File No. 763.72112/2938
The Netherland Minister (Van
Rappard) to the Secretary of State
No. 4063
Washington,
August 30, 1916
.
[Received August
31.]
[Translation]
Mr. Secretary of State: By order of my
Government I have the honor to forward herewith to your excellency,
for your information, the text of notes that the Queen’s Government
has addressed to the British, French, and German Governments with
respect to the British order in council2 repealing the order in council of October 29,
1914, making the rules framed by the Declaration of London of
February 26, 1909 applicable with certain amendments and additions,
the French decree of July 7 last3 which also repeals the above-mentioned
declaration, and the German decree of July 22 last4 containing additional lists
of contraband of war and further amendments and additions to the
German prize code of September 30, 1909.
Be pleased to accept [etc.]
[Enclosure 1—Translation]
The Netherland Minister of Foreign
Affairs (Loudon) to the
Netherland Minister at London for transmission to the
British Government
By an order in council of July 7 last, the British Government
repealed the order in council of October 29, 1914, making the
rules framed by the Declaration of London of February 26, 1909,
concerning the law of maritime war, applicable with certain
modifications and additions, and also, the order in council of
October 20, 1915 and March 30, 1916, further amending the
aforesaid rules. The same order sets forth certain rules that
will be henceforth applied by the British authorities and which
the British Government deems to be in accordance with
international law with which it declares it is now and always
was its strict intention to comply.
Notwithstanding this declaration, the order in council of July 7
last expressly continues in force that of March 11, 1915; by its
note of March 19, 1915, the Netherland Government made known to
the Minister of Great Britain its objections to the provisions
found in that order.
Likewise, most of the special rules laid down by the order in
council of July 7 last merely reproduce the provisions contained
in the repealed orders against which the Netherland Government
had occasion to protest.
For the rest, the new order sanctions, literatim, the practice already followed under the
previous orders which eliminates every distinction, as to
treatment, between conditional and absolute contraband. Now,
under the formerly accepted rules of international law
conditional contraband is only liable to seizure when found on a
vessel bound for territory owned or occupied by the enemy or for
its armed forces and only when it is intended for the armed
forces or government of a belligerent state.
[Page 438]
In view of the foregoing the Netherland Government cannot concur
in the opinion of the British Government that the new order in
council is in strict conformity with international law. It
reserves to itself the right to prefer, if occasion should
arise, such claims as may grow out of the enforcement of the
aforesaid order in council.
The Hague
,
August 2, 1916
.
[Enclosure 2—Translation]
The Netherland Minister of Foreign
Affairs (London) to the Netherland Minister at Paris for
transmission to the French Government
By a decree dated July 7 last, the French Government repealed the
decree of November 6, 1914, making the rules framed by the
Declaration of London of February 26, 1909, concerning the law
of maritime war, applicable with certain modifications and
additions, and, also, the decrees of October 23, 1915, and April
12, 1916, further amending the said rules.
By a memorandum, also dated July 7 last, and addressed to the
neutral governments, the French Government undertakes, in
consent with its allies, to comply with the “formerly accepted
rules of international law.”
In spite of that undertaking, the new decree contains certain
rules which, in the opinion of the Netherland Government, are at
variance with the accepted principles of the law of nations.
Article 2 provides that whenever contraband merchandise seized on
a ship forms by its value, weight, volume, or freightage, more
than one-half of the cargo, all the goods found on board are
liable to confiscation.
This provision is at variance with the prescripts of the
Declaration of Paris of April 16, 1856, which state that the
neutral flag covers even enemy’s goods with the exception of
contraband of war, and that on the other hand, neutral goods,
with the exception of contraband of war, are not liable to
seizure even under an enemy’s flag.
Article 3 sets up two presumptions of enemy destination in regard
to a cargo constituting by its nature contraband of war and
found on board a ship proceeding to a country bordering the
enemy countries or countries occupied by the enemy.
By virtue of the first presumption, the cargo is liable to
capture, unless innocent destination is proven, if the documents
accompanying it do not show the final and definitive destination
of the cargo to be in a neutral country. The Netherland
Government cannot recognize this as a legitimate
presumption.
It has repeatedly expounded its viewpoint respecting the
conditions under which belligerents may proceed with the capture
of either absolute or conditional contraband carried on neutral
vessels; it now confines itself to a reference to the contents
of those earlier statements.
Under the second presumption created by Article 3, the cargo
above discussed is even liable to capture, unless innocent
destination is proven, if the importation into the country above
described of the articles composing the cargo is out of
proportion to normal importation, implying an ulterior hostile
destination.
Yet the assumption on which the presumption rests does not afford
any evidence that the captured merchandise has enemy destination
according to the rules of international law.
For the rest, the new order sanctions, literatim, the practice already followed under the
previous orders which eliminates every distinction, as to
treatment, between conditional and absolute contraband. Now,
under the formerly accepted rules of international law
conditional contraband is only liable to seizure when found on a
vessel bound for territory owned or occupied by the enemy or for
its armed forces, and only when it is intended for the armed
forces or government of a belligerent state.
In view of the foregoing the Netherland Government cannot concur
in the opinion of the British Government that the new order in
council is in strict conformity with international law. It
reserves to itself the right to prefer, if occasion should
arise, such claims as may grow out of the enforcement of the
aforesaid order in council.
The Hague
,
August 7, 1916
.
[Page 439]
[Enclosure 3—Translation]
The Netherland Minister of Foreign
Affairs (Loudon) to the Netherland Minister at
Berlin for transmission to the German Government
By a decree dated July 22 last the German Government promulgated
new lists of contraband of war and also new amendments and
additions to the German prize code of September 30, 1909.
These amendments and additions tend inter alia
to eliminate even to a greater degree than had been
done by the decree of April 18, 1915, the distinction as to
treatment between conditional and absolute contraband. Now,
under the accepted rules of the law of nations, conditional
contraband is only liable to seizure when found on a ship bound
for a territory belonging to the enemy or for its armed forces,
and only when it is intended for the armed forces or government
of a belligerent state.
For that reason the Netherland Government is of opinion that the
new decree is not in conformity with the law of nations. It
therefore reserves to itself the right to prefer, if occasion
should arise, such claims as may grow out of the enforcement of
the aforesaid decree.
The Hague
,
August 7, 1916
.
