811B.85/21
The Secretary of State to the Ambassador in the United Kingdom (Kennedy)
Sir: Reference is made to the Department’s instruction No. 1154 of January 10, 1940 requesting that the Embassy ascertain from the British Government the legal basis for the removal by British naval authorities of two German engineers from the motorship, Don Isidro, while that vessel was at Port Said en route to Manila via the Suez Canal, and to the Embassy’s despatch No. 4798 of March 6, 194014 enclosing a copy of the British Foreign Office note No. W 3022/31/49 of March 2, 1940. In this note the British Foreign Office stated that, under the Anglo-Egyptian Treaty of Alliance of 1936,15 “the Egyptian Government undertook in the event of war to come to the assistance of the British Government as an ally”; that the British Government is “authorized to station forces in Egyptian territory with a view to insuring, in cooperation with the Egyptian forces, the liberty and entire security of navigation of the Suez Canal”; and that, in the effectuation of these measures “the British Naval and other forces in the Canal Zone therefore act as agents of the Egyptian Government”.
Because of these provisions, the note continues, “the British naval forces cooperating with the Egyptian authorities at that port (Port Said) were fully entitled to board the vessel for the purpose of satisfying themselves that neither the vessel, nor her crew, nor her cargo represented any threat to the security and free navigation of the Canal”. As the presence on board the Don Isidro of two German engineers was regarded as constituting a menace to the safety and free navigation of the Canal, they were therefore removed. By way of addendum, paragraph numbered four of the note states that since these Germans were of military age and possessed “technical knowledge of considerable value to the German war effort”, they were persons which the British Government was entitled to remove from neutral ships in the exercise of belligerent rights.
[Page 89]The Department is not aware that the Egyptian Government has declared itself to be a belligerent. That Government, therefore, could not legally exercise any belligerent rights nor authorize the British naval forces as its agent to do so. Accordingly, since it is clear that the removal and internment of the German citizens under reference would have been warranted only if Egypt were a belligerent, the action of the British authorities was clearly illegal and cannot be justified by any provisions of the Anglo-Egyptian Treaty of Alliance of 1936. The Department is, therefore, unable to regard the note of the British Foreign Office as a satisfactory answer to the question presented and still adheres to the position that the action of the British authorities was illegal and constituted a violation of the neutral rights of the United States. In as much as no pecuniary damage was suffered in this instance, however, the Department, on the assumption that similar instances will not be permitted to recur in the future, is willing to regard the matter as closed.
The Embassy is requested to inform the British authorities of the views of this Government as hereinabove set forth.
Very truly yours,