EDITORIAL COMMENT INTERNATIONAL LAW AND THE WAR MEETING OF THE EXECUTIVE COUNCIL Pursuant to the notice sent to the members to that effect, the annual meeting of the Society was omitted this year, but instead, there was a meeting of the Executive Council of the Society held in Washington, on Saturday, April 27, at which the following were present: HONORABLE ELIHU ROOT, President of the Society. DR. DAVID JAYNE HILL, former Assistant Secretary of State and Ambas- HONORABLE CHANDLER P. ANDERSON, former Counsellor for the Depart- HONORABLE JOHN BARRETT, Director General of the Pan American MR. CHARLES HENRY BUTLER, former Reporter of the Supreme Court tary of the Society. MR. ALPHEUS H. SNOW, of the Bar of the District of Columbia. After the hearing of reports, the reëlection for the ensuing year of the officers and committees selected by the Council, and the transaction of other administrative matters, a full account of which will be printed and distributed to the members, the Council unanimously adopted the following statement: The Executive Council of the American Society of International Law considers that the very existence of international law is now at issue. The Committee on Annual Meeting has therefore refrained from calling the members of the Society from the active work on which most of them are engaged to meet for the discussion of questions of law. The only great question of international law today is whether that law shall continue to exist. Upon that subject the American Society of International Law reaffirms the clear and unvarying support of the United States for the rule of law, expressed in the recognition of international law in the Federal Constitution, in the decisions of its highest court and in the utterances of its chief magistrates and statesmen. Mr. Webster, while Secretary of State, made this announcement: Every nation, on being received, at her own request, into the circle of civilized governments, must understand that she not only attains rights of sovereignty and the dignity of national character, but that she binds herself to the strict and faithful observance of all those principles, laws, and usages which have obtained currency among civilized states, and which have for their object the mitigation of the miseries of war. President Cleveland, in his special message of 1893, addressed to the Congress of the United States, said: The law of nations is founded upon reason and justice, and the rules of conduct governing individual relations between citizens or subjects of a civilized state are equally applicable as between enlightened nations. The considerations that international law is without a court for its enforcement and that obedience to its commands practically depends upon good faith instead of upon the mandate of a superior tribunal only give additional sanction to the law itself and brand any deliberate infraction of it not merely as a wrong, but as a disgrace. A man of true honor protects the unwritten word which binds his conscience more scrupulously, if possible, than he does the bond a breach of which subjects him to legal liabilities, and the United States, in aiming to maintain itself as one of the most enlightened nations, would do its citizens a gross injustice if it applied to its international relations any other than a high standard of honor and morality. The Council would call attention to the fact that the entire diplomatic and consular service of all nations operates under the control and protection of international law. That therefore all the vast interests within the charge of these agencies must be left unserved and unadministered if the beneficent provisions of international law are abandoned or disregarded. They further venture to call attention to the fact that more than two-thirds of the surface of the globe is covered by the high seas, that no law is current thereon except international law, that noble branch of law which President Wilson, on April 2, 1917, addressing the Congress of the United States, declared had its "origin in the attempt to set up some law which would be respected and observed upon the seas, where no nation had right of dominion and where lay the free highways of the world." "By painful stage after stage," he said, "has that law been built up with meager enough results indeed after all was accomplished that could be accomplished, but always with a clear view at least of what the heart and conscience of mankind demanded." To say no more than has been said as to international relations upon land if this one law and common rule which guards the traffic of the seas is allowed to lapse in that vast and preponderant domain, no measure of right and justice, no rule of humanity or restraint will remain, only the desolating condition which the Vulgate ascribes to Hell, Ubi umbra mortis et nullus ordo sed sempiternus horror inhabitat. Therefore, those just and wise doctrines by which international relations are guided, humanized, and controlled, can not be debilitated or abandoned. Therefore, they must be taught by our scholars, learned by our rising youth, declared and defined by our courts, announced by our Congress, enlarged by our treaties, and enforced by our Chief Executive. Therefore, at need, our army upon the land and our navy upon the sea, with a spirit and devotion which have never declined, must maintain and defend them, not for the good of this nation or this time alone, but for the good of all nations and all men, now and forevermore. REQUISITIONING OF DUTCH SHIPS BY THE UNITED STATES On March 20, 1918, the President of the United States, in accordance with the Act of Congress of June 15, 1917, conferring upon him power to take possession of any vessel within the jurisdiction of the United States and to use or operate the same by the United States, "in accordance with international law and practice," and as Commander-in-Chief of the Army and Navy of the United States, issued a proclamation stating "that the imperative military needs of the United States require the immediate utilization of vessels of Netherlands registry, now lying within the territorial waters of the United States," and because of the authorization and of imperative military needs, the President authorized and empowered "the Secretary of the Navy to take over on behalf of the United States the possession of and to employ all such vessels of Netherlands registry as may be necessary for essential purposes connected with the prosecution of the war against the Imperial German Government." The proclamation further stated that "The vessels shall be manned, equipped and operated by the Navy Department and the United States Shipping Board, as may be deemed expedient; and the United States Shipping Board shall make to the owners thereof full compensation, in accordance with the principles of international law." By an executive order issued on March 28 the President included in the taking over all tackle, apparel, furniture and equipment and all stores, including bunker fuel, aboard each of the vessels, upon the same conditions prescribed for taking over the vessels. On April 2, 1918, the War Trade Board announced that Dutch ships en route from Holland to the United States at the date of the requisition of Dutch shipping in American ports would not be taken over upon arrival within the jurisdiction of the United States. The reason given for the exemption of these vessels was that as the requisitioning of Dutch shipping was, according to the President's proclamation, to restore the ships laid up in American harbors to their normal activity, it was not intended that ships then in service from Holland would be taken over, as by so doing their normal activity would be disturbed. The action of the President was the result of careful consideration of the needs of the United States and of the principles and practices of nations which would allow the country to take the action which military exigencies seemed to require, inasmuch as an act, however necessary it might seem to a particular country, would be unjustified if inconsistent with the principles and practices of nations and international law resulting therefrom. However, the President was anxious to exercise an admitted right with the consent and coöperation of the Netherlands Government. The Dutch Government appears to have taken the initiative in the matter in the hope of securing an arrangement with the Entente Powers by the terms of which food, said to be needed for Holland, should be obtained from the Entente countries and carried by Dutch ships to Dutch ports, and in consideration thereof a certain amount of Dutch tonnage was to be placed at the disposal of the Entente Powers. A failure to reach an agreement caused the President to stand upon the principles of international law instead of acting in pursuance of a specific contract with the Dutch Government, as he would have preferred. The negotiations begun by the Dutch Government are stated in an official report made by His Excellency, the Minister for Foreign Affairs, to the Netherland States-General on March 12, 1918. The reason for the failure of the negotiations to effect the purpose for which they were undertaken is contained in a statement by the President made public at the date of the proclamation and in connection with it. The attitude of the Dutch Government after, and in relation to, the seizure of its shipping in American ports is set forth in a statement appearing in the Official Gazette of the Netherlands under date of March 30, 1918. 1 First as to the report of the Netherlands Minister for Foreign Affairs. The opening paragraph of this important document states the problem which confronted the people of Holland, and the second paragraph the action which the government of that country took to meet and to solve it. Thus the first paragraph reads: Owing to the participation of the United States in the war a new situation was created with regard to the provisioning of Holland from oversea. So far supplies have been obtained from neutral countries and arrangements had to be made with belligerents who took to themselves the right to interfere with these supplies. The United States, however, had, by virtue of an indisputable sovereign right, to decide whether it would grant export licenses or not either for raw materials or manufactured articles or for coal necessary for the bunkering of ships; for, so far as it was, therefore, still possible to obtain goods in countries remaining neutral or our colonies, it was practically impossible to convey these here unless the certainty existed that the necessary bunker coal would be supplied, either in Entente ports or American ports where, up until now, negotiations carried on with the Entente and the United States separately had yielded no result. The second paragraph, stating the steps taken, follows: The circumstance was made use of that some American authorities in an economic sphere had proceeded to Europe to consult with the Entente in order to endeavor to come to an arrangement with the Entente and the United States together. The conversations which were conducted to this end at the end of 1917, principally in London, with representatives of the American, British, French, and Italian Governments had, in the first place, for their object the ascertaining of the point of view of those governments concerning supplies for Holland, while, on the other hand, the Dutch representatives were given an opportunity to bring forward the peculiar position of Holland and to make it clear in how far the general principles which the various governments had announced concerning the provisioning of neutrals might or might not be applicable to Holland. The object of the conversations was not in the first place to come to a definite arrangement. The delegates of the governments had not any authority to proceed to the signing of an agreement, but they might be considered as being well versed in the position of their governments, so that a basis could be laid upon which an arrangement might be worked out. The report then states that a working basis was reached which, however, was of a tentative nature, as it would have to be considered by the various governments, and this agreement related principally 1 Printed in full in the Official Bulletin, Washington, March 16, 1918. |