763.72111/1072a

The Acting Secretary of State to President Wilson

Dear Mr. President: From statements made by certain of our public men and from articles appearing in the press and periodicals of this country I apprehend that during the next session of Congress an effort may be made to have the Administration explain the reason for failure to protest as to violations of The Hague Conventions by [Page 36] belligerents. The basis for such criticism will be that the United States being a signatory of the Conventions is bound to enter a protest, or at least to demand an explanation of conduct contrary to the provisions of the Conventions when evidence of violation filed with this Government makes out a prima facie case.

While appreciating that it would be most unwise at the present time to address any belligerent government on the subject, I think that we should be prepared to state the reasons for refraining from doing so. I venture, therefore, to offer the following observations:

First. Evidence obtained ex parte is always open to the suspicion of prejudice and exaggeration. Before acting upon it this Government should be convinced that it is true. To do this would require an impartial investigation involving the taking of evidence from both sides. This investigation could only be made by a commission appointed by this Government or composed of members from this and other neutral powers. It is manifestly impractical at the present time, while hostilities are in progress, for such an investigation to be made. The Government is, therefore, in no position to act either by protest or demand for an explanation.

Second. Barring cases where the rights of a neutral or its citizens are unaffected [affected] by a violation of the provisions of the Conventions there is nothing in The Hague Conventions which imposes upon a neutral government the duty to act on its own initiative in a judicial capacity and pass upon charges of violation of a treaty nor grant the authority so to act at the instance of an injured party. The propriety of such action, therefore, depends upon the character of the undertakings entered into by the signatories to the Conventions. If they are joint in nature, they may be construed as imposing an obligation to investigate charges; if they are several in nature, no such obligation is implied.

Third. It is a matter of doubt, therefore, whether this Government should act in regard to a violation of The Hague Conventions unless the rights of the United States or its citizens are impaired by the violation. While the form of The Hague Conventions is that of a joint undertaking, the adoption of the form may be considered (and I think rightly) to have been for the sake of convenience, and not for the purpose of binding the parties to joint action in case of violation by one of them in a war with another signatory. That is, the same end would have been attained had each of the parties entered into an identical treaty with each one of the other signatories. To avoid this cumbersome method with the attendant repetition of ratifications and exchanges, the form of The Hague Conventions and provisions for deposit of ratifications were adopted. I think that this view is borne out by the provision which occurs in each Hague Convention of 1907 that any one party may denunciate the Convention but such denunciation shall only have effect in regard to that power. If this view of the several character of the undertakings by a signatory is correct the United States is in no position to protest or demand an explanation of an alleged violation unless its rights or those of its citizens are affected.

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As this Department may be asked orally by Senators and Representatives in regard to these matters I hope that I may be informed, as soon as it is convenient, of your opinion as to the soundness of these observations in order that there may be no conflict of statements to persons who are entitled to make inquiry on the subject.

Very sincerely yours,

Robert Lansing