File No. 763.72112/12930a
The Acting Secretary of State to the British Ambassador (Spring Rice)
Washington, October 2, 1914.
My dear Mr. Ambassador: The inquiry made of the belligerents early in August in regard to the adoption of the Declaration of London, was in the hope that a code of naval warfare might be adopted by all the nations at war so that causes of controversy would be reduced as far as possible and neutrals, as well as belligerents, would not be in doubt as to the rules which would be enforced during hostilities.
Germany and Austria agreed to the adoption of the declaration conditioned upon adoption by their enemies. The order in council of August 20 prevented the object sought by our inquiry. As a result the declaration is non-effective as a naval code.
I have examined the declaration and order in council in view of our recent conferences on the subject, and I wish to make the following suggestions which seem to me to be worthy of consideration.
Under Articles 23 and 25, if the London declaration is adopted, a belligerent has the right to add to the lists of absolute and conditional contraband given in Articles 22 and 24. This right appears to be arbitrary, except that notification must be given, and except that in the case of absolute contraband the added articles must be those “exclusively used for war.” This latter phrase may be open to more than one interpretation, but it is manifest that “exclusively” can not be literally interpreted; for example, a literal interpretation would exclude dynamite sticks used in mining from being declared to be absolute contraband as they do not seem to fall under [Page 241] the term “explosives specially prepared for use in war” (Article 22, section 3). Manifestly such an exclusion was not intended. My personal view is that in interpreting “exclusively used in war” there must be taken into consideration the methods of warfare, the locality to which articles are presumably destined, and the situation which exists at the time of declaration and notification of the articles added to the absolute contraband list. This seems to me the common-sense point of view of Article 23.
If my view is the correct one, then Article 1 of the order in council is not a modification of the declaration but merely an act performed under its provisions.
Now the point I am driving at is just this. Do not the powers conferred upon a belligerent by Articles 23 and 25 furnish sufficient means to protect the interests of your Government without; modifying the declaration at all? If I understand your main object it is that you are seeking to apply the doctrine of “continuous voyage” to certain articles now listed as conditional contraband, but which you consider munitions of war. If such articles can be treated as absolute contraband upon notice, what is the use of modifying the articles of the declaration?
As to the other provisions of the order in council, namely Articles 2, 4, and 6, are they of sufficient importance to interfere with the great advantage to all parties, both belligerents and neutrals, to be gained by a unanimous agreement to abide by the rules of the declaration during the continuance of hostilities?
If in place of the order in council of August 20 and those supplemental to it, the British Government would issue an order in council, and obtain from their allies similar decrees, accepting the Declaration of London without change, the German and Austrian Governments would be bound to do so. Then your Government could act under Articles 23 and 25, which do not require assent either by an enemy or a neutral.
I offer the foregoing suggestions in an entirely unofficial and personal way for your own consideration, and I will be glad to talk them over whenever you wish.
I am [etc.]