500.A15a3/781
Mr. Elihu Root to the Acting Secretary of State
Dear Mr. Cotton: I have your letter of March 3rd72 enclosing the paraphrase of a cable despatch from Secretary Stimson saying that he would like my views upon three questions regarding the Washington treaty in relation to the use of submarines concluded February 6, 1922.
The first question is whether the first and second Articles of the Washington submarine treaty constitute a more desirable form of statement than the clause now proposed by the French in London, as follows:
“In operation against merchant vessels submarines are bound to conform to the rules of international law which govern surface war vessels.”
My answer is a clear affirmative. The proposed French alternative is not merely a weaker statement but it is an abandonment of the chief and avowed purpose of the Washington provisions. That purpose is stated in Article Two of the Washington treaty in these words:
“so that there may be a clear public understanding throughout the world of the standards of conduct by which the public opinion of the world is to pass judgment upon future belligerents.”
The rules of international law are known only to experts, who can always dispute about them indefinitely. Upon such a basis no clear public understanding can be reached and therefore no public condemnation can follow. If the French are unwilling to agree to the first two Articles, it would be infinitely better to have no treaty at all than to make a treaty in the form they propose, which would virtually be a retirement on the part of the United States, Great Britain, Italy and Japan from the statement of the rule and the effect of the rule contained in the treaty of Washington. About the only thing we could be sure of then would be that the statement of rules and the effect of them in the Treaty of Washington is not correct because all [Page 52] the nations which joined in making that statement have given it up.
As to Articles Three and Four the situation is entirely different. They propose new provisions not yet forming a part of international law, and their omission from the new treaty would merely indicate that general acceptance of those provisions had not been reached, which is, of course, true. I think, however, that if a new treaty were made on the subject there should be a clause which prevented the new treaty from impairing in any way the obligations of Articles Three and Four between the powers which have entered into them.
I should think that the French would understand that a refusal to agree to Article Four of the Treaty of Washington was notice to the world that she intends to use submarines as commerce destroyers and that her refusal to agree to Article One is notice to the world that she intends to be as free as possible from any application of the rules of international law in the use of submarines as commerce destroyers.
To be more specific, I do not think the inclusion of Article Three is essential.
I do not think it desirable to include Article Four in a treaty to be signed by only three powers. The provision limited to three powers would necessarily be futile and it would rather tend to confuse the application of Article One.
If there is anything more I can do or say let me know and I shall be glad to do what I can.
Faithfully yours,