862.85/1845
The German Embassy to the Department of State
Aide-Mémoire
I. On December 21, 1940, dispatches from London appeared in the American press to the effect that Ronald Cross, British Minister of Shipping, in pointing to the urgency of Great Britain’s need for merchant tonnage, had declared that the United States alone could supply the amount of tonnage needed to maintain England’s war effort at its peak. In still another statement published in these dispatches the British Minister of Shipping was quoted as saying that “he looked with a covetous eye” on every ton of idle shipping, including tonnage of Germany and German occupied countries, now lying in United States ports.
On or about January 27, 1941, the “British Press Service” released for publication in the United States an analysis of the alleged right of sovereign states to requisition foreign shipping and other foreign means of transportation, found within their jurisdiction, in time of war under the so-called Right of Angary. The British press release states that this right “is a universal principle of international law which has its basis in long established custom.” The powers inherent in this right, the release contends, are sweeping and are limited only by three things: Firstly, the owners of the requisitioned foreign ships must be fully compensated for the use of their property. Secondly, the right may only be exercised in time of urgent public necessity. Thirdly, it does not extend to the personal services of ship’s crews, air or railroad personnel, etc.
The release further contends that a number of treaties were concluded in the 18th and 19th centuries embodying and defining the Right of Angary, but it stresses the point that this right is more fully established by the practice in international relations. In support of this contention, the release recites a number of cases, chiefly from the World War of 1914–18, in which certain nations allegedly made use [Page 452] of the Eight of Angary in requisitioning and taking over both enemy and neutral ships. In summarizing these cases, the release states that “they illustrate the fact that the Right of Angary is not limited to belligerents but may be invoked by nations in a state of national emergency.”
II. These statements, emanating from official British sources, prompt the German Government to present its legal opinion in the premises. The sweeping interpretation of the so-called Right of Angary expounded in the aforesaid statements finds no support in the universally recognized principles of international law:
(1) The Right of Angary has up to the present been claimed and resorted to by nations in order to be able to requisition foreign ships within their territorial waters and to use them for their own purposes. Prior to the World War, the Right of Angary was exercised only by belligerent states, and recognized authorities in international law are of the opinion that rights of Angary can only be exercised by belligerents. Moreover, the application of this right is limited to exceptional cases and requires a state of urgent public emergency, in the sense of a vital necessity (thus for instance Charles G. Fenwick in International Law 1934, p. 542; Hyde in International Law 1922, Vol. II, p. 262).
Whether the Right of Angary can also be exercised by neutrals is not clearly established by the practice in international law. According to the predominant opinion expressed in the literature on international law (see the above citations), the exercise of the Right of Angary by neutrals is not in conformity with the universally recognized international law. Whatever may be claimed in regard to the applicability of this right, the indispensable prerequisite for its application is a state of urgent public emergency. The mere reference to a general lack of tonnage is not sufficient to justify the exercise of the Right of Angary. The requisitioning of ships under such pretense would represent an abuse of power (see Hyde 1922, Vol. II, p. 282).
(2) According to the British press release the suggested application of the Right of Angary by the United States is to contribute to the solution of the shipping problem in the interest of belligerent England. The seizure of the foreign ships now lying in United States ports and their transfer to the British Government would represent an unjustifiable infringement upon the private property of the steamship companies concerned, and could in no case be based upon the Right of Angary. Such a measure, furthermore, would be irreconcilable with the obligation imposed upon every neutral by the universally recognized international law to observe and maintain an impartial attitude. Reference is made in this connection to the final provision of the Neutrality Proclamation of the President of the [Page 453] United States of September 5, 1939,1 and the Fifth Hague Convention of 1907.2 Moreover, the surrender of the foreign ships now lying in United States ports to Great Britain would turn Article III of that Convention, according to which vessels of belligerents in neutral territorial waters enjoy protection against enemy attack, completely into its opposite meaning. Similar provisions are contained in Articles 4 (a), 17 and 18 of the Havana Maritime Neutrality Convention of 1928.3 The measure suggested by the British Government would also be in complete contradiction to declarations of American republics. If by virtue of Recommendations III and IV concerning safety zones, made by the Neutrality Committee at Rio de Janeiro on April 27, 1940.4 the mere possibility of a neutrality violation after the departure of a merchant vessel belonging to a belligerent power from an American port is to be sufficient reason for its retention, then the American republics would have to be even more anxious to reject any and every method of transfer of such merchant ships to other belligerents.
- Department of State Bulletin, September 9, 1939, p. 201.↩
- Apparently this is in error, and reference is presumably to the Thirteenth Convention of 1907; see William M. Malloy (ed.), Treaties, Conventions, etc., Between the United States of America and Other Powers, 1776–1909 (Washington, Government Printing Office, 1910), vol. ii, p. 2352.↩
- Foreign Relations, 1928, vol. ii, p. 604.↩
- For text, see Special Handbook, Prepared by the Pan American Union, Appendix F, p. 57.↩