III. INTERNATIONAL RELATIONS CHARLES H. ALBRECHT INTERNATIONAL RELATIONS OF THE UNITED STATES I. WITH EUROPEAN BELLIGERENT COUNTRIES SUBMARINES AND ARMED MERCHANTMEN Later Germany denied that any of her submarines had been responsible for the sinking of the Persia, and simThe Case of the "Persia."-Theilar denials came also from Austriasinking of the Peninsular and Oriental Hungary and Turkey. No submarine liner Persia off the coast of Crete on had been seen by any of the survivors Dec. 30, 1915, with a loss of over 200 of the Persia, and in the absence of lives, among them the American Con- any tangible evidence to fix the resul at Aden (4. Y. B., 1915, p. 58), sponsibility, the matter was allowed seemed likely again to bring to a to rest by the United States Governcrisis the submarine controversy with ment after the receipt of these dethe Teutonic empires which the con- nials. cessions of the Austro-Hungarian Government in the case of the Ancona (A. Y. B., 1915, pp. 54-8) had for the moment resolved. On Jan. 7, however, the German Ambassador handed the following memorandum to the Secretary of State: (1) German submarines in the Mediterranean had, from the beginning, orders to conduct cruiser warfare against enemy merchant vessels only in accordance with general principles of international law, and in particular measures of reprisal, as applied in the war zone around the British Isles, were to be excluded. (2) German submarines are therefore permitted to destroy merchant vessels in the Mediterranean, i.e. passenger as well as freight ships as far as they do not try to escape or offer resistance, only after passengers and crews have been accorded safety. (3) All cases of destruction of enemy merchant ships in the Mediterranean in which German submarines are concerned are made the subject of official investigation, and, besides, subject to regular prize court proceedings. In so far as American interests are concerned, the German Government will communicate the result to the American Government. Thus also in the Persia case, if the circumstances should call for it. (4) If commanders of German sub marines should not have obeyed the orders given to them, they will be punished; furthermore, the German Government will make reparation for damage caused by death of or injuries to American citizens. The Case of the "William P. Frye." In addition to the German memorandum of Jan. 7, another source of reassurance was the publication on Jan. 8 of the note of the German Government of Nov. 29, 1915, arranging for the assessment of indemnity and arbitration of disputed points of law and treaty interpretation in the case of the William P. Frye (A. Y. B., 1915, p. 37), particularly in view of the following paragraph: Until the decision of the permanent court of arbitration, the German naval sels as are loaded with absolute contraforces will sink only such American vesband, when the pre-conditions provided by the Declaration of London are present. In this the German Government quite shares the view of the American Government that all possible care must and passengers of a vessel to be sunk. be taken for the security of the crew the persons Consequently, found on board of a vessel may not be ordered eral conditions, that is into her lifeboats except when the gento say, the the neighborhood of the coasts afford weather, the condition of the sea, and absolute certainty that the boats will reach the nearest port. The "Lusitania" Negotiations.-Or Jan. 10 it was announced that the German Ambassador, Count von Bernstorff, who had been working with Secretary Lansing for the settlement of the Lusitania question, had for but proceeded to attack them on their own initiative, and in so doing they frequently even made use of false If a submarine is required to stop and search a merchant vessel on the high seas and, in case it is found that she is of enemy character and that conditions necessitate her destruction, to re-flags." move to a place of safety all persons on board, it would not seem just or reasonable that the submarine should be compelled, while complying with these requirements, to expose itself to almost certain destruction by the guns on board the merchant vessel. The Secretary referred to the right to arm as "a doubtful legal right which may be denied on account of new conditions," and concluded: After this note had been published and the contents of the informal notes of Secretary Lansing to the diplomatic representatives of the Allied Governments became known, considerable sentiment developed in Congress in favor of warning Americans not to travel on armed merchantmen of the belligerent powers. Resolu tions to this end were introduced in I may add that my Government is both houses. Administration leaders impressed with the reasonableness of the argument that a merchant vessel endeavored to prevent action on these carrying an armament of any sort, in resolutions in order to leave Presiview of the character of submarine war-dent Wilson a free hand in dealing fare and the defensive weakness of undersea craft, should be held to be an auxiliary cruiser and so treated by a neutral as well as by a belligerent Government, and is seriously considering instructing its officials accordingly. On Feb. 10 the German and Austro-Hungarian Governments notified the United States of their intention to treat armed merchantmen as war vessels after Feb. 29. The note verbale of the German Foreign Office stated that the "German Government has no doubt that a merchantman assumes a warlike character by armament with guns, regardless of whether the guns are intended for defense or attack." The note was accompanied by a number of exhibits, including photographic reproductions of "confidential" instructions to British armed merchantmen stated to have been found on captured vessels, and the following quotations from these "confidential" instructions were especially emphaained: It is not advisable to open fire at a range greater than 800 yards unless the enemy has already opened fire. . . . If a submarine is obviously pursuing a ship by day and it is evident to the master that she has hostile intentions, the ship pursued should open fire in selfdefense, notwithstanding the submarine may not have committed a definite hostile act such as firing a gun or torpedo. A long list of cases in which Allied merchant vessels were claimed to have fired on enemy submarines was also annexed, as proof of the statement in note that "from reports of the Laval forces numerous cases n in which English mer with the issue, but the President insisted that they be brought to a vote to prove that Congress was behind him. Congress declined to meet the question squarely, but the result of the votes was interpreted as an endorsement of the Administration. (See also I, The Sixty-fourth Congress.) Meanwhile, discussions had been going on between Secretary Lansing and Ambassador von Bernstorff as to the scope of previous assurances in the light of the German note of Feb. 10. The German Ambassador is reported to have called attention to the assurances of the British Ambassador of Aug. 25, 1915, that British armed merchant vessels "are merely peaceful traders armed only for defense, that they will never fire unless first fired upon, and that they will never under any circumstances attack any vessel," as inconsistent with the evidence of the German Government. On Feb. 29 the German Ambassador addressed a note to the Secretary of State in which he quoted from an article, dated Feb. 26, in the semiofficial North German Gazette, containing the following paragraph: If President Wilson in his letter to Senator Stone says that announced are contrary to express assurances given measures against enemy merchant ships by Germany and Austria-Hungary, this is apparently caused by misunderstanding. For these assurances referred only to peaceful liners and not to such ships whose armament is connected with aggressive purposes. On the same day is was reported that nly offered armed reassurances had been given that "no German war vessels, enemy merchantman is to be tor pedoed without warning unless the The status of an armed merchant vespresence of armament on board of sel as a warship in neutral waters may be determined, in the absence of docusuch vessel is proved." How the pres-mentary proof or conclusive evidence of ence of the armament was to be proved was not stated, but reports intimated that the use of the armament in resistance might be the proof required. On March 23 the diplomatic representatives of the Allies at Washington communicated identic memoranda from their Governments declining to accept the proposal contained in Mr. Lansing's note of Jan. 18. The memoranda set forth the unwillingness of the Allies to abandon "their acknowledged right" to arm and "to agree that upon a non-guaranteed German promise, human life may be surrendered defenseless to the mercy of an enemy who, in circumstances of this kind as in many others, has shown himself to be both faithless and lawless." The memorandum concluded: At the end of his letter, the Honorable Secretary of State hypothetically considered the possibility of eventual vessels might be treated as auxiliary decisions under which armed merchant cruisers. It is His Britannic Majesty's Govern ment's conviction that the realization of such a hypothesis which would materially modify, to Germany's advantage, the statement of views published in this respect by the American Government on September 19, 1914, can not be given practical consideration by the American authorities. Such a modification would be inconsistent with the general principles of neutrality as sanctioned in paragraphs 5 and 6 of the preamble to the 13th convention of The Hague concerning maritime neutrality. Moreover the result would be contrary to the stipulations of the 7th convention of The Hague, the transformation of merchant vessels into war ships. Finally, if armed merchant vessels were to be treated as auxiliary cruisers, they would possess the right of making prizes, and this would mean the revival of privateering. Secretary Lansing, on April 7, addressed an informal note to the representatives of the Entente powers regretting that these powers were unable to "see their way to accede to the proposal" and accepting "their decision as final." On March 25 the Department of State issued a memorandum on the status of armed merchant vessels, in which it considered such vessels in neutral ports and upon the high seas. The conclusions arrived at were summarized as follows: previous aggressive conduct, by presumption derived from all the circumstances of the case. The status of such vessel as a warship on the high seas must be determined only upon conclusive evidence of which it is to be presumed that the aggressive purpose, in the absence of vessel has a private and peaceable character, and it should be so treated by an enemy warship. As to the method of determining the status of such a vessel in a neutral port the Department stated: There is no settled rule of interna tional law as to the sufficiency of evidence to establish such a presumption. As a result a neutral Government must decide for itself the sufficiency of the evidence which it requires to determine the character of the vessel. Evidently the Department intended to continue the procedure already in force in cases in which armed vessels entered our ports, of obtaining assurances through that the guns of the vessel would be diplomatic channels used only for defensive purposes before allowing it clearance. As to the determination of status by a belligerent encountering an armed vessel on the high seas the Department laid down the basis: On the other hand, to safeguard himself from possible liability for unwarranted destruction of life and property the belligerent should, in the absence of conclusive evidence, act on the presumption that an armed merchantman is of peaceful character. A presumption based solely on the presence of an armament on a merchant vessel of an enemy is not a sufficient reason for a belligerent to declare it to be a warship and proceed to attack it without regard to the rights of the persons on board. Conclusive evidence of a purpose to use the armament for aggression is essential. The following further rules were laid down with reference to the status of such vessels encountered on the high seas: If, however, before a summons to surrender is given, a merchantman of belligerent nationality, aware of the approach of an enemy warship, uses its armament to keep the enemy at a distance, or after it has been summoned to surrender it resists or flees, the warship may properly exercise force to compel surrender. If the merchantman finally surrenders, the belligerent warship may release it or take it into custody. In the case of an enemy merchantman it may be sunk, but only if it is impossible to take it into port, and provided always that the persons on board are put in a place of safety. In the case of a neutral merchantman, the right to sink it in any circumstances is doubtful. A merchantman entitled to exercise the right of self-protection may do so when certain of attack by an enemy warship, otherwise the exercise of the right would be so restricted as to render it ineffectual. There is a distinct difference, however, between the exercise of the right of self-protection and the act of cruising the seas in an armed vessel for the purpose of attacking enemy naval vessels. man submarine, while still submerged, torpedoed without warning a vessel which the commander of the submarine stated he believed to be an English war vessel. The reasons for this As a belief were given in the note. result of the torpedo a severe explosion of the foreship took place. A reproduction of a sketch of the vessel made by the commander of the submarine was attached, and as it differed with reference to the position of the funnels and the shape of the stern from the Sussex, the German Government concluded that the vessel could not have been the Sussex. It was pointed out that this was the only case of attack by a submarine at the time and in the locality of the disaster in question. The note concluded: In the event that merchant ships of belligerent nationality are armed and under commission or orders to attack in all circumstances certain classes of enemy naval vessels for the purpose of destroying them, and are entitled to receive prize money for such service from their Government, are liable to a penalty for failure to obey the orders given, such merchant ships lose their status as peaceable merchant ships and are to a limited extent incorporated in the naval Should the American Government have forces of their Government, even though at its disposal further material for formit is not their sole occupation to conducting judgment on the case of the Susser hostile operations. The Sinking of the "Sussex."-The French channel steamer Sussex, regularly employed in carrying passengers between Folkestone and Dieppe, a route apparently not used for transporting troops, was sunk in the English Channel by an external explosion at 2:50 p.m. on March 24. She had on board 325 or more passengers and a crew of 53 men. The vessel was not armed and it was established that it never had been armed or used for carrying troops, and that no explosives were on board. No submarine was seen, but the captain, the first officer, the boatswain and some other persons, including several of the 25 or more American citizens who were passengers on the vessel, testified that they saw clearly the wake of a torpedo just before the explosion. About 80 of the passengers, including citizens of the United States, were killed or injured as a result of the explosion. The Department of State on March 27 instructed the American Ambassador at Berlin to inquire immediately of the German Government whether a submarine belonging to Germany or her allies was responsible for the disaster, adding that a prompt reply was expected. On April 10 the German Foreign Office informed Ambassador Gerard that at 3:55 p.m. (Central pean time) on March 24 a Ger the German Government begs to request that this material may be communicated to it in order that it may be able to subject this material to an examination also. In the event of differences of opinion arising between the two Governments in this connection, the German Government declares at this time its readiness to permit the facts to be ascertained by a mixed committee of investigation, pursuant to the third title of The Hague Convention of October 18, 1907, for the pacific settlement of international disputes. On April 18 the American Government replied, stating its firm conviction that a German submarine was the cause of the disaster. It was pointed out that all the circumstances of the case mentioned in the German note corresponded exactly with the case of the Sussex except the difference between the sketch, drawn from memory by the German commander, and the Sussex. The note gave the conclusions of the American naval and military attachés at Paris that the explosion could not have been of an internal character, that the depth of the water eliminated the possibility of an explosion caused by a fixed mine, and that an examination of the fragments of steel left in the ship indicated that they were not from a mine or from a torpedo such as were used by the Allied Governments, but did by actual comparison correspond with the torpedoes used by Germany. The note then went into the whole submarine |