Questions of American neutrality during the European War, 1914-1915

Front matter

QUESTIONS OF AMERICAN NEUTRALITY DURING THE EUROPEAN WAR-1914-1915

BY

A ERNEST MAHANNAH

Chapter I Introduction

When the great war broke out in Europe in 1914, the United States had no desire to enter into it, Tout preferred to remain neutral, and this policy wa3 formally proclaimed by President Wilson on August 4, 1914. It will be well therefore to consider what neutrality is, to set forth its characteristics, in a word to define the term.

Neutrality is the condition of those states, which in time of war take no interest in the contest, but continue pacific intercourse with the belligerents. "Neutrality is in a sense," says Professor Lawrence, 1 "The continuation of a previously existing state and unless proof to the contrary is shown, neutral states and their subjects are free to do in time of war between other states what they were free to do in time of peace." He states furthermore that international law has affixed to the state of neutrals certain righta and obligations which do not exist when there is no war and it is the setting forth of these changes which constitutes the law of neutrality. Neutrality is a blissful state of 'dolce far niente'.^ The duties of neutral powers, said M. L*e'on Bourgeois at the Hague in 1907 may be 3ummed up in the obligation to do nothing. If it were possible for a nation not interested in the war to do this -

1. Principles of International Law, p. 587.

2. Spaight, War Rights on Land, p. 472.

that is, withdraw from all relations and intercourse with the nations at war, we would have what might "be regarded as ideal neutrality. Such an attitude is obviously an impossibility. The neutral state could usually not afford to cut itself entirely off from the belligerents - neither would it be to the advantage of the latter to be isolated from the rest of the world.

At the opposite extreme, neutral countries feel that the mere existence of a war should not interfere with the ordinary relations between them and belligerent states. Between these views of absolute non-intercourse and non-intervention there has been recognized a 'general compromise. 3 The neutral must do nothing which would assist either belligerent in the struggle and the belligerent will not interfere with any other relations between the enemy and the neutral. This is not a well defined line and as a consequence much difference of opinion exists as to what constitutes aid in the struggle.4*

It is not sufficient that a neutral aid the contending belligerents impartially; because it is a practical impossibility, says Professor Spaight, to help both belligerents in exactly the same degree. ^ He says, it is obvious from the force of circumstances that the same measure of assistance may mean much more to one than to the other; and therefore the neutral must help

3. Hall, International Law; 6 Edition, p. 71.

4. Benton, International Law and Diplomacy in the Spanish American war; p. 13. "Every nation places its own interpretation upon the rights and obligations which belong to it under international law. This is to say that national policies constitute a strong and determining influence upon the principles or usages of international law which a state is willing to recognize and to observe in practice. On the borderlands of international law are disputed questions, and national interests influence the attitude toward such."

5. War Rights on Land, p. 473.

neither. This is the first great principle of neutrality; the neutral State, as such, must stand rigorously aloof from the conflict. "In its capacity as a state, friendly to both parties, and within the sphere of its ordinary governmental activity it must take reasonable steps to insure that a "belligerent suffers no prejudice from its acts or omissions. nb

Such in general is neutrality; between this state of affairs and belligerency, there is no half-way house. In a note to Count Bernstorff, the Ambassador of the North German Confederation to Great Britain, Earl Granville in 1870 declared that 'benevolent neutrality1 is a conception incompatible with the nature and idea of neutrality. In fact, he said, it is no neutrality "at all, e While the early writers distinguished between different degrees of neutrality, all present day writers adopt the view of Earl Granville. If, says Professor Spaight, the neutral State fails in its obligations the aggrieved belligerent can call it to account, and, if the neutral continues to render aid to the other belligerent, it commits a hostile act which warrants the prejudiced party in regarding it as an active ally of the enemy state. ^ Nor is there any exception to this rule. No matter how just the cause of one and unjust the other, a third nation cannot assist the one and at the same time, retain the status of neutrality with its attending privileges.

There is, therefore, but one kind of neutrality. Im-

7. Henry Clay said in the House of Representatives, January 24, 1817: "Whenever a state of war exists between two independent states I know of but two relations in which other powers can stand towards the belligerents; the one is that of neutrality, and the other that of a belligerent. ■

8. British and Foreign State Papers, Vol. 61, pp. 759-750.

li partial neutrality means simply neutrality, and benevolent neutrality means, assistance to one of the belligerents. There is, however, a recognized distinction between the rights and duties of a neutral State on the one hand and those of the individual citizens who compose it on the other. 10 This may be considered, a modern development, but it is nevertheless well established at the present time. It is sufficient merely to mention the fact here since it will be discussed more in detail later*

As was suggested above, the rights and duties of neutral states have never been definitely defined.11 The Neutrality Convention drawn up by the Hague Conference in 1907 enumerates certain fundamental principles governing the rights and duties of neutral powers in case of war; Convention V deals with land warfare and Convention XIII with maritime war. Mr. Scott, one of the American delegates to the Conference tells us, IS that "the framers of these Conventions felt that although only fragments, they would serve to define neutrality until it might be possible

10. Oppenheim, Treatise on international Law, 1909; Vol. II, p. 319; also Hall, International Law, 6 Ed, pp. 76-7.

11. Hall; 6 Ed. p. 72, also Lawrence; p. 587.

12. J. B. Scott, Texts of the Peace Conferences of theHague; Introduction, p. XXIII. "The Fifth Convention attempts to regulate the rights and duties of neutral powers and of neutral persons in case of land warfare. Short, but important, its guiding 3pirit is expressed in the opening paragraph of the preamble, namely, to render more certain the rights and duties of neutral powers in case of warfare upon land and to regulate the situation of belligerent refugees in neutral territory.*** Its further definition would involve us in technical details. n

"The Thirteenth Convention concerns and seeks to regulate rights and duties of neutral powers in case of maritime war. The Conference essayed to generalize and define on the one hand the rights and neutrals and the correlative duties of the belligerents, and in the second place to set forth in detail the duties of neutrals, thus safeguarding the rights of belligerents in certain phases of maritime warfare." p. XXIX.

to regulate as a whole the situation of neutrals in their relation to belligerents. n Many situations which arise in time of war are not enumerated in either of the Conventions, because the delegates could come to no agreement on them, while other problems have arisen in the present war which were unknown in wars of the past. Thus many problems require an individual solution, either because there is no standing agreement or because there are no precedents to follow.

In the present war there have arisen, as stated above many new problems , and old problems have come up under new and vastly different conditions, all of which have added to the difficulty of maintaining a strict neutrality. It would be possible to show that in this, the most extensive war of modern times, with the consequent disruption of the normal commercial and political relations of the world, the status of neutrality has been more difficult to maintain than in any previous war. The United States being the only member of the so called 'world powers' not engaged in the struggle has perhaps felt the responsibility most strongly.

However, it is not the purpose of this study to dwell on general principles of neutrality, but rather to consider a few specific problems that have arisen. The problems are considered on the basis of international law and practice, but where the matter is not covered by international law or precedents, the surrounding facts are presented and the test of reason applied to fundamental conceptions of neutrality. In all cases the attempt is made to judge the problem from the view point of each of the belligerents, and also from that of a third disinterested party.

Some of the questions taken up have been chosen because of their technical importance; others because of their popular interest.

It has been necessary to obtain much of the material used in this study from the current literature; in all such cases, allowance has been made for technical inaccuracies and for prejudices which color contemporary events. As far as possible official documents have been used; these have been obtained directly from the State Department at Washington, from the American Journal of International Law, or from the Congressional Record.

Chapter II Submarine Cables and wireless Telegraphy

The question of the status of submarine cables has often been a source of controversy between neutrals and belligerents, and this war is no exception. Science has still further added to the burden of obligations upon neutrals through the perfection of another means of communication, namely that of wireless telegraphy, an invention which has played a very important role in the present war. . All the nations engaged in the war are making use of this means of communication in both land and sea operations.

Owing to the very extensive use of wireless telegraphy in this war, the question early arose as to how neutrals should deal with wireless stations on their territory. This question was first raised in the Russo-Japanese war in the form of whether or not a neutral should permit the use of its territory for the maintenance of belligerent communications by wireless.1 The fifth Hague Convention of 1907 forbids belligerents to erect or make use of wireless stations on neutral territory for purely military purposes. But neutrals are not bound, to forbid or restrict the use of cables or wireless apparatus belonging to their governments or to private individuals; nevertheless the convention stipulates that if any regulations are made in regard to the matter they must be applied impartially to the several belligerents.* At the beginning of the present war, there were

1. Oppenheim, Treatise on International Law, Vol. II, pp. 314-315. 3. Hague Convention V: Articles 3, 8, and 9.

very few precedents governing the obligations of neutrals in reject to the use of wireless telegraphy or its stations within their territory, and the Hague Convention is clearly not broad enough to cover its wide range of service.

It is also clear that the rules governing the use of submarine cables could not be applied 'en bloc' to wireless telegraphy, in view of the great differences in the adaptability of the two means of communication. It was the early realization of this fact, and at the same time, a desire to maintain strict neutrality by refraining from helping either belligerent that induced President Wilson on the day following his formal proclamation of neutrality to order the establishment of a consorship of wireless stations- in the United States.

It was pointed out that by means of wireless telegraphy, messages of a purely commercial nature, as for example the announcement of the arrival or departure of a merchant-man might be intercepted by the cruisers of an enemy state and thus the message be as useful as military orders. In such a case the sending station would become a base of military operations.^ Since there is no means for a nation thus affected of preventing such messages from being intercepted by its enemies, the United States Government deemed it to be a duty incumbent upon it as a neutral to censor the messages thus sent, whereas messages by cables did not need to be censored. This, for the reason that if messages sent are obnoxious to the opposing belligerent he may stop such communication by cutting the cables. The United States adopted this means of preventing communication between the Spanish

3. The Independent. August 24, 1914.

Government and the forces in Cuba and the Phillipines, during the Spanish-American war. 4 The fact that cables can be cut, and in strict accordance with the international practiced whereas there is practically no means of preventing wireless messages from reaching their destination, constitutes the basis of the American position. 6

when England cut the German cables near the Azores, soon after the war broke out, Germany was greatly handicapped by having to communicate with the American continent exclusively by wireless and this handicap was increased when the American wireless communication was subjected to a regime of censorship. While no formal protest was made by the German Government, the German-American Chamber of Commerce protested to the President against "Discrimination in government censorship of wireless stations on our coasts as the German cables have been cut, while the English and French cables are open and practically uncensored. They charged that this policy was a serious discrimination against Germany, and this charge was repeatedly made by the German press in Germany and the United States.

There was nothing irregular in the cutting of the German cables by the British. Such a proceeding is allowed by international agreements; even the International Cable Convention of

4 Benton, International Law and Diplomacy of the Spanish- American War; p. 151. Also Hershey, International Law and Diplomacy of the Russo-Japanese war, pp. l^i-i^.

5 See Rules adopted by the Institute of International Law in its Session at Brussels, 1903, given in Eenton, International Law and Diplomacy of the Spanish-American War, p. *±1

6. Department of State, Diplomatic Correspondence; European War, 1915. No. 2, p. 58.

Paris of 1884 for the protection of submarine cables, had reference only to the protection of cables in time of peace, and it expressly stated that belligerents may cut cables connected with enemy territory, even if neutral owned. 7 The Institute of International Law came to the same conclusion in 1902.°

As to the practice there is certainly no lack of precedent for cutting cables. To recite a recent example, the United States, during the Spanish-American war cut the cables around Cuba," and also the cable between Manila and Hong Kong. iu Furthermore the United States denied pecuniary liability for it afterward. 11

Since submarine cables may be cut in order to prevent their use for sending military information to a belligerent, the responsibility is on the belligerent and not on the neutral; exactly as in the case of intercepting contraband trade. "Thus," says Lawrence, "The simple principle that ocean cables are means of communication is sufficient. When they are used by the enemy they may be controlled, or in the last resort cut in any place where it is lawful to carry on hostilities, without regard to ownership or connection with neutral shores just as a railroad passing through a hostile country may be torn up on enemy soil, whether it is prolonged into neutral territory or not,"12 Hershey takes the same view. 13

7. Lawrence, Principles of International Law, p. 612.

8. Benton, Spanish American War, p. 211.

9. United States Foreign Relations , 1 898 : pp. 976-990 . D oaf>

10. Hershey, International Law as applied during the Russo- Japanese War, p. 122.

11. Lawrence, War and Neutrality in the Far East, p. 201.

12. Lawrence, Principles of International Law, 4 Ed. pp. 612-616

13. Hershey, Essentials of International Law, pp. 415-416.

Westlake does not approve the American view; he says, there is no doubt that a state is bound in principle not to allow the use of its services for the reception and transmission of letters and telegrams, the latter whether wireless or not, in furtherance of belligerent interests and where such service is not a state monopoly, its exercise in the territory by a private undertaking ought to be subject to similar restraint for such use of the service would be a direct aid to the belligerent and would make the territory a base of operations to that extent. 14 In taking this view, he assumes the general principles of communication aS being the same without considering the difference in the possibilities of receiving measages or of interrupting them. Lawrence however makes this careful distinction, "Belligerents , " he says, "have a right to prevent messages sent by their enemies over neutral means of communication and to this end may destroy property at the bottom of the ocean. It is a violation of neutrality to allow facilities to one belligerent for communicating by means of neutral territory between his forces in the field and his government at home or his military and naval commanders in other parts of the theatre of operations. The application of the last in the case of wireless receiving stations is obvious. The nature of wireless telegraphy prevents the application of the first," 15

In accordance with this latter principle it became necessary for the United States to close the German wireless station at Tuckerton, New Jersey on August 24, 1914. This action brought forth a violent protest from the German-American Press. The pro-

14. Westlake, international Law, 3 Ed. Vol. II, p. 253.

15. War and Neutrality in the Far East; pp. 199-201.

test charged the government with taking the position that the use of seven cables by the British Government in sending code messages was not unneutral, whereas the sending of such messages by wireless was unneutral when Germany had no means of communication other than wireless.

On July 8, 1915, the Navy Department took over the wireless station at Sayville, L. I., which was the only remaining privately owned and operated method of communication between the United States and Germany. The step was taken at the request of the Department of Commerce, it being held to be a necessary step for the preservation of the neutrality of the United States. Secretary Redf ield pointed out that the plant wa3 really German owned, that it was completed since the war began, that it communicated only with points in Germany, and that German officers of the Navy and Marine were kept stationed there. lo The submarine situation undoubtedly led to this action, it being supposed that the station communicated with German sub-marines regarding the sailing of vessels from American ports. Orders were issued by the department that the effect of taking over the control of the plant would not change the status with respect to commercial messages, as all which were accepted would be forwarded by the United States Navy operators instead of commercial operators the tolls to be turned over to the owners of the station.

The action of the United States was clearly in accord with international law. 17 Neutrals are free to forbid or restrict the use of wireless telegraphic apparatus whether belonging to the government or a private company. If it prohibits or restricts.

16. Press Reports of July, 9, 1915.

17. Lawrence, International Law, p. 646.

it must be^partial and see that individuals do likewise. 16

The belligerent powers have acquiesced in the American stand regarding cables and wireless telegraphy. There wsre some portests due to lax enforcement, but in each case the President and the State Department, sometimes, working with the Navy Department and the Department of Commerce, made a thorough investigation and came to satisfactory agreements with the complaining belligerent. Notably among the instances arising was the action of the station at Honolulu in giving publicity to the arrival of the German warship, Geier. The President, Secretary Lansing and Acting Secretary of the Navy Roosevelt, in conference instructed Rear Admiral Moore, in command of the Naval Station at Honolulu to close the station unless satisfactory explanations were made within twenty-four hours. It was found that the message was sent while the censor's back was turned and the operator who sent the message was severely reprimanded.

Another incident was the violation of the neutrality of the Panama Canal Zone by the captain of the British Collier Protesilaus. He received a message from outside the three mile limit while his ship was in the canal zone, thereby violating Rule 14 of the President's Panama Canal Zone Proclamation of neutrality. Although the captain had not received official information of the new regulations prohibiting the use of radio outfits in the canal except to canal business the British conceded the action to be improper and so, upon receipt of the facts in Washington, the incident was regarded as closed.

Following the naval battle off the coast of Chile between

18. Higgins, The Hague Peace Conferences, p. 292, also

Bentwich, War and Private Property, p. 118.

the British and German squadrons, the British and French governments addressed protests to the governments of Colombia and Ecuador against alleged violations of neutrality, chief among which was the operation of wireless stations in the territories of those countries by the Germans. The same protest was addressed to the United States asking that our government "use its influence to insure the strict enforcement of neutrality," on the parts of Ecuador and Colombia. Secretary Bryan directed the Diplomatic and Consular representatives of the United States in the two countries to make a thorough investigation, both, in a formal way with the governments and also by personal and independent inquiry. The Colombian Minister to the United States replied that Colombia had maintained the strictest neutrality ever since the outbreak of the war and had made every effort to compel neutrality on the part of citizens and foreigners under her control and he would guarantee the most severe punishment to any offenders upon presentation of evidence at Bogota. He further stated that the wireless station complained about was now under government censorship in the same manner as wireless stations in the United States, but that despite the most active efforts of the government to maintain its neutrality at all costs, one of the belligerents may have succeeded in erecting wireless stations hidden somewhere along Colombia's long coast line on the Altantic or Pacific.19 On December 8, a number of weeks after these protests the Colombian minister of Foreign

19. Some secret wireless stations are said to have been discovered along the coast of Florida and Maine in the early part of the war. One was also discovered at En3enada, Lower California, ;ju8t a few miles across the United States boundary line.

Affaire ordered the removal of the high power wireless station at Cartagena on the coast of Bolivar because he felt the plant was being operated by Germans for the transmission of news to German war ships. The investigations made by the United States in regard to this matter was evidently satisfactory, as no further representations have been made.

The action of Turkey and also of Great Britain in barring cable messages to neutral countries, which might in any way give information concerning trade with the enemy, was entirely within their own rights, as belligerents, and do not expecially concern the United States1, as a neutral power, although in the case of the

latter, many complaints of American business firms, both at home and abroad, were carried to the British Foreign Office by the State Department urging greater leniency in the censorship of innocent commercial messages. 20

Summarizing, we find that the reasons why the United States treated wireless and cable messages differently are: (1) Communications by wireless cannot be interrupted by a belligerent whereas those by cable may be. Also since a cable is subject to hostile attack, the responsiblity falls upon the belligerent to prevent cable communication. (2) Wireless messages may be sent plain or in cipher to direct the movements of warships or convey to them information as to the location of an enemy's private or public vessels - a use to which cables cannot be made. This would make neutral territory a base of naval operations, to permit which would be essentially unneutral. (3) As a wireless message can be received by all stations and vessels within a given radius

SO. European War No. 3, Department of State, Diplomatic

Correspondence with Belligerent Governments. Relating to Neutral Rights and Duties; pp. 71-94.

whatever its intended destination, all messages must be censored, whereas in case of a cable, its very nature makes it incapable of allowing the neutral territory to become a base of naval operation by sending direct messages to war-ships.

Chapter III. American Loans to the Belligerents

Another question of some importance which arose early in the H¥ar was that pertaining to war loans. The United States Government was confronted with the question whether as a neutral it should allow its nationals to make loans of money to the nations engaged in the war.

Speaking "before the American Society of International Law in 1908 on the question, 'How far should loans raised in neutral countries for the use of "belligerents be considered a violation of neutrality, 1 Professor Paul S. Reinsch drew the following significant conclusions: (a) Under the present status of the law a neutral nation could not be held responsible by a belligerent for having allowed its subjects to make loans to the other party in the war. (b) The general desire of combatants to avail themselves of the opportunity to borrow money has in recent wars done away with the motive on the part of the belligerents to object to that practice.1

The great European war has confirmed the truth of these propositions, for the belligerents have directly or indirectly attempted to negotiate loans in this country, which is practically the only market open to the world. The second proposition laid down by Professor Reinsch has found its confirmation in the fact that no belligerent has complained to the United States Government for allowing its citizens to make loans to its enemies for the purpose of carrying on the war.

f„ Proceedings" of the American Society of International, 'o8,pp. 84-

The Government at Washington stated its attitude regarding loans early in September, 1914, when the State Department gave out the following notice in reply to certain inquiries as to the attitude the government would take in case American bankers should be asked to make loans to foreign governments during the war in Europe: "There is no reason why loans should not be made to the governments of belligerent nations, but in the judgment of this government loans by American bankers to any foreign nation which is at war is inconsistent with the true spirit of neutrality!'

A short time later when J. P. Morgan, representing the banking syndicate with which the French Government was seeking to negotiate a loan, undertook to ascertain the attitude of the government-, President Wilson expressed his disapproval of loans to any of the belligerent governments on the broad grounds that financial assistance of that kind might jeopardize the neutrality of the country. The negotiations were thereupon broken off with France and likewise with Austria, the latter government having, at this time, been making inquiries about a loan of $100,000,000 in America. 3

Since that time the Allies and two or three neutral nations which have since become involved in the war bought large quantities of supplies in this country. Payment for these was not made in gold but provisions were made for payment by credit,

2. The Literary Digest; Sept. 5, f14, pp. 404-405.

3. The Independent; Aug. 31, »14, p. 316; Also , The Outlook (Feb. 3, '15). In reviewing the action of the president in this case, said, "As to loans from financiers in this country to belligerents, the government has no right to prevent such loans, but in one case at least, the President by expressing his wish, has exerted his influence against a proposed loan and it was not carried into effect.

Great Britain and France early incurred obligations of this nature amounting to .$60,000,000; Russia procured a debt for $35,000,000 and France a separate credit of $36,000,000. On March 36, 1915, Count Bernstorff signed a contract with New York bankers whereby the German Imperial Government received |10,000,000 in credit. It was understood that there would be no payment of funds into the German Treasury. The notes were to be delivered directly in this country and the proceeds to be used as a credit for the German Government in the purchase of various articles, or in payment of obligations contracted before the war. Likewise, on March 39, 1915, the French Government established an additional |50,000,000 credit loan through the J. P. Morgan syndicate. Thus before March 31, the available statistics showed the French had established $76,000,000 in credit in the United States. It is probable that there had been other French loans established with individual banking institutions against shipments of certain commodities which would make the grand total $100,000,000.

The largest single loan of the year, however, was the Anglo-French Loan of $500,000,000 made in September. The announce ment in the newspapers of Sept. 38 gave the terms: A bond issue of $500,000,000 to be floated, drawing 5$ interest and issued to the syndicate at 96; the money to remain in the United States and to be used only in payment for commodities.

One of the rabid pro German papers,4 in speaking of this loan, said, there were two interests at work; the one of the Morgan group, holding that the money should be paid towards