The Minister in the Netherlands (Tobin) to the Secretary of State

No. 398

Sir: Referring to my telegram No. 11, of February 12, 4 p.m. (1925),80 and to previous correspondence, I have the honor to transmit herewith copies and translations of a Note which I received to-day from the Netherlands Foreign Office, replying in great detail to the inquiries contained in the Department’s Instruction No. 80, of January 26, 1924,81 concerning the two sets of rules prepared by the Commission of Jurists which met at The Hague from December 11, 1922 to February 19, 1923.

. . . . . . . . . . . . . .

I have [etc.]

Richard M. Tobin

The Netherlands Minister of Foreign Affairs (Karnebeek) to the American Minister (Tobin)82a

No. 4391

Mr. Minister: Your Excellency’s letter of February 12, 1924, concerning the Rules of Aerial Warfare and the Control of Radio in Time of War, prepared by the Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare has, as Your Excellency is aware, been submitted to serious study.

[Page 100]

Her Majesty’s Government has devoted particular attention to the study of the whole of these rules which the United States and Japan appear disposed to accept in conjunction with the other countries represented on the Commission which so carefully elaborated them. As a result of the examination to which these rules were subjected by the Netherlands, I am able to reply as follows to the question as to whether the Netherlands Government would be disposed to conclude two conventions with the United States and the other countries above mentioned on the basis outlined by the Government of the United States, one of which would have as an annex the rules concerning aerial warfare and the other the rules for the control of radio in time of war.

With respect to the form of the conventions to be concluded, Her Majesty’s Government agrees in principle with the ideas expressed by the American Government through the intermediary of the American delegation to the International Commission of Jurists, in its plenary session of February 12, 1923, as well as in the above-mentioned letter from Your Excellency. On its side, the Netherlands Government proposes the insertion in each of the said conventions of a provision conformable to the proposal concerning indemnities made by the Netherlands delegation on the Commission of Jurists with respect to the rules of aerial warfare and inserted at the end of the general report of the Commission. It points out that the principle of indemnity had been approved by the Commission. The Netherlands Government likewise proposes the insertion in the two conventions of a provision whereby differences which might arise with respect to these indemnities would be submitted, in the absence of settlement through other means, to arbitration or to the jurisdiction of the Permanent Court of International Justice. For it is expedient, when, as is now the case, there is a question of establishing new rules of international law and particularly new rights for belligerents, to surround them with guarantees with a view to assuring their strict application.

While, with respect to the context of the rules to be annexed, it reserves the right to present observations of detail at the proper moment, the Royal Government would be grateful if the Government of the United States would be good enough to consider the question as to whether it is not expedient, in order to obtain as great a number as possible of adhesions to the two conventions to be concluded, to convoke a new conference to which all states of a certain importance would be invited, in order definitely to agree upon the rules above mentioned. It seems that these rules could then count with more certainty upon general approval and enforcement than if, as is proposed, the states represented upon the Commission of Jurists [Page 101]agreed amongst themselves whilst leaving to the other states—of which some may be reckoned as the most important from the standpoint of military importance—merely the possibility of adhering to these rules without their having had an opportunity to express their opinion on these subjects. This procedure also seems better to carry out the idea of the Washington resolution, whilst it constitutes the best manner of assuring the conclusions of the Commission being taken into consideration by the other civilized powers. The Netherlands Government would be glad to learn the view of the American Government on this important point and would appreciate it if it would take up this suggestion with the other States represented on the International Commission of Jurists.

Her Majesty’s Government also believes, even if a relatively large number of states should adhere to the conventions to be concluded, but especially in case they are concluded only by the states represented on the Commission, that it would be advisable to remove all doubt concerning the reply to the question as to whether these conventions must or must not be applied in a war in which the noncontracting states might be a party. This point is not clearly regulated in the draft treaty presented by the American delegation on February 12, 1923, and Your Excellency’s letter under acknowledgment makes no mention thereof.

With respect to the rules regarding aerial warfare elaborated by the Commission which would be annexed to the above-mentioned convention, the Netherlands Government believes that these rules could contribute, at least in a great measure, toward bringing certainty in a domain of international law where, until now, this certainty is lacking, and toward favoring the development of international law in a direction which seems to fill the needs of international society as the Netherlands Government understands them. For this reason, the Netherlands Government, always desirous of promoting the development of international law, would be happy to subscribe to most of the rules in question, and it thanks the American Government for having taken the initiative toward the conclusion of a convention which would set up these rules as provisions of law.

The Netherlands Government, while still referring to the right it has reserved above to suggest modifications of form later, can agree to the greater part of the provisions of the project. But, excepting the provisions of chapter VII, concerning which its point of view is explained later, it finds that articles 5, 30, and 36, and especially article 37, could hardly be accepted by it in their present form. The Netherlands delegation on the Commission of Jurists brought forward objections to these stipulations which are reproduced in the [Page 102]various procès-verbaux of the meetings83 and to which I beg to refer you. Generally speaking, the delegation believed that the said articles gave too many rights to the belligerents, to the detriment of neutral interests. The Netherlands Government would like to see a revision of these stipulations in the sense of a better protection of the situation of neutral persons and property.

Her Majesty’s Government cannot express its views regarding the contents of chapter VII of these rules, concerning the right of search, of capture, and of confiscation, before a new effort has been made to explain the sense, to fill the gaps, and to correct the faults thereof. The Royal Government does not conceal the fact that the debates which took place concerning this matter in the Commission of Jurists caused it the same grave concern that led the Netherlands delegation to make a general reservation concerning the subject of this chapter, apart from several special objections that it had against certain points of detail. The motives which determined the attitude of the delegation are enumerated in the general report of the Commission84 and in the procès-verbaux of its meetings. As appears from the general report, the delegation pointed out “that the custom and practice of international law is limited to a right on the part of belligerent war vessels to capture, after certain formalities, merchant vessels used for such commerce. Nothing justifies the extension of this right to aircraft, which constitute a new engine of war entirely different from that of a war vessel, and entirely incapable of exercising on merchant vessels or on private aircraft a control similar to that exercised by a war vessel on vessels of commerce. Consequently there is no reason to grant to military aircraft the right of capture as though it were a war vessel, and no reason for subjecting commerce to capture when it is done by aircraft. In the development of international law the tendency must be to accord greater rather than fewer immunities to private property.”

May I be permitted to recall that this attitude was adopted by the delegation, aside from the foregoing arguments, for the following reasons: Even if one were inclined for other reasons to give to military airplanes the right to stop, to search, and to capture merchant ships and private airplanes, it is necessary to recognize that, in view of the present state of aviation, it will be impossible in most cases for the said military airplanes to proceed in accordance with the rules and customs established for the exercise of this right by vessels against vessels. For these rules and customs require (a) search on the site of stoppage at sea, (b) (in case of stoppage followed by capture) the placing on board of the captured vessels of a crew for conducting [Page 103]the prize, and escort of the latter by a war vessel of the capturing state to one of its ports. It is evident that search at the site of stoppage at sea, as well as the placing on board of a crew to conduct the prize and escort to a port of the belligerent state will in most cases be impracticable for airplanes. The delegation also brought to light the fact that, just because submarines cannot conform to the rules and customs of maritime war, the use of these same submarines against merchant vessels was subjected, by the Washington Conference of 1921–22, to prescriptions of a wider scope. The same thing should have been done with respect to the use of airplanes against merchant vessels and private airplanes, because they are even less capable of conforming to the rules and customs above mentioned than are submarines.

I likewise recall that the discussions which took place in the Commission were of such nature as even more to increase the fears of the delegation. For it appeared that certain delegations believed that the visitation and search of a vessel or an airplane stopped at sea does not necessarily have to take place on the spot, before such vessel or airplane can be forced to proceed to belligerent territory. It is certain that, if this rule were admitted—and Her Majesty’s Government, for its part, does not admit it—visitation and search of vessels would hardly ever take place on the spot, and that the merchant vessels and airplanes would be almost always taken to belligerent ports, under the menace of the belligerent’s guns and with all the direful consequences which would follow. All guarantee against unjustified deviations would disappear; signals not understood or imperfectly understood, either from units of a same belligerent or from units of diverse belligerents, a lack of fuel—very possible in the case of airplanes—in the course of the journey of deviation, and many other circumstances would expose peaceful navigation to the worst perils; there is also the fact that a great many small craft which have no radiotelephone or radiotelegraph apparatus on board, would not as a general rule understand the signals given by aviators.

There is only one case in which the Netherlands delegation on the Commission of Jurists was ready to permit the capture of a neutral airplane or vessel by a belligerent airplane; that is, in the case of hostile assistance contrary to neutrality.

On its side, the Netherlands Government believes that its delegation rightly raised the greatest objections against chapter VII of the rules concerning aerial warfare. If it were sure that the last word had been said concerning this subject, it would be constrained to reject this chapter. But it wonders whether amendments to this chapter might not make it acceptable. It would like first of all to know whether the pretense to the right of deviation is really the [Page 104]final word of the Governments which have presented it. It would like, secondly, to be advised of the possibility of having accepted, afterward, the American proposal concerning the exercise by a belligerent military airplane of the right of visit against merchant vessels, which proposal appears at the place in the general report of the Commission where this question is discussed at length.

Finally, the Netherlands Government recalls that its delegation on the Commission of Jurists, in the course of the meetings, raised objections to articles 50, 51, and 53 (i) (see for instance paragraphs 106, 107, and 137 of the procès-verbaux of the plenary sittings of the Commission of Jurists). The Netherlands Government could not summarily set these objections aside. It also wonders whether the provision of article 53 (g) does not require some modification to do away with the too absolute character of its present wording. The Royal Government would like to learn the opinion of the other interested powers on this point. It therefore reserves its attitude with respect to the whole of chapter VII.

Concerning the proposed convention for the control of radio in time of war, the Royal Government takes the liberty of referring to the remarks made above regarding the two conventions to be concluded for the purpose of bringing into force the labors of the Commission of Jurists. With respect to the rules themselves for the control of radio in time of war, the Netherlands Government makes the following observations:

In a general manner, and with the sole exception of article 6, it can accept these rules in principle. Concerning article 6, it would like to ask the interested Governments if they are not of the opinion that the period of one year mentioned in paragraph 3 of this article is not much too long, and, secondly, if they do not believe that it would be advisable to open up the possibility of recourse to an international court (preferably the Permanent Court of International Justice) in regard to the decisions of the national prize courts pronounced in cases falling under article 6 of these rules. It is only after having taken cognizance of the definite opinion of the other Governments that the Netherlands Government would care to make any definite statement on this subject, and it would be grateful if the American Government would be good enough to ask the other states—in the first place those which were represented on the Commission of Jurists—to give their opinion in this connection.

While awaiting with the greatest interest the remarks which the contents of this note will suggest to the Government of the United States, I seize this occasion [etc.]

For the Minister:
A. M. Snouck Hurgronje

The Secretary General
  1. Not printed.
  2. See footnote 70, p. 93.
  3. File translation revised.
  4. In a note dated Sept. 1, 1939, to the American Minister at The Hague, the Netherlands Minister of Foreign Affairs (Van Kleffens) consented to the publication of this document with the explanation that the point of view of the Netherlands Government with respect to various points presented therein has undergone modifications and the present point of view is therefore not in its entirety identical to that expressed in 1925 (file No. 026 Foreign Relations/1425).
  5. Not printed.
  6. Foreign Relations, 1923, vol. i, p. 67; also Great Britain, Cmd. 2201, Miscellaneous No. 14 (1924), p. 43.