793.94112/77
The British Embassy to the Department of State
Aide-Mémoire
His Majesty’s Chargé d’Affaires at Tokyo reported to His Majesty’s Government in the United Kingdom on the 24th August an interview which the United States Ambassador and he had with the Japanese Government on the 23rd August with regard to measures to safeguard the foreign Embassies and warships and merchant vessels anchored at Nanking. One of the points in the reply of the Japanese Government was a request that the foreign Powers should, as a precaution, mark their Embassies, warships and merchant vessels plainly, so that they might be easily identified from the air.6
- 2.
- His Majesty’s Representative at Tokyo has now been instructed by telegraph to address a note to the Japanese Government to the effect that, having reported the interview of the 23rd August, he is now asked to make further enquiry as regards the following points:
- 3.
- His Majesty’s Government consider that the request of the Japanese Government that the Powers, in anticipation of possible raids by Japanese bombers, should mark merchant vessels plainly, so that [Page 459] they may be easily identified from the air, would appear due to an intention to attack merchant vessels from the air. If there is no war, attack on merchant ships would be illegal. If there is a war, the position under international law is as follows: No merchant ship, whether enemy or neutral, may be attacked unless she fails to comply with a lawful request to stop in order that she may be visited and her identity established, or unless she thereafter resists lawful capture. In any case it is only permissible to use such force as is absolutely necessary to ensure compliance. Nor is it permissible to sink the vessel (if at all) unless the crew has been first placed in safety, except when such sinking has been rendered inevitable by the conduct of the merchant ship herself in offering resistance and when no less than use of force will suffice. Aircraft are in no way exempted from these rules, and must refrain from action against merchant ships, unless they can comply with them.
- 4.
- His Majesty’s Representative has also been instructed to remind the Japanese Government of the submarine protocol which, in common with His Majesty’s Government in the United Kingdom and other Governments, they signed last year,7 and to inform the Japanese Government that in the view of His Majesty’s Government indiscriminate attack from the air without previous visit, etc. is as illegal as in the case of the submarines.
- 5.
- His Majesty’s Representative has been asked to point out that His Majesty’s Government cannot believe that the Japanese Government intend that, in the conduct of the present hostilities, their air forces should attack civilians and non-combatants, in disregard of the well-established rules of international law, and that were any such attacks made on British merchantmen, His Majesty’s Government would be compelled to take a very serious view of the matter. His Majesty’s Government must therefore ask for an explanation and clarification of the request made by the Japanese Government in so far as it relates to merchant vessels.
- 6.
- His Majesty’s Representative has been instructed to inform his four colleagues who were present at the interview on the 23rd August of the tenour of the above instructions.
- 7.
- His Majesty’s Government in the United Kingdom would be glad to learn whether the United States Government would be prepared to instruct the United States Ambassador at Tokyo to take parallel action in this matter.
- 8.
- A similar enquiry has been addressed to the German, Italian and French Governments through His Majesty’s Representatives at Berlin, Rome and Paris.
- See telegram No. 302, August 23, 9 p.m., from the Ambassador in Japan, Foreign Relations, Japan, 1931–1941, vol. i, p. 489.↩
- See Foreign Relations, 1936, vol. i, pp. 160 ff.↩