File No. 763.72112/342
No. 234]
With regard to Point V of the memorial I beg to point out that from a
statement made in the London Morning Post of October 12, 1914, the
British Admiralty have now issued orders that enemy reservists are not
to be captured if traveling in neutral ships.
[Enclosure—Translation]
Memorial of the German Foreign Office relative to
the position of England and France touching the London maritime
declaration
In accordance with an order in council of August 20, 1914, the
British Government will observe the Declaration of London of
February 26, 1909, during the present hostilities, subject to
certain additions and modifications. These additions and
modifications, however, are of such a nature as to vitiate the
Declaration of London in material points, and thereby likewise
violate modern international law. Further very considerable
modifications of the Declaration of London are contained in a
British proclamation dated September 21, 1914.
I
The most incisive modification of the Declaration of London is to be
found in the provisions concerning conditional contraband contained
under Nos. 3 and 5 of the order in council.
The Declaration of London provides in Article 33 that the definition
of conditional contraband should not apply, except when the goods
shipped are destined for the use of the administration or the armed
forces of the enemy
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country. Furthermore pursuant to Article 35, the definition of
conditional contraband is excluded when the ship is on a voyage to a
neutral port.
These provisions which are in the main declarative of existing
international law, and rest upon an equitable consideration of the
interests of belligerents and neutrals, are as good as vitiated by
the order in council. For, according to No. 3 of the order, the
destination of goods to the enemy shall be presumed in all cases
where the recipient of the goods is under the control of the
authorities of the enemy state; this means nothing else than that
any shipment consigned to the enemy country is subject to capture,
since all residents of the enemy country are under the control of
the authorities of the country. This provision is supplemented by
No. 5 of the order, which provides that a ship bound for a neutral
port can also be captured because of conditional contraband. Thus
the doctrine of continuous voyage which is only applicable to
absolute contraband under Article 35 of the Declaration of London,
is extended to apply to conditional contraband.
In this manner the milder rules of the Declaration of London,
relative to conditional contraband, are eliminated, and conditional
contraband is placed in effect upon the same footing as absolute
contraband. Through this procedure neutral trade with objects which
constitute conditional contraband, especially food for the provision
of the population of a belligerent state, which is recognized as
legitimate by existing international law, is made practically
illusory, and thus the interests of the belligerent as well as the
neutral are injured, contrary to international law. As is shown by
the events at the seat of maritime war, England’s practice in this
direction is most regardless in that it even assumes control of
supplies required for Germany’s neighbors, and thereby renders
insecure the provision of these countries.
II
The British Government believes that it can disregard without further
formality the lists of absolute contraband, conditional contraband,
and articles not to be declared contraband contained in Articles 22,
24 and 28 of the Declaration of London. In the declaration of
contraband dated August 5 [4], 1914, and upheld by No. 1 of the
order in council, aircraft and their distinctive component parts are
described as absolute contraband, whereas they can only be
considered relative contraband under Article 24, No. 8, of the
Declaration of London. Above all the British Government has by a
proclamation dated September 21, 1914, declared rubber, hides and
skins and various kinds of iron ore to be conditional contraband,
although these articles are not, or only very remotely, adapted to
warlike purposes and are therefore on the free list of Article 28
(see Nos. 3, 4, 6). This is at the same time a direct violation of
generally accepted rules of international law which provide that
neutral trade in articles serving exclusively peaceable purposes
cannot be interfered with by belligerents.
III
A further accentuation of the provisions relative to contraband
results from No. 2 of the order in council. For Article 38 of the
Declaration of London in concurrence with existing international law
does not permit the capture of a ship because of contraband unless
the contraband is on board the ship; it is however the intention of
the British Government to seize the ship at any time during its
whole voyage if it succeeded in carrying contraband with false
papers. This being the case, neutral shipping with territory of the
enemy is subject to continual molestation, since ships will be
detained not only on the ground of a patent fact, such as the
presence of contraband, but also on the ground of an assertion as to
the earlier conduct of the ship often not demonstrable.
IV
The provisions of No. 4 of the order in council leave undue latitude
to capture for breach of blockade, since the existence of a blockade
is to be presumed to be known to all ships which sailed from or
touched at an enemy port a sufficient time after notification of the
blockade to the local authorities of the port blockaded. By this
provision the British Government intends to draw
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the authorities of the enemy country
into the service of its own naval forces to an extent reaching
beyond the limits drawn by international law, and to force such
service by the capture of neutral ships.
V
Pursuant to a principle of international law which found confirmation
in the Declaration of London only such persons found on board a
neutral merchant ship can be made prisoners of war as are already
embodied in the armed forces of the enemy. This rule results from
Article 45, paragraph 1, No. 2, taken in connection with Article 47,
and is more precisely defined in the general report of the drafting
committee of the Conference of London in the first paragraph of the
notes to Article 45; as the general report remarks, the whole
conference agreed for juridical as well as practical reasons that
only active military persons are liable to capture on a neutral
ship, but not persons such as reservists, for example, who are
proceeding to their native country in order to fulfill their general
military duty. Although the British order in council recognizes the
two articles specified as well as the commentary contained in the
general report as binding on the Government, the British naval
forces have nevertheless taken from merchant vessels under the
Dutch, the Norwegian, and the Italian flags Germans liable to
military service who were not embodied in the armed forces and made
them prisoners of war. In this manner they have not merely directly
violated the principles of international law affirmed by the
Declaration of London but also the provisions of their own public
law.
According to a decree of the President of the French Republic
published in the Journal officiel of August
26, 1914, France has taken the same position as Great Britain in its
order in council. French naval forces have then in the same manner
as the British taken Germans liable to military duty from neutral
ships, particularly Dutch and Spanish ships.
Thus these ordinances, and more particularly the naval forces of
Great Britain and France, disregard in the most arbitrary manner the
rules laid down in the London maritime war declaration. Their object
is quite plainly to strike not only the military establishment but
also the economic system of their enemies by crippling neutral
trade, and in so doing they encroach without warrant upon the
legitimate trade of neutrals with the enemy as well as upon the
trade of neutrals with each other. It is true that the Declaration
of London has not yet been ratified; but as the plenipotentiaries of
the signatory powers, including the British and French
plenipotentiaries, expressly declared in the preliminary provision,
the rules of the Declaration of London are substantially responsive
to the generally accepted principles of international law. The
violations of the Declaration of London which Great Britain and
France have thought fit to commit must therefore be considered in
the light of violations of international law, which are all the more
grievous in view of the fact that in the wars where Great Britain
was a neutral—the Russian-Japanese War, for instance—she protested
most emphatically against such violations of law.1
The Imperial German Government has hitherto strictly observed the
provisions of the Declaration of London and has faithfully
reproduced its substance in the German prize ordinance,2 a copy of which is
attached; it has not permitted itself to relax from this attitude
even in the face of the flagrant violations of law on the part of
its adversaries. The Imperial Government is forced however to
question whether it can persist in this attitude if the enemy powers
continue the practice hitherto adopted by them; and the neutral
powers acquiesce in such violations of neutrality to the disfavor of
German interests. The German Government accordingly esteems it of
great value to learn what position the Government of the United
States of America proposes to take respecting the attitude assumed
by Great Britain and France contrary to international law.
Berlin
,
October 10, 1914.
