The Department of State to the British Embassy
The Department of State has read with great interest the memorandum of the British Embassy of November 10, 1920, relative to the draft containing tentative proposals regarding the laws of war as applicable to submarine cables, submitted by the American Delegation to Sub-committee No. 4 on International Cable and Radio Law and Cable Landing Rights at the International Conference on Electrical Communications.
The draft prepared by the American Delegation was submitted in the hope that it might serve as a basis for discussion at the present Conference, and with a view to the formulation, at the forthcoming World Conference on Electrical Communications, of a codification of the laws of war with respect to submarine cables which could be submitted by that Conference to the nations of the world for their approval.
The objections of His Majesty’s Government to the consideration of these proposals by the present Conference appear to fall under two heads:
- First, a general reluctance to consider the matter on the ground that “their delegates to the present Conference on electrical communications have neither the knowledge nor competence to discuss such a question as the belligerent right to cut cables”, and, “that there was, when the Conference was convened, no question of including in its programme any discussion of the rights and duties of belligerents”, and further, that it is undesirable “that questions arising out of the original programme of the Conference and new proposals respecting belligerent rights should be treated by the same Conference”.
- Second. A certain hesitancy growing out of the membership of the British Government in the League of Nations.
With reference to the more general considerations stated under the first heading, the Department points out that a discussion at this time could in any case be only preliminary to that at the World Conference, and that the reference under which the present Conference is being held is a very broad one, inasmuch as it is authorized to consider “all international aspects of communication by land telegraphs, cables or wireless telegraphy”. The British Delegation to the Conference have frankly recognized that this reference is broad enough to cover “the question of international law with regard to cables in time of war.” (Mimeographed Record, Committee No. 4, Third Session, page 95.23)[Page 146]
Moreover, the Department would add that the Japanese Government has indicated a willingness to discuss the proposals after the disposition of the German cables has been settled, provided the other Governments parties to the Conference are also willing to participate in such a discussion. The American Ambassador at Paris telegraphed that the French Government also has agreed to discuss the matter if it is understood that the regulations will not be retroactive. These suggestions are entirely acceptable to the United States.
The American Delegation believed that consideration of this subject at the present Conference would save time at any future examination of these questions. It also seemed desirable to improve an excellent opportunity for what may be considered perhaps the most interested nations to make some little preliminary headway in the formulation of important principles to be agreed upon at a subsequent date.
Furthermore, the American Delegation has studiously endeavored, from the beginning of the Conference, to make clear that there was not the slightest thought of any retroactive application of the American proposals. In this connection, attention may be called to the statement prefixed to the “Rough Draft of Suggestions” submitted by the American Delegation, in which it was pointed out that “these rules, whether old or new, are not put forward as standards by which to try acts which have taken place in the past. They are suggested as possible standards to be applied in the future”.
As regards the special considerations arising out of Great Britain’s membership in the League of Nations, the Department does not perceive in what respect the discussion of the proposals suggested by the American Delegation would affect the position of any of the nations concerned vis à vis the League of Nations. As was pointed out by the American Delegation in answer to a question at the Conference, the American proposals were submitted with a view to their consideration on their merits, irrespective of the question of membership in the League of Nations on the part of the nations adopting them. (Mimeographed Record, Committee No. 4, First Session, page 15.24) The Department does not understand that there is anything in the Covenant of the League which would prevent member nations and non-member nations from considering together an agreement codifying international law upon any topic for future application as between signatories.
As regards the provision of paragraph I of Article 16 of the Covenant, which is quoted in the British Memorandum, the Department [Page 147] is not quite clear as to the precise interpretation placed by the Embassy upon the language in question, or the exact bearing which it is thought to have upon the American proposals. Of course, in any discussion of these proposals, any inconsistency between any provision thereof and the obligations of States that are members of the League of Nations would receive most careful consideration.
In conclusion, the Department desires to state that the American proposals were put forward in a genuine desire to promote and safeguard international communication by cable in the future by bringing about a condition which will allow cable development with greater confidence than has been the case in the past. On account of the large amounts of money required to construct and lay cables, it is desirable to decrease the risk of loss in connection with such enterprises, and thereby encourage the flow of capital toward the construction of cable lines, with the resultant extension of facilities for communication and the reduction of rates.
The Department cannot but feel that the present condition of uncertainty as to the rights and duties of nations in time of war with respect to submarine cables is a matter of serious concern, and that any steps in the direction of clearing up this uncertainty by the adoption of regulations which shall be both practical and just will be a real contribution to the peace and security of the world.