File No. 763.72111Em1/33
As will be seen from a perusal, it is an attempt at rebuttal of the
arguments set forth and the policy outlined in the Department’s masterly
communication above referred to, and whose publication on July [September] 26 by the Austro-Hungarian Government
had an excellent effect, for the moment at least, toward calming the
public outcry against the United States in this regard. The
Austro-Hungarian rejoinder is generally regarded as a feeble effort to
justify the original protest which was so completely demolished by the
Department’s reply. A careful reading of the document gives me the idea
that an answer is not expected.
[Enclosure―Translation]
The Austro-Hungarian Minister of Foreign
Affairs (Burian) to
the American Ambassador, (Penfield)
No. 88855]
Vienna,
September 24, 1915.
The undersigned had the honor Of receiving the much-esteemed note of
August 16 of this year No. 2758, in which his excellency the
Ambassador Extraordinary and Plenipotentiary of the United States of
America, Mr. Frederic Courtland
Penfield, was good enough to define the position
taken by the Government of the United States with respect to the
standpoint represented by the Imperial and Royal Government in the
question of the delivery of war requisites to Great Britain and her
allies.
The representations which the Washington Cabinet have devoted to this
question disclose the various points of view which are controlling
for the Government of the United States in this matter, and which,
according to their opinion, prevent them from accommodating
themselves to the views, of the Imperial and Royal Government. Much
as the Imperial and Royal Government have endeavored to thoroughly
examine the points which were presented as pertinent by the
Washington Cabinet, the most careful weighing and evaluation thereof
can not induce them to deviate from the standpoint set forth in
their note of June 29 of this year No. 59465.2
The arguments of the Government of the Union are for a great part
based upon the incorrect assumption that the Imperial and Royal
Government had in any way contested the right which Article 7 of the
fifth and thirteenth Hague conventions accords to the subjects of
neutral powers to supply belligerents with contraband, whereas the
above-mentioned note of the Imperial and Royal Government expressly
stated that the text—but only the text—of the provision referred to
affords the Government of the Union with a formal pretext for
tolerating the traffic in munitions of war in which its citizens are
at present engaged. It is a matter of course that the Imperial and
Royal Government did not remotely expect a deviation from an
effective treaty, on the part of the Washington Cabinet; they merely
pointed out that according to their opinion, that provision should
not be interpreted in a manner which would be at variance with the
fundamental conception and the highest principles of the law of
neutrality. It is true that from the progressive codification
[Page 811]
of international law there
arises the danger that the principles of law laid down in written
agreements be regarded as the essence of international law and in
this way its most general fundamental conceptions, in so far as they
have not been expressly fixed in state treaties, be overlooked.
However, this possibility should be prevented with particular
reference to matters of the law of neutrality, and in this sense it
appears to be emphasized in the preamble to the thirteenth Hague
convention (paragraphs 2 and 8) that the stipulations of this
convention represent only fragments, which can not cover all
circumstances which may arise in practice and which find their
corrective and supplement in the general principles of international
law.
The Imperial and Royal Government then focused their statement in
this matter upon the special problem of whether the cited treaty
provision does not find its limitation in these principles; and in
appealing to the opinion of science in their affirmation of the
question they had in mind and could only have had in mind those
authorities which inquire especially whether the otherwise
permissible exportation of war requisites does not under certain
circumstances involve a compromise of neutrality. In no place in the
note of June 29 of this year is an assertion to be found to the
effect that writers are unanimously of the view that the exportation
of contraband is contrary to neutrality.
Further, the Imperial and Royal Government have in no way advocated a
principle of equalization. As a matter of fact they did not base
their suggestion in the question of the exportation of war
requisites upon the fact that they are not themselves in a position
to draw munitions of war from the United States of America; they are
indeed of the opinion that the excessive exportation of war
requisites would not be permissible even if it were taking place to
the countries of both belligerent parties. It has never occurred to
the Imperial and Royal Government that it is obligatory upon a
neutral power to equalize the disadvantage at which Austria-Hungary
finds itself in not being able to draw munitions of war from the
neutral territory by forbidding its subjects traffic in such objects
with the enemies of the Monarchy. They only objected that the
economic life of the United States had been made serviceable to the
greatest extent by the creation of new and the enlargement of
existing concerns for the manufacture and exportation of war
requisites and thus, so to say, been militarized, if it be permitted
to use here this much-misused word.
But in the concentration of so many forces to the one end, the
delivery of war requisites, which, although not so intended,
actually results in an effective support of one of the belligerent
parties, which appears all the more surprising when such articles as
are not even contraband are not being supplied from the United
States to the other belligerent party, lies a fait
nouveau which weakens reference to supposed precedents in
other wars. The parallel with former wars fails, particularly as
these were always wars between two individual powers or wars between
groups constituted of fewer powers. Under this condition it was
possible that, if war supplies were delivered from a neutral country
to only one belligerent party, the opponent could turn to other
neutrals. But in the present war the United States is the only power
which can be reasonably considered in connection with such
deliveries. For this reason the exportation of war requisites from
the Union as it is now being carried on, acquires quite another
significance than that which the exportation of contraband could
ever before have had. As all of these decisive points appeared in
their full import only during the course of the war, the
Austro-Hungarian Government consider themselves justified in the
view that, in the sense of the last paragraph of the preamble to the
thirteenth Hague convention, these points contain sufficient grounds
for changing the practice hitherto adhered to by the the United
States. Complete and strict impartiality, such as is being aimed at
by the Washington Cabinet and thus abstention from every direct or
indirect support or assistance of a belligerent party, doubtlessly
appertains to the rights of a neutral state. If experience shows
that an embargo of any character whatsoever becomes necessary for
this purpose during the course of a war, this power is justified in
changing its previous neutrality practice.
On the other hand the present case, which differs so completely from
all former cases, represents a fait nouveau
which, as already intimated, does not fall under the cited Article 7
and therefore can not be regarded otherwise than an unforeseen case
which, in the sense of the preamble to the thirteenth convention
(paragraph 3), must be dealt with according to the general
principles of international law, as has been set forth above.
[Page 812]
Nor did the suggestion made by the Imperial and Royal Government with
respect to the importation of foodstuffs and raw materials proceed
from the idea that a neutral Government is bound to compensate for
the advantages attained by one belligerent party over another by a
system of non-intercourse with the former. As may be seen from the
note of June 29 of this year, the aforesaid suggestion had merely
the purpose of representing to the Washington Cabinet, which had
presented the argument, that in consequence of the war situation it
was impossible for the United States to carry on commerce with the
Central powers, that it lay within the power of the Government of
the Union to open up the possibility of doing so. In fact it is not
the maritime successes of Great Britain and her allies which caused
the cessation of trade between America and Austria-Hungary, at least
as far as non-contraband goods are concerned, but the illegal
measures adopted by the Entente powers, which, as is not unknown to
the Imperial and Royal Government, are also regarded as illegal by
the Government of the Union.
The Imperial and Royal Government do not indeed deny that, if the
Washington Cabinet should accommodate themselves to the
Austro-Hungarian view, the position of the United States of America
toward the two belligerent parties in the domain of commerce would
be less unequal than is at present the case. But it appears to the
Imperial and Royal Government that an argument against a suggestion
which is perhaps otherwise recognized by a neutral power as
justifiable from a standpoint of neutrality is all the less to be
deduced from the foregoing, since even according to the view of the
Washington Cabinet, it is certainly not the task of a neutral state
to shape its position as unequally as possible to the two
belligerent parties or, in case such an inequality exists, not to
disturb it under any circumstances.
As opposed to the assumption of the Government of the Union that, in
the opinion of the Imperial and Royal Government, the exportation of
arms and ammunition conflicted with the last paragraph of the
preamble to the thirteenth convention, it may be emphasized that the
Imperial and Royal Government based their position against the
exportation of war requisites, as represented above, on paragraphs 2
and 3 of the preamble. The appeal to the latter paragraph was
intended to be in connection with the question of the illegitimate
exclusion of Austria-Hungary from the American market and was for
the purpose of showing that for this very reason the Government of
the Union would be justified in issuing an embargo by legislative
means.
If the Government of the United States, asit would appear, mean to
express the view that the Government of a belligerent power are not
warranted in speaking in matters of the preservation or exercise of
a right of a neutral state, this is perhaps to be explained by the
fact that the Washington Cabinet gave a too restrictive
interpretation to the last-mentioned paragraph, to the effect that
this paragraph refers only to strictly personal rights, the
protection of which even in the opinion of the Imperial and Royal
Government must naturally be left to the discretion of the neutral
state.
The aforesaid paragraph, however, as is clear from the report which
the French delegate, M. Renault, made to the
committee of the whole at the Hague conference upon the thirteenth
convention1 has in view the case of the observance of
neutrality, and therefore the privilege of approaching a neutral
government with appeal to the said passage can not be denied to a
belligerent, in case the question of the protection of the rights of
a neutral state touches upon the sphere of rights of the
belligerent.
The Imperial and Royal Government have followed with keen interest
the representations of the Government of the Union, wherein the
points of view which make it imperative for the Washington Cabinet
to place no restrictions upon the exportation of war material during
the present war are set forth; however, they do not abandon the hope
of meeting the approval of the Government of the Union in remarking
that these points of view of a purely practical nature do not
influence the legal aspect of the case, and it must remain
uninvestigated by us whether the fact that the manufacture of
requisites of war in the United States could assume such large
dimensions would not rather justify the conclusion that the United
States, where all requisites for this production, viz., manual
labor, natural resources, and capital, exist in abundance, would not
be dependent upon drawing war
[Page 813]
material from abroad, in case it should have
to conduct a war of its own, in which their own cause would increase
the energy of its citizens.
The Imperial and Royal Government particularly beg to add the
following:
In citing the precedents appealed to by the Washington Cabinet,
which, as already mentioned, can not however be recognized as such,
the Government of the Union emphasize the example of the Boer war,
during which a commercial isolation of one of the belligerent
parties analogous to that in the present war occurred. In truth such
an analogy can scarcely be recognized, because at that time Great
Britain had not proclaimed a prohibition of trade, such as that
presented by the present illegal measures of the London Cabinet, and
because a commercial isolation certainly can not be seen in the
prevention of the importation of arms and ammunitions, as mentioned
by the Government of the Union, to say nothing of the fact that the
exportation of war material from Austria-Hungary in the Boer war,
just as in other wars in which such exportation took place at all,
never overstepped the bounds of reasonableness.
As to the reference of the Washington Cabinet to the German
authority, the ground has been cut from under it and the conclusions
derived therefrom by the fact that, as in the meantime must have
become known to the Government of the Union, Mr.
Einicke has publicly protested against the
use of a passage of his treaties on neutrality in maritime warfare
in support of the attitude of the Washington Cabinet. Moreover, the
Imperial and Royal Government regard it as a matter of course that a
neutral state must not proclaim an embargo with the intention of
injuring one of the belligerent parties. It is equally a matter of
course that it can never be asserted of an embargo which a state has
proclaimed for the maintenance of its neutrality that this was done
with a view of injuring one of the belligerent parties.
Finally, the observations of the Government of the Union dealing with
the provisioning of vessels of war are apparently based upon a
misunderstanding. In mentioning the prohibition of the delivery of
vessels of war and the prohibition of certain deliveries to vessels
of war the Imperial and Royal Government had no concrete case in
view, but rather the prohibition expressed in Articles 8, 19, and 20
of the thirteenth Hague convention.
The undersigned has the honor to appeal to the kindness of his
excellency the American Ambassador with the most respectful request
that he be good enough to communicate to the Washington Cabinet by
telegraph the foregoing friendly arguments, which are merely
intended as, a final supplement to the statement of the legal aspect
of the matter as defined in the note of June 29 of this year with
regard to the points set forth by the Government of the Union, and
at the same time the undersigned avails himself [etc.]
