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Finally, the secretary, adverting to the analogy of land warfare, called the attention of the ambassador to the fact that in time of peace the mobilization of an army near the frontier had often been regarded as ground for serious offence and made the subject of protest. As was well known, it had been the ground for Germany's declaration of war against Russia in August, 1914. On the same principle the "constant and menacing presence of cruisers on the high seas near the ports of a neutral country may be regarded according to the canons of international courtesy as a just ground for offence, although it may be strictly legal." i

§ 569. Submarine Operations off the American Coast. In October, 1916, considerable excitement was aroused in the United States by the action of the German war submarine U-53, which had been allowed to enter and depart freely from the port of Newport, in sinking off the coast of Massachusetts four British, one Dutch and one Norwegian merchant vessel.2 The acts took place well without the territorial waters of the United States, but so near the coast line as to cause no little irritation and widespread criticism in the United States. It was variously asserted that if it was a violation of the canons of good friendship for British cruisers to hover off the ports of the United States for the purpose of keeping watch over incoming and outgoing German vessels, it was still more offensive for German submarines to bring the war to the American coast and to sink neutral as well as enemy merchant vessels within sight of the American coast, and this in the barbarous manner in which German submarines were accustomed to destroy such vessels. In the minds of many persons the acts were all the more offensive for the reason that, a few hours before, the U-53 had enjoyed the hospitality of an American port and had been allowed to depart freely. It was variously asserted that a virtual blockade of American ports had been created by the appearance of the U-53 in the western Atlantic, that American neutrality had been grossly violated, that the U-53 would be followed by others, that American waters would be converted into a war zone, that secret submarine bases would be established on the American

1 The correspondence between the secretary of state and the British ambassador may be found in Diplomatic Correspondence, European War, No. 3, pp. 131-141. • New York Times of October 9, 1916.

coast, that American merchant vessels entering and leaving port would be exposed to destruction, and the like.

The situation seemed to raise a serious problem for the government of the United States, but fortunately no other acts of the kind took place near the American coasts. The incident was the subject of deliberation by the President and the secretary of state, but they finally reached the conclusion that since the operations of the submarine took place on the high seas there was no legal ground on which a complaint could be based. It would seem to be a sound principle of international law that the destruction by a belligerent of enemy merchant vessels and also of neutral vessels when destruction is legitimate, on the high seas, even if near the coast of a neutral, is as lawful as if done in the middle of the ocean. It may be offensive and irritating to the neutral near whose coast the act takes place, but it can hardly be said to be a violation of the legal rules of neutrality. The question of the legality of such operations is, however, entirely different from the question as to whether neutrals should admit such craft to their waters on an equal footing and subject to the same conditions under which war ships which navigate the surface of the ocean are admitted. Whatever may be said against the right of a neutral to protest against the conduct of submarine warfare in the neighborhood of its coasts, their right to exclude such craft from entering their ports is scarcely arguable.

§ 570. Transit across Neutral Territory of Materials Susceptible of Military Use. A long-drawn-out controversy took place between the British and Dutch governments over the action of Dutch authorities in permitting certain metals to be shipped through the Netherlands from Belgium to Germany and in allowing sand and gravel to be shipped through Dutch territory from Germany to Belgium, then under the occupation of the German military forces. Early in the war the British government protested against the permission thus accorded the German authorities, on the ground that since the metals were used in Germany for the manufacture of instruments of war and the sand and gravel sent to Belgium were employed in the construction of military roads and defences, the action of the Netherlands government was a violation of its duties as a neutral. As to the transit of metals the Dutch government maintained

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that it was bound, on the one side by the Rhine convention of 1868 which guarantees a free passage for all merchandise up and down the river, and on the other, by the 5th Hague Convention of 1907, which does not allow the transit of convoys either of munitions or provisions through neutral territory. Being obliged to reconcile the two somewhat conflicting obligations, the Netherlands government adopted the policy of limiting the obligatory free passage through its territory of goods from Belgium to Germany, to those which, it asserted, had no connection with military operations in Belgium. No metals which had been requisitioned by the German government were therefore allowed to pass through. But non-requisitioned metals, including those produced in Belgium by the melting of ore imported for that purpose from Germany, the Dutch government was bound under the Rhine Convention and article 2 of the 5th Hague convention to allow to pass through. The threat of the British government to discontinue all facilities for the transmission of Dutch commercial cable messages in case the Dutch government did not modify its decision would therefore, if actually resorted to, be an act of reprisal against the Netherlands and an abuse of power by a belligerent toward a neutral government which had observed in the most scrupulous manner its duties of neutrality. The contention of the Dutch government that its obligation extended only to the prohibition of the transit of requisitioned goods was rejected as unsound by the British government, which in turn maintained that it was a general principle of international law that a neutral State must not allow its territory to be made use of by a belligerent for military operations, as the Dutch government was in fact doing. If Germany found it necessary to send commodities containing copper to Belgium to be smelted in order to extract the metal and then to return the metal to Germany for use in her ammunition factories, the transportation of these commodities back and forth by way of neutral territory was affording direct relief to the military transport system of Germany and constituted the use by Germany of Netherlands territory for military purposes. Neither articles 2 nor 7 of the 5th Hague convention sanctioned the permission thus granted. Article 7, which relieves neutrals from the obligation of preventing the export or transport on behalf of belligerents of

arms, munitions, and military supplies, has reference to the transport of goods which have been acquired by a belligerent as a result of commercial transactions with private persons in foreign countries and not to the transit through neutral territory of war materials between a belligerent State and enemy territory. Finally, there was nothing in the Rhine convention which made it obligatory upon the Dutch government to permit the passage of such materials. That convention dealt with the right of passage of goods up and down the Rhine between the riverain States and the sea, and had as its general purpose the freedom of commerce in time of peace on the Rhine and could not be interpreted to justify, still less to compel, violation of the obligations of neutrality.1

As to the transit of sand and gravel through Netherlands territory from Germany to Belgium, the Dutch government contended that it had taken all possible measures to assure itself that these materials were being used by the Germans only for non-military purposes such as the repair of highways, railroads, the strengthening of canal embankments, quays, and the like, and that as early as July, 1916, in consequence of British remonstrances, the Dutch government had taken measures to restrict materially the amount which might be transited through its territory with a view to limiting its use to ordinary civil purposes.2 The British government, on its part, took the

1 The Rhine Convention of October 7, 1868, was a treaty between France, Baden, Bavaria, Hesse, the Netherlands, and Prussia, entered into for the purpose of revising the earlier treaty of March 31, 1831, between the same parties (including Nassau). Both treaties were intended to assure to the riverain states of the Rhine that freedom of navigation of rivers passing through several states on which the Congress of Vienna had determined, and to protect them against the levying of taxation or the imposition of restrictions by particular states through whose territory the commerce of others had to pass. The British government contended and rightly, it would seem, that the stipulations related only to commerce in its ordinary sense and could have no bearing on the measures which a State is bound to take or may be justified in taking, to defend its neutrality in time of war. Text of the convention in Supp. to Amer. Jour. of Int. Law, Vol. X, p. 195.

2 In a memorandum of February 12, 1916, to the German government the Dutch minister at Berlin called attention to the fact that during the months of August and December of the preceding year the quantity of sand and gravel exported from Germany to Belgium exceeded by four or five times the quantity exported during the entire year of 1913. It was clear, therefore, that the larger part of these materials were being used by the Germans for military purposes in Belgium. Under these circumstances the government of the Netherlands felt obliged to restrict the quantity of materials allowed to pass, to what was deemed

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position that the Dutch government was required by the neutrality convention to prohibit the transit of all such materials and not merely to restrict the amount. Furthermore, it was reasonable to suppose that the construction and repair of railways, canal embankments, quays and the like was being undertaken by the Germans not for the benefit of the Belgian people, because it was notorious that the German authorities in Belgium had not only shown no disposition to improve their economic condition, but on the contrary had carried off their live stock, machinery, raw materials and otherwise destroyed their industrial and economic resources. It was clear, therefore, if they were improving roads, embankments, quays, etc., it was for no other purpose than to subserve their own military ends.1 It would seem that the position of the British government was well founded. According to the admission of the Dutch government itself, the importation by the Germans of sand and gravel into Belgium was far in excess of the quantity imported in peace times, and all the evidence, circumstantial and other, pointed strongly to the conclusion that a large part of these materials was being used by the Germans for the construction of military defences or the improvement of the military transportation system. There was little or no difference between the transportation of such materials through neutral territory and the transportation of arms and munitions. The spirit of the Hague convention clearly condemns such transactions and it was the duty of the Dutch government to refuse to allow its territory to be made the medium of such traffic.2

necessary for ordinary civil purposes. Accordingly, the German government was notified, on July 5, 1917, that after August 1 the transit of sand and gravel through the Netherlands to Belgium would be prohibited unless the Dutch government was convinced in the meantime that the materials were necessary for the construction or repair of non-military works and were intended for such purposes.

1 The entire correspondence between the Dutch and British governments regarding this matter and that between the Dutch and German governments may be found in a Dutch white paper entitled Doorvoer Door Nederland uit Duitschland Naar Belge, en Omgekeerde Richtung (s'Gravenhage, 1917). A part of the BritishDutch correspondence may be found in a British white paper entitled correspondence respecting the Transit Traffic Across Holland of Materials Susceptible of Employment as Military Supplies, Misc., No. 17 (1917), Cd. 8693; and Supp. Amer. Jour. Int. Law, Vol. X, pp. 175 ff. See also an article by De Visscher in the Rev. Gen., 1919, pp. 142, ff.

The attitude of the Dutch government in respect to its obligations as a neutral has been contrasted with that of the United States, which went to the length of VOL. II-29