Your Excellency,
I have the honour, under the instructions of His Majesty's Principal Secretary of State for Foreign Affairs, to refer to the Memorandum handed to me by His Excellency the Vice-Minister for Foreign Affairs on January 22nd regarding the case of the "Asama Maru."
2\. In that Memorandum the Imperial Japanese Government state that they cannot but regard the action of His Majesty's Government in the United Kingdom as a serious unfriendly act against Japan and therefore they attach the greatest importance to the affair. His Majesty's Government profoundly regret the interpretation put upon their action by the Imperial
Japanese Government and avail themselves of this opportunity to state that there was no unfriendly action whatsoever in the exercise of their right as a belligerent to stop and search neutral shipping at sea. The exercise of this right does not in the view of His Majesty's Government imply any slight upon the honour or national dignity of the neutral State involved and this has been amply demonstrated in the present and in preceding wars. The fact that the stoppage of the "Asama Maru" took place where it did was dictated solely by the necessities of the particular situation. His Majesty's Government greatly regret, however, that the present incident, occurring as it did so close to the capital, should have aroused such profound resentment in Japan.
3\. The facts of this case are as follows.
His Majesty's Government in the United Kingdom are aware that the German Government are making an organized attempt to secure the return to Germany of German mercantile marine officers and men from America. So anxious are the German Government to obtain the service of these men that they are being dispatched by the long and expensive route across the Pacific via Japan and Siberia. It will not be suggested that the German Government would have devoted part of their scanty supplies of foreign exchange to so expensive an operation if the object of the return of these men was not to enable their services to be employed for military operations. As almost the entire German mercantile fleet is laid up in port it is obvious that the object with which the German Government have arranged the journey of these men cannot have been that they should be employed in merchant ships and that they are intended for service in the German Navy, for which their special training, particularly in the case of officers and technical ratings, renders them particularly suitable. His Majesty's Government are aware of at least four parties of these men who were due to leave America in this way almost simultaneously. The first of these parties consisted of one, about 50 in number, which sailed on the "Asama Maru." This ship was as stated in the Japanese Memorandum, stopped on the high seas by a British man-of-war and, of the 50 Germans on board, 13 officers and 8 technical ratings were removed; the remainder, who though trained seamen did not possess the special qualifications of the officers and technical ratings, were allowed to proceed on their voyage.
4\. It is this action of which the Imperial Japanese Government contest the legality. They do not, as His Majesty's Government understand their position, dispute the legitimacy of the exercise of the right of visit and search by a belligerent warship on the high seas; they do not dispute that certain categories of enemy nationals may legitimately be removed from a neutral vessel, but they contend that the persons removed in the present case do not fall within the categories in question. This is accordingly the only legal issue between the two Governments to which the present case give rise.
5\. Paragraph 2 of the Japanese Memorandum states that "The Imperial Government in accordance with the universally recognised usage have adhered to the principle that the subjects of one belligerent Power, whose delivery a second belligerent Power may demand on the high seas, are restricted to those actually embodied in the armed forces." The Japanese
Memorandum does not quote any authority to support what is stated to be the "universally recognised usage" but when handing the Memorandum to me His Excellency the Vice-Minister for Foreign Affairs stated that Article 47 of the Declaration of London constituted the basis for the Japanese Prize instructions.
6\. The Declaration of London never having come into force is not binding on any State and cannot be relied on against His Majesty's Government as an authority. But in any case it cannot be argued that Article 47 of the Declaration is the origin of the right to remove enemy nationals from neutral ships. Leaving out of account cases in which the carriage of enemy nationals by a neutral ship renders the ship liable to capture and condemnation, there has existed for centuries a practice of taking enemy nationals out of a neutral ship without Prize proceedings being taken. That this is so is shown by the fact that a series of treaties were entered into, beginning in the Seventeenth Century and running on till the middle of the Nineteenth, which provided that enemy nationals should not be removed from neutral ships unless they were, to quote a phrase which occurs in several of these treaties, "military persons and effectively in the service of the enemy." It will not be disputed that the object of these treaties was to limit the exercise of an existing right or practice, not to create a new one, and the basis of the practice and of its limitation by the treaties in question was clearly the right of a belligerent to remove individuals the object of whose voyage was to take their place in the enemy ranks, the case of the carriage of an actual detachment of enemy forces being already covered by the right to capture the ship in such a case. At the time when the phrase quoted above was first adopted in the treaties in question, European wars were fought by comparatively small armies of professional soldiers and in such circumstances the phrase in question was perfectly apt as a definition of the category of persons who might reasonably be removed. But under modern conditions, where conscription laws impose a liability to military or naval service on all able-bodied males, it is obvious that a right to remove "military persons" would be illusory if it did not cover individuals who, though not on the peacetime strength of their country's armed forces, are under a legal liability to serve and are actually on their way to take their place in the ranks. Such persons are precisely those who are likely to be found travelling on neutral ships in time of war and it would be impossible to justify a suggestion that, if there be found on a neutral ship two enemy males of military age, both of whom are travelling to their country in order to take their place in its armed forces, one can be removed because he is on the peacetime strength and the other cannot because he is a reservist.
7\. The question whether persons who, being under a legal liability to serve, are returning to their country to perform that obligation are technically "effectively in the service of the enemy" or "incorporés dans la force armée de l'ennemi" (the phrase employed in the Declaration of London) may depend on the terms of the conscription law of the country concerned, which in itself is sufficient to show how artificial is in this connection any distinction between such persons and members of the peacetime strength. But it can hardly be seriously contended that the mere fact that such persons may not have actually joined the corps to which they are to belong carries the conclusion
that they are not in the military service of the enemy, and the suggestion that they are not within the category of persons who may be removed from a neutral ship seems to result entirely from the interpretation which has been placed in some quarters on the terms of Article 47 of the Declaration of London. The report on the Declaration states that the phrase "incorporés dans la force armée de l'ennemi" in Article 45 (which provided for the condemnation of a vessel which was on a voyage specially undertaken with a view to the transport of individuals so embodied) should not be regarded as covering reservists, and the same interpretation has in consequence been placed on the phrase in Article 47. The report states, however, that this interpretation was adopted in connexion with Article 45 "in a spirit of conciliation," which shows that it was not regarded as representing an already existing rule, and the reasons which actuated this compromise in the case of Article 45 are not applicable to Article 47. But in any case Article 47 is not a binding authority and if interpreted in the above sense would, as shown above, produce unreasonable and illogical results. Apart from this interpretation of Article 47 His Majesty's Government are aware of no authority for the proposition that persons in this position do not fall into the category of enemy nationals who may be removed from a neutral ship.
8\. His Majesty's Government conclude therefore that, assuming that a right to remove enemy nationals from neutral ships exists at all (all this is not disputed by the Imperial Japanese Government), it must include persons returning to their own country for the purpose of fulfilling the obligation of military service which is imposed upon them by law. This contention is strongly supported by the practice in the war of 1914-18. Except for a short period at the beginning of that war persons returning to join the colours were regularly removed from neutral ships without objection being seriously taken on grounds of law. There were some cases where persons so removed were subsequently released but in such cases there were special circumstances such as the acquisition of a neutral nationality by the person concerned. In these circumstances His Majesty's Government can only regard the right to remove persons in this position as being definitely established by law and precedent and they may point out that this is the view taken by that great American authority Dr. Hyde (International Law, Volume 2, page 640).
9\. There is in any case no doubt as to the view of the German Government on the point. Article 77 of the German Prize Ordinance of 1939 provides as follows; (1) The passengers in captured vessels must be released. (2) The following are excepted: (i) Members of the enemy armed forces; (ii) persons who are making the voyage in order to put themselves in the service of the enemy armed forces; (iii) Agents of the enemy. It is clear therefore that the German Government regard persons who "are making the voyage in order to put themselves in the service of the enemy armed forces" as in precisely the same position as "members of the enemy armed forces" and if the Imperial Japanese Government take a contrary view about the Germans now in question they are making a claim which the German Government could not make for themselves. The Imperial Japanese Government can hardly expect such a claim to be admitted by His Majesty's Government in existing circumstances. I may add that the practice of the German
Government in the present war has gone even beyond the provisions of their Prize Ordinance. Not only have they removed Poles of military age from neutral vessels in the Baltic, but they have removed from a Swedish ship and still hold in captivity British fishermen who had been picked up after the destruction of their boat by the German forces, although the fact that the men concerned were engaged in innocent fishing is sufficient evidence that they were not on their way to join the armed forces. The Imperial Japanese Government will not expect His Majesty's Government to be bound by a supposed rule which is denied and disregarded by their enemy.
10\. It remains to consider the position of the particular Germans who were removed from the "Asama Maru." As to their liability to military service under German law there is no doubt. Under Article 1 of the German Defence Law of May 21st, 1935 "Every German man is liable to compulsory military service," while under Article 4 compulsory military service lasts from the end of the 18th year to the end of the 45th year and under Article 6 this period can be extended in war and in special emergencies by the Reich War Minister. There are moreover special provisions relating to seamen. Paragraph 4 of the "Ordinance for the Supervision of Military Service" of November 24th 1935 provides special registration duties for seafaring men as soon as their employment on a ship ceases, and they have to obtain instructions as to what they shall then do from "the armed forces recruiting office." Service on a ship is regarded as equivalent to the half-yearly inspection and instruction of all reservists held by the military authorities, and both in peace and wartime it lies with the German Reich to decide in the case of every seaman whether after the age of 18 he joins the Navy or the Merchant Marine and whether he subsequently remains in the one service or the other. Such being the liability to military service of all German nationals of military age, it is impossible—and particularly so in the case of seamen—to draw any valid distinction between those who have actually joined a particular unit and those who are in the course of a journey undertaken in pursuance of a legal duty to join such a unit.
11\. As I have explained above the special aptitude of the men now in question for naval service, and the remarkable efforts made by the German Government to secure their return to Germany, give every reason to believe that they were intended for service in the German Navy. Some of the Germans in question form part of the engineroom staff of tankers, and their special knowledge of the diesel engine renders it practically certain that they would be employed for submarine service, in which case in the event of their succeeding in returning to Germany they would take part in the illegal activities of that service which have caused so much loss to neutral countries. Indeed in modern warfare it may well be that persons such as the individuals now in question with special and technical qualifications, although not actually employed in the armed forces of the State in time of peace, possess considerably higher military value in time of war than ordinary members of the peacetime strength. Although, as stated above, the number of German trained seamen on the "Asama Maru" was about 50, only 21 were removed, of whom 13 were officers and 8 were technical ratings possessing special qualifications. Accordingly His Majesty's Government did not in fact exercise to the fullest extent the rights which they can claim.
12\. Since the outbreak of war not only British lives and shipping but also neutral lives and shipping have been lost as a result of unrestricted submarine warfare by Germany, which is carried out in violation of international law and of agreements to which she is a party, and with a total disregard of the dictates of humanity. His Majesty's Government are determined to put an end to this method of warfare by the means at their disposal and they could not reconcile it with their obligations to their own countrymen, to say nothing of neutral interests, to risk innocent lives and shipping by allowing personnel to reach Germany which can be employed to perpetuate this menace.
13\. For the above reasons His Majesty's Government maintain that their action was justified by international law and practice and they are unable to admit that the protest which the Imperial Japanese Government have thought it necessary to make is well founded in law.
I avail myself of this opportunity to renew to Your Excellency the assurance of my highest consideration.
(Sgd.) R. L. CRAIGIE.