Your Excellency,
I have the honour to acknowledge the receipt of Your Excellency's note of January 27, in which a detailed statement is presented regarding the case of the "Asama Maru."
1\. The Japanese Government note with pleasure the statement in the said note that "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."
2\. However, in the same note there are set forth at length by the British Government their legal views concerning the case. My views being basically divergent, I desire to submit the following points for the careful consideration of the British Government.
a) It is stated in the note "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." Then follows an assertion that "there has existed for centuries a practice of taking enemy nationals out of a neutral ship without Prize proceedings being taken." Further on, after referring to certain provisions contained in treaties concluded from the Seventeenth Century to the Nineteenth, the note concludes: "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."
It may be gathered from the passages quoted above, that the British Government maintain it as a principle established by international law that on the high seas enemy nationals may be removed from neutral ships without Prize proceedings being taken. The Japanese Government, it must be pointed out, hold a radically different view on this point. According to the opinion of the Japanese Government, the removal of enemy nationals from a neutral ship engaged in peaceful navigation has been recognized as illegal in the Law of Nations. This claim is substantiated by numerous precedents as well as doctrines in the Law of Nations. This point should be clear in the light of the controversy concerning the "Trent" affair. It may also be pointed out that at the London International Naval Conference of 1908 the British delegates endorsed the above view as being in conformity with British practice. Moreover, the United States Government are also said to adopt the view that even in cases where neutral shipping may be captured under the head of "hostile assistance," "unneutral service," or "transport of contraband persons," enemy nationals cannot be removed on the high seas without Prize proceedings being taken. The same view is plainly set forth in what appear to be British official documents—Lushington's "Manual of Naval Prize Law," of 1866 and 1884 (Paragraph 195) and the old edition of Holland's "Manual of Naval Prize Law," of 1884 (Paragraph 94).
b) Again in the note, the British Government dwell at length on the point whether or not individuals under a legal liability to military service, who are returning to their own country in order to perform that obligation, may be considered as being actually "embodied in the service of the enemy" or "incorporés dans la force armée de l'ennemi." It is stated, as the British Government are aware in the Report on the Declaration of London that the phrase, "embodied in the service of the enemy" contained in Article 45 should not be construed as including reservists, and it was as a compromise at the London International Naval Conference between the rules then in force and the considerations adduced from a legislative standpoint, that the right to remove enemy nationals was limited to those actually embodied in the service of the enemy as mentioned in the said Report. Now there is no room for doubt that this interpretation should apply regarding Article 47 in which the same phrase is employed. The contention advanced in Your Excellency's note that since the said interpretation as regards Article 45 was adopted "in a spirit of conciliation" the reasons which actuated this compromise in the case of Article 45 are not applicable to Article 47, is therefore wholly untenable.
Furthermore, if it is to be claimed, that "in any case Article 47 is not a binding authority," the alternative will be rather to fall back on the general principles of international law and not to recognize the right to remove enemy nationals from neutral ships engaged in peaceful navigation on the high seas. On the other hand, if the principle of the Declaration of London is to be adopted, establishing exceptions from the general rule, a strict and narrow interpretation should be placed on these exceptions, or at least they should not exceed the limits set forth in the said report with reference to Article 45.
c) The Declaration of London failed to come into force as a treaty because Great Britain, the very Power which convoked the London International
Naval Conference, did not and consequently the other Powers did not ratify it. Nevertheless, despite its invalidity as a treaty, it has been regarded as embodying rational adjustments and compromises between various principles regarding naval warfare, and its principles have been incorporated in the internal laws of many countries. Japan's Naval War Rules follow in principle the provisions of that Declaration. The reason why Japan and other countries have come to adopt Article 47 of the Declaration is that they have recognized a certain exception to the general rule that "enemy nationals shall not be removed from neutral ships engaged in peaceful navigation on the high seas." And since an exception should be subject to a strict and narrow interpretation, it is impermissible to extend any interpretation beyond the stipulations of the London International Naval Conference even in the cases where the above exception to the general rule is recognized according to the Declaration of London.
Early in the World War when the British Government insisted upon including reservists among enemy nationals liable to be removed from a neutral ship, they found it necessary to indicate as the specific reason for this the fact that the German forces had begun to hold as captives persons under liability to military service in Belgium and northern France. Does this not suffice to prove that it was not then generally considered as proper under international law to take away persons other than those in the service of the enemy? Under the abnormal circumstances obtaining during the World War, instances of the violation of international law occurred in numerous connections. It must be admitted that instances of illegality regarding the removal of enemy nationals from neutral ships did also occur. But the Japanese Government cannot recognize a claim based upon these occurrences as a right established under international law by virtue of law and precedent.
d) In Your Excellency's note, it is contended that since it is clear that the German Government according to their Prize Ordinance 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," the former may be seized. But this contention involves a confusion of two issues—first, whether or not enemy nationals may be taken out of neutral ships engaged in peaceful navigation on the high seas, and secondly whether or not passengers on board a captured ship may be made prisoners after proceedings in a Prize Court. In fact, what is being argued is whether even persons in military service liable to be captured may be taken out of a neutral ship engaged in peaceful navigation on the high seas. The Japanese Government are constrained to call the attention of the British Government to the fact that on this point also the British contention is devoid of substance.
e) Finally, it should be added that the "Asama Maru" was a ship engaged in peaceful navigation with its port of departure in the United States of America and its destination to a port in Japan, both of which countries are neutral; and that in no sense was the vessel engaged in "hostile assistance" nor in "unneutral service," nor in the "transport of contraband persons," and further that concerning the German passengers on board the "Asama Maru," the British Government have not submitted any definite
proof that the 21 persons taken away by the British man-of-war are embodied in the service of the German armed forces.
As has been made clear in the foregoing observations, the Japanese Government cannot but arrive at the conclusion that the action of the British man-of-war in the "Asama Maru" incident was not justifiable under international law. Accordingly the Japanese Government earnestly request of the British Government the return of those 21 German passengers who have been removed from the "Asama Maru."
I avail myself of this opportunity to renew to Your Excellency the assurance of my highest consideration.
(Sgd.) Hachiro Arita
Minister for Foreign Affairs.