refusal of this Government to allow delivery of supplies to vessels of war on the high seas; (3) that, "according to all authorities on international law who concern themselves more properly with the question," exportation should be prevented "when this traffic assumes such a form or such dimensions that the neutrality of a nation becomes involved thereby."

As to the assertion that the exportation of arms and ammunition contravenes the preamble of The Hague Convention No. 13 of 1907, this Government presumes that reference is made to the last paragraph of the preamble, which is as follows: "Seeing that, in this category of ideas, these rules 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."

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 its 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 cannot but perceive that a complaint of this nature would invite just rebuke.

With reference to the asserted inconsistency of the course adopted by this Government in relation to the exportation of arms and ammunition and that followed in not allowing supplies to be taken from its ports to ships of war on the high seas, it is only necessary to point out that the prohibition of supplies to ships of war rests upon the principle that a neutral power must not permit its territory to become a naval base for either belligerent. A warship may, under certain restrictions, obtain fuel and supplies in a neutral port once in three months. To permit merchant vessels acting as tenders to carry supplies more often than three months and in unlimited amount would defeat the purpose of the rule and might constitute the neutral territory a naval base. Furthermore, this Government is unaware that any Austro-Hungarian ship of war has sought to obtain supplies from a port in the United States, either directly or indirectly. This subject has, however, already been discussed with the Imperial German Government, to which the position of this Government was fully set forth the 24th December, 1914.

In view of the positive assertion in the statement of the Imperial and Royal Government as to the unanimity of the opinions of text-writers as to the exportation of contraband being un

neutral, this Government has caused a careful examination of the principal authorities on internationl law to be made. As a result of this examination it has come to the conclusion that the Imperial and Royal Government has been misled and has inadvertently made an erroneous assertion. Less than one-fifth of the authorities consulted advocate unreservedly the prohibition of the export of contraband. Several of those who constitute this minority admit that the practice of nations has been otherwise. It may not be inopportune to direct particular attention to the declaration of the German authority, Paul Einicke, who states that at the beginning of a war, belligerents have never remonstrated against the enactment of prohibitions on trade in contraband, but adds "that such prohibitions may be considered as violations of neutrality, or at least as unfriendly acts, if they are enacted during a war with the purpose to close unexpectedly the sources of supply to a party which heretofore had relied on them."

The Government of the United States deems it unnecessary to extend further at the present time a consideration of the statement of the Austro-Hungarian Government. The principles of international law, the practice of nations, the national safety of the United States and other nations without great military and naval establishments, the prevention of increased armies and navies, the adoption of peaceful methods for the adjustment of international differences, and, finally, neutrality itself are opposed to the prohibition by a neutral nation of the exportation of arms, ammunition, or other munitions of war to belligerent powers during the progress of the war.

LANSING.

APPENDIX TO No. 2.

GERMAN EXPORTS OF ARMS AND AMMUNITION TO GREAT BRITAIN.

AUSTRO-HUNGARIAN EXPORTS OF ARMS AND AMMUNITION TO GREAT BRITAIN.

(No. 3.)—Austro-Hungarian Minister for Foreign Affairs to

(No. 88855.)

Ambassador Penfield.

Imperial and Royal

Ministry of Foreign Affairs,
Vienna, September 24, 1915.

THE undersigned had the honour of receiving the much esteemed note of the 16th August of this year, No. 2,758, in which His Excellency the Ambassador Extraordinary and Plenipotentiary of the United States of America, Mr. Frederic Courtland Penfield, was good enough to define the position taken by the Government of the United States with respect to the standpoint represented by the Imperial and Royal Government in the question of the delivery of war requisites to Great Britain and her allies.

The representations which the Washington Cabinet have devoted to this question disclose the various points of view which are controlling for the Government of the United States in this matter, and which, according to their opinion prevent them from accommodating themselves to the views of the Imperial and Royal Government. Much as the Imperial and Royal Government have endeavoured to thoroughly examine the points which were presented as pertinent by the Washington Cabinet, the most careful weighing and evaluation thereof cannot induce them to deviate from the standpoint set forth in their note of the 29th June of this year, No. 59,465.

The arguments of the Government of the Union are for a great part based upon the incorrect assumption that the Imperial and Royal Government had in any way contested the right which article 7 of the Seventh and Thirteenth Hague Conventions accords to the subjects of neutral powers to supply belligerents with contraband, whereas the above-mentioned note of [1916. cx.] 3 U

the Imperial and Royal Government expressly stated that the text-but only the text-of the provision referred to affords the Government of the Union with a formal pretext for tolerating the traffic in munitions of war in which its citizens are at present engaged. It is a matter of course that the Imperial and Royal Government did not remotely expect a deviation from an effective treaty on the part of the Washington Cabinet; they merely pointed out that, according to their opinion, that provision should not be interpreted in a manner which would be at variance with the fundamental conception and the highest principles of the law of neutrality. It is true that from the progressive codification of international law there arises the danger that the principles of law laid down in written agreements be regarded as the essence of international law and in this way its most general fundamental conceptions, in so far as they have not been expressly fixed in state treaties, be overlooked.

However, this possibility should be prevented with particular reference to matters of the law of neutrality, and in this sense it appears to be emphasized in the preamble to the XIIIth Hague Convention (paragraphs 2 and 3) that the stipulations of this convention represent only fragments, which cannot cover all circumstances which may arise in practice and which find their corrective and supplement in the general principles of international law.

The Imperial and Royal Government then focussed their statement in this matter upon the special problem of whether the cited treaty provision does not find its limitation in these principles; and in appealing to the opinion of science in their affirmation of the question they had in mind and could only have had in mind those authorities which inquire especially whether the otherwise permissible exportation of war requisites does not under certain circumstances involve a compromise of neutrality. In no place in the note of the 29th June of this year is an assertion to be found to the effect that writers are unanimously of the view that the exportation of contraband is contrary to neutrality.

Further, the Imperial and Royal Government have in no way advocated a principle of "equalization." As a matter of fact they did not base their suggestions in the question of the exportation of war requisites upon the fact that they are not themselves in a position to draw munitions of war from the United States of America; they are, indeed, of the opinion that the excessive exportation of war requisites would not be permissible even if it were taking place to the countries of both belligerent parties. It has never occurred to the Imperial and Royal Government that it is obligatory upon a neutral power to equalize the disadvantage at which Austria-Hungary finds itself in not being able to draw munitions of war from the neutral territory by forbidding its subjects traffic in such objects with

the enemies of the Monarchy. They only objected that the economic life of the United States had been made serviceable to the greatest extent by the creation of new and the enlargement of existing concerns for the manufacture and exportation of war requisites and thus, so to say, been militarized, if it be permitted to use here this much misused word.

But in the concentration of so many forces to the one end, the delivery of war requisites, which, although not so intended, actually result in an effective support of one of the belligerent parties, which appears all the more surprising when such articles as are not even contraband are not being supplied from the United States to the other belligerent party, lies a "fait nouveau" which weakens reference to supposed precedents in other wars. The parallel with former wars fails, particularly as these were always wars between two individual powers or wars between groups constituted of fewer powers. Under this condition it was possible that if war supplies were delivered from a neutral country to only one belligerent party the opponent could turn to other neutrals. But in the present war the United States is the only power which can be reasonably considered in connection with such deliveries. For this reason the exportation of war requisites from the Union as it is now being carried on acquires quite another significance than that which the exportation of contraband could ever before have had. As all of these decisive points appeared in their full import only during the course of the war, the Austro-Hungarian Government consider themselves justified in the view that in the sense of the last paragraph of the preamble to the XIIIth Hague Convention these points contain sufficient grounds for changing the practice hitherto adhered to by the United States. Complete and strict impartiality such as is being aimed at by the Washington Cabinet and thus abstention from every direct or indirect support or assistance of a belligerent party doubtlessly appertains to the rights of a neutral state. If experience shows that an embargo of any character whatsoever becomes necessary for this purpose during the course of a war, this power is justified in changing its previous neutrality practice.

On the other hand the present case, which differs so completely from all former cases, represents a "fait nouveau " which, as already intimated, does not fall under the cited article 7 and, therefore, cannot be regarded otherwise than "an unforeseen case" which, in the sense of the preamble to the XIIIth Convention (Par. 3) must be dealt with according to the general principles of international law as has been set forth above.

Nor did the suggestion made by the Imperial and Royal Government with respect to the importation of foodstuffs and raw materials proceed from the idea that a neutral Government is bound to compensate for the advantages attained by one belligerent party over another by a system of non-intercourse with