File No. 763.72112/126
The Acting Secretary of State to the Ambassador in Great Britain (Page)
Washington, September 26, 1914.
Sir: On August 6 last this Government sent telegraphic instructions to its missions at London, Paris, Berlin, Vienna, St. Petersburg, and Brussels to inquire whether the governments at those capitals were willing to agree that the laws of naval warfare laid down by the Declaration of London 1909, shall be applicable to the present European conflict provided that the countries at war all agree to such application.1 This Government expressed the belief that the acceptance of the declaration by the belligerents would prevent [Page 226] grave misunderstandings which might arise as to the relations between belligerents and, neutral powers, and it, therefore, earnestly hoped that its inquiry might receive favorable consideration.
To this inquiry the governments at Berlin and Vienna replied that the Declaration of London would be observed by them upon condition of a like observance on the part of their adversaries.1 This Government has now been informed by a note of the British Foreign Office,” dated August 22, inclosing a memorandum of the British Government and also an order in council, dated the 20th ultimo, that the British Government have adopted the Declaration of London, of 1909, with certain modifications and additions.2 Advices have also reached this Government that the French and Russian Governments have adhered to the position of the British Government in respect to the Declaration of London. As yet, however, no reply to the American inquiry has been received from the Government of Belgium.
As the inquiry of this Government had no reference to the adoption of the Declaration of London except in its entirety and by all of the great powers at war, the announcement that the Government of Great Britain would adopt the declaration with certain modifications and additions regardless of the attitude of their adversaries, is not, I regret to say, an acceptance of the American proposition. The inquiry was made in the hope that by unanimous consent of the interested governments the differences of opinion as to the rights and duties of nations in time of war, which have heretofore vexed belligerent and neutral governments and been the cause of controversy long after war has ended, would be removed in the present conflict by the acceptance of a definite naval code governing international relations while a state of war continued. The act of this Government in making this inquiry was one of expediency. It did not, and does not now, consider the Declaration of London standing alone as the best and most equitable of naval war codes, particularly as respects neutral nations, but it seemed available in the emergency and most probable of acceptance by the maritime powers involved in or effected by the war and signatories to the instrument.
While the Government of the United States felt keen disappointment that His Majesty’s Government deemed it necessary to refuse to accept the Declaration of London without amendment, it has given to the new code proposed by His Majesty’s Government, which consists of the declaration modified and enlarged, careful and friendly examination in the hope that it might be found to impose no additional burdens upon neutral commerce and to change so slightly the relationship between belligerents and neutrals that this Government might advocate its general acceptance. I regret to say, however, that such is not the conclusion which this Government has reached from its examination. The reasons for this conclusion will be briefly set forth.
Naturally and properly this Government has examined the proposed modifications and additions from the viewpoint of a neutral, whose, normal rights in time of peace have already been restricted by new duties imposed upon it because of a state of war. The Declaration of London contemplated a state of war, but it also [Page 227] contemplated the special machinery for the application of its rules in specific cases, as provided in Article 7 of the Hague convention of 1907 for the establishment of an International Prize Court. It will be recalled that Great Britain objected to that article and made their acceptance of the convention conditional upon an agreement of the powers as to certain definite rules of law which should be binding upon the proposed prize court. The reason stated for insisting upon this condition was the uncertainty of the law of naval warfare which might be applied by an international court composed of jurists of different nationalities, having contrary views as to certain important rules of naval warfare, which lacked the sanction of general acceptance.
In order to remove this uncertainty and at the instance of Great Britain, the naval conference was called at London in 1908. It resulted in the signature of the Declaration of London in 1909. It is, however, well known that the Declaration of London has not been ratified by any country represented at the conference, and no ratifications have been deposited in London in accordance with Article 67 of the declaration. All of the other signatory powers have awaited the affirmative action of Great Britain, which, it is understood, has been indefinitely postponed. As a consequence of this failure to accept the declaration, the International Prize Court, whose establishment was conditional upon this acceptance, has not been organized.
A great safeguard of neutral rights is therefore wanting. The International Prize Court was to consist of not less than nine or more than fifteen judges, a majority of whom, with substantial certainty, would be of neutral nationalities. A court thus constituted was regarded by the nations as especially fitted to render impartial decisions in matters affecting the relations of belligerents and neutrals, Without the power to appeal to a tribunal so constituted, the application of the declaration by the national courts of the belligerents would impose sufficient hardship upon neutral commerce, but the enforcement by those courts of the declaration changed and modified, so that belligerent rights are enlarged at the expense of neutral rights, would be manifestly objectionable to neutral nations whose rights are impaired.
Although the International Prize Court has not been constituted and although it cannot well be called into being during the present conflict, the United States stands ready either to accept the declaration as a whole, provided all of the belligerents accept it, or to accept it for the period, of the war with modifications and additions acceptable, on the one hand, to the United States and the Netherlands, the two neutral signatories, and, on the other hand, to all of the belligerents.
This Government in seeking general acceptance of the declaration as a code of naval warfare for the present war had in mind the adoption of the declaration as a whole and not such part of it as might be acceptable to certain belligerents and not to other belligerents. It considered that the declaration was to be applied as a complete code of which no rule could be ignored or supplemented, and in so doing it followed Article 65 of the declaration, which stipulates: “The provisions of the present declaration must be treated as a whole and cannot be separated.”
[Page 228]The only reasonable explanation for the inclusion in the declaration of this requirement is that the instrument is composed largely of compromises on the part of the governments represented at the conference. Although the declaration is introduced with a general statement that “the signatory powers are agreed” that the rules contained in the declaration “correspond in substance with the generally recognized principles of international law,” the proceedings of the conference as well as the documents relating to it prove that an agreement on many of the articles was reached through reciprocal concessions. Being conceived in compromise and concession the declaration was accepted by the Government of the United States at the conference in London in the earnest hope that it might finally compose the differences which existed as to neutral rights and neutral duties, although in so accepting this Government was compelled to abandon certain rules of conduct which it had heretofore always maintained.
As might be expected in a settlement of divergent views and practices by mutual concession the Declaration of London contains provisions both advantageous and disadvantageous to the respective interests of neutrals and belligerents. But it is now proposed by Great Britain to retain all the provisions favorable to belligerents and to recast other provisions so that they will be less favorable to neutral interests. The result is a set of rules which limits neutrals’ rights far more than does the declaration itself treated as a whole. War, in any event, bears heavily upon a neutral nation. The interruption of its commerce and the limitations placed upon its trade are sufficiently burdensome under the rules of the Declaration of London. In consenting to those rules the Government of the United States made great concessions on its part and it does not feel that it can, in justice to its own people, go further. It cannot consent to the retention of a part of this compromise settlement and to the rejection of another part. The adoption of the declaration so modified is contrary to the customary procedure incident to compromise settlements, to the express provisions of the declaration itself, and to the spirit which induced its signature.
Passing now to a consideration of the modifications and additions proposed by Great Britain, this Government is constrained to state that Articles 3, 5 and 6 of the order in council are wholly unacceptable. As to the other articles of the order in council it is not deemed necessary at present to express the views of this Government.
Articles 3 and 5 read as follows:
(3) The destination referred to in Article 33 (of the Declaration of London) may be inferred from any sufficient evidence, and (in addition to the presumption laid down in Article 34) shall be presumed to exist if the goods are consigned to or for an agent of the enemy state or to or for a merchant or other person under the control of the authorities of the enemy state.
(5) Notwithstanding the provisions of Article 35 of the said declaration, conditional contraband, if shown to have the destination referred to in Article 33, is liable to capture to whatever port the vessel is bound and at whatever port the cargo is to be discharged.
These articles strike at the very root of the indubitable right of neutrals to continue their industrial and commercial enterprises with the minimum inconvenience and confusion, which are inevitable consequences of a maritime war. To concede the existence of [Page 229] such a right as is asserted by these articles of the order in council, would be to make neutral trade between neutral ports dependent upon the pleasure of belligerents, and give to the latter the advantages of an established blockade without the necessity of maintaining it with an adequate naval force. The effect of this asserted right suggests the result which was sought by the so-called “paper blockades” which have been discredited for a century, and were repudiated by the declaration of Paris.
Furthermore, serious misunderstandings may be anticipated from the wording of Article 3 of the order in council. The expression “any sufficient evidence” is vague and indefinite. With a belligerent as the sole judge of what is “sufficient evidence” to create an inference as to destination it will be difficult, if not impossible, for neutrals to know in advance the meaning to be given these words, and this element of uncertainty will be a serious deterrent to the free exercise of those commercial rights, of which neutrals ought not to be deprived. Again, the phrase “to or for an agent of the enemy state” fails to define whether the agent intended is one located in enemy or neutral territory, although the language of Article 5 is open to either construction. Furthermore the expression “to or for a merchant or other person under the control of the authorities of the enemy state” is broad enough to cover any person within enemy jurisdiction, including aliens as well as nationals. It may even be interpreted to apply to a subject or citizen of the enemy state in neutral territory, if such person acts under the instructions of his Government. It is evident that the use of language which is so uncertain in meaning and which is capable of such latitude of interpretation, is in itself highly prejudicial to the neutral rights of commerce.
Passing now to Article 5 of the order in council, it is manifest that this article nullifies the words “and when it is not to be discharged in an intervening neutral port” which appear in Article 35 of the Declaration of London. This then is a reversion to the doctrine of continuous voyage in the matter of conditional contraband, which was abandoned by the London conference according to the official report of the drafting committee. Destination to enemy territory is not, and cannot properly be, considered a good and sufficient ground for seizure of foodstuffs or other conditional contraband, unless they are destined for the use of the armed forces or of a government department of the enemy state. Yet it is, proposed by this article of the order in council to expose to capture all classes of conditional contraband on an inference based upon “any sufficient evidence,” with presumptive guilt if consigned “to or for a merchant or other person under the control of the authorities of the enemy state”; and upon such an inference and presumption it is further proposed that all classes of conditional contraband shall be “liable to capture to whatever port the vessel is bound and at whatever port the cargo is discharged.”
The United States has always insisted that foodstuffs are legitimate articles of commerce, and that mere destination to an enemy port is not of itself justification for their seizure or confiscation. The claim now advanced by Great Britain is not only opposed to the traditional policy of the United States, but it appears to be inconsistent [Page 230] with the position formerly maintained by Great Britain, both as a neutral and as a belligerent. In 1885 France notified foreign powers that “in view of the conditions under which the war with China was being actually conducted,” it had decided to treat rice as contraband of war. Lord Granville, at that time Her Britannic Majesty’s Principal Secretary of State for Foreign Affairs, admitted that provisions might acquire a contraband character under particular circumstances—if, for example, they were consigned directly to the fleet of a belligerent, or to a port where such a fleet was lying—but he declared there must be, in any event, “circumstances relative to any particular cargo, or its destination, to displace the presumption that articles of this kind are intended for the ordinary use of life and to show, prima facie, at all events, that they are destined for military use.”
During the recent war in South Africa, when Great Britain was a belligerent, the language of Lord Salisbury, speaking as Prime Minister and Secretary of State for Foreign Affairs, was in striking accord with the language used by Lord Granville, when Great Britain was neutral. Lord Salisbury then said, in an incident in which the United States was involved, that “Foodstuffs, with a hostile destination, can be considered contraband of war only if they are supplies for the enemy’s forces. It is not sufficient that they are capable of being so used; it must be shown that this was in fact their destination at the time of the seizure.”
Both of these distinguished statesmen laid down a doctrine as to neutral trade in conditional contraband, which was undoubtedly in accord with the generally accepted principles of international law. It was that doctrine which was written into the Declaration of London, and which His Majesty’s Government are now apparently seeking to change upon grounds similar to those advanced by France in 1885, which Lord Granville considered insufficient.
This Government, therefore, feels compelled to state that Articles 3 and 5 of the order in council are inadmissible in themselves, and that the purpose for which they have apparently been devised, as explained by the memorandum of the Foreign Office, namely, to intercept neutral commerce on its way to a neutral nation, is, in the opinion of this Government, equally inadmissible.
Turning now to Article 6 of the order in council it will be observed that this article proposes to make the “joint report of the drafting committee,” which is a series of comments upon the articles of the declaration, binding upon all prize courts. The report is in the language of the order in council to be “considered by all prize courts as an authoritative statement of the meaning and intention of the declaration, and such courts shall construe and interpret the provisions of the declaration by the light of the commentary given therein.” It is the intent, therefore, to give to this commentary equal authority in law with the declaration itself. In giving its consent to the ratification of the declaration the Senate of the United States did not include the report in that consent. It is also contrary to the long-established practice of the system of jurisprudence of this country to make any commentary upon the law binding upon the courts of justice. In view of the lack of senatorial sanction and the uniform practice of its tribunals, the Government of the United [Page 231] States cannot acquiesce in the proposal to make the views of a committee of the conference, however sanctioned by the conference, an integral part of the declaration itself.
In addition to the foregoing reasons the Government of the United States feels that its acquiescence in the position of Great Britain in regard to the Declaration of London might create or tend to create duties or incapacities on the part of the United States as a neutral nation, which the adversaries of Great Britain, having upon the suggestion of the United States expressed their willingness to adopt the Declaration of London without change, might regard as evidence of unfriendliness to them. The United States cannot permit itself to be placed in a position where its neutrality and impartiality are doubtful or open to question.
Furthermore, if the modifications were acceptable to this Government, it would be unwilling, by accepting them, to prejudice the rights of the Netherlands, the other signatory of the declaration neutral in the present war, whose interests, as the memorandum of the Foreign Office discloses, will be vitally affected by the changes proposed.
Finally this Government considers that the Declaration of London, as changed by the order in council, would result in such an interference with the customary rights of neutral commerce that the United States could not assent to it or submit to its enforcement, for the reason that to recognize it as a measure of the neutral rights of the United States would, in the opinion of this Government, be a manifest failure on its part to safeguard the interests of American citizens engaged in legitimate traffic with the subjects of belligerent and neutral nations.
In view of these considerations this Government is obliged to inform the Government of His Britannic Majesty that the United States would be unable to accept the declaration as thus modified though all the belligerents should concur in the modifications suggested by Great Britain. The Government of the United States, therefore, reserves all the rights which it has under the law of nations in relation to any losses or damages which may occur by reason of captures or condemnations made by the Government of Great Britain under the provisions of the Declaration of London as modified by the order in council of August 20, 1914.
You will inform His Majesty’s Principal Secretary of State for Foreign Affairs of the contents of the foregoing instruction and, if he should so desire, leave a copy with him for his consideration.
You will not fail to impress upon his excellency the gravity of the issues which the enforcement of the order in council seems to presage, and say to him in substance as follows:
It is a matter of grave concern to this Government that the particular conditions of this unfortunate war should be considered by His Britannic Majesty’s Government to be such as to justify them in advancing doctrines and advocating practices which in the past aroused strong opposition on the part of the Government of the United States, and bitter feeling among the American people. This Government feels bound to express the fear, though it does so reluctantly, that the publicity, which must be given to the rules which His Majesty’s Government announce that they intend to [Page 232] enforce, will awaken memories of controversies, which it is the earnest desire of the United States to forget or to pass over in silence. This Government in view of these considerations ventures to suggest in no unkindly spirit and with the sole purpose of preserving the mutual good will which now exists between the people of the United States and the people of Great Britain, that the British Government may find it possible to modify their intention before it has been put into practice, as its realization seems fraught with possible misunderstandings which the United States desires at all times to avoid, and especially at the present when the relations of the two countries are so cordial and when their friendship rests upon the secure foundation of the mutual esteem and common ideals of their respective peoples.
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