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Frye is justified by her according to what she claims to be the general rules of international law, as follows:
The cargo consisted of conditional contraband, the destination of which for the hostile armed forces was to be presumed under the circumstances; no proof to overcome this presumption has been furnished. More than half the cargo of the vessel was contraband, so that the vessel was liable to confiscation. The attempt to bring the American vessel into a German port would have greatly imperilled the German vessel in the given situation of the war, and at any rate practically defeated the success of her further operations. Thus the authority for sinking the vessel was given according to general principles of international law.
The sinking of the vessel being not prohibited by the treaty but justified under international law, Germany proceeds to argue that the clause in the treaty which provides that the vessel stopped shall be allowed to proceed on delivering out the contraband goods cannot be considered when the ensuing loss of time imperils either the warship herself or the success of her other operations.
The question whether the German commander acted legally according to the general principles of international law was, according to the German view, primarily a subject for the consideration of the German prize court. Germany claims that she is not obligated under international law to grant compensation for a vessel lawfully sunk, and if the prize court should determine that the German commander's act was legal, Germany's only obligation would be to pay the compensation for her lawful act specially provided by the treaty of 1799.
Pending the diplomatic discussion, Germany submitted the case to the prize court at Hamburg, which justified the sinking of the vessel under the principles of international law in the manner above outlined. The prize court was, however, unable to fix the amount of the indemnity due under the Prussian-American treaty because the interested parties failed to submit the necessary data. It is necessary therefore to settle the amount of the indemnity in a different way, and Germany suggests that each government designate an expert, who will jointly fix the amount of the indemnity for the vessel and any American property which may have been sunk with her. Germany makes the reservation, however, that such a payment will not constitute satisfaction for the violation of American treaty rights “but a duty or policy of this government founded on the existing treaty stipulations.” Should this manner of settlement be unacceptable to the United States, Germany agrees to submit the dispute as a question of the interpretation of the treaties to
the tribunal at The Hague, pursuant to Article 38 of the Hague convention for the pacific settlement of international disputes.
The United States on August 10, 1915, agreed to the appointment of experts to determine the amount of the indemnity, and accepted the condition upon which it would be paid, provided that “the acceptance of such payment should be understood to be without prejudice to the contention of the Government of the United States that the sinking of the Frye was without legal justification, and provided also that an arrangement can be agreed upon for the immediate settlement by arbitration of the question of legal justification in so far as it involves the interpretation of existing treaty stipulations."
It will thus be seen that the real issue between the two governments is not as to the payment or the amount of the indemnity for the sinking of the Frye, but as to Germany's right to sink American vessels in the face of the provisions of the treaties with Prussia invoked by the United States. The United States is willing to accept an indemnity, to be determined, as to its amount, by properly qualified persons appointed by the two governments, but it is not willing to accept it with any reservations as to the legality of Germany's act, unless at the same time provision be made for finally determining the legal questions involved. If arbitration be agreed upon, the United States proposes that a modus vivendi be reached as to the conduct of Germany's naval operations in this respect, pending the award. The situation of the belligerents upon the sea at the present time leaves no fear of a repetition in the near future of incidents such as the sinking of the Frye, but it is believed that the demand of the United States is a wise and proper safeguard against the recurrence of acts which, if committed at an inopportune time, might lead to unfortunate results.
THE NEUTRALITY OF BELGIUM
In the issue of the Journal for October, 1914, there were two editorial comments, entitled, respectively, “The War in Europe" (pages 853-857) and “Germany and the Neutrality of Belgium" (pages 877-881). The comments aimed to be impartial, and they appear to have impressed as such a well-informed and distinguished German publicist, Dr. Karl Neumeyer, Professor of International Administrative Law at the University of Munich, who on January 26, 1915, wrote in regard to them the following letter:
With sincere satisfaction, I inferred from the last number of the American Journal of International Law, that the direction of the publication endeavors to observe the strictest impartiality during the world conflict that is staggering Europe; and I rejoice on account of the tactful manner in which this endeavor is being carried out.
But with your permission, I shall advert to just one point of its contents. For in Germany, we consider it essential to bring our way of looking at things to the notice of the people in America. This refers to the discussion on page 855 of the causes that induced England to take part in the war. We believe that these causes were of an economic character, entirely independent of the neutrality of Belgium; and I have the honor to send you by this same post, a printed document in reference thereto, presenting official data upon this matter. According to this document, the reprinted utterance of the Imperial Chancellor of August fourth was essentially supplemented by his speech of December second, which accordingly I forward to you also.
I am glad that in these difficult times, which are also a source of great harm to the science of international law, it is yet possible to exchange a dispassionate correspondence.
Apparently Dr. Neumeyer does not object to the statements contained in pages 855 and 880, but believes that they should be supplemented by the official reports found in the secret archives of the Belgian Government upon the German occupation of Brussels in October, 1914, printed in the pamphlet entitled “Belgian Neutrality” and the speech of the Imperial Chancellor, Dr. von Bethmann Hollweg, delivered in the Reichstag December 2, 1914, both of which he was good enough to enclose in his letter.
The first passage in the Journal's editorial referred to in Dr. Neumeyer's letter appears to be:
Great Britain, as a party to the treaty guaranteeing the neutrality of Belgium, demanded that Germany respect the guarantees of that treaty, to which she was also a party. Germany declined to comply with this demand and Great Britain on August 4th declared war.1
Dr. Neumeyer pictures his countrymen as believing that Great Britain's causes of war were "of an economic character, entirely independent of the neutrality of Belgium.” The JOURNAL stated that Great Britain based its declaration of war upon the refusal of Germany to respect the neutrality of Belgium. The JOURNAL did not then, nor does it now, attempt to decide whether the contentions of one government or the other are correct, and in confirmation thereof the following additional passage from page 855 is quoted:
Upon whom rests the grave responsibility for the outbreak of the war and its inevitable results? It is not for the JOURNAL to attempt to say. We refer our readers without comment to the official communications which preceded the opening of hostilities, published by Great Britain and Germany and reprinted in the Supplement to this issue. In them will be found the official views as to the causes of the war and the reasons for and the facts upon which those views are based. Each reader may peruse them and draw his own conclusion.
In regard to the second passage from the JOURNAL's editorial referred to by Dr. Neumeyer it is probable that he had in mind the following paragraphs:
On August 4, 1914, Dr. von Bethmann Hollweg, Chancellor of the German Empire, said, in a speech to the Reichstag, as quoted in the London Times of August 11, 1914: “Gentlemen, we are now in a state of necessity, and necessity knows no law!
Our troops have occupied Luxemburg, and perhaps already are on Belgian soil. Gentlemen, that is contrary to the dictates of international law. It is true that the French Government has declared at Brussels that France is willing to respect the neutrality of Belgium as long as her opponent respects it. We knew, however, that France stood ready for the invasion. France could wait, but we could not wait. A French movement upon our flank upon the lower Rhine might have been disastrous. So we were compelled to override the just protest of the Luxemburg and Belgian Governments. The wrong -I speak openly—that we are committing we will endeavor to make good as soon as our military goal has been reached. Anybody who is threatened, as we are threatened, and is fighting for his highest possessions can have only
one thought-how he is to hack his way through (wie er sich durchhaut)!" It therefore appears that the Chancellor knew and admitted that the occupation of Belgium and Luxemburg was contrary to international law, but he justified the act by the statement that the German Empire was “in a state of necessity" and that “necessity knows po law." 2
The JOURNAL has, since the outbreak of the war, discussed questions arising out of it, and has sought to apply appropriate principles of international law to the questions discussed. In so doing, however, it has not attempted to pass judgment upon the comparative guilt or innocence of particular belligerents in causing the war. It is believed that the attitude to be observed by a journal of international law, published in a neutral country, and which endeavors to be neutral in its utterances, should not be different from the state of neutrality referred to by Mr. John Quincy Adams, Secretary of State, in an instruction, dated May 19, 1818, to Mr. Gallatin, then United States Minister to France, as follows:
2 The JOURNAL, Vol. 8, p. 880.
By the usual principles of international law, the state of neutrality recognizes the cause of both parties to the contest as just—that is, it avoids all consideration of the merits of the contest.3
The JOURNAL therefore believes that it should print the documents referred to by Dr. Neumeyer which appeared after the period covered by the October number of the JOURNAL, and which, in his opinion, qualify or supplement the statements contained in that number, namely, the official reports found in the secret archives of the Belgian Government, and the speech of the Imperial Chancellor delivered in the Reichstag on December 2, 1914. To these should be added an interview of the Chancellor with a representative of the Associated Press dated January 24, 1915, and published the next day in the American papers. These three documents are to be taken as official statements of the German Government.4
The despatch of Sir Edward Goschen, the British Ambassador at Berlin, respecting the rupture of diplomatic relations with the German Government in which the "scrap of paper” incident was first made known, is printed in full in the SUPPLEMENT to this JOURNAL for October, 1914, p. 411, but fairness and the impartiality of neutrality require that there be printed Sir Edward Grey's statement of January 26, 1915, which comments upon the contentions set forth in the speech of the Imperial Chancellor of December 2, 1914, and in his interview of January 24th. The material portion of this document is therefore herein laid before the reader without comment.
3 VII Moore's International Law Digest, p. 860.
* The pamphlet entitled Die Belgische Neutralität, issued by Georg Stilke in Berlin in 1914, which Professor Neumeyer was good enough to send to the Editor-in-Chief of the JOURNAL, contains, in addition to the Belgian documents, an Introduction and four long extracts from the Norddeutsche Allgemeine Zeitung for October 13, 1914, November 25, 1914, December 2, 1914, and December 15, 1914.
The introduction and the extracts have been omitted to make room for the interview of the Imperial Chancellor, Dr. von Bethmann Hollweg, and the statement of the British Secretary of State for Foreign Affairs, Sir Edward Grey, which are printed in the text.
The translation here printed of the Belgian documents is that issued by Dr. Bernhard Dernburg in his pamphlet entitled The Case of Belgium, published in 1914.