763.72112/700½
Memorandum by the Counselor for the Department of State (Lansing)33
The Negotiations for the Adoption of the Declaration of London by the Belligerents as a Code of Naval Warfare During the Pending European War34
The Naval Conference at London in 1908-9 was in consequence of the following facts:
Great Britain objected to Article 7 of Hague Convention No. 12 of 1907 relative to the creation of an international prize court,35 because of the uncertainty of the law to be applied by that court in the decision of controversies submitted to it; Great Britain made its acceptance of the Convention dependent upon an international agreement by the principal maritime powers as to certain fundamental principles of law for the guidance of the court; and the British Government [Page 267] in order to obtain such an agreement proposed that a conference be held in London for the purpose of agreeing upon these principles of prize law. This proposal was acceptable to the powers approached and a conference met in December, 1908, composed of representatives of the ten principal maritime powers, who on February 26, 1909, concluded the Convention known as the Declaration of London.
As Great Britain originated the conference, the signatory powers generally awaited her action in ratifying it before they took action. The Declaration failed of approval by the Parliament of Great Britain and has not been ratified by any of the signatories, so far as the Department is advised. The United States Senate advised and consented to the ratification of the Declaration, but the United States has never deposited its ratifications at London as required by Article 67 in view of the action of the British Parliament.
The proceedings of the conference will be found collected in two British public documents entitled “Miscellaneous No. 4 (1909) C. D. 4554,” and “Miscellaneous No. 5 (1909) C. D. 4555,” “Correspondence and Documents respecting the International Naval Conference held in London, December 1908–February 1909.”
Printed in the proceedings are the views of the various governments upon the subjects treated in the Declaration, and from these it will be observed how much at variance the different governments were upon certain topics. The Declaration itself in Article 65 states “The provisions of the present Declaration must be treated as a whole and cannot be separated.” The conclusion is inevitable that the Declaration of London is a compromise of conflicting ideas which was reached only through mutual concessions on the part of the assembled powers, and that, having reached an agreement in this way, they desired that the rules adopted should be put in force as a whole without elimination or modification.
On August 6th last, the Department instructed the American diplomatic representatives at London, St. Petersburg, Paris, Berlin, Vienna and Brussels36 to inquire of the governments, to which they were accredited, whether they would be willing to agree that the laws of naval warfare laid down in the Declaration should be applicable to the European conflict, provided that the other countries engaged in the war also agreed to such application. The Department added that this Government believed that the acceptance of these laws by the belligerents would prevent grave misunderstandings which might otherwise arise as to the relations between belligerent and neutral powers, and it therefore expressed the earnest hope that its inquiry might receive favorable consideration. The act of this Government [Page 268] in making this inquiry was one of expediency. It did not consider the Declaration of London standing alone as the best and most equitable code of naval warfare, but it seemed available in the emergency and most probable of unanimous acceptance by the maritime powers involved in or affected by the war. The Government felt that by the general adoption of the Declaration, the differences of opinion as to the rights and duties of nations in time of war, which have heretofore been the cause of controversy long after a war ended, would be in a large measure removed in the present conflict.
On August 13th the Austrian Government replied37 that it would apply the rules of the Declaration during the present conflict “conditional on like observations on the part of the enemy,” and on August 23rd [22d] the German Government stated38 that it would apply the Declaration “provided other belligerents do not disregard its provisions.” The French and Russian Governments apparently awaited the reply of the British Government. On August 22nd the British Foreign Office informed the American Ambassador at London39 that the British Government had decided to adopt generally the rules of the Declaration, subject to certain modifications and additions which they judged “indispensable to the efficient conduct of their naval operations.” The Foreign Office then gave a detailed explanation of these additions and modifications in a memorandum.
On August 31st the Foreign Office communicated to Ambassador Page40 the British Order-in-Council of August 20th, by which it was proclaimed that during the present hostilities the Declaration of London would be adopted and put in force by His Majesty’s Government as if the same had been ratified, subject to certain additions and modifications which were fully set forth. This Order-in-Council was made binding upon the officers of the British Government, and upon the courts of Great Britain so far as they had occasion to enforce it. The Russian and French Governments adhered to the Declaration of London with the same modifications as made by Great Britain.
After a careful study of the Order-in-Council, the Department sent an instruction to the American Ambassador at London, dated September 26th,41 which contained in detail a note to be presented to the Foreign Office, setting forth the objections of this Government to the additions and modifications in the Order-in-Council of August [Page 269] 20th, and the reasons for the acceptance of the Declaration without change. The Ambassador, however, was instructed not to deliver this note until notified to do so by the Department, but to use it meanwhile as a basis for his conversations with Sir Edward Grey on the subject. As a matter of fact the note was never delivered to the Foreign Office.
Discussions were then held, both at Washington and in London, with a view to obtaining the agreement of Great Britain to the adoption of the Declaration without modifications.
Prior to this, on September 7th, the Austro-Hungarian Government informed the American Ambassador at Vienna that they were not able to judge the exact significance of the modifications of the Declaration of London, and asked for enlightenment on the matter.
The discussions between the representatives of this Department and the Foreign Office along the lines of the instruction of September 26th showed that Great Britain was unwilling to recede from her position. As a result this Government, convinced that further discussion would be useless, on October 22nd withdrew its proposal that the Declaration of London be adopted as a temporary code of naval warfare by belligerents and neutrals during the pending conflict.42 The notice of withdrawal, based on the failure to obtain unanimous assent, was sent to the governments of the warring powers named, with the statement that this Government would insist that the rights and duties of the United States and its citizens in the present war be defined by the existing rules of international law and the treaties of the United States, irrespective of the provisions of the Declaration of London, and that the United States reserved the right to enter protest or demand in each case in which the rights so defined were violated or their free exercise interfered with by the authorities of the belligerent nations.
On October 29th Great Britain issued a new Order-in-Council,43 replacing the Order-in-Council of August 20th and adopting the provisions of the Declaration of London with certain modifications set forth in the Order.
On December 23rd the British Government further amended the list of contraband articles in the Order of October 29th.44
The Department has followed the policy indicated in its telegram of October 22nd withdrawing its proposal regarding the Declaration of London, of protesting in each particular case in which it deemed that its rights or those of its citizens have been interfered with by the [Page 270] authorities of a belligerent power in contravention of the rules of international law and the treaties to which it is a party.
- This paper bears the notation: “Written for the Secretary who said on Friday (29th Jan.) that the President desired a statement of these negotiations. L[ester] H. W[oolsey].”↩
- For correspondence previously printed concerning the Declaration of London, see Foreign Relations, 1909, pp. 294–336, and ibid., 1914, supp., pp. 215 ff; see also ante, pp. 247–257.↩
- For text of this convention, see The Second International Peace Conference Held at The Hague From June 15 to October 18, 1901, S. Doc. 444, 60th Cong., 1st sess., p. 165.↩
- Foreign Relations, 1914, supp., p. 216.↩
- Foreign Relations, 1914, supp., p. 217.↩
- Ibid., p. 218.↩
- See telegram No. 483, undated, from the Ambassador in Great Britain, ibid., p. 218.↩
- See despatch No. 428, Sept. 2, 1914, from the Ambassador in Great Britain, ibid., pp. 223–224.↩
- Ibid., p. 225.↩
- Ibid., p. 257.↩
- Ibid., p. 262.↩
- For amended list, see ibid., p. 269.↩