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fulfill in the strictest fashion the duties which emanate from the unwritten law of humanity and civilization. I have no need to tell you that I entirely recognize the importance of the codification of rules to be followed in war. But it would be a great mistake to issue rules the strict observation of which might be rendered impossible by the law of facts. It is of the first importance that the international maritime law which we desire to create should only contain clauses the execution of which is possible from a military point of view—is possible even in exceptional circumstances. Otherwise the respect for law would be lessened and its authority undermined. It would also seem to us to be preferable to maintain at present a certain reserve, in the expectation that seven years hence it will be easier to find a solution which will be acceptable to the whole world. As to the humanitarian sentiments of which the British delegate has spoken, I cannot admit that there is any country in the world which is superior to my country or my Government in the sentiment of humanity. 10
THE USE OF NEUTRAL FLAGS ON MERCHANT VESSELS OF BELLIGERENTS
The United States took official notice of the declaration of the German Admiralty on February 4, 1915, that the British Government had on January 31, 1915, explicitly authorized the use of neutral flags on British merchant vessels for the purpose of avoiding recognition by the German naval forces, and on February 11, the American Ambassador at London, acting under instructions of the Department of State, addressed a communication to Great Britain, which, reserving for future consideration the legality and propriety of the deceptive use of the flag of a neutral Power in any case for the purpose of avoiding capture, pointed out the serious consequences which may result to American vessels if the practise be continued. The action of the captain of the Lusitania, who had recently raised the American flag as his vessel approached the British coast in order to escape anticipated attacks by German submarines, was called to the attention of the Foreign Office, and, in requesting Great Britain to restrain British vessels from the deceptive use of the flag of the United States in the sea area defined in the German declaration, Secretary Bryan said:
The occasional use of the flag of a neutral or an enemy under the stress of immediate pursuit and to deceive an approaching enemy, which appears by the press reports to be represented as the precedent and justification used to support this action, seems to this government a very different thing from an explicit sanction by a belligerent government for its merchant ships generally to fly the flag of a neutral Power within certain portions of the high seas which are presumed to be frequented with hostile warships. The formal declaration of such a policy of general misuse of a neutral's flag jeopardizes the vessels of the neutral visiting those waters in a peculiar
10 Scott, The Hague Peace Conference of 1899 and 1907, Vol. 1, pp. 586-587.
degree by raising the presumption that they are of belligerent nationality regardless of the flag which they may carry.
In view of the announced purpose of the German Admiralty to engage in active naval operations in certain delimited sea areas adjacent to the coasts of Great Britain and Ireland, the Government of the United States would view with anxious solicitude any general use of the flag of the United States by British vessels traversing those waters. A policy such as the one which His Majesty's Government is said to intend to adopt, would, if the declaration of the German Admiralty is put in force, it seems clear, afford no protection to British vessels, while it would be a serious and constant menace to the lives and vessels of American citizens.
A refusal to comply with the American request would, it was asserted “impose upon the Government of Great Britain a measure of responsibility for the loss of American lives and vessels in case of an attack by a German naval force.”
Great Britain replied on February 19th, and with reference to the Lusitania explained that the American flag was raised by the captain upon the request of the American passengers on board, and without any advice from the British Government. Regarding the general question raised in Secretary Bryan's note, the British memorandum continued.
The British Merchant Shipping Act makes it clear that the use of the British flag by foreign merchant vessels is permitted in time of war for the purpose of escaping capture. It is believed that in the case of some other nations there is a similar recognition of the same practice with regard to their flags and that none have forbidden it. It would therefore be unreasonable to expect His Majesty's Government to pass legislation forbidding the use of foreign flags by British merchant vessels to avoid capture by the enemy. Now that the German Government have announced their intention to sink merchant vessels at sight with their non-combatant crews, cargoes and papers, a proceeding hitherto regarded by the opinion of the world not as war, but as piracy, it is felt that the United States Government could not fairly ask the British Government to order British merchant vessels to forego the means—always hitherto permitted-of escaping not only capture but the much worse fate of sinking and destruction. Great Britain has always when neutral accorded to the vessels of other states at war, liberty to use the British flag as a means of protection against capture and instances are on record when United States vessels availed themselves of this facility during the American Civil War. It would be contrary to fair expectation if now when the conditions are reversed the United States and neutral nations were to grudge to British ships liberty to take similar action. The British Government have no intention of advising their merchant shipping to use foreign flags as a general practice or to resort to them otherwise than for escaping capture or destruction.
The obligation upon a belligerent warship to ascertain definitely for itself the nationality and character of a merchant vessel before capturing it and a fortiori before sinking and destroying it has been universally recognized. If that obligation is ful
filled, hoisting a neutral flag on board a British vessel can not possibly endanger neutral shipping and the British Government hold that if loss to neutrals is caused by disregard of this obligation it is upon the enemy vessel disregarding it and upon the government giving orders that it should be disregarded that the sole responsibility for injury to neutrals ought to rest.
POSTPONEMENT OF THE ANNUAL MEETING OF THE SOCIETY
The Executive Committee on March 13, 1915, held a meeting at No. 2 Jackson Place, Washington, D. C., to consider the program of the Ninth Annual Meeting of the Society, which had been referred to it because it was found to be inconvenient for a sufficient number of members of the Committee on the Ninth Annual Meeting to assemble for that purpose. There were present at the meeting the following members:
HONORABLE JOHN W. FOSTER, Chairman
Communications were received from the following members:
HONORABLE GEORGE GRAY,
At the meeting an invitation from the Chairman of the Section on International Law of the Second Pan-American Scientific Congress was laid before the Committee, inviting the Society to participate in the meeting of that Congress to be held in Washington from December 27, 1915, to January 8, 1916. The preliminary program of the Congress which has been sent to each member of the Society, enumerates the subjects to be discussed in the Section on International Law.
It will be noted from the program that it is expected that the first session of the American Institute of International Law will also be held in connection with the Congress. This newly organized Institute is made up of representatives of national societies of international law formed in the different Pan-American countries, of which a number are already in existence. It will be recalled that at the last meeting of the
Society it was voted to affiliate and co-operate with this Institute. (Proceedings for 1914, pp. 231-232.)
In view of the invitation to participate in the Congress, which is officially convened and supported by the Government of the United States and which will awaken interest in all the other American countries, the Executive Committee deemed it desirable and advisable that the Society should take part in the proceedings of the Congress and accordingly decided to postpone the Ninth Annual Meeting until that time so that it may be held in conjunction with the meeting of the Congress. It is expected not only that the members of the Society will take part in the meetings of the Section on International Law of the Congress, but that the Society itself will hold its regular meeting to discuss its own program, which will be arranged with the dates of meeting and sent out in due course, and hold its annual banquet as usual.
THE DIPLOMATIC CORRESPONDENCE BETWEEN THE UNITED STATES AND
OTHER POWERS CONCERNING THE WAR
The JOURNAL has supplied its readers in recent SUPPLEMENTS with the diplomatic correspondence published by the different belligerents relating to the outbreak of the war in Europe. This correspondence has been published in a number of other places in pamphlet or fugitive form, but it has been thought advisable to print it in the SUPPLEMENT to the JOURNAL so that its readers may have it in form suitable for permanent preservation and ready reference.
The voluminous proportions of these documents has, however, made it impracticable to include in the SUPPLEMENT the text of the correspondence which has taken place between the United States and belligerent countries relating to questions arising from the war regarding neutral and belligerent rights. Important portions of these documents have been and will be summarized from time to time in our editorial columns, but the full text of the correspondence is equally as interesting and valuable for permanent preservation as the diplomatic correspondence of the European governments relating to the war.
The JOURNAL is happy to announce that it has arranged to issue a special SUPPLEMENT to accompany the July number which will contain a complete collection of the diplomatic correspondence of the United States with other countries concerning the questions above mentioned which will cover the period from the outbreak of the war, namely Au
gust 1, 1914, to June 30, 1915. In order to assure our readers of the absolute accuracy of the documents, the material will be collected and collated by the Department of State and turned over to the JOURNAL for publication. .
No extra charge for the special SUPPLEMENT will be made to members of the Society and readers of the JOURNAL, but an extra edition will be run off to supply non-members at a nominal price.
THE EFFECT OF THE WAR ON INTERNATIONAL LAW
It has been common during the past few months to meet with statements that the present war in Europe has demonstrated the ineffectiveness of international law, both conventional and customary, to bind nations in their mutual intercourse in peace and to restrict and control their actions in war. In support of these assertions, we are referred to the failure of the nations now at war to appeal to the Hague tribunal, in accordance with the provisions of the convention for the pacific settlement of international disputes, before resorting to the use of force; to the conversion of a country whose neutrality had been solemnly guaranteed by long-standing treaties into one of the principal battlefields of Europe; to the atrocities and devastation in violation of the laws of land warfare and of civilization and humanity, reported in the meager news dispatches and officially charged by the belligerent governments one against the other; and to the apparent disregard or evasion of rules which we had reason to suppose would be observed in the operations of naval warfare. The conclusion drawn from these facts, real or alleged, is that it is a waste of time further to discuss the principles of international law or to advocate their more general acceptance.
Such statements, it is believed, are those of persons whose powers of perception are limited to the single problem in hand. If war had the effect on international law which we are told the present war has had or will have, the system would never have come into being and been developed through centuries of well-nigh incessant war into the strong and wellformed body of principles in which we find it at the present day. The recurrence of war affords no more reason for losing faith in international law than the recurrence of private crime would be a justification for abolishing domestic law and substituting a reign of internal anarchy. Just as a repetition of private crime moves us to increase our legal safeguards to private life and property and points the way, so also does the