File No. 656.119/487½
Memorandum of the British Secretary of State for Foreign Affairs ( Balfour) to the Netherland Minister in Great Britain ( Van Swinderen)3
The note, dated the 30th March, which the British Minister received from the Netherlands Minister for Foreign Affairs has received most careful study and consideration at the hands of His Majesty’s Government.
It is clear that both on the facts and on the law there is a wide divergence of view between His Majesty’s Government and the Netherlands Government. The former cannot but express their regret that allegations should have been made and published in the Netherlands which are calculated to give rise to much misconception as to what has really taken place since the negotiations with the Dutch delegates were commenced in London in November 1917, and as to the attitude adopted by the Associated Governments. To clear away these misconceptions His Majesty’s Government prefer to deal first with the facts and then with the legal principles applicable to the situation that arose. They do so, not because they attach more importance to the one than to the other, but because it is impossible without a clear understanding of the facts to determine the legal rules which apply.
In the month of November 1917 delegates were nominated by the Netherlands Government to proceed to London for the purpose of coming to an agreement on the questions which were then outstanding between the Netherlands Government on the one side and the [Page 1470] Associated Governments on the other. On the 24th December an agreement was reached, and a document recording it was handed to Jonkheer M. A. Snouck Hurgronje, one of the Dutch delegates. His Majesty’s Government recognise that the Dutch delegates were not plenipotentiaries, and were not authorised to sign any document which would bind their Government, but on behalf of the Associated Governments they desire to repudiate the suggestion that these negotiations were merely preliminaries on which the Netherlands Government should subsequently make proposals.
In support of this view it is well to quote the following extract from the covering letter in which the text of this document was handed to M. Snouck:—
With regard to the proposed agreement itself I should like to take this opportunity to express my great appreciation of the able and friendly manner in which you have conducted the negotiations on behalf of your Government. Both parties no doubt had to give away something which we had hoped to retain, but I feel the proposals, as they now stand, are such that if accepted by both Her Majesty’s Government and the Allies they will be found practicable, and to be to our mutual benefit.
The document is headed “Proposed basis of agreement between the Netherlands Government and the Allies and the United States of America. (To be submitted to the Netherlands Government and the Allies and the United States.)” It covered a considerable variety of subjects, and on all of them the main principles to be followed in the agreement were settled, though on some there were details which required further adjustment. The agreed outline of the proposed tonnage arrangements was handed to M. Valstar, the delegate who had been primarily concerned in shipping matters, on the 4th January.
It was of course open to the Netherlands Government as much as to anyone of the Associated Governments to reject the whole scheme, and upon such rejection it would be open to any such Government to intimate a desire to initiate fresh negotiations upon some other basis; but in the absence of such rejection, all that was required was the acceptance of the agreement (whether or not this acceptance is called “ratification” is immaterial) and the adjustment of the outstanding details.
On the conclusion of the negotiations, the Dutch delegates separated; some of them returned to Holland for the purpose, at least so the British delegates understood, of explaining the proposal to their Government and securing their acceptance; one delegate, who had joined later, remained in London to await the result. This would certainly suggest that the Dutch delegates took the same view of the character of the arrangement arrived at as is taken above. During [Page 1471] the prolonged period that followed, His Majesty’s Government awaited the outcome of the examination of the scheme by the Netherlands Government. At the end of January they were led to understand the Dutch reply might be expected in a few days and it would be favourable. No such reply, however, came.
Passing now to the modus vivendi, His Majesty’s Government feel that they cannot accept the note of the Netherlands Minister for Foreign Affairs as a fair description of what has happened. The so-called modus vivendi was an arrangement proposed by one of the Dutch delegates, M. Snouck, first in December and later at the beginning of January, in the course of the negotiations. Various proposals had been made as to the immediate use of the Dutch ships lying in American ports, and ultimately an arrangement was arrived at on the 20th January, 1918, of which the following was the first and most important clause:—
1. All vessels in United States ports, except those mentioned in clauses 2 and 3 below, to be sent out for one round trip as designated by United States authorities outside present submarine zone, and not all to go on long trips. Of these vessels an amount to be determined by the United States Government up to a limit of 150,000 tons to be employed in the service of the Commission for Relief in Belgium. On the departure of a vessel for Holland in Belgian Relief service, a corresponding vessel will leave Holland for the United States.
The extent to which this modus vivendi was carried out was so slight as to render it to all intents and purposes abortive. It is useless to conceal the fact that it was German opposition which caused the modus vivendi to break down. The arrangements with regard to the shipping for Belgian Relief work were an essential part of the scheme, and this was frustrated by the refusal of the Germans to allow any Dutch ships to leave Holland as arranged. With regard to the overseas voyages, numerous difficulties arose with the Dutch owners of the vessels lying in American ports, though the possibility of any such difficulties was not foreseen when M. Snouck proposed the arrangement. Out of the 65 vessels lying in American ports only 9 commenced a voyage under it before the end of February, and the statement that “almost all the ships in question were duly freed and many of them had already sailed when, on the 22nd February last, the Netherlands Government asked for an advance of 100,000 tons of wheat on the total included in the basis of agreement of London” is irreconcilable with the facts.
His Majesty’s Government were fully aware at this time of the campaign which had been undertaken by the German Government against the basis of agreement which had been negotiated in London; no secret was made of the fact that it was the tonnage part of it to [Page 1472] which the Germans took particular exception. It was in fact becoming increasingly obvious that the tonnage provisions of the general agreement would fail of acceptance by the Netherlands Government.
Discussions during this period were not infrequent between the members of His Majesty’s Government and the Netherlands delegate, who still remained in London, and as early as the 1st March he was informed that it looked as if it would relieve the situation for both sides if the tonnage were requisitioned. The Associated Governments were still without any expression whatever of the views of the Netherlands Government on the general agreement. Time was going on and, as has already been explained the lapse of more than two months since the basis of agreement was first arrived at had made an essential difference in the tonnage situation. Nevertheless, the Associated Governments would, for their part, have greatly preferred to come to an arrangement by mutual agreement, and it was for that reason that another determined effort was made to reach a satisfactory conclusion with the Netherlands Government upon the lines that in return for the 100,000 tons of breadstuffs which the Netherlands Government desired, the tonnage which the Associated Governments would have received under the agreement should have been made available at once for use either within or without the war zone. This was the proposal which, in form, was accepted by the Netherlands Government on the 17th March,1 but coupled with conditions as to the purposes for which the ships should be used which made that acceptance nugatory. These conditions were that the ships were not to be employed for transport of troops or war supplies, and that they were not to be armed.
The note of the Netherlands Government implies that this new condition was necessary from the point of view of neutrality, but it is a view of the obligations of neutrality which is not based on international law. It is merely a rule which the Netherlands Government have made for themselves. Indeed, M. Loudon pointed this out himself to the Second Chamber of the States-General in his speech of the 19th March:
Although international law does not contain any distinct rule prohibiting the transport in neutral ships of troops and war materials between two countries fighting together against a third country, the Netherlands Government have nevertheless from the beginning of the war adopted the principle that such so-called etappentransport cannot be tolerated under neutral flag, because by its character of effective aid to one of the belligerents it clashes conspicuously with the principle itself of neutrality.
The navigation of our ships through the closed area (sperrgebiet) has in itself nothing to do with neutrality.
It is plain that to lay down the principle that the Netherlands Government would not assent to any tonnage agreement which gave “effective aid to one of the belligerents” is equivalent to saying that they will not assent to any agreement which would be of advantage to the Associated Governments. The statement in fact confirms the view held by His Majesty’s Government, that the conditions annexed to the supposed acceptance of the agreement turned that acceptance into rejection.
The rejection of this offer made the requisitioning of the tonnage still lying in the ports of the Associated Governments inevitable. If this tonnage was to lie idle, unless some agreement were come to, and if the parties were prevented from arriving at an agreement, a state of things would continue indefinitely which it was the very object of the Central Powers to achieve—the immobilisation of the Dutch tonnage.
It would seem as if the terms of the note of the 30th March were intended to produce the impression that when the Associated Governments proceeded to requisition the tonnage which was lying in their ports, they took a step which was totally unexpected by the Netherlands Government. If so, His Majesty’s Government think it right to draw attention to the very clear intimation which was made by the British Minister to the Netherlands Minister for Foreign Affairs on the 8th March that if there was no agreement other measures must be taken. An equally explicit intimation was conveyed to the Netherlands Minister at Washington on the 12th March.
The assurances which were conveyed in the British note of the 21st March, if they had been rightly appreciated by the Netherlands Government, would have been seen to be at least as advantageous to Dutch interests as the tonnage provisions of the basis of agreement negotiated in London at the close of 1917. The only material alteration was the exclusion of the limitation against the use of the vessels in the war zone. Any possibility of injury to Netherlands interests, which might have been caused by this modification of the original agreement, is removed by the undertaking of the Associated Governments to replace ships wherever and however lost.
It is scarcely necessary to repeat the very definite statement contained in the British note of the 21st March as to the conditions with which the Associated Governments will comply in making use of the requisitioned ships. Liberal payment will be made for the use of the ships, which will be insured at generous values. At the end of the war the ships will be returned to their owners or, in case they have been lost from whatever cause, they will be replaced if the owners so prefer, compensation being paid in any case where they are not replaced or returned. In the interval between loss and [Page 1474] replacement, the Associated Governments offer interest at the rate of 6 per cent per annum on the value of the lost ship. As regards vessels leaving Dutch ports after the date of the communication, His Majesty’s Government take this opportunity of repeating the assurances given in that note, and as it appears that those assurances have not been fully understood, they now emphasise that their meaning was, as has already been explained to the Netherlands Government, that no Dutch vessel leaving a Dutch home or colonial port after the 21st March would be requisitioned. That was the meaning of the statement that such vessels would not be brought into Allied services otherwise than in agreement with the owners.
M. Loudon will be aware of the fact that the Allied Governments have placed at the disposal of Holland 100,000 tons of grain in North and South American ports.
The communication of the 21st March contained a guarantee that such vessels which the Netherlands Government should send out from Holland to lift this grain would, so far as lay in the power of the Associated Governments, enjoy immunity from delay and detention and receive every facility for bunkering. As it appeared from the note under reply that the despatch of vessels from Holland for this purpose might not at once take place, the Associated Governments, going beyond their original undertaking, have since intimated their readiness to facilitate the carriage to Holland of grain by the steamship Hollandia now in Buenos Aires on conditions already communicated to the Netherlands Government. In addition, it is understood the United States Government are making similar arrangements for the carriage to Holland by the steamships Java at Savannah and Juno at Curaçao, of breadstuffs within the 100,000 tons offered by the Associated Governments.
The Dutch note further alleges that the negotiations for an economic arrangement which provides for the import into Holland of large quantities of food and other necessaries had been abruptly terminated by the action of the Associated Governments. On this point His Majesty’s Government can only say that they are perfectly willing to continue negotiations for an economic agreement; and if the Netherlands Government desire to make further imports of necessaries, over and above the 100,000 tons of breadstuffs already offered, it is open to them to proceed to the confirmation of that agreement. From the 24th December the Associated Governments waited for the reply of the Netherlands Government as to the basis of agreement until the 17th March, three days before the date of the previous British note. There is no obstacle to the continuation of the negotiations at any date, and if those negotiations proceed no further, and no final arrangement is arrived at, the responsibility will not rest with the Associated Governments.
[Page 1475]It is now necessary to deal with the legal contentions in M. Loudon’s note, in view of the violent statements which have been made in the Netherlands, and some of the arguments which have been used in the note under discussion. It is true that the British note of the 21st March bases the requisitioning of these ships on the right of angary, but it appears to make little difference whether the act of requisitioning is treated as founded on that right or upon the general right of sovereignty over all persons and property within the jurisdiction.
It would appear that the Netherlands Government consider the right of angary to be an ancient rule, which had fallen into desuetude until it was unearthed by His Majesty’s Government as justifying an arbitrary act on their part. The right is certainly an ancient one, and its existence has been recognised, though admittedly in some cases with reluctance, by nearly all writers on international law, from Grotius downwards. It is sufficient to refer to Bluntschli, Massé, Vinnius (ad Peckium), Bonfils, Calvo, Halleck, Rivier, Heffter (especially note by Geffcken in the fourth French edition), Hall, Phillimore, Westlake, and Oppenheim. But if it is suggested that the right had fallen into disuse and is obsolete, it is fair (without quoting extensively from the many modern writers on international law who recognise the right as still existing) to point out that it was asserted by the German Government and acquiesced in by His Majesty’s Government in 1871; that it is especially mentioned in the United States Naval War Code of 1900; and that during the discussions at the Naval War College in 1903, which resulted in the withdrawal of the Code, it was not suggested that the article in question required any modification. Further, the right was fully recognised during the present war, before any cases had arisen of the requisitioning of neutral ships which were not the subject of Prize Court proceedings, by the Judicial Committee of the Privy Council in the well-known case of the Zamora.
It is also relevant to point out that the existence of the right is recognised in a series of treaties entered into by the German Empire during the second half of the 19th century. The treaties in question are those with Colombia (1892), Portugal (1872), Mexico (1882), Honduras (1887), Guatemala (1887), Nicaragua (1896), Costa Rica (1875), San Domingo (1885), Spain (1883), and Hawaii (1879). These treaties as a rule provide, not that the right of requisitioning ships is not to be exercised in the case of ships belonging to nationals of the contracting parties, but that if it is exercised compensation is to be paid. Commenting on these treaties, the German jurist, Dr. Erich Albrecht, in his work Requisitionen von neutralem Privateigentum, insbesondere von Schiffen, published at Breslau in 1912, a [Page 1476] work in which the existence of the right in question is fully recognised, writes as follows (p. 44):—
All the treaties which have been quoted appear to apply not only to the case of a Government using for their own purposes neutral vessels within their own territorial waters and in their own ports, but also to the case of this being done in occupied enemy territory. None of the treaties contain any express limitation to the former case, nor can any such limitation be regarded as implied.
What, then, can we deduce from all these treaties concerning the German view of international law on this point? The only points which emerge are the following. It can certainly not be presumed that the intention was by some of these treaties to place German ships in a worse position with regard to the other contracting states than they would otherwise occupy by international law. We find among these contracting states a number of Central American republics, which, in fact, have a fairly general reputation for unrest and unreliability. It is highly improbable that Germany would have conceded to them more extensive rights in regard to German vessels than would belong to any sovereign state by international law; for, if so, the treaties would represent a one-sided concession on the part of Germany, seeing that it is extremely rare for Dominican and Nicaraguan ships to enter German waters, while German ships frequently call at Central American ports. One may therefore safely assume that it was the intention in these treaties to place these ships in a more favourable position than they would occupy under the provisions of international law, which the German Government hold to be operative.
From this it results that international law, as interpreted by the German Government, does not certainly create a better position for ships than the arrangements contained in the treaties, which, as regards neutral navigation, are exceedingly unfavourable. Hence international law would at the best confer a position not more favourable than that provided for in the treaty with Colombia, which is as follows: “In the exigencies of war, neutral vessels also can be detained in order to be used for the purpose of conducting the war. For the service thus rendered compensation must be paid, but the payment need not be made in advance, nor is it necessary to fix the amount beforehand.”
To this it may be added that treaties containing similar provisions were made between France and Spain in 1882, France and San Domingo in 1882, France and Mexico in 1886, Italy and Mexico in 1870, Italy and Guatemala and Honduras in 1868, Italy and Colombia in 1892.
It may also be pointed out that Professor Perels, formerly legal adviser to the German Admiralty, in his book Das Internationale öffentliche Seerecht, published at Berlin in 1903, fully admits the existence of the right.
In view of the above considerations, the Netherlands Government can hardly maintain that the right which the Associated Governments have exercised is an obsolete one.
[Page 1477]The Netherlands Government state that the right is confined to the right of a belligerent to appropriate as an exception a neutral ship for some strategical end of immediate necessity, as, for example, to close the entrance of a seaport so as to hinder the attack of an enemy fleet. Such a limitation would appear to be based on a well-known instance that took place in occupied hostile territory during the war of 1870–71, but it is not borne out either by the definitions given by writers on international law or by the practice of nations. It is certainly not suggested in the modern treaties referred to above. The most frequent example in old times of the exercise of the right was, perhaps, the utilisation of neutral ships to carry a military expedition. A well-known example is the French expedition to Egypt in 1798, when a considerable proportion of the 300 transports which carried the troops were neutral ships which had been taken under the order of the Directorate, providing for the requisitioning of ships in the ports of Civita Vecchia, Nice, Genoa, Antibes, Toulon, Marseilles, Bastia, Ajaccio, and other Corsican ports. Another instance of the recognition of an analogous right is to be found in article 19 of the Vth Hague Convention, dealing with the requisitioning of neutral railway material. In fact, the only instance of the exercise of the right in the limited sense, which alone is admitted by the Netherlands Government, is that referred to above of the sinking of the British coal vessels in the Seine by the German Government in 1871. It may be well, also, to quote as a modern definition of the right that given by Rivier at p. 327 of his work, Principes du Droit des Gens, published in 1896:—
On appelle ainsi le droit qu’a le belligerant de s’emparer de choses de tout genre appartenant à des particuliers, notamment de navires, voitures, chariots, pour s’en servir, par exemple, pour transporter des troupes, des armes, des munitions ou pour tout autre usage. Le belligérant qui use de ce droit est tenu d’indemniser le propriétaire; l’indemnité doit, le plus possible, être debattue et fixée par avance.
Le droit d’angarie s’exerce aux dépens des neutres comme aux dépens des particuliers ennemis. C’est même à l’égard des neutres qu’il revêt, [surtout] dans la guerre maritime, une importance particulière.
His Majesty’s Government readily admit that in one respect the right may be taken to have been modified in modern times. According to the old practice it was permissible not only to requisition neutral shipping, but to compel the masters and crews, even against their will, to work the ships during their employment in actual military operations. Such compulsion would not be in accordance with modern ideas, and it is, I hope, unnecessary to state that the action of His Majesty’s Government does not include any such compulsion on the crews of the Dutch vessels which have been taken over.
[Page 1478]The Netherlands Government allege that the measure taken only rests on force. His Majesty’s Government would suggest on the other hand that it is, on the present occasion at any rate to the extent to which it has been employed, an exercise of the right of sovereignty. Most of the writers on international law are content to treat the right as existing in usage without attempting to trace it to its original source; but it appears to His Majesty’s Government that the real position is well put by Azuni, who says:
Les angaries sont au nombre des prérogatives de la Puissance suprême …, ce droit d’angarie est un droit régalien dont jouissent les Puissances souveraines dans les cas de nécessité ou d’utilité publique. …
A similar objection is made by Calvo.
It is a commonplace that the rights of a sovereign state extend over all property within its jurisdiction, irrespective of ownership, and neutral property within belligerent jurisdiction is, in the absence of special treaty stipulations, as liable to requisition in case of emergency as the property of subjects. If demonstration of this fact were required, it would be afforded by the circumstance that it is not an uncommon provision in commercial treaties that the property of the subjects of the contracting parties shall be exempt from military requisition in the territory of the other. Vessels calling at a foreign port are, in the absence of special treaty provisions, fully subject to the local jurisdiction. A striking example of this is the practice under which such a vessel can be arrested by reason of legal proceedings in the courts of the country which she is visiting, and detained there by order of those courts until the proceedings are finished, or she obtains her release on bail. This being so, it is not surprising that a practice should have grown up of exercising this right in the particular case where the state in question has urgent need of neutral property such as shipping within its jurisdiction, and the fact that the exercise of this right has received a particular name should not obscure the truth that it is a legal exercise of the right of a sovereign state, and not an act by a belligerent based on no principle of law, and for which the only justification is to be found in usage.
His Majesty’s Government trust that the foregoing explanation will remove from the mind of the Netherlands Government and the Dutch people any misconceptions that may have arisen as to the proceedings of the Associated Governments in requisitioning Dutch vessels, and that it will be realised that the Associated Governments have done everything in their power to render the action which they have been compelled to take, and which is, in their opinion, fully justified under international law, as little injurious as possible to Netherlands interests.