Introduction
ONE thing stands out clearly from the proceedings at Geneva. In the naval sub-committee of the preparatory commission of the Disarmament Conference, France has made clear that she remains steadfast in one conviction. She believes that unlimited submarine tonnage is essential to her security. And in that attitude France has been seconded by Ialy.
It is of course an old story that at the Washington Conference Great Britain proposed the abolition of the submarine, and that France’s opposition resulted in there being no limitation of numbers of submarines, cruisers, or other auxiliary combatant craft. This, however, is not quite the whole story. Nor so expressed is it entirely fair to France. France was not alone in her opposition to the abolition of the submarine. She was seconded by Italy and Japan, and certainly to some extent, by the United States. It is true that since France, Italy, and Japan recorded themselves in opposition to such abolition, the United States was not forced into the open with an absolutely clear statement of position by the American delegates. However, the American delegation did make a matter of record that the advisory committee of the American delegation was averse to the abolition of the submarine by the United States.
Of the seven treaties signed at the Washington Conference, all have been fully ratified, and are now in effect, except one. That one has been ratified by four of its signatory powers. Only France has failed to ratify it. The exception referred to is the treaty between the United States, Great Britain, Japan, France, and Italy in relation to the use of submarines and noxious gases in warfare. This treaty is more commonly referred to as the Submarine Treaty, and will be so called by the writer. In fact, there is really some official countenance to such a designation. A name for this treaty was discussed at the conference, and the American delegate who sponsored the treaty, said then it would probably be called the Submarine Treaty.
It is true that the Submarine Treaty is not in effect, and that it will not be until France ratifies, and that there is no immediate indication that France will so ratify. However, this treaty does not provide for the abolition of the submarine. There is not the same assurance that France will not ratify this treaty, which her delegates signed, as there seems to be that she will continue to oppose the submarine’s abolition. When France so wills, this treaty will become effective.
The discussions at Geneva, while not always actually mentioning the submarine when the undersea boat was obviously the real consideration in the minds of the delegates, have made it evident again that in any future discussions of naval disarmament, interest will center principally on the submarine.
With the preparatory commission for the Disarmament Conference recently sitting in Geneva, preparing the agenda for that prospective conference, it may be well to survey the situation from the submarine viewpoint. It seems fairly certain that much the same propositions with regard to the submarine will be advanced by the nations most interested. That is, the various nations will probably again advocate the same action with regard to submarines that they did at Washington.
The Washington Conference limited naval armament in more ways than one. It limited the total tonnage of two types of war- craft that the respective nations might have. It also limited the size of various types of warcraft, and the size and number of guns that they might carry. These limitations are pretty clear, and are fairly well realized. But also the Washington Conference limited the availability of warcraft, and the manner 5 in which they might be used. These latter limitations are more subtle, and perhaps have evaded a considerable portion of the public.
The limitations upon availability resulting from article XIX of the Treaty for the Limitation of Naval Armament work to the disadvantage of the United States. The other signatory nations do not share that disadvantage in the same serious degree. The effect of article XIX, most unfortunately for the United States, is a large subject in itself.
There is a possibility that the limitations sought to be imposed upon the future operations of submarines in warfare may be found to be equally unbalanced, in so far as the effect for or against various nations is concerned. Even more important, from the standpoint of the practical, active naval officer, is to know just what submarines may and may not legally do in future wars. The naval officer generally cannot consider with judicial calm and deliberation when a decision is demanded in time of war. Consideration after the event will do him no good. The naval officer must study in advance, consider possible cases, and, when the crisis comes, make quick decisions, or his country’s cause is lost. The first requisite is of course for him to know the rules of the game. Limitations on action must therefore be clear and unequivocal.
Although Great Britain did not succeed in having the Washington Conference abolish the submarine, it was Great Britain, and not the sponsoring United States delegate, that put the real teeth into the Submarine Treaty. Since the Washington Conference, and notably since the unfortunate accident to the British Submarine M-1, from British sources have come renewed proposals to abolish the submarine. Is it not probable that renewed efforts will be made at the approaching conference to abolish the submarine, or if that be impossible, to limit further its allowed activities?
The policy of the United States so far as expressed at the Washington Conference did not concur with the proposal to abolish submarines. Presumably then there must be a point at which the United States can no longer concur with proposals to limit the operations of submarines. That this point should be located by advance consideration seems worthy of attention.
For example, from a study of the conference proceedings, it appears that Mr. Balfour, the British delegate, suggested an amendment to the Submarine Treaty that the American delegation had not previously considered, and for which they were not prepared. That proposal of Mr. Balfour’s found its way into the final form of the treaty. It is a fair question whether this would have been the case had this proposal been considered sufficiently in advance for all its effects to have been clear to the American delegation. In connection with that, it might be well to see how far along the road of limitation of submarine wartime operations the Submarine Treaty goes.
The powers that signed the Submarine Treaty were, as already noted, the same that signed the Treaty for the Limitation of Naval Armament. This is but natural, as the Submarine Treaty was also one on limitation of naval armament, one with implications and restrictions that are possibly but ill appreciated by many most vitally concerned.
The Submarine Treaty, as completed, was in a form different from that in which it was proposed originally by Senator Root. It included in its final form several commitments of the most serious import that were not in the articles of Senator Root’s original proposal. The evolution of this treaty into its final form is of considerable interest.
When the attention is focused upon the Submarine Treaty, existing, as it were, in a state of suspended animation, certain questions suggest themselves. First, why has France not ratified this treaty which her delegates signed? Second, would it be a good thing for the United States if it were in effect?
The first question concerns the United States less directly than does the very pertinent second one. The second question suggests several other questions, the answers to which will assist in arriving at a composite answer to the second question.
- What is the submarine policy of the United States?
- How was the Submarine Treaty evolved?
- Is the Submarine Treaty a clear guide for a submarine commander?
- What did the Submarine Treaty finally stipulate?
- What effect would the Submarine Treaty have if it were in force?
- Does the Submarine Treaty accord with the submarine policy of the United States?
What Is the Submarine Policy of the United States?
The submarine policy of the United States may be ascertained by considering the following:
- The original proposal of the United States at the Washington Conference.
- The report on submarines by the advisory committee of the American delegation at the Washington Conference.
- The report of a special board appointed by the Secretary of the Navy September 23, 1924, “to consider the policy of the Navy Department with reference to upkeep of the Navy in its various branches,” and transmitted by him to the chairman of the committee on naval affairs of the House of Representatives February 20, 1925.
- The present operations and present building of submarines.
- Recent statements by the Secretary of the Navv and the President.
The original proposal of the United States at the Washington Conference. That part of the proposal which pertains to submarines is quoted from the proceedings of the conference, as follows:
The Proposal of the United States for a Limitation of Naval Armament
Nation | Built | On Building Program |
Great Britain ---------- | 75 | 8 |
United States----------- | 55 | 46+ |
Japan .......... | 14 | 29 |
France ......... |
| 13 |
Italy ............................... | 18 | 3 |
(D) The use of capital ship tonnage as the measurement of strength for navies and a proportionate allowance of auxiliary combatant craft prescribed. (56).[1]
(b) Submarines. 20. It is proposed that the total tonnage of submarines allowed each power shall be as follows:
For the United States.............. 90,000 tons.
For Great Britain...................... 90,000 tons.
For Japan........................ 54,000 tons.
Provided, however, that no power party to this agreement whose total tonnage in submarines on November 11, 1921, exceeds the prescribed tonnage shall be required to scrap such excess tonnage until replacements begin, at which time the total tonnage of submarines for each nation shall be reduced to the prescribed allowance as herein stated.
Limitation of new construction. 21. (a) All
submarines whose keels have been laid down by November 11, 1921, may be carried to completion.
(b) No new submarine tonnage except replacement tonnage as provided hereafter shall be laid down during the period of this agreement; provided, however, that such nations as have not reached the submarine tonnage allowed hereinbefore stated may construct tonnage up to the limit of their allowance.
22. Submarines may be scrapped in accordance with methods to be agreed upon. (61).
Replacements. 26. (c) Submarines twelve years of age from date of completion may be replaced by new submarine construction. The keels of such new construction shall not be laid until the tonnage it is intended to replace is eleven years of age from date of completion. (62).
Summarizing the foregoing, Great Britain and the United States were to be allowed 90,000 tons of submarines each, and Japan 54,000. No nation was to be required to scrap submarine tonnage until it was old and to be replaced, and all nations might finish submarine tonnage under construction.
This proposal was plainly not a suggestion that the submarine should be abolished. Nor did it in any degree propose any peculiar limitation upon the operations of submarines. Did it then constitute a proposed reduction in submarine tonnage for the various nations?
For the respective nations, their submarine tonnages, built and on building programs, for January 1, 1922, were in thousands of tons, as follows:
In no case did a nation’s existing submarine tonnage equal or come near equalling the limit proposed. In all cases but one the combined tonnage existing, building and authorized, fell below the limit proposed. And in that one case, the United States, the
1 This figure included six fleet submarines for which contracts had not yet been placed. The figures in the foregoing tabulation are based upon tables in “The Navy Year Book,” 1920 and 1931. (B-898, 895, and 885) excess of this total combination tonnage was but slight. And of the existing tonnage, twenty-seven boats were stated by the Secretary of the Navy to be "of limited military value,” and undoubtedly upon the completion of replacement tonnage, sufficient could have been scrapped to keep within the proposed limit without serious military loss.
From these figures it is evident that the original American proposal at the Washington Conference did not entail any slash of submarine tonnage, nor any curtailment of their legitimate operations.
In fact, in the report of the American delegation, submitted to the President February 9, 1922, appears the following:
The American delegation felt that the original proposal for submarines was too high, and aided by the advice of our naval experts, proposed that the maximum limit for the United States and Great Britain in submarine tonnage should be 60,000 tons each; and that France, Japan, and Italy should retain the tonnage in submarines that they now have, that is, should maintain the status quo as regards submarine tonnage. It was understood that the present submarine tonnage of France was 31,391 tons; of Japan 31,452 tons; and of Italy somewhat less, about 21,000 tons. This proposition was not accepted, being opposed by both Japan and France. (804).
The Report on Submarines by the Advisory Committee of the American Delegation. At the Washington Conference, after the British had proposed the abolition of the submarine, and France, Japan, and Italy had expressed opposition to such abolition, the chairman, Mr. Hughes, made various observations, including the following:
Upon the question whether the submarine was of value for defense, each nation must take the opinion of its naval experts. Indications of differences of opinion had already been manifested. He would, not at this time make any announcement of the position of the United States [Author’s italics], except to add to the expressions of detestation of the abuse of the submarine and of the methods—the illegal methods, as they have been continually called—of their employment during the war.
He wished, however, to read a report. The President had appointed an advisory committee to aid the American delegation. The members of that committee were gathered together, men and women, from all fields of activity, from all parts of the country, and represented every shade of public opinion. That committee had considered this subject and the subcommittee to which it was referred was headed by a distinguished admiral of the American Navy. [Author’s Note. Rear Admiral W. L. Rodgers, of the General Board.] The report was debated in full committee and was unanimously adopted—even by those who were prepossessed against the submarine. He read this report, not as an opinion of the American Government [Author’s italics.] but as a report of the advisory committee, which was created in order that the American delegates might be advised as to public opinion. (272-273.)
The chairman then read the following report on submarines adopted by the advisory committee of the American delegation on December 1, 1921. (273).
The foregoing seems pretty clearly to stamp the committee’s report at least as a respectable and authoritative expression of American opinion, but to deny it the prestige of being a statement of the American Government’s position. The limiting qualification was, of course, by but one individual member of the American delegation. There seems to have been some change in this limiting attitude before the American delegation submitted its report to the President dated February 9, 1922, for in their report, the delegation says, in discussing the British proposal to abolish the submarine:
The proposal was discussed at length, the British delegation bringing forward in its support arguments of great force based upon the experience of Great Britain in the recent war. It met with opposition from France, Italy, and Japan.
The American delegation not only had the opinion of their naval advisers in opposition to the proposal, but also had received a careful report upon the subject from the advisory committee of twenty-one appointed by the President. This report was presented by the American delegation as setting forth in a succinct manner the position of their Government. [Author’s italics.] (813).
The committee’s report covers only about four pages. It is a remarkably fine monograph upon the legitimate usefulness of the submarine, brief but comprehensive, and can be read with profit by anyone. Even in its comparatively brief report to the President, the American delegation to the Washington Conference included the following extracts from the report of the advisory committee:
Unlimited submarine warfare should be outlawed. Laws should be drawn up prescribing the methods of procedure of submarines against merchant vessels both neutral and belligerent. These rules should accord with the rules observed by surface craft. Laws should also be made which prohibit the use of false flags and offensive arming of merchant vessels. The use of false flags has already ceased in land warfare. No one can prevent an enemy from running “amuck” but immediately he does, he outlaws himself and invites sure defeat by bringing down the wrath of the world upon his head. If the submarine is required to operate under the same rule as combatant surface vessels no objection can be raised as to its use against merchant vessels. The individual captains of submarines are no more likely to violate instructions from their government upon this point than are captains of any other type of ship acting independently.
Submarines against combatant ships. Against enemy men of war the submarine may be likened to the advance guard on land which hides in a tree or uses underbrush to conceal itself. If the infantry in its advance encounters an ambuscade, it suffers greatly even if it is not totally annihilated. However, an ambuscade is entirely legitimate. In the same fashion a submarine strikes the advancing enemy from concealment and no nation cries out against this form of attack as illegal. Its navy simply becomes more vigilant, moves faster, and uses its surface scouts to protect itself.
The submarine carries the same weapons as surface vessels, i.e., torpedoes, mines, and guns. There is no prohibition of their use on surface craft and there can be none on submarines. Submarines are particularly well adapted to use mines and torpedoes. They can approach the desired spot without being seen, lay their mines or discharge their torpedoes, and make their escape.
The best defense against them is eternal vigilance and high speed. This causes added fatigue to the personnel and greater wear to the machinery. The continual menace of submarines in the vicinity may so wear down a fleet that when it meets the enemy it will be so exhausted as to make its defeat a simple matter.
The submarine as a man-of-war has a very vital part to play. It has come to stay. It may strike without warning against combatant vessels, as surface ships may do also, but it must be required to observe the prescribed rules of surface craft when opposing merchantmen, as at other times.
The submarine as a scout. As a scout the submarine has great possibilities—it is the one type of vessel able to proceed unsupported into distant enemy waters and maintain itself to observe and report enemy movements. At present its principal handicaps are poor habitability and lack of radio power to transmit its information. However, these may be overcome in some degree in the future. Here, again, the submarine has come to stay—it has great value, a legitimate use, and no nation can decry its employment in this fashion.
* * * *
The submarine is particularly an instrument of weak naval powers. The business of the world is carried on upon the surface of the sea. Any navy which is dominant on the surface prefers to rely on that superiority. While navies comparatively weak, may but threaten that dominance by developing a new form of attack to attain success through surprise. Hence submarines have offered and secured advantages until the method of successful counter-attack has been developed.
The United States Navy lacks a proper number of cruisers. The few we have would be unable to cover the necessary area to obtain information. Submarines could greatly assist them as they can not be driven in by enemy scouts.
The cost per annum of maintaining 100,000 tons of submarines fully manned and ready is about thirty million dollars. For the work which will be required of them in an emergency, this cost is small when taken in connection with the entire Navy. The retention of a large submarine force may at some future time result in the United States holding its outlying possessions. If these colonies once fall the expenditure of men necessary to recapture them will be tremendous and may result in a drawn war which would really be a United States defeat. The United States needs a large submarine force to protect its interests.
This committee is therefore of the opinion that unlimited warfare by submarines on commerce should be outlawed. The right of visit and search must be exercised by submarines under the same rules as for surface vessels. It does not approve limitation in size of submarines. (813).
The Report of the Special Board to Consider the Upkeep of the Navy in its Various Branches. This classic report was transmitted by the Secretary of the Navy to the committee on naval affairs of the House of Representatives for its information, by letter dated February 20, 1925.
The personnel of the board was such as to give it the highest authority. It included the Chief of Naval Operations, the Commandant of the Marine Corps, the President of the Naval War College, the chairman of the executive committee and two other members of the general board of the Navy, the budget officer of the Navy, and the Director of Naval Intelligence. Of the eight flag and general officers on the board, two were ex-commanders-in-chief of the principal fleet, and others had held high command afloat.
As this article is concerned primarily with submarines, the extracts to be quoted from the board’s report will pertain only to submarines, but there is no intention to appear to give the undersea boats undue prominence as a component of the fleet. The report makes it very clear that in the board’s opinion the battleship is the backbone of the fleet, and that other types of vessels, including also aircraft and submarines, are but auxiliary.
Subject to the foregoing explanation, or qualification, the following extracts from the board’s report are quoted:
159. The board is of the opinion that submarines are an essential part of our national defense; that efficient submarines are necessary to a well balanced fleet; that additional fleet submarines must be provided; that mine-laying submarines must be provided; and that all submarines must be a part of the fleet in order to develop their maximum value in war and to maintain the efficiency of personnel and material. (D-409).
209. The mission of the Navy is to defend our national rights and interest.211. The object of the Navy would be: first, to destroy or blockade the enemy fleet in order; second, to protect our commerce; then, third, to destroy the enemy’s commerce in order; fourth, to bring economic pressure to bear on him; and if our rights still continued to be denied; fifth, to transport the Army in order; sixth, to break down remaining enemy resistance. (D-418).
Extract from Conclusions:
265. A properly constituted fleet consists of battleships, battle cruisers, cruisers, aircraft carriers, aircraft, destroyers, submarines, mine layers, and auxiliaries. (D-426).
- Substantial progress has been made in the development of the submarine since the World War. Its radius of action and surface speed have been so increased that it will be of great value in distant scouting, mine laying, and offensive operations with the fleet.
- The Navy Department policy (promulgated
December 1, 1922), which was formulated immediately following the treaty limiting naval armament, takes account of the development and potentiality of aircraft and submarines, is sound, and should be adhered to.................................. (D-428).
Extract from Recommendations:
- Fleet submarines.—Maintain a tonnage strength based on a 5-5-3 ratio.
- (d) That the three remaining fleet sub
marines already authorized by Congress, be laid down during the fiscal year 1927. (D-429).
Extract from United States Naval Policy:
(Promulgated December 1, 1922, consistent with the Treaty for the Limitation of Naval Armament. This policy was referred to with approval by the special board.) (E.)
Submarines
To complete submarines now building.
To maintain effective submarine tonnage in conformity with capital ship ratios.
To develop and build twelve scout submarines and twelve mine-laying submarines, and thereafter to limit new construction to that necessary to maintain effective submarine tonnage in conformity with capital ship ratios.
To scrap no submarine unless its material condition or its military characteristics make it undesirable for retention. (D-431).
Operating Policy
To keep all submarines fully manned and in active training. (D-434).
The Present Operations and Present Building of Submarines. In his report for 1925, the Secretary of the Navy states that eighty submarines, first and second lines, were maintained in full commission with the forces afloat during the entire year. (F-4.)
In his 1922 report he states that on July 1, 1921, there were seventy-six submarines in full commission, and on July 8, 1922, there were eighty-three in full commission. (C-41.)
Evidently, then, there has been no falling off or appreciable change, since before the Washington Conference, of the number of submarines maintained in full commission.
At the time of the Washington Conference there were some thirty or forty submarines under construction. These were principally boats of the 5 class, of about 900 tons displacement, since completed. They were a war product.
In his 1925 report, the Secretary of the Navy mentions the commissioning of the fleet submarine V-1, the completion of the V-2, the approaching completion of the V-1, and V-4, and the prospective laying down in the near future of two more fleet submarines, the V- and V-6. These numbers are less than in 1921, with its wartime inheritance, but when it is remembered that the boats individually displace more than twice what the 5 class did, the apparent disparity in tonnage under construction is reduced.
The present rate of construction of submarines is not as great as that contemplated by the naval policy already quoted, nor are so many classes of underwater boats being built as it recommended. But the main point is that construction of submarines does still continue, manifestly by authority of Congress, which votes the money.
Under the subject of fleet maneuvers, among other remarks, the Secretary of the Navy, in his 1925 report, states:
The combined operations of aircraft, submarines, and surface vessels again proved the value of each type and demonstrated the interdependence of these three arms of the Navy. The increased power that is given to a naval force when these three arms have been properly developed and are acting together was clearly proved. (F-37).
Recent Statements by the Secretary of the Navy and the President. There is no need to amplify the preceding statement of the Secretary of the Navy, showing his appreciation of the important and useful role of the submarine.
President Coolidge, under date of December 6, 1923, in a message to Congress is quoted as follows:
For several years we have been decreasing the personnel of the Army and Navy and reducing their power to the danger point. Further reductions should not be made. The Army is a guarantee of the security of our citizens at home; the Navy is a guaranty of the citizens abroad. Both of these services should be strengthened rather than weakened. Additional planes are needed for the Army and additional submarines for the Navy. The defenses of Panama must be perfected. We want no more competitive armaments. We want no more war. But we want no weakness that invites imposition. A people who neglect their national defense are putting in jeopardy their national honor. (G-31).
How Was the Submarine Treaty Evolved?
The Submarine Treaty, if it become effective, will be the future guide of those who direct and command submarines in war. It would have been desirable for the treaty itself to have been so worded that it would constitute a clear rule of conduct.
That this is not the case is mentioned by Hector Bywater in his recent book, The Great Pacific War. He describes an imaginary incident that occurred near the Panama Canal, after a Japanese merchantman had been blown up in the canal, blocking it for months. The United States took various precautions to prevent similar acts, including stationing submarines on patrol duty some distance off the approaches to the canal. The U. S. Submarine S-4 sighted a Japanese merchantman, and attempted in what is the present regular legal way to visit and search her. The merchantman attempted to avoid search by flight. She was fired upon in a circumspect manner by the submarine, seized and taken into port. As imagined by Mr. Bywater, the point was at once raised by Japan that this constituted a breach of the Submarine Treaty. (H-26.)
The Submarine Treaty is based upon resolutions introduced at the Washington Conference by no less a person than Senator Elihu Root, international lawyer, former Secretary of State, and one of the American delegates to the conference. Mr. Root’s resolutions and the corresponding articles of the Treaty that resulted will be shown in parallel columns, for convenience of reference
Resolutions Proposed By Mr. Root
- The signatory powers, desiring to make more effective the rules adopted by civilized nations for the protection of the lives of neutrals and non- combatants at sea in time of war, declare that among those rules the following are to be deemed an established part of international law:
- A merchant vessel must be ordered to stop for visit and search to determine its character before it can be captured.
A merchant vessel must not be attacked unless it refuse to stop for visit and search after warning.
A merchant vessel must not be destroyed unless the crew and passengers have been first placed in safety.
- Belligerent submarines are not under any circumstances exempt from the universal rules above stated; and if a submarine cannot capture a merchant vessel in conformity with these rules the existing law of nations requires it to desist from attack and from capture and to permit the merchant vessel to proceed unmolested.
The Submarine Treaty, Articles I-IV Article I
The signatory powers declare that among the rules adopted by civilized nations for the protection of the lives of neutrals and noncombatants at sea in time of war, the following are to be deemed an established part of international law:
- A merchant vessel must be ordered to submit to visit and search to determine its character before it can be seized.
A merchant vessel must not be attacked unless it refuse to submit to visit and search after warning, or to proceed as directed after seizure.
A merchant vessel must not be destroyed unless the crew and passengers have been first placed in safety.
- Belligerent submarines are not under any circumstances exempt from the universal rules above stated; and if a submarine cannot capture a merchant vessel in conformity with these rules the existing law of nations requires it to desist from attack and from seizure and to permit the merchant vessel to proceed unmolested.
The signatory powers invite the adherence of all other civilized powers to the foregoing statement of established law to the end that there may be clear public understanding throughout the world of the standards of conduct by which the public opinion of the world is to pass judgment upon future belligerents.
Article II
The signatory powers invite all other civilized powers to express their assent to the foregoing statement of established law so that there may be a clear public understanding throughout the world of the standards of conduct by which the public opinion of the world is to pass judgment upon future belligerents.
- The signatory powers recognize the practical impossibility of using submarines as commerce The signatory powers recognize the practical destroyers without violating the requirements universally accepted by civilized nations for the protection of the lives of neutrals and non-combatants, and to the end that the prohibition of such use shall be universally accepted as a part of the law of nations, they declare their assent to such prohibition and invite all other nations to adhere thereto destroyers without violating, as they were violated in the recent war of 1914-18, the requirements universally accepted by civilized nations for the protection of the lives of neutrals and non- combatants, and to the end that the prohibition of the use of submarines as commerce destroyers shall be universally accepted as a part of the law of nations they now accept that prohibition as henceforth binding as between themselves and they invite all other nations to adhere thereto.
III The signatory powers, desiring to insure the enforcement of the humane rules declared by them with respect to the prohibition of the use of submarines in warfare, further declare that any person in the service of any of the powers adopting these rules who shall violate any of the rules thus adopted, whether or not such person is under orders of a government superior, shall be deemed to have violated the laws of war, and shall be liable to trial and punishment as if for an act of piracy, and may be brought to trial before the civil or military authorities of any such powers within the jurisdiction of which he may be found.
Article III
The signatory powers, desiring to insure the enforcement of the humane rules of existing law declared by them with respect to attacks upon and the seizure and destruction of merchant ships, further declare that any person in the service of any power who shall violate any of those rules, whether or not such person is under orders of a government superior, shall be deemed to have violated the laws of war and shall be liable to trial and punishment as if for an act of piracy and may be brought to trial before the civil or military authorities of any power within the jurisdiction of which he may be found.
Mr. Bywater makes the following comment:
It will be seen that the rules laid down as above were to some extent contradictory. On the one hand, a submarine was authorized by implication to detain, visit, and search a merchant vessel, and equally by implication to attack such a vessel if it refused to submit to visit and search. On the other hand, the submarine was expressly forbidden to persist with the attack if it seemed impossible to capture the merchant vessel without endangering the lives of non-combatants on board. Finally, the signatory powers, of whom the United States was one, had in the concluding paragraph virtually bound themselves not to employ submarines against merchant vessels under any circumstances whatever. (H-28.)
He then proceeds to state the justifying reasons given by the United States, which are based upon the fact that the case was an exceptional one, that the merchant vessel was a suspicious one, and that the submarine should have had the same rights as a surface vessel. While these reasons appeal to the sense of equity and justice, they do not seem to find support affirmatively stated in the treaty itself. That the propriety of these acts is implied by the treaty merits consideration, but implied rights have always been prolific of discussion and dissension.
In trying to understand just what the Submarine Treaty means, the first thing is, of course, to study the treaty itself. That seems to result in ambiguity, as there appears to be a contradiction between Articles
I and IV. The next place to look for light is then the exposition of the delegate whose resolutions resulted in the treaty, perhaps modified by other comment, question, and reply. That the writer has done, by studying the minutes of the committee on limitation of armament, of the Washington Conference.
Pertinent quotations have been extracted, in order that the reader may judge for himself. Some statements might seem incredible were the most authoritative references not at hand.
It should be noted that the numbering of the articles and paragraphs in the resolutions and the treaty do not coincide. Attention is particularly invited to this point in connection with comment that may be quoted or referred to, as a failure to note it will result in confusion. It is hoped that the parallel columns already given will assist a clear understanding.
Questions Arise. Senator Schanzer (Italian delegate) found it difficult to separate the first from the second resolution, “which definitely prohibited the use of submarines for the destruction of merchant craft. The first resolution, on the contrary, admitted, in determined cases the destruction of merchant craft after certain provisions had been observed. He would therefore like to know in what way the second resolution tallied with the first.’’ (326.)
“In the second place, Senator Schanzer believed that it might be useful to give a clear definition of merchant craft in order to make them recognizable, and to establish plainly in which cases a submarine should abstain from attacking a ship and in which cases, on the contrary, attack was to be admitted, as, for example, in the case of a merchantman regularly armed or of a privateer.” (327.)
Mr. Borden (Canadian delegate) stated that he understood Mr. Root to have stated in article one what were the existing rules, and that article two “was intended to mark a notable and most desirable advance on the existing rule.” (327.)
Inconsistency Admitted. Mr. Root said that Senator Schanzer had asked some questions to which he would reply.
First as to the agreement of Article I, of the resolutions now before the committee, with the second article relative to the prohibition of making use of submarines as commerce destroyers, which Senator Schanzer deemed inconsistent with Article I.
Article I was a statement of existing law; Article II if adopted, [author’s italics] would constitute a change from existing law and therefore it was impossible to say that it was not inconsistent. If it were not inconsistent, there would be no change. Article II could not be consistent with Article I and still make a change. (328.)
Senator Schanzer had also suggested that Resolution I be completed by including the definition of a “merchant ship”. Throughout all the long history of international law no term had been better understood than the term “merchant ship.” (328.)
[Later on] Mr. Root said that he had omitted in answering Senator Schanzer’s very discriminating question regarding the relations between Articles I and II to say that, of course, if the second article were adopted by all the world, it would supercede Article I. This, however, would be a long slow process and during the interval the law as it stood must apply until an agreement was reached. Article I also explained in authorized form the existing law and could be brought forward when the public asked what changes were proposed. In proposing a change, he said, it was necessary to make clear what the existing law was. It was very necessary to link this authoritative statement in Article I with the new principle proposed in Article II. (332.)
"Sir John Salmond (Canadian delegate), said that while not doubting the substantial accuracy of the resolutions .... the resolutions ... . as they stood were not free from ambiguities and formal defects .... he thought opportunity should be given for verbal amendments. For example: Paragraph 3 of rule I stated that a merchant vessel must not be destroyed unless the crew and passengers had first been placed in safety. Was this intended to give absolute immunity to the merchant ship from attack unless the crew and passengers had been first placed in safety? Was this intended to give absolute immunity to the merchant ship from attack unless the crew and passengers were first placed in safety even although the ship had refused to stop on being warned? Read literally this would be the effect of the rule. Secondly, the relation between resolutions I and II did not appear in the text and a verbal explanation by Mr. Root was necessary to explain it. While therefore he was in absolute agreement with the substance of Mr. Root’s resolutions, he thought there was no haste which would justify the committee not being given opportunity for the examination and formal amendment of these resolutions.” (332.)
It would be interesting to have an authoritative answer to these questions, so pertinent from the standpoint of a naval officer. But the minutes show that at this point Senator Lodge (United States delegate), without attempting to answer the questions, proceeded with a statement the gist of which was contained in these words:
“The committee could easily take care of the amendments suggested by Mr. Salmond. The delegates were here to settle a policy and must do so.” Senator Lodge’s statement breathed a certain impatience at delay by such questions.
Senator Schanzer, after a diplomatic preamble expressing sympathy with Mr. Root’s proposals, stated:
That his observations had not been useless was shown by the explanation that Mr. Root had been kind enough to give him, and for which he thanked him. He had asked to know in what way Resolution II was to be understood, in respect to Resolution I. In fact, the systems contemplated in the first and second resolutions could exist at the same time. (335.)
The context seems clearly to indicate that the minutes are in error here, and that the word "not” should appear before “exist” in the preceding sentence. This is made particularly apparent as Senator Schanzer elaborates his observation in the following paragraph.
Resolution I declared an existing law regarding submarine warfare, which admitted in certain cases and subject to certain observances, even the destruction of merchant ships. Resolution II condemned in the most absolute way the use of submarines for the destruction of merchant ships. Mr. Root had now explained that Resolution II represented a new and subsequent phase to which things must tend. He felt this ought to be more clearly expressed in the wording of the resolution. .... (335 )
Mr. Balfour (British delegate) expressed sympathy with the resolutions. His speech contained the frankly significant words:
The members of that delegation would have preferred that the document itself should have been rendered unnecessary by the abolition of submarines. Since they had not been able to carry out this policy, however, Mr. Root’s resolution provided them with an alternative. If they could not hold their first line of defense, they had at least a second line to fall back on, for in Mr. Root’s document the abuse of submarines had been unsparingly dealt with. (338.)
Finally the first resolution was adopted in principle by the committee, subject to reference to a drafting committee that would “consider the form of expression and such verbal changes as might be deemed advisable.” (341.)
At a subsequent meeting of the committee Mr. Root’s original first resolution came from the drafting committee as two resolutions, I and II.
It will be noted that these two resolutions, which are really Mr. Root’s one original first resolution, ultimately became Articles I and II of the treaty. To avoid confusion, it must be noted, however, that in the discussion preceding their adoption, the reference to “articles” was really to “paragraphs” of what finally was Article I of the treaty, and the reference to “paragraphs” meant the unnumbered small paragraphs in the paragraph numbered one. The context shows this if closely read.
Italian Reservations. Before these resolutions were accepted:
Mr. Root stated .... that Senator Schanzer had requested that the following entries be made in the minutes of the sub-committee:
“It is declared that the meaning of article 2 is as follows: Submarines have the same obligations and the same rights as surface craft.”
And: “with regard to the third paragraph of article I, it is understood that a distinction is made between the deliberate destruction of a merchant vessel and the destruction which may result from a lawful attack in accordance with the rules of the second paragraph. If a war vessel under the circumstances described in paragraph 2 of article I lawfully attacks a merchant vessel, it cannot be held that the war vessel, before attacking, should put the crew and passengers of the merchant vessel in safety.” (364-)
In voting upon the acceptance of these resolutions:
Senator Schanzer stated that the Italian delegation accepted Resolution I but that, so far as they were concerned, the application of the resolution was subject to the two statements made by him in the subcommittee as entered on the minutes of the first meeting (December 31, 1921) of the subcommittee of five on drafting, and as just read by Mr. Root. (365.)
Resolutions I and II were adopted, and became Articles I and II of the treaty.
Not to be Immediately Binding. When the chairman of the committee, Secretary Hughes, introduced Mr. Root’s original second resolution for consideration, Mr. Hughes spoke as follows in discussing that resolution. In mentioning first or second resolutions he referred to original first or second resolutions.
As Mr. Root had explained, this was a proposition to change the law. The first resolution attempted to state the law, the law which had been ignored and which had been trampled under foot, but which nevertheless had been and still was regarded as international law. This resolution fundamentally recognized, however, the practical impossibility of using submarines as commerce destroyers without violating the requirements universally accepted by civilized nations for the protection of neutrals and noncombatants. He assumed the resolution to mean that, while the rules of war were as stated in the first resolution—at least in substance—and while it was the sense of the powers there represented that they should be adhered to and clearly understood, the civilized world should be asked to outlaw the submarine as a weapon against commerce. (341.)
The point had been made that morning that there might be question in* regard to the assent of the powers here represented to the prohibition, i.e., in relation to the last words of the resolution, which provided that the powers here represented were to invite all other nations to adhere. He supposed that this meant that, if the prohibition should receive the assent of the powers here represented, they adopted it in the hope that it would be made a part of international law upon the adherence of all other powers—not that it would become binding upon the powers here represented, if it did not become a part of international law, and if others by their refusal to assent prevented it from becoming a general principle. He assumed that the intention of the resolution was not that these powers should try to make international law for themselves, which, of course, they could not do, but that they should use their influence to obtain the adherence of nations to a new rule of law outlawing the submarine as a destroyer of commerce. (342.)
Mr. Root said the chairman had correctly stated the sense of the closing words of the resolution; it was to the end that the prohibition of the use of submarines should be universally accepted. Two things were done in the resolutions. First a declaration was made, then an assertion. If a single nation were to lead with such a proposal, it might have no effect. It required universal assent to establish a law of nations. There was a difference between the second and first resolutions. The first was a declaration of existing law, and created nothing, merely certifying to what existed. The second resolution called for an act which did not take effect until assent had been received. (342.)
Mr. Balfour’s New Proposition.—Mr. Balfour said he would like to make a suggestion to Mr. Root. He understood Mr. Root’s view to be that the powers represented on this committee were only endeavoring to initiate a great reform of international law, by declaring their own view and pledging themselves to induce other nations if possible to support it. He desired to ask whether he could not go a little further? Why should not the five nations represented here agree themselves to act on the rule which Mr. Root proposed? .... Nothing could be better as an example than that the five states, instead of merely adopting a resolution which would be inoperative until generally adopted, should adopt immediately the principles which they desired eventually to see embodied in international law? .... (342.)
Mr. Root talked at some length with regard to Mr. Balfour’s proposal, but always sympathetically. In the course of his discussion:
He observed, speaking for himself, and without opportunity to consult the other members of the American delegation, or without intending to speak for them, that it would be entirely satisfactory as far as he was concerned to have such an addition to this second prohibition as Mr. Balfour had suggested. It was an addition providing for the five powers who were here and who would be bound as between each other, and he observed that he was sure that every power at the conference intended to shape its conduct in accordance with the rule proposed Now this was a proposal .... that .... saved the submarine for legitimate purposes and banned only the injurious use of submarines. It substituted a general prohibition for a detailed prohibition—the rule which they had just recognized in their action upon the first resolution (343-)
When the German submarines began torpedoing innocent merchant ships and when they had stopped them for the purpose of visit and search and had begun to place bombs in the hulls and blow up vessels, indignant protests were made. The German answer was that it was impossible to comply zuith the rules that had been made to govern the action of surface ships. There was an agreement upon that. Germany declared it to be impossible, and it was impossible. The submarines could not successfully carry on warfare against merchant ships and summon them in the ordinary way to stop for visit and search. [Author’s italics.] And when a vessel had been stopped for visit and search, the submarine could not put its crew and passengers in safety because the work was done while the submarine itself was in danger from which it could escape only by swift submersion Germany’s assertion that it was impossible for the submarine to war on merchant ships in accordance with these rules was well founded, and for one, the government of United States assented to it, agreed to it, admitted it. But they said the consequence was not that the rule failed, but that such warfare must end. (344)
Certainly naval officers cannot assent to all of the foregoing statement. And they are second to none in their condemnation of ruthless submarine warfare in violation of the laws of war, and of humanity. It is regrettable that an authoritative statement should have been made that gave any semblance of concurrence with the German defense of ruthless warfare. Naval officers know that such a defense is false. The rule existed. It was just as plain for submarines as for surface craft. The submarines were bound, as are surface craft, to keep within the prohibitions of the rules. When any desired operation could not be effected and still keep within the rule, the operation could not be legally undertaken, or completed. That was all there was to it, and all there is to it today.
Until the Submarine Treaty becomes effective, it is still a fact that in some cases a submarine may operate against commerce, both efficiently and legally, as every naval officer knows. (This was admitted by Mr. Hughes in his remarks yet to be quoted.) But this paper is primarily concerned with the attempt to understand just what the Submarine Treaty does mean. Secondarily, of course, one cannot help but draw conclusions as to concurrence in the correctness of the assumptions upon which it is based, as to its wisdom, and as to whether or not it is a radical departure from the previous policy of the United States, even as stated at the conference itself. Both the primary and secondary conclusions should have real value in the further consideration of the submarine question, which is so liable to be revived at the approaching limitation of armament conference.
Mr. Root continued:
There was no fact more firmly established than that all the temptations that beset a belligerent to gain its point at whatever cost would stand between the submarines and conformity with civilized procedure. The only way to secure the safety of innocent passengers and crews .... was to say that no belligerent should attack a merchant ship through an instrumentality which can not achieve the attack without violating the rule. It created a simple and forcible rule in the place of the complicated and detailed rules which were required by the weakness of human nature. Mr. Root said a forcible rule, because a rule that could be understood by the people (344)
Mr. Hughes, the chairman, among other remarks, stated:
The other proposal, which had been made by Mr. Balfour and accepted by Mr. Root, was that .... the five powers represented on the committee should bind themselves, as among themselves, not to use the submarine for the destruction of commerce So far as the American delegates were concerned there was.no doubt as to the approval of the policy. It was really a practical application of existing rules, as it was only in exceptional cases [Author’s italics] that submarines could operate successfully against commerce and the existence of the exceptional cases constituted an invitation and temptation to violation of the law (345)
“Mr. Balfour said the chairman had pointed out that the discussion had brought two propositions before us: First, the change in the international law proposed in (the original) Article II of Mr. Root’s resolutions, and second, the addition which he himself had suggested in that resolution whereby the powers represented on this committee would bind themselves immediately to accept and act upon the new policy as between themselves. He thought it would assist the consideration of this question if he were to give the exact words in which his own proposal should be formulated. He would amend the last part of Article II so as to read as follows:
They declare their assent to such prohibition, and they agree to be bound forthwith thereby as between themselves, and they invite all other nations to adhere to the present agreement.” (345.)
At a subsequent meeting, original Resolution II, now Resolution III, which was to become Article IV of the Treaty, came up for further discussion.
Further Questions Arise. “Lord Lee (British delegate) asked what was the precise meaning of the term ‘commerce destroyer?’ In a recent speech Mr. Root had said that the submarine was unfitted for attacks on commerce. He did not know if ‘commerce destroyer’ was a recognized legal term, or whether it included the processes of attack and seizure referred to in the first resolution.” (371.)
“Mr. Root said he believed it covered the whole process. [Author's italics.] He thought that ‘commerce destroyer’ was a perfectly well-known term.”
“Mr. Root said he thought that if the committee undertook to go into details of the process, it would find itself involved (371)
“Lord Lee said that it had been suggested by technical experts that in view of the paragraph in the first resolution in regard to putting passengers and crew in safety, the term ‘commerce destroyer’ would apply only to that. If there were any doubts, it was desirable that they should be cleared up.” (371)
Mr. Lodge supported Mr. Root’s view that the attempt to go from the general to the specific was inadvisable. He thought that “when one came to making catalogues one ran a great risk.” .... (371.)
The foregoing is of particular interest but little comfort to naval officers, in view of Article III of the treaty as finally adopted.
Mr. Hanihara (Japanese delegate) said he desired to be informed with respect to the exact meaning of the term ‘commerce destroyer.’ As he had already pointed out in a previous discussion, he believed that the words were intended to apply to vessels suitable for the destruction of merchant shipping. He said he thought it was also clear that merchant vessels engaged in giving military assistance to the enemy ceased, in fact, to be merchant vessels. There was, however, another point. It seemed apparent that, if the resolution were adopted, it excluded the use of submarines for purposes of blockade. It did not appear to him possible to use submarines for this purpose in conformity with rule 1. Mr. Hanihara then asked whether this interpretation was correct.” (3 72.)
Submarines Forbidden as Blockading Vessels." Mr. Root said he thought that the prohibition would apply to submarines attacking or seizing or capturing or destroying merchant vessels under any circumstances [Author’s italics] so long as the vessel remained a merchant vessel; he also thought it was necessary to have an effective prohibition, to have it so apply. It was merely a question of the use of words. Germany, for instance, declared a blockade of the whole British Channel. One could say ‘blockade,’ and the rule would disappear. (372.)
“Senator Schanzer said that he must decline, in the name of the Italian delegation, the above interpretation.” (372.)
Then followed discussion in which Senator Schanzer made it plain he believed that the use of submarines in blockade was not prohibited by the resolutions.(374)
Mr. Balfour pointed out at some length that this limitation on the prohibition would defeat the purpose of the resolution. (374.)
Finally “Senator Schanzer said the Italian delegation was inspired by a spirit of conciliation Submarines were military weapons and should be allowed the privileges of military weapons. They might even act in the same way as surface vessels. The entire question of blockade had been brought up by the Japanese delegate. If the Japanese delegate withdrew his objections and all the other delegates agreed, the Italian delegation would not prevent the common resolve being carried into effect.” (375.)
“Mr. Hanihara said that he had made his previous inquiry in order to be informed with respect to ‘commerce destroyers’ and the use of submarines for the purposes of blockade. He had not, however, intended to enter any objection to the prohibition of the use of submarines for blockade. (375.)
“The chairman (Mr. Hughes) said he understood that, in the light of the statement by Mr. Hanihara, Senator Schanzer would withdraw his suggestion as to the limitation of the prohibition, and he assumed the resolution would then be acceptable to all the powers represented on the committee.” (375-)
Resolution III, which is Article IV of the treaty, was then unanimously adopted. (375-)
Treaty Article III. At a subsequent meeting was considered original Resolution III now become Resolution IV, which was to become, as amended. Article III of the treaty.
Senator Schanzer proposed that the penalties should be made applicable not only to submarine personnel, but to that of surface craft as well. (378.)
Senator Pearce (Australia) suggested that the penalties should apply to the personnel of the ships of all powers, and not just to those of the signatory powers. (378.)
Sir John Salmond brought up the question as to whether these penalties were to apply to breaches of all the rules of the treaty, or only to those already recognized as international law, and stated as Article I of the treaty. He assumed that the penalties referred only to breach of rules stated in Article I. (379-)
With this Mr. Hughes and Mr. Root agreed, and as a result of this suggestion, it was decided to make the resolution under discussion immediately follow Articles I and II already adopted, and precede what had been adopted as Resolution III. (382-383.)
Accordingly Resolution IV was adopted as amended, and became Article III of the treaty.
Mr. Root’s subsequent remarks, when presenting the Submarine Treaty to a plenary session of the conference, at which it was adopted, do not throw additional light upon its specific interpretation.
Is the Submarine Treaty a Clear Guide for a Submarine Commander?
Mr. Bywater, as already quoted, has called the rules of the Submarine Treaty “to some extent contradictory.” (H.-28.)
Pearce Higgins, referring to this treaty, says:
The ambiguity of the term "commerce destroyer” weakens the force of the declaration of the signatory powers...................................... (K-628.)
The Submarine Treaty embraces two articles that are admittedly inconsistent. Senator Root and Mr. Hughes, in the clearest terms, stated that Resolution Article I, which finally became Article I of the treaty, and Resolution Article II, which finally became Article IV of the treaty, were inconsistent. To quote Senator Root again:
Article I was a statement of existing law; Article II if adopted, would constitute a change from existing law and therefore it was impossible to say that it was not inconsistent. If it were not inconsistent, there would be no change. Article II could not be consistent with Article I and still make a change. (328.)
Later on “Mr. Root said that he had omitted in answering Senator Schanzer’s very discriminating question regarding the relations between Articles I and II to say that, of course, if the second article were adopted by all the world, it would supersede Article I. (332.)
Senator Root and Mr. Hughes both made it clear that Senator Root’s Resolution Article I stated international law as it is, and Article II stated it as they wanted it to be. Also that Article II, as then contemplated by them, was to be merely a recommendation, which they hoped all the world would approve. When that future universal approval had been obtained, it was contemplated that—by further definite action— Article II was to be made a part of international law, and then be binding. (342.)
But Mr. Balfour injected a new proposition. He suggested that Resolution Article II (ultimately treaty Article IV) should be immediately adopted by the signatory powers. As a result of Mr. Balfour’s suggestion the signatory powers finally signed the treaty with Article IV including the following words: .... they now accept that prohibition as henceforth binding as between themselves [Author’s italics] and they invite all other nations to adhere thereto. (888.)
In accomplishing that, British diplomacy obtained a generous half of the loaf of complete abolition of submarines it1 had previously been denied.
It seems that the full significance of this immediate adherence by the signatories was not appreciated by all. In the light of previous explanations by Senator Root and Mr. Hughes Articles I and IV were now inconsistent.
Having the highest authority for the statement that inconsistency exists between two articles of the treaty, it seems to follow that the treaty cannot be a clear guide as it stands. No matter how clear each separate article of the treaty might be, the treaty as a whole cannot be a clear guide if any of those articles are irreconcilable with each other.
Sir John Salmond (Canadian delegate), hit the nail on the head, when he said: .... the resolutions as they stood were not free from ambiguities and formal defects
Secondly, the relation between Resolutions I and II did not appear in the text and a verbal explanation by Mr. Root was necessary to explain it. (332-)
But this explanation by Mr. Root was not put into the text of the treaty. Nor was the text accompanied by any official explanatory declaration or statute to clear up the various ambiguities that inspired the questions, largely unanswered, propounded by the various delegates, namely: Senator Schanzer, Sir John Salmond, Lord Lee, and Mr. Hanihara.
Is it not too much to expect that the average submarine commander will have Made a detailed analytical study of the proceedings which resulted in the adoption of the treaty? Can a submarine commander be expected to know the answer to questions that the delegates just named found it necessary to ask, particularly when some of their questions have never been answered?
Opposition to Clarifying Treaty? There appeared to be some antipathy to an attempt to clarify this treaty. It will be remembered that when Lord Lee asked for “the precise meaning of the term ‘commerce destroyer’ ” he was not completely answered.
Mr. Root said he “thought that if the committee undertook to go into the details of the processes, it would find itself involved in statements which were neither clear nor intelligible to the common mind, etc ” (371)
Senator Lodge “thought that when one came to making catalogues one ran a great risk, etc. . . .” (371.)
In this connection one of the twelve Resolutions of the Washington Conference is of special interest. It will be recalled that No. 1 was a “Resolution For a Commission of Jurists to Consider Amendment of Laws of War.” (902.)
No. 2, read as follows:
Resolution Limiting Jurisprudence of Commission of Jurists Provided in Resolution I.
Resolved, That it is not the intention of the powers agreeing to the appointment of a commission to consider and report upon the rules of international law respecting new agencies of warfare that the commission shall review or report upon the rules or declarations relating to submarines or the use of noxious gases and chemicals already adopted by the powers in this conference.
Adopted by the Conference on the Limitation of Armament at the Sixth Plenary Session, February 4, 1922. (902.)
From the foregoing considerations it appears that:
- The Submarine Treaty contains inconsistent articles.
- It contains the term “commerce destroyer,” which is undefined, and therefore ambiguous.
- The treaty is not, as it stands, a clear guide for a submarine commander.
What did the Submarine Treaty Finally Stipulate?
Notwithstanding that the Submarine Treaty itself is not a clear guide as it stands, from a study of its evolution, and the explanations given by its proponent, statement scan be made in certain respects as to what it means. In attempting to set forth what the treaty, as illuminated by questions and explanations, does mean, the writer is endeavoring to be uninfluenced by what he thinks the treaty ought to stipulate.
Article I. This article is a statement of international law as it is, as declared by the signatory powers.
Even though the treaty is not in effect, this article, declaratory of existing international law, is effective, and binding upon all. This is a principle well recognized by international lawyers, and but two authorities will be cited.
Referring to the Hague Conventions of 1907, which were revisions of those of 1899, Professor Garner writes:
Nevertheless, insofar as their provisions are merely declaratory of the existing laws and customs of war, they were of course binding independently of the status of the conventions of which they were a part. It was only those provisions which stipulated for the introduction of new rules that were not binding. (M-20.)
.... Professor Zitelman of the University of Bonn, who, speaking of the binding effect of the customary rules of law which have been expressly embodied in non-ratified international conventions, remarks that the formal non-validity of such conventions “is scarcely of importance.” “For in large measure,” he adds, "it was not intended by the conventions to make new law, but rather to formulate the existing law, deciding at the same time questions in dispute and adding improvements. The formal non-validity of a convention is, therefore, no proof that its contents are not valid law, just the same. A rule is not to be considered invalid because it is formulated in a convention which itself is not formally recognized as in force.” Nevertheless, he maintained, and very properly, that none of the conventions of 1907, insofar as their provisions were not declaratory of the existing customary law, had any formal validity or binding force (M-23-24.)
While Article I has present and general application, that statement is subject to one very important qualification. That qualification follows as a result of Article IV.
Article I is binding upon all nations, but in so far as it implies any rights that are inconsistent with Article IV, it cannot, once the treaty is effective, give any such rights to any of the signatory nations.
The reason is that the signatory nations have signed the treaty, that the treaty includes Article IV, that Article IV is inconsistent with Article I, which it changes, as clearly stated by Messrs. Root and Hughes.
The following comment applies to Article I in its application prior to the coming into effect of the treaty; after that, in its application to non-signatory powers only. Presumably the clause of Article I which reads:
A merchant vessel must not be attacked unless it refuse to submit to visit and search after warning, or to proceed as directed after seizure, implies the same rights as are given affirmatively by Article 45 of U. S. Navy Instructions Governing Maritime Warfare, which reads as follows:
If the summoned vessel resists or takes to flight she may be pursued and brought to, by forcible measures, if necessary. (N-21.)
Paragraph 2 of Article I was declared by the Italian reservations, which without objection were made a part of the record of the conference, to mean:
Submarines have the same obligations and the same rights as surface craft. (364.)
This reservation was apparently for the benefit of Italy only, but such special benefit as it may have been was lost to Italy when that nation signed the treaty including Article IV. Italy then stood upon the same plane as the other signatories.
To repeat, once the Submarine Treaty becomes effective, the implied rights of submarines of enforcing the right of visit and search of merchant vessels, granted by Article I are denied to all the signatory powers. These rights will, however, still exist for non-signatory powers.
It is hardly necessary to invite attention to the tremendous restriction in the use of submarines by signatory powers which this constitutes.
Article II. No comment.
Article III. This article was made Article III of the treaty, so that it would immediately follow Article I and II and indicate that the penalties specified were only for breaches of rules already recognized as international law, as specified in Article I. Article III does not, therefore, apply to breaches of Article IV. This point was clearly brought out in the proceedings, but is not clear from the treaty itself. (382-383-)
Two other points were brought out clearly, which a reading of the article itself would also show. The penalties are applicable to “any person in the service of any power.” That is, they are not restricted to submarine personnel, or to sea craft personnel, for that matter. Nor are the penalties restricted to the personnel of the signatory powers, but are applicable to those of any power. This is an interesting extension of penalties to persons not in the general legal sense under the authority of the powers that purport to declare these penalties.
This article has in it the seed of as much trouble as that stormy petrel of maritime warfare, blockade. The reason is to be found in the last two lines, that an offender “may be brought to trial before the civil or military authorities of any power within the jurisdiction of which he may be found.” For countries that are die-hards in yielding extra-territoriality in China, and that fought yielding the stipulations in Turkey, this is a large new concession of sovereignty over their nationals to be granted by the signatories to any and all nations under conditions that cannot be clearly foreseen.
Upon its face this concession appears reasonable. If any person does violate the laws of common humanity and customs of naval warfare as set forth in Article I there can be no dissent with the proposition that he is bad as a pirate, and deserves the same fate. But the rub comes in the practical application of the rule. Who is to decide when there has been such a violation? Apparently the civil or military authorities of any country. They are given jurisdiction to try such offenders, and presumably will also decide as to whether an offense has been committed. Now the minds of the public in any country, including even the authorities and not excepting the judiciary, are in time of war not as unbiased as they are in time of peace. This is simply a fact of human nature.
At present there is no general concession of right of punishment comparable to this Article III except in the case of piracy or the slave trade. But in those cases the trials will not be wartime trials. The cases would not be tried in a wartime atmosphere, highly charged with feeling, perhaps, even in neutral countries, as the result of exasperation engendered by blockade and seizure of contraband, or alleged contraband. This is a distinct new jeopardy into which the article would precipitate the naval personnel of the signatory powers. And of other powers as well, if they concede the right of the signatories to make such an international statute, a right which seems questionable.
It should be remembered that a reading of the treaty itself does not make it clear that the penalties of Article III are not to be applied under Article IV. And Article IV is not entirely clear.
As the treaty stands, the most comprehensive rights of life and death over their naval personnel are conceded by the signatories to the officials of any country, in the heat of war, under the authority of a treaty containing inconsistent and ambiguous articles, and defying interpretation even by the eminent statesmen who signed it.
Article IV. Under Article I has already been discussed the fact that Article IV changes and transcends Article I for the signatories as soon as the treaty shall become effective.
Article IV as it stands could provoke endless arguments. For anyone to attempt to interpret exactly what this article means would be presumption indeed. We have already seen that a considerable number of the delegates sought light upon it which they were never vouchsafed. But there it stands, and under it, befogged as it is, any country in time of war, has the right, so far as this treaty indicates, to bring any person to trial subject to the penalties of Article III. They really haven’t that right, as the proceedings show when the treaty was evolved, but so far as can be seen from the treaty itself they have that right. It is too much to expect that the proceedings of the Washington Conference will have been minutely studied by every official, who under this treaty, may have the power of life or death over some poor sailor who was only trying to do his duty.
While there is a good deal of fog as to just what Article IV does involve, some points seem to stand out fairly clearly.
Senator Root said that Article IV “substituted a general prohibition for a detailed prohibition .... that contained in Article II (343-)
In reply to questions as to the meaning of Article IV it will be remembered that Senators Root and Lodge did not wish to attempt to be specific for fear of becoming involved. At least they ran no risk of becoming involved in the noose which threatens their own naval personnel if the latter’s interpretation becomes involved and unsatisfactory to the no less involved official of any country.
Mr. Hanihara (Japanese delegate) in asking about the meaning of the term “commerce destroyer” did not receive much information. He made some very important observations, however. He said that he “thought it was also clear that merchant vessels engaged in giving military assistance to the enemy ceased, in fact, to be merchant vessels.” (372.)
Any vessel engaged in unneutral service or carrying contraband would in reality be assisting the enemy, as well as vessels directly and actively transporting troops or engaging in military operations. These points contribute to the formation of the fog about Article IV.
Mr. Hanihara said “It seemed apparent that, if the resolution (finally treaty article IV) were adopted, it excluded the use of submarines for purpose of blockade. It did not appear possible to him to use submarines for this purpose in conformity with rule I. Mr. Hanihara then asked if this interpretation were correct.” (372.)
Mr. Root said he thought “that the prohibition would apply to submarines attacking or seizing or capturing or destroying merchant vessels under any circumstances so long as the vessel remained a merchant vessel; he also thought it was necessary to have an effective prohibition to have it so apply. . . .” (372.)
Senator Schanzer temporarily dissented, but finally Article IV was adopted with general assent that submarines were thereby debarred from use for blockade.
Two very significant statements, taken together, in their joint effect, are especially worthy of note, and at the risk of repetition, attention is again invited to them. Mr. Hanihara thought it “clear that merchant vessels engaged in giving military assistance to the enemy ceased in fact to be merchant vessels.” Senator Root thought the prohibition of Article IV applied “under any circumstances so long as the vessel remained a merchant vessel.” (372.)
Where does this take us?
In the light of these comments, as given at the conference by the treaty makers, Article IV would seem to mean:
First, that submarines are debarred from use in blockade.
Second, that submarines are debarred from attacking, seizing, capturing, or destroying merchant vessels that are not engaged in giving military assistance to the enemy.
The big question remaining, as a result of this article, is this:
When does a merchant ship, by reason of its giving military assistance to the enemy, cease to retain its innocent character as a merchant ship ? Or, more particularly, what acts shall constitute giving military assistance to the enemy? Many such acts clearly would fall within the prohibition, but there is a wide nebulous zone in which opinions would honestly differ.
A whole gamut of questions arises. It is true, that by Article IV it has been made difficult for a submarine to obtain information of a merchant ship that would throw light upon its true character as an innocent merchantman or a virtual warcraft. But assuming the information be obtained, what effect upon the character of a merchant ship would the following conditions have? Would the merchant ship be sufficiently aiding the enemy to be considered legitimately within the province of the operations of a submarine under Article IV?
- Carrying a few soldiers?
- Using the radio to help the enemy?
- Under the enemy’s orders?
- Chartered by the enemy?
- Owned by the enemy but doing strictly merchantman service?
- Attempting to avoid visit and search?
- Carrying irregular papers or no papers ?
- Carrying contraband?
- Breaking blockade?
- Under enemy convoy?
- Armed?
- A privateer?
The conundrum therefore is, when is a merchant ship not a merchant ship?
Under existing international law the effect of the foregoing conditions is understood. As a result of many years of experience, illuminated by numerous decisions, the rules have been formulated, and universally recognized. The rules were applicable to submarines, and still are. Inherently, the observance of the well and long-established rules would act to some extent in limitation of submarines. To that no exception could be taken, for certainly there should be no retrogression in observing the laws of war and of common humanity. Insofar as submarines, by the limitations of their size, or build, or other inherent qualities, could not operate against merchant ships or any other craft with the same careful observance of the laws of war as surface craft, so much were they thereby debarred from operations. Their limitations are inherent ones.
But when an attempt is made to change international law, no matter how well intentioned, in a subject as complicated as maritime warfare, it gives rise to many legitimate questions. Many perplexities must be resolved before the new order of things can work as smoothly as the old. The difficulty in connection with ruthless submarine war was simply that the rules were disregarded. Making new rules will not obviate that difficulty. Making new rules will increase that difficulty, for new rules will be less well understood than the old ones. If the old rules had been honestly observed, as they were by all countries but one, which proves they can be respected, there would never have been any question of attempting to limit the operations of submarines. Breach of law does not require new law, but deterrents against the breach. The final results of the last war are hardly such as to encourage any other country in the future to emulate the example of the one outlaw in submarine warfare.
What Effect Would the Submarine
Treaty Have if it Were in Force?
Assuming that the treaty has been correctly interpreted as far as possible as a result of the study of its evolution, some of the results of its being in force would probably be as follows:
In their policy of submarine building, the signatory powers would take cognizance of the new limitation of the use of submarines as provided by the treaty. Specifically, since the right of submarines to attack is for the signatory powers by the treaty limited to war craft, (or to other vessels that have by their acts assumed the liabilities of war craft), the faster type of submarines would be the ones most needed. Of course auxiliary war craft such as tenders, transports, fuel vessels, and supply craft are no faster than merchant craft, which they essentially are in structure and speed, and would still
furnish objectives for the slower types of submarines.
Theoretically, at least. Article IV does not take away the right of submarines to visit and search merchant vessels, as only by such procedure could their innocent character be determined. But the right of visit and search is a wan and pale one, devoid of the right to use force, apparently, unless it is positively known that the vessel concerned is giving or has given military assistance to the enemy. Plainly, it will be difficult for the submarine to know this without visiting and searching. In a word, this theoretical right is like all other rights that carry with them no enforcing provisions. It is no right at all for practical purposes.
There would undoubtedly be many curious effects of this treaty that cannot now be foreseen, as ingenuity developed them under the stress of war. For example, one of the most useful types of scouts would be one that was converted from a merchant craft, or was built to look like a merchant craft. Assuming that the treaty was respected, they would enjoy a peculiar immunity in that no submarine would dare attack them, unless the submarine had the most conclusive evidence that they were war craft.
Submarines could, under the treaty, attack war craft, and could accompany the fleet for that purpose. So far, experience in naval warfare has not shown that submarines actually fill a useful role in a fleet engagement. Theoretically they could, however, and in the future, with swift fleet submarines in existence, no doubt will.
Submarines could still be used for scouting, and for that duty for which they are preeminently fitted, patrol duty. However, in this duty they would find their possibilities for usefulness seriously limited, so much so as very largely to nullify their value. They could, it is true, observe, and report their observations. But these observations could not include that extensive class of observations that can only follow when a vessel has the right of visit and search, and the long-established right of attack of a merchant vessel that resists or flees from attempted visit and search. It is not contended that a submarine would supinely have to permit any vessel to resist it forcibly when the submarine attempted a visit. But if the Submarine Treaty means anything at all, it means that a submarine would have to let a merchantman run away from the submarine’s attempted visit, without any attack by the submarine. That is the reason that the delegates decided that the submarine could not be used for blockade duty, for it led either to a violation of the treaty or to an absurdity.
At the risk of repetition, another probable effect of the treaty will be mentioned. Article III, with its new and apparently all- comprehensive jurisdiction for any country to try naval personnel of any country under a treaty that is by no means comprehensible as it stands, is full of the seeds of trouble, leading to reprisals and the involvement of other countries in the war. There will be many questions that are difficult of solution by men of honest intentions and clear, and educated minds, even with treaties as clear as men can make them. But consider the possibilities, with a foggy treaty, embracing new principles, adjudicated by the authorities of a none too enlightened country, which may be laboring under undue influence, or exasperated by the unpleasant jabs of a war on maritime commerce that really includes neutrals in its lists of victims ! And it should be borne in mind that the signatories by this treaty expose their naval personnel to this entirely new kind of jeopardy, and their countries to this new kind of entanglements and difficulties. The troublous questions brought up by blockade would seem to be enough without adding to them.
Does the Submarine Treaty Accord with the Submarine Policy of the United States?
We have seen that the Submarine Treaty limits the operations of submarines to war craft, or vessels having the liabilities of war craft. That it prohibits the use of submarines in blockade. That it prohibits “submarines attacking or seizing or capturing or destroying merchant vessels under any circumstances so long as the vessel remained a merchant vessel.” (372.) This protection is somewhat nebulously thrown about both enemy and neutral merchant vessels, presumably whether they be carrying contraband or not. "We have seen all this as a result of study of the evolution of the treaty, as set forth in the minutes of the proceedings of the conference.
But more important, if possible, than the foregoing, we have seen that the treaty as it stands is not clear, that it contains admittedly inconsistent articles. We have seen that even a careful study of its evolution, and a consideration of all the questions and answers that accompanied its making, does not entirely clear up the questions that it inspires.
We have seen that the treaty yields our citizens to the judgment of the authorities of any country in time of war, to be tried for their lives under this treaty that contains admittedly inconsistent articles.
We have seen that the advisory committee of the American delegation at the Washington Conference, created, as Mr. Hughes said, “in order that the American delegates might be advised as to public opinion,” advised that delegation as follows:
Unlimited submarine warfare should be abolished. Laws should be drawn up prescribing the methods of procedure of submarines against merchant vessels both neutral and belligerent. These rules should accord with the rules observed by surface craft If the submarine is. Required to operate under the same rules as combatant surface vessels no objection can be raised to its use against merchant vessels
The submarine as a man-of-war has a very vital part to play. It has come to stay
As a scout the submarine has great possibilities—it is the one type of vessel able to proceed unsupported into distant enemy waters and maintain itself to observe and report enemy movements Here again the submarine has come to stay—it has great value, a legitimate use, and no nation can decry its employment in this fashion.
.... The retention of a large submarine force may at some future time result in the United States holding its outlying possessions. If these colonies once fall the expenditure of men necessary to recapture them will be tremendous and may result in a drawn war which would really be a United States defeat. The United States needs a large submarine force to protect its interests.
The committee is therefore of the opinion that unlimited warfare by submarines on commerce should be outlawed. The right of visit and search must be exercised by submarines under the same rules as for surface vessels. It does not approve limitation in size of submarines. (813.)
The provisions of the Submarine Treaty are not consistent with the advice of the advisory committee. If we recognize that the advisory committee, chosen by the President to advise the American delegation “as to public opinion,” did truly hold a mandate from the American people, then the conclusion must follow that the Submarine Treaty is not in accord with the submarine policy of the United States to accomplish. It obtained the abolition of the use of submarines by the signatory powers in all operations against merchant ships, if and when the treaty becomes effective. This abolition includes not only illegitimate operations, but those that until the making of this treaty were admitted by all to be legitimate.
Therein may lie the reason why the Submarine Treaty is the only one of the Washington Conference treaties not yet ratified by all the signatories. But whether it is ever to be fully ratified and made effective, we may be sure that the question of submarines and their uses will again arise. And if this treaty be not ratified, the surer will the question of submarines be again brought up for action.
The submarine’s legitimate field of usefulness should be preserved. The safety of United States citizens should not be wantonly jeopardized. Foreign entanglements should be avoided.
Therefore the problem of the submarine should be carefully considered. The policy of the United States in that connection if there is to be a change, should be determined in advance. If the United States, for what may seem good reasons, is to yield something, it should be a considered and intentional act. Careful advance consideration should be given. Any treaty to which the United States sets its hand should be clear and consistent, with its implications fully understood at the time, and in accord with the wishes of the citizens of the United States.
It is well that the Submarine Treaty as now written is not in effect. In not ratifying that treaty France has done a service to the United States, and to the world at large.
Conclusion Because the Submarine Treaty was signed by five countries, it cannot be concluded that each of those countries thought the treaty was clear and consistent. In fact, in default of a treaty clearly abolishing the submarine completely, a treaty that somewhat limited the submarine, was acceptable to any country desiring the submarine’s abolition.
From the standpoint of such a country, if the limitation were not absolutely clearly defined, this was a virtue rather than a fault. The treaty would limit the submarine some, certainly, and just as far as the treaty’s interpretation could be made to extend.
Already the United State has seen its naval armament limited not only by what a treaty stipulated, but also by what another signatory said the treaty stipulated although the United States did not agree in that interpretation. This reference is of course to the question of battleship turret gun elevations. Apparently the United States is so sensitive to the rights of others that it accepts not only the limitations of a treaty, but also the limitations of an unacceptable interpretation. This being so, the United States should not bind itself by any treaty that is not clear, least of all by one that embodies frankly inconsistent articles.
Once more Great Britain showed the quality of its diplomacy. It had proposed the abolition of the Submarine. In that it was thwarted. Then by a flank movement, but an open and a fair one, it obtained a great deal that its frontal attack had failed
Appendix
List of References.
Reference
Letter Book or Document
A Senate Document No. 126. 67th Congress 2d Session 1921-1922. Conference on the Limitation of Armament. Government Printing Office, Washington, 1922.
B “Navy Yearbook 1920 and 1921." Senate Document No. 428, 66th Congress, 3d Session.
Washington, Government Printing Office, 1922. i
C "Annual Reports of the Navy Department” 1922. Washington, Government Printing Office, 1923.
D Pamphlet No. 69. “Report of a Special Board appointed by the Secretary of the Navy With Reference to the Upkeep of the Navy In Its Various Branches." Navy Department, Washington, file 3809-1237, dated 17 January, 1925.
(Continued on page 126)
[1] Reference to authorities for quotations or statements is made by a reference group in parenthesis. The list of authorities will be found in the appendix, each with its distinguishing letter. A reference group will therefore indicate the authority by a letter, and the page of that authority by a number. For example, (B-123) would refer the reader to authority B, page 123. As by far the largest number of references will be made to authority A, in that single case, the letter will be omitted. Therefore a reference group consisting of a number only will refer to a page of authority A.