File No. 763.72/2425
The Ambassador in Italy (Page) to the Secretary of State
[Received February 25, 10 a. m.]
573. Your 486, 23d.1 Following, full text:2
The Royal Ministry for Foreign Affairs has become aware of the proposals of the Government of the United States upon the question of the armament of mercantile steam vessels for the purpose of defense.
The American communication contains not only an explicit recognition of the right of every war vessel to sink an enemy merchant ship, provided the passengers and crew be placed in safety, and provided further any circumstance whatever renders capture thereof impossible or dangerous; but to maintain unaltered the exercise of this privilege, would suggest the taking away from the merchant ships of a belligerent state those means of defense which the same American Government but a little while previously had consented that they might provide themselves with, consenting to-day instead, as would appear, to the German theory which would consider, without further argument in such case, the said ships as belligerent war vessels.
The Royal Government does not deny that existing international law admits, in certain cases, the right to sink war prizes; but esteems it highly dangerous and deplorable that it should be claimed as a normal exercise of this right of belligerents, just when the circumstances of the war and the character of the vessels used are such as practically to change into this ferocious right of destruction, that simple right of prize only which represented until now the extreme limit of sanctions, and when there is taken in consideration the slaughter and the damage such destruction can cause, as the recent bitter experience has shown, owing to the enormous development of ocean traffic, the progress in naval construction and in marine industry.
What other means of rescue, on the other hand, can be offered in the great majority of cases to persons on board other than to abandon them in frail boats on the high sea? Experience has demonstrated what an inadequate guarantee of safety such a method represents.
The principles suggested by the American Government would practically lead to this result: That every ship captain would be obliged to destroy his own lifeboats as soon as he sights an enemy submarine in order to deprive the latter of the right of sinking his ship, or to abandon his passengers and crew in those small boats.
In other words, to provide for the safety of persons in his care, a ship captain would be obliged to choose between a technical means of uncertain value and confidence equally uncertain in the observation on the part of his belligerent adversaries of the accepted rules of the international law.
These considerations it would seem ought to counsel very much more caution in the recognition, in the face of so many circumstances of fact and indeed of a right which, although deduced logically from the ancient principle which denies that private property shall be respected at the time of maritime warfare, represents the gravest and most dangerous attempt against the elementary demands of civilization and humanity.
With respect to the armament of merchant vessels the Royal Government, while willingly agreeing with the American Government that the ancient conditions of maritime warfare and of piracy constitute their historical justification, denies that the new circumstances of fact in this respect are such as to be obliged to-day to consider such armament in absolute contrast with the principles and the established rules of international rights. It can not be claimed that piracy has departed from all the seas. The hypothesis of the eventual superiority of a merchant vessel armed for defense over a warship which attempts to capture or to destroy it, a hypothesis which in the case of submarines can only partially come to pass as far as that goes, was admitted [Page 175] explicitly even before the present application of the submarines was known or foreseen. Our merchant marine law of 1877 after having prohibited merchant vessels from the exercise of any acts of war (Article 207) admits that in the event they should be “attacked by ships, even warships, they may defend themselves and capture such ships.” It is as a matter of fact practically and logically almost impossible to distinguish in the struggle which every armed defense presupposes, the offensive or defensive character of the single acts by means of which one repulses, one prevents, or one paralyzes the offensive attacks of others, actual or imminent. The effective exercise of this privilege of resistance explicitly recognized in the internal rights of the principal maritime powers, admitted in fact by Germany itself on the eve of the present war (Appendix 22, 1914, of German regulations of war prizes, paragraph 2) and consented to expressly by the American Government during this same war, can scarcely deprive merchant vessels of prerogatives which the law of nations gives ships of this nature, as the Hague Conference itself, Convention 11 of 1907, Article 8, recognized the same rights; but to affirm that the simple virtual possibility of this resistance by the sole presence of arms on board was sufficient to deprive it of such legal protection, whether as regards a belligerent adversary, as Germany claims to-day, or as regards neutrals themselves, as the American Government seems to-day disposed to admit, is absolutely contrary to all existing rules. The Government of His Majesty would not be adverse to consenting (assuming the accord of the Allied Governments) that these rules might be modified, and it would renounce willingly on its own account the armament of its merchant vessels during the war as a means of mere defense whenever all the belligerents contemporaneously agree to prohibit the sinking of enemy merchant vessels except in the hypothesis of violation of blockade or resistance or flight in the moment in which these acts are being accomplished. This would be in perfect harmony, not only with the best fundamental principles of the rights of war of the present day, and of the progress of civilization; but moreover with those principles which inspired the old regulations of Declaration of Paris with regard to rights of neutrals, and with those principles which our representatives upheld at the Hague Conference and Conference of London, relative to the destruction of neutral prizes, and relative to the inviolability of enemy private property upon the sea. The American Government appeared then even more solicitous and broader than we are in the affirmation of such tendencies: we can not therefore but observe with surprise and regret the opposite character of its present suggestions, which, in the face of the introduction of new and terrible instruments of offense, confirm and accentuate in substance the right of destruction of enemy merchant vessels and would seem to desire, with a view to the safeguarding of these new instruments, that is to say, with a view to the free exercise of their belligerent power, to deprive such ships of those means of defense against the danger and the menace of being sunk, which was conceded to them in the past against a risk which at most was restricted to simple capture and confiscation.