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purposes to Germany. Great Britain, having appealed to her vital interests as a justification for her methods of warfare, Germany also appeals to the same vital interests, and just as England has designated the area between Scotland and Norway as an area of war so Germany declares the waters indicated in the decree to be an area of war.
The Department of State at Washington on February 10, 1915, lodged a protest with Germany against the enforcement of the decree in the manner indicated as regards American vessels. The American note declared that:
The sole right of a belligerent in dealing with neutral vessels on the high seas is limited to visit and search, unless a blockade is proclaimed and effectively maintained, which this Government does not understand to be proposed in this case. To declare or exercise a right to attack and destroy any vessel entering a prescribed area of the high seas without first certainly determining its belligerent nationality and the contraband character of its cargo would be an act so unprecedented in naval warfare that this Government is reluctant to relieve that the Imperial Government of Germany in this case contemplates it as possible. The suspicion that enemy ships are using neutral flags improperly can create no just presumption that all ships traversing a prescribed area are subject to the same suspicion. It is to determine exactly such questions that this Government understands the right of visit and search to have been recognized.
With reference to the charge in the German memorandum that neutral governments had acquiesced in and aided the British measures, Secretary Bryan reminded Germany that:
The Government of the United States is open to none of the criticisms for unneutral action to which the German Government believe the governments of certain of other neutral nations have laid themselves open; that the Government of the United States has not consented to or acquiesced in any measures which may have been taken by the other belligerent nations in the present war which operate to restrain neutral trade, but has, on the contrary, taken in all such matters a position which warrants it in holding those governments responsible in the proper way for any untoward effects upon American shipping which the accepted principles of international law do not justify; and that it, therefore, regards itself as free in the present instance to take with a clear conscience and upon accepted principles the position indicated in this note.
To this protest Germany replied on February 16, 1915, that her action is an act of self-defense, which her vital interests force her to take against England's method of conducting maritime war and which neutral protests have failed to bring into accordance with the principles of international law generally recognized before the outbreak of hostilities. Germany claims that she has scrupulously observed the existing provisions of international law relative to maritime war, especially the Declaration of London, and has permitted food supplies to reach England which it was within the power of her naval forces to prevent. England, on the contrary, "has not shrunk from grave violations of international law wherever she could thereby cripple Germany's peaceable trade with neutral countries, with the stated intention to cut off Germany from all supplies and starve her peaceful civilian population." Although neutrals have protested against this illegal interception of trade with Germany, they have not succeeded in dissuading England from the course originally adopted. The situation is summarized by Germany as follows:
Germany is to all intents and purposes cut off from oversea supplies with the toleration, tacit or protesting, of the neutrals regardless of whether it is a question of goods which are absolute contraband or only conditional contraband or not contraband at all, following the law generally recognized before the outbreak of the war. On the other hand England with the indulgence of neutral governments is not only being provided with such goods as are not contraband or merely conditional contraband, namely, foodstuffs, raw material, et cetera, although these are treated by England when Germany is in question as absolute contraband, but also with goods which have been regularly and unquestionably acknowledged to be absolute contraband. The German Government believe that they are obliged to point out very particularly and with the greatest emphasis, that a trade in arms exists between American manufacturers and Germany's enemies which is estimated at many hundred million marks.
Continuing, the reply, without charging a formal breach of neutrality, emphasizes the fact that Germany is "placed at a great disadvantage through the fact that the neutral Powers have hitherto achieved no success or only an unmeaning success in their assertion of the right to trade with Germany, acknowledged to be legitimate by international law, whereas they make unlimited use of their right to tolerate trade in contraband with England and our other enemies." In view of this situation, Germany states that she is compelled to invoke the same powers of famine as a drastic counter-measure against England, and relies upon neutrals to display no less tolerance toward Germany, even if the German measures constitute new forms of maritime warfare, as has hitherto been the case with the English measures. In addition, Germany is determined to suppress with all the means at her disposal the supply of war material to England and her allies and assumes that neutrals which have not prevented this trade will not oppose its forcible suppression by Germany.
The German Government disclaims any intention to destroy neutral rights and property, but can not shut its eyes to the dangers arising from mines which menace without discrimination all trade within the area of maritime war. Germany will not accept responsibility for accidents which may happen to neutral ships entering the closed waters. Such ships will not be destroyed or interfered with except to search for contraband and to take the necessary action if the presence of such unneutral cargoes is established.
The reply further calls attention to the misuse of neutral flags by English merchant vessels and the arming of such vessels to resist German submarines. These practices make it "difficult for the German submarines to recognize neutral merchant vessels as such, for even a search will not be possible in the majority of cases, since the attacks to be anticipated in the case of a disguised English ship would expose the commanders conducting a search and the boat itself to the danger of destruction." The continued misuse of neutral flags would render the German measure illusory and German}' must make her measures effective at all events. In the expectation that the American Government will require England to respect the American flag in the future, Germany states that she has instructed the commanders of her submarines to abstain from violence to American merchant vessels when they are recognized as such. Germany suggests, however, that it would be much safer if the United States convoyed their ships carrying peaceable cargoes and traversing the English seat of maritime war, provided that only such ships should be convoyed as carry no merchandise which would be considered as contraband according to the interpretation applied by England against Germany. The reply concludes:
The German Government repeat that in the scrupulous consideration for neutrals hitherto practiced by them they have determined upon the measures planned only under the strongest compulsion of national self-preservation. Should the American Government at the eleventh hour succeed in removing, by virtue of the weight which they have the right and ability to throw into the scales of the fate of peoples, the reasons which have made it the imperative duty of the German Government to take the action indicated, should the American Government in particular find a way to bring about the observation of the Declaration of London on the part of the Powers at war with Germany and thereby to render possible for Germany the legitimate supply of foodstuffs and industrial raw materials, the German Government would recognize this as a service which could not be too highly estimated in favor of more humane conduct of war and would gladly draw the necessary conclusions from the new situation thus created.
In connection with the foregoing correspondence it may be interesting to recall the provisions of the Hague convention of 1907 relative to the laying of automatic submarine contact mines. This convention was signed and ratified by the following belligerents engaged in the present naval war: Austria-Hungary, France, Germany, Great Britain and Japan. It was entered into for a period of seven years dating from the sixtieth day after the date of the first deposit of ratifications, which took place on November 27, 1909. It contains the usual stipulation that it shall not apply except when all the belligerents are parties to the convention.
The convention forbids the laying of unanchored automatic contact mines except when they are so constructed as to become harmless one hour after control over them has ceased; the laying of anchored automatic contact mines which do not become harmless as soon as they have broken loose from their moorings; the use of torpedoes which do not become harmless when they have missed their mark. It is also forbidden to lay automatic contact mines off the coast and ports of the enemy with the sole object of intercepting commercial shipping, but this provision was not accepted by France and Germany. When anchored automatic contact mines are employed, every possible precaution must be taken for the security of peaceful shipping and the belligerents undertake to do their utmost to render them harmless within a limited time, and, when they have ceased to be under surveillance, to notify the danger zones, as soon as military exigencies permit, by a notice addressed to ship owners, which must also be communicated to the governments through the diplomatic channel.
At the time of its signature, dissatisfaction was expressed with the convention, not so much because of what it contained, but because of what it did not contain in the way of added prohibitions. Particularly interesting at this time are the remarks at the Conference made by Sir Ernest Satow on behalf of the British delegation:
Having voted for the Mines Convention which the Conference has just accepted, the British delegation desires to declare that it cannot regard this arrangement as furnishing a final solution of the question, but only as marking a stage in international legislation on the subject. It does not consider that adequate account has been taken in the convention of the rights of neutrals to protection, or of humanitarian sentiments which cannot be neglected. The British delegation has done its best to bring the Conference to share its views, but its efforts in this direction have remained without result. The high seas, gentlemen, form a great international highway. If in the present state of international laws and customs belligerents are permitted to fight out their quarrels upon the high seas, it is none the less incumbent upon them to do nothing which might, long after their departure from a particular place, render this highway dangerous for neutrals who are equally entitled to use it. We declare without hesitation that the right of the neutral to security of navigation on the high seas ought to come before the transitory right of the belligerent to employ these seas as the scene of the operation of war.
Nevertheless, the convention as adopted imposes upon the belligerent no restriction as to the placing of anchored mines, which consequently may be laid wherever the belligerent chooses, in his own waters for self-defense, in the waters of the enemy as a means of attack, or finally on the high seas, so that neutral navigation will inevitably run great risk in time of naval war and may be exposed to many a disaster. We have already on several occasions insisted upon the danger of a situation of this kind. We have endeavored to show what would be the effect produced by the loss of a great liner belonging to a neutral power. We did not fail to bring forward every argument in favor of limiting the field of action for these mines, while we call very special attention to the advantages which the civilized world would gain from this restriction, since it would be equivalent to diminishing to a certain extent the causes of warlike conflicts. It appeared to us that by acceptance of the proposal made by us at the beginning of the discussion, dangers would have been obviated which in every maritime war of the future will threaten to disturb friendly relations between neutrals and belligerents. But, since the Conference has not shared our views, it remains for us to declare in the most formal manner that these dangers exist, and that the certainty that they will make themselves felt in the future is due to the incomplete character of the present convention.
As this convention, in our opinion, constitutes only a partial and inadequate solution of the problem, it cannot, as has already been pointed out, be regarded as a complete exposition of international law on this subject. Accordingly, it will not be permissible to presume the legitimacy of an action for the mere reason that this convention has not prohibited it. This is a principle which we desired to affirm, and which it will be impossible for any state to ignore, whatever its power.9
Equally interesting is the reply of Baron Marschall von Bieberstein on behalf of Germany:
That a belligerent who lays mines assumes a very heavy responsibility towards neutrals and towards peaceful shipping is a point on which we are all agreed. No one will resort to this instrument of warfare unless for military reasons of an absolutely urgent character. But military acts are not solely governed by stipulations of international law. There are other facts. Conscience, good sense, and the sense of duty imposed by principles of humanity will be the surest guides for the conduct of sailors, and will constitute the most effective guarantee against abuses. The officers of the German navy, I loudly proclaim it (je le dis a haute voix), will always
8 Scott, The Hague Peace Conference of 1899 and 1907, Vol. I, pp. 585-586.