File No. 763.72112/1381
The Ambassador in Great Britain (Page) to the Secretary of State
2522. Following note, dated July 23, received from Sir Edward Grey this morning:
On the 2d of April3 your excellency handed to me a copy of a communication containing the criticisms of the United States Government on the measures we have been constrained to take on account of the menace to peaceful commerce resulting from the German submarine policy. This communication has received the most careful consideration of His Majesty’s Government.[Page 169]
2. I fully appreciate the friendly spirit and the candour which are shown in the communication and replying in the same spirit, I trust that I may be able to convince your excellency and also the administration at Washington that the measures we have announced are not only reasonable and necessary in themselves, but constitute no more than an adaptation of the old principles of blockade to the peculiar circumstances with which we are confronted.
3. I need scarcely dwell on the obligation incumbent upon the Allies to take every step in their power to overcome their common enemy in view of the shocking violation of the recognized rules and principles of civilized warfare of which he has been guilty during the present struggle. Your excellency’s attention has already been drawn to some of these proceedings in the memorandum which I handed to you on the 19th February. Since that time Lord Bryce’s report, based on evidence carefully sifted by legal experts, describing the atrocities committed in Belgium, the poisoning of wells in German Southwest Africa, the use of poisonous gases against the troops in Flanders, and finally the sinking of the Lusitania without any opportunity to passengers and non-combatants to save their lives, have shown how indispensable it is that we should leave unused no justifiable method of defending ourselves.
4. Your excellency will remember that in my notes of the 13th and 15th March I explained that the Allied Governments intended to meet the German attempt to stop all supplies of every kind from leaving or entering British or French ports by themselves intercepting goods going to or from Germany. I read the communication from your excellency’s Government not as questioning the necessity for our taking all the steps open to us to cripple the enemy’s trade, but as directed solely to the question of the legitimacy of the particular measures adopted.
5. In the various notes which I have received from your excellency the right of a belligerent to establish a blockade of the enemy ports is admitted a right which has obviously no value save in so far as it gives power to a belligerent to cut off the sea-borne exports and imports of his enemy. The contention which I understand the United States Government now put forward is that if a belligerent is so circumstanced that his commerce can pass through adjacent neutral ports as easily as through ports in his own territory, his opponent has no right to interfere and must restrict his measures of blockade in such a manner as to leave such avenues of commerce still open to his adversary. This is a contention which His Majesty’s Government feel unable to accept and which seems to them unsustainable either in point of law or upon principles of international equity. They are unable to admit that a belligerent violates any fundamental principle of international law by applying a blockade in such a way as to cut off the enemy’s commerce with foreign countries through neutral ports if the circumstances render such an application of the principles of blockade the only means of making it effective. The Government of the United States indeed intimates its readiness to take into account “the great changes which have occurred in the conditions and means of naval warfare since the rules hitherto governing legal blockade were formulated,” and recognizes that “the form of close blockade with its cordon of ships in the immediate offing of the blockaded ports is no longer practicable in the face of an enemy possessing the means and opportunity to make an effective defense by the use of submarines, mines, and aircraft.”
6. The only question then which can arise in regard to the measures resorted to for the purpose of carrying out a blockade upon these extended lines is whether, to use your excellency’s words, they “conform to the spirit and principles of the essence of the rules of war”; and we shall be content to apply this test to the action which we have taken in so far as it has necessitated interference with neutral commerce.
7. It may be noted in this connection that at the time of the Civil War the United States found themselves under the necessity of declaring a blockade of some 3,000 miles of coast line, a military operation for which the number of vessels available was at first very small. It was vital to the cause of the United States in that great struggle that they should be able to cut off the trade of the Southern States. The Confederate Armies were dependent on supplies from overseas, and those supplies could not be obtained without exporting the cotton wherewith to pay for them. To cut off this trade the United States could only rely upon a blockade. The difficulties confronting the Federal Government were in part due to the fact that neighbouring neutral territory afforded convenient centres from which contraband could be introduced into the territory of their enemies and from which blockade running could be facilitated. [Page 170] Your excellency will no doubt remember how, in order to meet this new difficulty, the old principles relating to contraband and blockade were developed and the doctrine of continuous voyage was applied and enforced under which goods destined for the enemy territory were intercepted before they reached the neutral ports from which they were to be reexported.
8. The difficulties which imposed upon the United States the necessity of reshaping some of the old rules are somewhat akin to those with which the Allies are now faced in dealing with the trade, of their enemy. Adjacent to Germany are various neutral countries which afford her convenient opportunities for carrying on her trade with foreign countries. Her own territories are covered by a network of railways and waterways, which enable her commerce to pass as conveniently through ports in such neutral countries as through her own. A blockade limited to enemy ports would leave open routes by which every kind of German commerce could pass almost as easily as through the ports in her own territory. Rotterdam is indeed the nearest outlet for some of the industrial districts of Germany.
9. As a counterpoise to the freedom with which one belligerent may send his commerce across a neutral country without compromising its neutrality, the other belligerent may fairly claim to intercept such commerce before it has reached, or after it has left, the neutral state, provided, of course, that he can establish that the commerce with which he interferes is the commerce of his enemy and not commerce which is bona fide destined for or proceeding from the neutral state. It seems, accordingly, that if it be recognized that a blockade is in certain cases the appropriate method of intercepting the trade of an enemy country, and if the blockade can only become effective by extending it to enemy commerce passing through neutral ports, such an extension is defensible and in accordance with principles which have met with general acceptance.
10. To the contention that such action is not directly supported by written authority, it may be replied that it is the business of writers on international law to formulate existing rules rather than to offer suggestions for their adaptation to altered circumstances, and your excellency will remember the unmeasured terms in which a group of prominent international lawyers of all nations condemned the doctrine which had been laid down by the Supreme Court of the United States in the case of the Springbok, a doctrine upheld by the claims commission at Washington in 1873. But the United States and the British Governments took a broader view and looked below the surface at the underlying principles, and the Government of this country, whose nationals were the sufferers by the extension and development of the old methods of blockade made by the United States during the Civil War, abstained from all protest against the decisions by which the ships and their cargoes were condemned.
11. What is really important in the general interest is that adaptations of the old rules should not be made unless they are consistent with the general principles upon which an admitted belligerent right is based. It is also essential that all unnecessary injury to neutrals should be avoided. With these conditions it may be safely affirmed that the steps we are taking to intercept commodities on their way to and from Germany fully comply. We are interfering with no goods with which we should not be entitled to interfere by blockade if the geographical position and the conditions of Germany at present were such that her commerce passed through her own ports. We are taking the utmost possible care not to interfere with commerce genuinely destined for or proceeding from neutral countries. Furthermore, we have tempered the severity with which our measures might press upon neutrals by not applying the rule which was invariable in the old form of blockade that ships and goods on their way to or from the blockaded area are liable to condemnation.
12. The communication made by the United States Embassy on the 2d April describes as a novel and quite unprecedented feature of the blockade that it embraces many neutral ports and coasts and has the effect of barring access to them. It does not appear that our measures can be properly so described. If we are successful in the efforts we are making to distinguish between the commerce of neutral and enemy countries there will be no substantial interference with the trade of neutral ports except in so far as they constitute ports of access to and exit from the enemy territory. There are at this moment many neutral ports which it would be mere affectation to regard as offering [Page 171] facilities only for the commerce of the neutral country in which they are situated, and the only commerce with which we propose to interfere is that of the enemy who seeks to make use of such ports for the purposes of transit to or from his own country.
13. One of the earlier passages in your excellency’s memorandum was to the effect that the sovereignty of neutral nations in time of war suffers no diminution except in so far as the practice and consent of civilized nations has limited it “by the recognition of certain now clearly determined rights,” which it is considered may be exercised by nations at war; and these it defines as the right of capture and condemnation for unneutral service, for the carriage of contraband, and for breach of blockade. I may, however, be permitted to point out that the practice of nations on each of the three subjects mentioned has not at any time been uniform or clearly determined, nor has the practice of any maritime nation always been consistent.
14. There are various particulars in which the exact method of carrying a blockade into effect has from time to time varied. The need of a public notification, the requisite standard of effectiveness, the locality of the blockading squadrons, the right of the individual ship to a preliminary warning that the blockade is in force, and the penalty to be inflicted on a captured blockade runner are all subjects on which different views have prevailed in different countries and in which the practice of particular countries has been altered from time to time. The one principle which is fundamental and hag obtained universal recognition is that by means of blockade a belligerent is entitled to cut off by effective means the sea-borne commerce of his enemy.
15. It is the same with contraband. The underlying principle is well established, but as to the details there has been a wide variety of view. As for unneutral service—the very term is of such recent introduction that many writers of repute on international law do not even mention it. It is impossible in the view of His Majesty’s Government in these circumstances to maintain that the right of a belligerent to intercept the commerce of his enemy is limited in the way suggested in your excellency’s communication.
16. There are certain subsidiary matters dealt with in your excellency’s communication to which I think it well to refer. Amongst these may be mentioned your citation of the Declaration of Paris, due no doubt to the words which occur in the memorandum sent by me to your excellency on the 1st March, wherein it was stated that the Allied Governments would hold themselves free to detain and take into port ships carrying goods of presumed enemy destination, ownership, or origin, and to our announcement that vessels might be required to discharge goods of enemy ownership as well as those of enemy origin or destination.
17. It is not necessary to discuss the extent to which the second rule of the Declaration of Paris is affected by these measures or whether it could be held to apply at all as between Great Britain and the United States. In actual practice, however, we are not detaining goods on the sole ground that they are the property of an enemy. The purpose of the measures we are taking is to intercept commerce on its way from and to the enemy country. There are many cases in which proof that the goods were enemy property would afford strong evidence that they were of enemy origin or enemy destination, and it is only in such cases that we are detaining them. Where proof of enemy ownership would afford no evidence of such origin or destination we are not in practice detaining the goods.
18. His Majesty’s Government have been gratified to observe that the measures which they are enforcing have had no detrimental effect on the commerce of the United States. Figures of recent months show that the increased opportunities afforded by the war for American commerce have more than compensated for the loss of the German and Austrian markets.
19. I trust that in the light of the above explanations it will be realized that the measures to which we have resorted have been not only justified by the exigencies of the case, but can be defended as in accordance with general principles which have commended themselves to the Governments of both countries. I am glad to be able to assure your excellency that we shall continue to apply these measures with every desire to occasion the least possible amount of inconvenience to persons engaged in legitimate commerce.
I have [etc.]