763.72112/982½
The Counselor for the Department of State (Lansing) to the Secretary of State
Dear Mr. Secretary: If we proceed on the assumption that the Order in Council and note of Sir Edward Grey constitute a sufficient notice of the establishment of a blockade of German ports, we could agree that Articles 1 and 2 are applicable to the ports and coasts of Germany on the North Sea, but I do not see how we can admit that they apply to the German territory on the Baltic.
The German ports on the Baltic are open to trade with Sweden and Denmark, and possibly with Norway. An essential element of a blockade is its impartial application to all neutral powers. If vessels from a neutral power can proceed without danger to the port of a belligerent, the ineffectiveness of the blockade is manifest, and if a blockade is ineffective as to any vessels, it ought not to be [Page 287] recognized and the rules of contraband only should apply to trade with the port thus outside the blockade.
This position as to the limited coastal area covered by the blockade established by Great Britain and her Allies, confining it to the ports and coasts of Germany on the North Sea, does not involve the question of the radius of activity or the distance of the blockading vessels from the territory blockaded.
As to the physical maintenance of a blockade under present conditions, I think that we ought to take the position that actual experience can be the only measure of the efficiency of modern methods in maintaining a blockade and that we should reserve for the present the consideration of the subject with the express understanding that no rights are waived and no acquiescence given by failure to discuss at this time the mode of enforcing the proposed blockade.
As to articles passing to and from Germany through neutral territory, with which Articles 3 and 4 of the Order in Council deal, the rules of contraband should be applied. While non-contraband may be legally stopped when destined to the port of an enemy which is under blockade, non-contraband consigned to a neutral port, whatever its ultimate destination, should be allowed free passage. Under the rules of contraband, furthermore, the “enemy origin” of non-contraband does not stamp the articles with the character of contraband or confer on a belligerent the right to detain or divert them from a neutral destination.
It seems to me that the line of difference as to the treatment of cargoes destined to Germany, which are proceeding directly to a blockaded coast, and those destined to Germany, which are proceeding through neutral territory, is clear. In the first case the rules of blockade apply; in the second case the rules of contraband apply. In brief I think that a representation might be made along these lines provided it seems advisable to admit that the declaration of March 1st and the Order in Council of March 15th institute a blockade.
Faithfully yours,