File No. 763.72/3419

The Ambassador in Austria-Hungary ( Penfield) to the Secretary of State

[Telegram]

1739. My 1738, March 2, 4 p.m.2 Following is aide-mémoire handed me by the Austro-Hungarian Government to-day:3

From the aide-mémoire of the American Embassy in Vienna of February 18, 1917, the Imperial and Royal Ministry for Foreign Affairs understands that, in view of the declarations made by the Imperial and Royal Government on February 10, 1916,4 and January 31, 1917,5 the Washington Cabinet is in doubt as to the attitude which Austria-Hungary intends to adopt from now on in the conduct of the submarine warfare, and whether the assurance given by the Imperial and Royal Government to the Washington Cabinet in the course of negotiations in the cases of the ships Ancona and Persia has not perhaps been altered or withdrawn by the aforesaid declarations.

The Imperial and Royal Government is willingly ready to comply with the wish of the American Government that these doubts be removed by a definite and clear statement.

The Austro-Hungarian Government may be permitted, in the first place, in all brevity to discuss the methods practiced by the Entente powers in the conduct of naval warfare, because these methods constitute the point of departure of the more severe submarine warfare put into operation by Austria-Hungary and her allies, and because thereby the attitude which the Imperial and Royal Government has so far adopted in the questions arising therefrom is elucidated.

When Great Britain entered into war against the Central powers, only a few years had elapsed since that memorable time when she, in common with the other states, had, at The Hague, begun to lay down the fundaments of a modern law of maritime warfare; soon thereafter the English Government had assembled in London representatives [Page 162]of the great naval powers to complete the Hague work, principally in the’ sense of an Equitable settlement between the interests of belligerents and neutrals. The nations were not long to enjoy the unanticipated: successes of these efforts, which accomplished nothing less than an agreement upon a code which was suitable to give validity to the principle of the freedom of the sea and the interests of neutrals even in time of war.

The United Kingdom had hardly decided to participate in the war before it began to break through the bounds placed upon it by the code of international law. While the Central powers immediately at the beginning of the war had declared their intention of adhering to the Declaration of London, which also bore the signature of the British delegate, England cast aside the most important provisions of this declaration. In the endeavor to cut the Central powers off from importation by sea, Great Britain extended the list of contraband step by step, until it included everything now required for supporting human life. Then Great Britain laid over the coasts of the North Sea, which also constitute an important transit gate for the sea commerce of Austria-Hungary, a closure which she designated as a “blockade” in order to prevent the entrance into Germany of all goods still lacking in the list of contraband, as well as to stop: all sea traffic of neutrals with those coasts and to prevent all exportation whatsoever from them. That this closure stands in the most glaring contradiction to the traditional right of blockade established by international treaties has been, pointed out by the President of the United States of America himself, in words which will continue to live in the history of international law. By the illegal hindrance of exportation from the Central powers, Great Britain intended to bring to a standstill the countless factories and concerns which the industrious and highly developed peoples had created in the heart of Europe, and to bring their workmen to idleness and thus incite them to insurrection and revolt. And when Austria-Hungary’s southern neighbor entered the ranks of the enemies of the Central powers her first act, indeed following the example of her allies, was to declare a blockade of the entire coast of her enemy in disregard of the provisions of law in the creation of which Italy a short time previously had actively participated. Austria-Hungary did not fail at once to point out to the neutral powers that this blockade was void of all legal effectiveness.

The Central powers have hesitated more than two years. Not until then, and after mature consideration of the pros and cons, did they resort to repaying like with like and pressing their opponents hard at sea. As the only ones of the belligerents who had done everything to assure the validity of the treaties which were intended to guarantee the freedom of the sea to the neutrals they bitterly felt the compulsion of the hour which forced them to violate this freedom; but they took the step in order to fulfil an imperative duty toward their peoples and with the conviction that it was adapted to bring about the ultimate victory of the freedom of seas. The declarations which they promulgated on the last day of January of this year were only apparently directed against the rights of the neutrals; in truth they serve the reestablishment of these rights which the enemies have incessantly violated and which they would destroy forever should [Page 163]they be victorious. Thus the submarines surrounding the coasts of England announce to the nations who have need of the sea—and who has not need of it?—that the day is no longer distant when the flags of all states will peacefully wave over the seas in the splendor of newly acquired freedom.

The hope may well be entertained that this announcement will find response everywhere where neutral peoples live) and that it will be particularly understood by the great people of the United; States of America, whose most competent representative has in the course of this war advocated in flaming words the freedom of the sea as the street of all nations. If the people and Government of the Union keep in mind that the “blockade” laid by Great Britain is calculated not only to subjugate the Central powers by hunger but ultimately to bring the seas under her supremacy and in this way to establish her stewardship over all nations, while on the other hand the isolation of England and her Allies only serves to make these powers amenable to a peace with honor and to guarantee to all nations the freedom of navigation and sea trade, and thus an assured existence, the question as to which of the two belligerent parties has the right on its side is already decided. Although it is far from the intentions of the Central powers to court allies in their struggle, they, however, believe that they may lay claim to the neutrals appreciating their endeavor to restore the principles of international law and equality of rights of nations in the interest of all.

In proceeding to answer the question asked in the above-mentioned aide-mémoire of February 18 of this year, the Imperial and Royal Government desires first of all to remark that in the exchange of notes in the cases of the Ancona and Persia it had restricted itself to taking a position with respect to the concrete questions which had arisen on those occasions without setting forth its fundamental legal views. However, in the note of December 29, 1915, in the case of the Ancona it reserved to itself the right to discuss at a later date the difficult questions of international law connected with submarine warfare. In returning to this reservation and subjecting the question of the sinking of enemy ships alluded to in that aide-mémoire to a short discussion, it is guided by the wish to show the American Government that it now as hitherto firmly adheres to the assurance given by it as well as by the endeavor to prevent misunderstandings between the Monarchy and the American Union by means of an elucidation of that question arising from submarine warfare, which is most important on account of its bearing upon the demands of humanity.

Above all the Imperial and Royal Government would wish to emphasize that also according to its view the principle established by the American Government and represented by it in several learned documents, that enemy merchant ships, except in cases of attempted flight or resistance, may not be destroyed without the safety of persons on board having been provided for, constitutes, so to say, the kernel of the entire matter. Considered from a higher standpoint, this principle can certainly be incorporated into a broader embodiment of ideas, and in this manner its sphere of application more precisely delimitated. From the demands of humanity, which the Imperial and Royal Government and the Washington Cabinet take in the same manner as a guiding rule, the more general principle [Page 164]may be deduced that in the execution of the right to destroy enemy, merchant ships the loss of human life should be avoided in so far as this is in any way possible. A belligerent can do justice to this principle only by issuing a warning before the execution of the right. In this respect he can adopt the course pointed out by the said principle of the American Government, according to which the commanding officer of the man-of-war himself issues the warning to the vessel to be sunk in order that the crew and passengers can still at the last moment effect their safety; or the Government of a belligerent state can, if it recognizes this as an unavoidable necessity of war, issue the warning with full effect even before the departure of the ship which is to be sunk; or, finally, it can, in setting into operation a comprehensive measure for combating the enemy’s sea trade, make use of a general warning intended for all enemy ships coming under consideration.

The American Government itself has’ recognized that the principle that the safety of persons on board is to be provided for undergoes exceptions. The Imperial and Royal Government believes that the destruction without warning is not merely admissible in case the ship flees or offers resistance. It appears to it, to give an example, that also the character of the ship itself must be taken into consideration; merchant or other private ships which place themselves in the service of a belligerent as transport, despatch ship or the like which carry military crews or armaments with which to commit hostilities of whatever character may indeed be destroyed without further ado according to existing laws. The Imperial and Royal Government need not recall the case in which a belligerent is freed from every consideration for human life when its opponent sinks enemy merchant ships without previous warning, as has occurred in the already repeatedly censured cases of the ships Elektra, Dubrovnik, Zagreb, etc., as notwithstanding its undeniable right in this respect it has never repaid like with like. In the whole course of the war Austro-Hungarian men-of-war have not destroyed a single enemy merchant ship without previous warning although such warning may have been general.

The oft-mentioned principle of the American Government also admits of several interpretations, particularly in so far as it leaves it questionable whether, as is asserted from many a quarter, only an armed resistance justifies the destruction of a ship with persons on board or a resistance of another character such as perhaps occurs when the crew intentionally fails to place the passengers in boats (Ancona case) or when the passengers themselves refuse to take to the boats. In the opinion of the Imperial and Royal Government the destruction of the warned ship without rescue of the persons on board is also admissible in cases of the latter character, as otherwise it would lie in the hands of every passenger to nullify the right of sinking belonging to the belligerent. Furthermore, it may be pointed out that there is no unanimity as to, cases in which the destruction of enemy merchant vessels as admissible.

In the opinion of the Imperial and Royal Government the obligation of issuing the warning immediately before the sinking of the ship leads on the one hand to asperities which might be avoided, but [Page 165]on the other hand it is also under circumstances adapted to prejudice the justified interests of the belligerents. In the first place it can Hot be ignored that the rescue or persons at sea is almost always left to blind chance as only the choice remains either of taking them on board of the man-of-war which is exposed to every hostile, influence or of exposing them to the danger of the elements in small boats and that it therefore far better complies with the principles of humanity to restrain the persons from making use of endangered ships by a timely issued warning. But, furthermore, the Imperial and Royal Government, despite mature examination of all the legal questions coming into consideration, could not be convinced that subjects of a neutral state possess a claim to travel unmolested on enemy ships.

The principle that neutrals even in time of war enjoy the advantages of the freedom of the sea obtains only for neutral ships, not also for neutral persons on board of enemy ships. For, as is known, belligerents are entitled to prevent enemy navigation as far as they are able. Possessing the requisite means of war, they may in doing so, if they consider it necessary for the attainment of their war aims, forbid enemy merchant ships the navigation of the sea at risk of immediate destruction provided they only previously announce their intention, in order that everyone whether enemy or neutral be enabled to avoid placing his life in jeopardy; But even should doubt arise as to the justification of such a procedure and the opponent perhaps threaten with retaliation, this would be an affair to be settled only between the belligerents who, as is recognized, are entitled to make the high sea a theater of their military enterprises, to prevent every disturbance of these enterprises and sovereignly decide what measures are to be adopted against enemy navigation. In such a case the neutrals have no other legitimate interest, and therefore no other legal claim, than that the belligerent give them timely notification of the prohibition directed against the enemy in order that they may avoid intrusting their persons or property to enemy ships.

The Imperial and Royal Government may therefore well assume that the Washington Cabinet agrees, to the foregoing arguments which according to its firm conviction are incontestable, as a refutation of their correctness would without doubt be tantamount to—which surely does not accord with the views of the American Government—the neutrals, being at liberty to meddle in the military operations of the belligerents, indeed ultimately to set themselves as judges as to what means of war may be employed against the enemy. Also it would appear to be a glaring incongruity it a neutral government should, only for the purpose, of enabling, its subjects to travel on enemy ships while they could just as well and indeed with far greater safety use neutral ships, stay the arm of a belligerent power which is perhaps fighting for its existence. To say nothing of door and gate being opened to the most serious abuses if one would wish to compel a belligerent to lower his weapons before every neutral who felt inclined to make use of the enemy vessels on his business or pleasure voyages. There has never been the slightest doubt that neutral subjects must themselves bear all injuries sustained in consequence of entering a region on land where military [Page 166]operations are taking place. There is evidently no reason whatsoever for permitting another code to pertain for maritime warfare especially as the Second Peace Conference expressed the wish that pending a treaty regulation of maritime warfare the powers might apply to it as far as possible the existing law for land warfare.

In the sense of the foregoing the rule that the warning must be addressed to the ship itself which is to be sunk undergoes exceptions of various natures: under certain circumstances as in the cases of flight and resistance set forth by the American Government the ship may be sunk without any warning; in other cases a warning is necessary before the departure of the ship. The Imperial and Royal Government may therefore estate that whatever position the Washington Cabinet may take with respect to the various questions here raised, particularly with reference to the protection against endangering neutrals, it is essentially of one mind with the American Government. But it has not contented itself in the course of the present war with converting the views represented by it into action but going still further has accommodated its conduct with scrupulous care to the principle set up by the Washington Cabinet although the assurance given by it had only been to the effect that “it is able to agree in substance to the views of the American Government.” The Imperial and Royal Government would greet it with particular satisfaction if the Washington Cabinet should be inclined to support it in its endeavor which is borne by the warmest feelings of humanity to guard American citizens from dangers at sea by instructing and warning of its citizens.

As to the circular note verbale of February 10, 1916, concerning the treatment of armed merchant ships, the Imperial and Royal Government must certainly state that it as is also intimated in the foregoing, is of the opinion that the arming of merchant vessels even only for purposes of defense against the execution of the right of capture is not founded on modern international law. According to every rule a man-of-war is obliged to meet an enemy merchant vessel in a peaceable manner. She has to stop the vessel by means of prescribed signs, enter into communication with the captain, examine the ship’s papers, take a protocol, and if necessary an inventory, etc. But the fulfilment of these duties presupposes that the man-of-war will possess entire certainty that the merchant ship will on its part meet her pacifically. However, such a certainty doubtless does not exist if the merchant ship carries an armament sufficient to combat the man-of-war. A man-of-war, however, can hardly be expected to execute her office under the muzzles of hostile guns, be they brought on board for whatsoever purpose. Not to mention the fact that notwithstanding all contrary asseverations, merchant vessels of the Entente powers as has been shown are provided with guns for offensive purposes and also make use of them for such purposes. It would also be ignoring the duties of humanity if the crews of men-of-war would be required to expose themselves to the weapons of the enemy without defending themselves. No state can estimate the duties of humanity towards the competent defenders of the fatherland lower than the duties towards citizens of foreign powers.

According to its conviction, the Imperial and Royal Government would therefore have been able to proceed from the fact that its [Page 167]promise given to the Washington Cabinet did not from the outset extend to armed merchant vessels since these according to existing laws, which restrict hostilities to the organized armed forces, are to be regarded as filibuster ships which are subject to summary destruction. As history teaches, it has according to universal international law never been admissible for merchant ships to resist the execution of the right of capture by men-of-war. But even if a provision of law to this effect could be produced it would not thereby be proven that the ships might provide themselves with arms. It is also to be taken into consideration that the arming of merchant ships must entirely transform maritime warfare and that this transformation can not be in accord with the views of those who are endeavoring to enforce the principles of humanity in maritime warfare. In fact, since the abolition of privateering a few years ago no government has even in the slightest degree thought of arming merchant vessels. In the entire course of the Second Peace Conference, which concerned itself with all questions of the law of maritime warfare, there was not a single word mentioned of arming merchant vessels. Only a single time, and that in an incidental manner, has there been an assertion which is of interest in this matter, and it is characteristic that it was a high British naval officer who frankly declared: “When a man-of-war proposes to stop and visit a merchant vessel the commanding officer before lowering a boat will fire a gun. The firing of a gun is the best guaranty that can be given. Merchant vessels have no guns on board.”

Nevertheless Austria-Hungary has also adhered to its promise in this question; in the circular note verbale referred to, the neutrals were timely warned against entrusting: their persons and goods to armed ships; also the announced measure was not put into operation immediately but a delay was accorded in order to enable the neutrals to leave the armed ships upon which they had already embarked. Finally the Austro-Hungarian men-of-war have instructions even in case of encountering armed enemy merchant vessels to be mindful of issuing a warning and of saving the persons on board if this should be possible under the existing circumstances.

The statement of the American Embassy that the armed British steamers Secondo and Welsh Prince had been sunk by Austro-Hungarian submarines is based upon an error. The Imperial and Royal Government has in the meantime been informed that Austro-Hungarian men-of-war took no part in the sinking of these steamers.

In the same manner as in the oft-mentioned circular note verbale, the Imperial and Royal Government—and in this connection it returns to the question of the more severe submarine warfare discussed at the beginning of this aide-mémoire—in establishing a proper term, issued a warning addressed to the neutrals in its declaration of January 31 of this year; indeed the entire declaration is essentially nothing else than a warning to the effect that no merchant ship may navigate the sea zones accurately defined in the declaration. Furthermore Austro-Hungarian men-of-war are instructed to warn merchant vessels when possible even when encountered in these zones as well as to provide for the safety of crews and, passengers. Indeed, the Imperial and Royal Government is in the possession of numerous [Page 168]reports that the crews and passengers of ships which have been destroyed in these zones have been rescued. The Imperial and Royal Government is, however, unable to accept a responsibility for the possible loss of human life which nevertheless may result from the destruction of armed ships or ships encountered in the closed zones. Moreover, it may be remarked that Austro-Hungarian submarines are operating only in the Adriatic and in the Mediterranean, and that therefore a prejudicing of American interests by Austro-Hungarian men-of-war is hardly to be feared.

After all that has been set forth at the beginning of this aide-mémoire an assurance is not actually necessary that the closing of the sea zones designated in the declaration in no way serves the purpose of destroying or even endangering human life but that it, aside from the higher purpose of sparing mankind further suffering through a shortening of the war, is only designed to place in the same position of isolation Great Britain and her allied who without having laid an effective blockade over the coasts of the Central powers are preventing sea traffic of the neutral’s with these powers and through the pressure make the former amenable to a peace which brings with it the guaranty of durability. That Austria-Hungary hereby employs other means of war than her opponents is chiefly due to circumstances over which man is given no power. The Imperial and Royal Government is, however, conscious that it has made all provisions lying within its power for the prevention of the loss of human life. It would most quickly and surely achieve this aim striven for in the isolation of the Western powers if not a single human life should be lost or endangered in those sea zones.

In recapitulating the Imperial and Royal Government is able to state that the assurance which it gave the Washington Cabinet in the Ancona case and renewed in the Persia case has neither been withdrawn nor restricted by its declarations of February 10; 1916; and January 31, 1917. Within the boundary of, this assurance it will in common with its allies henceforth do its utmost to soon restore the blessings of peace to the peoples of the world. If in the pursuit of this aim, in which it well knows it enjoys the entire sympathy of the Washington Cabinet, it finds itself compelled also to prevent neutral navigation in certain sea zones it would not, like, in order to justify this measure, to refer so much to the conduct of its adversaries, which appears to it far from, worthy of imitation, as to the fact that Austria-Hungary has been placed in a position of self-defense by the stubbornness and hatefulness of her enemies, who are bent upon her destruction for which history knows of no more typical example. As the Imperial and Royal Government finds exaltation in the consciousness that the struggle, which Austria-Hungary is conducting serves not only the preservation of her vital interests but also the realization of the idea of equal rights of all states, it, in this last and most serious phase of the war, which as it deeply deplores also demands sacrifices from friends, attaches the greatest value to affirming by word and deed that the principles of humanity are illuminating its course in the same way as the demands of respect for the dignity and interest of the neutral peoples.

Penfield
  1. Not printed.
  2. Text of aide-mémoire corrected, to accord with copy received Apr. 7 as enclosure to despatch No. 2538 (File No. 763.72/3707).
  3. Foreign Relations, 1916, Supplement, p. 166.
  4. Ante, p. 104.