740.00111A.R.–N.C./132
Memorandum by the Legal Adviser (Hackworth)77
I see no objection to this recommendation on the Security Zone,78 with the exception of paragraph 12 of the preamble, inasmuch as it will be for the Governments to decide whether they desire to adopt the recommendation.
Paragraph 12 deals with a very controversial question and does not, in my opinion, dispose of it in a satisfactory manner. It seems to take the position in effect that belligerent merchant ships may be permitted to operate within the zone free from the right of capture on the part of the opposing belligerent. I doubt whether any belligerent would acquiesce in the shielding by neutrals from the recognized right of capture of a large fleet of enemy merchant ships.
This, in my opinion, was the most difficult point in the series of questions raised by the British Government. As a practical matter, the issue may never arise. Had I been concerned in the preparation of the document, I should have recommended the omission of the entire paragraph. It may now be too late to have it omitted but it is well to bear the matter in mind should the recommendation come before the Governments in its present form.
I shall leave to Mr. Duggan the preparation of a communication to Mr. Fenwick.