740.00111A.R./1010
The German Chargé (Thomsen) to the Secretary of State
By direction of his Government, The German Chargé d’Affaires has the honor to communicate the following to the Secretary of State of the United States of America:
It has come to the knowledge of the German Government that a proposal has been submitted to the Pan American Neutrality Commission at Rio de Janeiro that concerns the treatment of the merchant ships of belligerent powers in certain American ports. It is intended by the proposal to bring about a decision of the American Governments concerned, to the effect that a time limit for leaving these ports is set for merchant ships of belligerents which call at the ports of the countries under consideration and, if this period expires without action, measures are to be occasioned by which the freedom of movement of the ships is restricted.
The decision proposed would, if adopted, violate not only German interests, but also international law and conventional law. It would not be in harmony with the rules of international law in so far as it [Page 298] restricted the freedom of navigation which has been guaranteed from time immemorial by international law. The decision would also be in contradiction with the provisions of the Geneva Maritime Ports Statute of 1923.58 It could not be alleged that circumstances existed which endangered the security or vital interests of the state in which the port is situated, for the presence of ordinary unarmed merchant ships cannot be considered such an endangerment. The putting through of the decision proposed would also, as far as the United States of America is concerned, run counter to the provisions of the German-American Treaty of Friendship, Commerce and Consular Rights,59 by which the freedom of navigation between the two contracting powers is expressly guaranteed, and hence also the right of free departure of merchant ships from a port of the other contracting party.
The principles which the Pan American Conference at Panama in 1939 established with regard to the neutrality of the individual American countries empowered these countries only to watch over the merchant ships of belligerents which seek refuge in the ports of American countries, but not to restrict the freedom of movement of such ships.
No change is made by the fact that certain non-American states are at war with each other, in the duties of the American countries under international law and treaties to uphold, as mentioned [above], freedom of commercial navigation. This is to be recognized in particular from the Pan American Neutrality Convention of 1928,60 in the preamble of which the countries of America explicitly undertake always to respect freedom of commerce. The same conclusion is also to be drawn from Article XII of the 1928 Neutrality Convention mentioned.
According to the recognized rules of international law, belligerent countries are entitled to observe closely trade between neutrals and belligerents and, if necessary, to limit it. A similar right is not granted to neutral countries by international law. The distribution of relative strength in case of war involves the contingency that merchant ships of one belligerent may under certain circumstances be compelled to remain for a considerable time in neutral ports. If a neutral power should utilize such a state of affairs to render the peaceful trade of one belligerent difficult or destroy it, it would in so doing support the foe and thus would render itself culpable of a serious breach of neutrality.
[Page 299]The German Chargé d’Affaires believes that he can express the anticipation that the Government of the United States of America will be convinced of the illegality which the adoption of the decision mentioned at the beginning [of this note] would involve, but must reserve the right to submit a decided protest in case the proposed decision should be adopted, contrary to expectation.
- See Green Haywood Hackworth, Digest of International Law, vol. iv, p. 343.↩
- Signed December 8, 1923, Foreign Relations, 1923, vol. ii, p. 29. For agreement terminating parts of article VII of the treaty of December 8, 1923, signed June 3, 1935, see 49 Stat. (pt. 2) 3258, or Department of State Treaty Series No. 897. For correspondence, see Foreign Relations, 1935, vol. ii, pp. 438 ff.↩
- Convention regarding maritime neutrality, signed at Habana, February 20, 1928, ibid., 1928, vol. i, p. 604.↩