likely to occur at some future time on the continent of Europe, where many of the railways are already State-owned, and where the tendency is for them to become so more and more. For example, in the event of hostilities breaking out between Russia and Germany, the case might occur of the transport of contraband over two lines of railway between Paris and Berlin, (a) owned by the State, and (b) by a private Company. It seems to His Lordship that if the principle of international law above referred to be carried to its logical conclusion, it would be the duty of the French Government to prohibit the transport of contraband over (a), while, as regards (b), its transport would continue unchecked.
On the other hand, it may be argued that, if a State descends into the commercial arena for the purpose of conducting a commercial business, it does not thereby divest itself of its ordinary obligations and duties to other States, and that it must so conduct its commercial enterprise as not to give cause for offence on the part of a State with which it is at peace.
It may further be urged that the State carries on the business of a Railway Company cum privilegio' et cum onere, and that it cannot, merely because it is carry- ing on such business, commit, or be party or, privy to, acts which, under the general rules of neutrality, would be considered as offences against a friendly State; nor would such fact be likely to afford satisfactory explanation or excuse.
I am to request that you will take the matter into your consideration, and that you will favour Lord Lansdowne with your opinion as to whether the neutrality of the Chinese Government may be considered to be involved by its permitting the transport of flour over a Chinese State railway (assuming that such flour is intended for the consumption of the Russian naval or military forces), i.e., whether the share
Sir E. Satow, No. 55, Telegraphic, February 20,-1904 (and Minutes thereon).
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