File No. 763.72111/85
The Secretary of State to the British Chargé d’Affaires ( Barclay )
Washington , August 19, 1914.
Sir: I Have the honor to acknowledge the receipt of your communication No. 252 of the 4th instant, which was made to this Government in pursuance of instructions from His Majesty’s Principal Secretary of State for Foreign Affairs, with respect to the arming of merchant vessels in neutral waters.
The communication states the principles of neutrality, as contained in the treaty signed at Washington on May 8, 1871, by representatives of the United States and Great Britain, and reproduced, as you say, almost textually in Article 8 of the Hague convention, signed October 18, 1907, concerning the rights and duties of neutral powers in case of maritime warfare, the principles of which have been, as you state, agreed to by practically every maritime power.
The communication next considers the question of conversion of enemy merchantmen on the high seas, a policy which your Government opposes. It is then stated that Germany favors the policy of conversion; that it will probably attempt to use the ports of the United States to equip and despatch merchantmen for conversion from such ports; and that most of the preliminary arrangements leading to conversion will have to be made within neutral ports before the vessels proceed to the high seas to complete their transformation into vessels of war.
The purpose of the communication is apparently to lay down the principles of law which your Government believe should be applied by the United States in fulfilling its neutral obligations, especially [Page 600] in the matter of conversion of merchant vessels into war vessels, and, assuming these principles to be correct, to tax this Government with damages to British trade or shipping, or injury to British interests generally, if these principles, the correctness of which you assume, are not applied to German merchant vessels “equipped at, or departing from, United States ports.”
In acknowledging this communication, it does not seem appropriate to enter into any discussion as to what may or what may not be the policy of Germany in the matter of converting its merchant ships, which may be within the jurisdiction of the United States, into ships of war after they have left American ports and have reached the high seas. The assertion of the right so to convert merchant ships upon the high seas, made by Germany at the Second Hague Conference and maintained at the London Naval Conference, does not of itself indicate an intention on the part of the German Government to exercise this right, and this Department does not feel justified in its correspondence with foreign governments to assume, in the absence of specific information, an intention on the part of Germany so to do. The Department will, however, carefully examine the facts and circumstances of any particular case when it is called to its attention.
The question of the place where the belligerent right of conversion may be exercised, difficult in itself, is complicated by the fact that there has been a difference of opinion among the maritime states parties to the present war, and that at the conferences, to which reference has been made, the British delegation stated that there was no rule of international law on the question. Germany and Austria-Hungary insisted at the conferences upon the right to convert merchant vessels upon the high seas. France and Russia, allies of Great Britain in the present war, likewise insisted upon the right so to convert. Great Britain and Belgium, intimately associated with France and Russia in the prosecution of hostilities against Germany and Austria-Hungary, opposed the right of conversion on the high seas at the Second Hague Conference, where both these nations were represented; and at the London Naval Conference, to which Belgium was not invited and in which it did not participate, Great Britain maintained its previous attitude. It is thus seen that the right to convert merchant vessels upon the high seas was asserted in international conferences by four of the maritime countries now at war and that two of the maritime nations now at war opposed this contention. It is further seen that the maritime nations at war with Germany and Austria-Hungary are evenly divided on this question.
At the Second Hague Conference, the British delegation, opposing conversion on the high seas, stated that there was no rule of international law on the question; that in its carefully prepared memorandum presented to the powers invited to the London Naval Conference, the British Government held that “no general practice of nations has prevailed in the past on this point from which any principles can be deduced and formulated as the established rules of international law. So far as can be ascertained there are no precedents on the subject.”
In the official report of the conference, drafted by Mr. Renault, it is stated that agreement on conversion upon the high seas was [Page 601] impossible; and, in the report of the British delegates to their Government, it is said:
We were met with a refusal to make any concessions or to abate one jot from the claim to the absolutely unfettered exercise of the right, which its advocates vindicate as a rule forming part of the existing law of nations. In these circumstances we felt that we had no option but to decline to admit the right, and the result is that the question remains an open one.
It is obvious that the subject of conversion must be carefully examined and considered, and, in view of these circumstances, it is deemed by the Department of State inexpedient to declare a policy as to what measures it will take in a contingency which has not yet arisen, and that it may well content itself, in so far as this matter is concerned, with an acknowledgment of your note.
In the course of your communication it is stated as recognized “that a neutral government is bound to use due diligence to prohibit its subjects or citizens from the building or fitting out to the order of belligerents, vessels intended for warlike purposes and also to prevent the departure of such vessels from its jurisdiction.” It is asserted in this connection that “the starting point for the universal recognition of this principle was the three rules formulated in Article 6 of the treaty between Great Britain and the United States of America for the amicable settlement of all causes of difference between the two countries, signed at Washington on May 8, 1871.” After quoting the Three Rules of Washington, the note thus continues:
The above rules may be said to have acquired the force of generally recognized rules of international law, and the first of them is reproduced almost textually in Article 8 of the Hague convention No. XIII of 1907 concerning the rights and duties of neutral powers in case of maritime warfare, the principles of which have been agreed to by practically every maritime State.
As the communication apparently lays great stress on the expression “due diligence,” contained in the treaty of Washington, it is believed material to the present occasion to quote the following definition of it, contained in the Geneva award of 1872:
The “due diligence” referred to in the first and third of the said rules ought to be exercised by neutral Governments in exact proportion to the risks to which either of the belligerents may be exposed, from a failure to fulfill the obligations of neutrality on their part.
The expression “due diligence” was contained in the draft submitted by the British delegation to the Second Hague Conference, upon which Article 8 was based. Article 8 as finally adopted is as follows:
ARTICLE 8
- A neutral Government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise or engage in hostile operations, against a Power with which that Government is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which had been adapted entirely or partly within the said jurisdiction for use in war.
As the expression “due diligence” was considered obscure, it was rejected, as the learned reporter of the convention, Mr. Louis Renault, says in the elaborate report which accompanies the convention and [Page 602] which is, in accordance with the practice of international conferences, to be considered as the official and authoritative interpretation of the convention which it explains, justifies, and interprets. “The expression of due diligence,” he says, “which has become celebrated by its obscurity since its solemn interpretation, was rejected. The convention merely requires in the first instance (On se contente de dire d’abord) that the neutral is bound to employ the means at its disposal. . . then, to display the same vigilance.”
It is to be presumed that Article 8 which “reproduced almost textually” the first rule of the treaty of Washington, is to be interpreted in the sense in which Mr. Renault’s report shows it to have been adopted, especially as Great Britain and the United States have ratified the convention without any objection or reservation as to Article 8 thereof.
It seems obvious therefore that by neither the terms nor the interpretation of the provisions of the treaties on this point is the United States bound to assume the attitude of an insurer. Consequently the United States disclaims as a correct statement of its responsibility the assertion in your note that “His Majesty’s Government will accordingly hold the United States Government responsible for any damages to British trade or shipping, or injury to British interests generally, which may be caused by such vessels having been equipped at, or departing from, United States ports.”
The United States has always looked upon the Three Rules of Washington as declaratory of international law, and as the necessary and natural consequences of the doctrine of neutrality, proclaimed and enforced by the United States since the wars of the French Revolution, to which Great Britain was a party. The Three Rules can, in the opinion of this Government, only be considered as the starting point of the doctrine of that degree of diligence which a neutral should observe in the sense that its recognition by Great Britain in an important international controversy called marked attention to an existing doctrine, and furnished an incentive to its incorporation and definition in the Hague convention concerning the rights and duties of neutral powers in case of maritime warfare.
The United States, since the earliest days of its existence, has been as solicitous of its neutral duties as of its neutral rights, and, without further consideration of your communication at this time, I request you to state to your Government that there is no reason to anticipate that the United States will be less mindful of its duties or of its rights as a neutral in the present case than it has been in the past.
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