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nations do not care to avail themselves of this right, this fact cannot deprive other neutral nations of the right to avail themselves of the right. Competition may indeed be the life of trade, but if some of the competitors went out of business that would be no reason why one firm should refrain from supplying the demand.
It has not hitherto been maintained that the existence of competition is a test of the legality of trade, in the sense that the trade is illegal if the competitors renounce competition. The right of citizens of the United States to make and to export arms and ammunition does not depend upon the making and exportation of arms and ammunition by other neutral countries. It is the right of the citizens of the United States so to do, because it is the right of the citizens and subjects of any neutral country to make and export arms and munitions. The renunciation of this right by all neutrals except the United States would not affect American citizens, because the right which they possessed can only be renounced by them or their government for them, and this right has not been renounced by one or the other.
3. That it is the duty of a neutral country either to forbid the trade in contra
band or to see to it that equity is done to the belligerents by an equal supply of the contraband to each belligerent
The Austro-Hungarian note of June 29, 1915, insists that a neutral should “maintain an attitude of strict parity with respect to both belligerent parties,” and as the Central European Powers are not in a position to purchase arms and munitions from the citizens of the United States, that they may not sell to their enemies.
International law as heretofore understood lends no support to this contention. Indeed, the consensus of opinion, as expressed at the Second Hague Peace Conference in 1907, which opinion was shared by Germany and Austria-Hungary when neutral, negatives the contention now advanced by these two countries when belligerent. Convention No. V, respecting the rights and duties of neutral Powers and persons in case of war on land, states in Article 7:
A neutral Power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of any. thing which can be of use to an army or a fleet.
Convention No. XIII, concerning the rights and duties of neutral Powers in naval war, says in Article 7:
A neutral Power is not bound to prevent the export or transit, for the use of either belligerent, of arms, ammunition, or, in general, of anything which could be of use to an army or fleet.
It will be observed that these two articles are identical, and that there fore the obligations of neutrals, by land or by sea, is one and the same, namely, that they are not obliged to stop trade in contraband, whether that trade be by land or by water.
It cannot be urged in this connection that neutral rights or duties are modified in so far as neutrals are concerned, because of the fact that all the belligerents are not contracting parties, for the two-fold reason, that Article 7 of each of these conventions is declaratory, not amendatory, of international law, and would therefore subsist if the conventions were abrogated; and that the provisions of these conventions, fixing the rights and duties of neutrals in time of war, cannot be injuriously affected by the failure of belligerents to observe some of the conventions.
The Austro-Hungarian Government is apparently embarrassed by the preamble to Convention No. XIII, which says that “these rules (laid down in the convention) should not, in principle, be altered, in the course of the war, by a neutral Power, except in a case where experience has shown the necessity for such change for the protection of the rights of that Power.” In a previous paragraph of the preamble it is stated that “even if it is not possible at present to concert measures applicable to all circumstances which may in practice occur, it is nevertheless undeniably advantageous to frame, as far as possible, rules of general application to meet the case where war has unfortunately broken out." This is what the Conference endeavored to do—to agree upon rules fixing the rights and duties of neutrals, which are not to be changed or modified in “the case where war has unfortunately broken out,” unless experience shows a change to be necessary "for the protection of the rights of a neutral.”
It is difficult to see how a belligerent gets any comfort from this preamble, but the Austro-Hungarian note of June 29, 1915, attempts to construe this as justifying, indeed requiring, a neutral to change the rules laid down in Article 7 for the benefit of the belligerent, not for the benefit of the neutral. Secretary Lansing, in his reply of August 12, 1915, thus squarely met and disposed of the contention, saying:
Manifestly the only ground to change the rules laid down by the Convention, one of which, it should be noted, explicitly declares that a neutral is not bound to prohibit the exportation of contraband of war, is the necessity of a neutral power to do so in
order to protect his own rights. The right and duty to determine when this necessity exists rests with the neutral, not with a belligerent. It is discretionary, not mandatory. If a neutral power does not avail itself of the right, a belligerent is not privileged to complain, for in doing so it would be in the position of declaring to the neutral Power what is necessary to protect that Power's own rights. The Imperial and Royal Government can not but perceive that a complaint of this nature would invite just rebuke.
The attempt to prescribe equality or parity of treatment and to justify it by the preamble to Convention XIII has not met with success, and it did not deserve to succeed, because it would be an unneutral act for a neutral government to change the law of neutrality during a war so as to affect the rights secured or denied to belligerents by international law, as evidenced by the practice of nations or by international treaties and conventions.
Now, reduced to its essence, the claim of the Central European Powers is that citizens of the United States should not sell contraband to the Allied Powers, because the Allies have command of the seas, and shipments of arms and munitions destined to Germany or Austria-Hungary would likely be captured by enemy cruisers.
Secretary Lansing's reply of August 12, 1915,4 discusses this point in the following measured language:
To this assertion of an obligation to change or modify the rules of international usage on account of special conditions the Government of the United States can not accede. The recognition of an obligation of this sort, unknown to the international practice of the past, would impose upon every neutral nation a duty to sit in judgment on the progress of a war and to restrict its commercial intercourse with a belligerent whose naval successes prevented the neutral from trade with the enemy. The contention of the Imperial and Royal Government appears to be that the advantages gained to a belligerent by its superiority on the sea should be equalized by the neutral powers by the establishment of a system of nonintercourse with the victor. The Imperial and Royal Government confines its comments to arms and ammunition, but if the principle for which it contends is sound, it should apply with equal force to all articles of contraband. A belligerent controlling the high seas might possess an ample supply of arms and ammunition, but be in want of food and clothing. On the novel principle that equalization is a neutral duty, neutral nations would be obligated to place an embargo on such articles because one of the belligerents could not obtain them through commercial intercourse.
But if this principle, so strongly urged by the Imperial and Royal Government, should be admitted to obtain by reason of the superiority of a belligerent at sea, ought it not to operate equally as to a belligerent superior on land? Applying this theory of equalization, a belligerent who lacks the necessary munitions to contend
* Printed in full in the SPECIAL SUPPLEMENT, p. 166.
successfully on land ought to be permitted to purchase them from neutrals, while a belligerent with an abundance of war stores or with the power to produce them should be debarred from such traffic.
Manifestly the idea of strict neutrality now advanced by the Imperial and Royal Government would involve a neutral nation in a mass of perplexities which would obscure the whole field of international obligation, produce economic confusion, and deprive all commerce and industry of legitimate fields of enterprise, already heavily burdened by the unavoidable restrictions of war.
Notwithstanding the objections of Germany and of Austria-Hungary, the United States has refused to place an embargo upon the export of arms and munitions of war, for reasons which appeal with peculiar force to the American people, and which have not hitherto been mentioned. They are stated, very briefly but admirably, by Goldwin Smith in his letter to Professor Max Müller, of Oxford, a portion of which has been quoted. He said in the same letter:
It would be too much to expect that, whenever any two nations chose to disturb the peace of the world, all the other nations should be required to prohibit lawful trading, and to turn their Governments into detectives armed, as they must be for such a purpose, with arbitrary powers. You cannot draw any real distinction between arms and other things needed by belligerents. One belligerent needs rifles, another saddlery, a third cloth for uniforms, a fourth biscuit, a fifth copper or iron.
There is a special reason for not prohibiting the purchase of arms. If this were done a great disadvantage would be given, against the interests of civilization, to the Powers which, during peace, employed their revenues in arming themselves for war instead of endowing professors. A moral and civilized Power, which had been benefiting humanity, would be assailed by some French Empire which had been collecting chassepots, and when it went out to provide itself with the means of defence international law would shut up the gunshop.
This idea is stated in an elaborated and convincing form, by Secretary Lansing in his note of August 12, 1915:
A nation whose principle and policy it is to rely upon international obligations and international justice to preserve its political and territorial integrity might become the prey of an aggressive nation whose policy and practice it is to increase its military strength during times of peace with the design of conquest, unless the nation attacked can, after war had been declared, go into the markets of the world and purchase the means to defend itself against the aggressor.
The general adoption by the nations of the world of the theory that neutral Powers ought to prohibit the sale of arms and ammunition to belligerents would compel every nation to have in readiness at all times sufficient munitions of war to meet any emergency which might arise and to erect and maintain establishments for the manufacture of arms and ammunition sufficient to supply the needs of its military and naval forces throughout the progress of a war. Manifestly the application of this theory
would result in every nation becoming an armed camp, ready to resist aggression and tempted to employ force in asserting its rights rather than appeal to reason and justice for the settlement of international disputes. * * * The Government of the United States is convinced that the adoption of the theory would force militarism on the world and work against that universal peace which is the desire and purpose of all nations which exalt justice and righteousness in their relations with one another.
THE RECALL OF AMBASSADOR DUMBA
On September 8, 1915, Secretary of State Lansing instructed Ambassador Penfield to present a note to the Austro-Hungarian Ministry of Foreign Affairs informing him that
Mr. Constantin Dumba, the Austro-Hungarian Ambassador at Washington, has admitted that he proposed to his Government plans to instigate strikes in American manufacturing plants engaged in the production of munitions of war. The information reached this Government through a copy of a letter of the Ambassador to his Government. The bearer was an American citizen named Archibald, who was traveling under an American passport. The Ambassador has admitted that he emploved Archibald to bear official despatches from him to his Government.
By reason of the admitted purpose and intent of Mr. Dumba to conspire to cripple legitimate industries of the people of the United States and to interrupt their legitimate trade, and by reason of the flagrant violation of diplomatic propriety in employing an American citizen protected by an American passport as a secret bearer of official despatches through the lines of the enemy of Austria-Hungary, the President directs me to inform your Excellency that Mr. Dumba is no longer acceptable to the Government of the United States as the Ambassador of His Imperial Majesty at Washington.
Ambassador Dumba requested his government to allow him to return to Vienna on leave of absence so that he might report in person to the Foreign Office the circumstances of the case. This request was not granted, however, and the Ambassador was recalled in accordance with the request of the United States. Before leaving the country Ambassador Dumba wrote a long letter to the Secretary of Statel in which he denied the charge of the Secretary of State that he had conspired to injure the industries of the United States, and he set out facts to show that he had done nothing more than to propose means of dissuading Austro-Hungarian subjects from contributing to the success of the enemy by manufacturing weapons of war, and of warning them that they would commit treason against their country by engaging in such employment. He disavowed any intention of violating the laws or customs of the United States.
1 The text of this letter appears in the New York Times of September 17, 1915.