811.114 Miserinko/162
The British Embassy to the Department of State
Memorandum
His Majesty’s Government in the United Kingdom feel strongly about the action taken by the United States authorities in the Miserinko case, more particularly in view of the effective cooperation by His Majesty’s Government in enforcing the United States anti-smuggling legislation. Broadly speaking, if His Majesty’s Government were to admit the United States contentions that they ought not to intervene (a) where the alleged ultimate control of the vessel resides in United States citizens and (b) where the vessel is an acknowledged smuggler engaged in trying to break United States law, the resulting position would be that the United States could violate the Convention with impunity in almost every case that is likely to arise in practice. The United States Government do not, it is understood, contest the legal right of His Majesty’s Government to intervene in any case where a British ship flying the British flag is arrested on the high seas outside treaty limits. What the United States Government contend, if their argument is rightly understood, is that His Majesty’s Government ought, on moral grounds, to refrain from such intervention where the vessel is an admitted smuggler in which the ultimately interested parties are United States citizens. But if this argument is sound it would apply irrespective of the existence of the Convention. Even if there were no Convention, a similar argument could be advanced for the purpose of justifying the arrest anywhere on the high seas of British vessels having the character in question. If the Convention is to be interpreted in such a way as to preclude intervention in any case where a vessel is a smuggler or one in which United States citizens are interested, the only scope left to the Convention, so far as His Majesty’s Government are concerned, would be to enable intervention to take place where a British vessel, which was not a smuggler or controlled by United States citizens, had been arrested outside conventional limits. But such a case is so extremely unlikely to arise in practice (as is evidenced by the fact that none has ever occurred since the Convention was first entered into) that it can be discounted altogether. Both Governments must have been well aware when the Convention was concluded that all the cases which would arise in practice would be cases in which the vessels were in all probability smugglers; and the object of the Convention was not to give a general licence to the United States authorities to arrest British smuggling vessels at any point on the ocean, but to enable them to be arrested within wide but none the less well-defined limits, and within those limits only. Those limits are wider than those within which [Page 124] arrests would be permitted under the ordinary rules of international law, but are not, on the other hand, so wide as to cover the high seas in general.
His Majesty’s Government feel constrained to make these observations because the communications received from the State Department appear to imply that the United States authorities regard themselves as justified, morally if not legally, in arresting a suspected smuggler wherever found. If such an interpretation of the Convention were to prevail, the limits set out therein would become largely meaningless in practice. The chief benefit now derived by His Majesty’s Government from the Convention is that by giving the United States powers of interference with British vessels within fairly wide limits, they secure for those vessels freedom from interference outside those limits. If, however, those vessels are to be interfered with whether they are inside or outside those limits (and, a priori, such vessels will almost certainly be smugglers in which United States citizens are interested) then His Majesty’s Government will derive no further benefit from the Convention.
His Majesty’s Government are far from desirous of engaging in controversy with the United States Government on questions which are necessarily of a somewhat unsavoury character. But the freedom of British shipping is a principle that His Majesty’s Government are determined to maintain, and they cannot allow their international rights to be lightly violated, even where to uphold them incidentally involves the appearance of defending the interest of smugglers.