First World War Centennial

CHAPTER VIII

BELLIGERENT USE OF NEUTRAL FLAGS

WHEN reference is made to neutral rights and privileges there is sure to be critical remark in regard to the use of neutral flags by belligerent merchantmen. Much of this is most regrettable because unreasonable. The keener the people of the United States are to preserve high standards of neutrality, the more careful should they be to eliminate from their program the requirement of anything that is patently impracticable.

In a democracy like the United States the inculcation of love and respect for the Stars and Stripes as the national standard binds a people, rapidly becoming heterogeneous, together. Too much emphasis cannot be given to its proper encouragement. Mean­time it is probable that the enactment of a statute like the flag law of Massachusetts has an effect directly opposite to that which is intended. This hysterical bit of legislation fairly interpreted makes it a lawless act for a citizen to own an unabridged dictionary which contains a plate with the flags of all nations. The latter can have a British or German flag printed or engraved upon his letter heads, but must beware the use of any imprint of the American flag even though it is attached to an appeal to support the Federal Constitution. The instance is given as fairly illustrative of the harm that well-meaning folk can do when the end they seek is ad­mirable.

As to the use of the American flag or any neutral flag by belligerents, and regarding the limit of sane criticism, doubtless such a use is improper and undesirable in the usual course of affairs. Under the law of nations and in accord with the eternal fitness of things such a custom can be and should be peremptorily forbidden. The Government of Great Britain, against which censure is at present directed for misuse of neutral flags, is acquiescent in this. Thus Sir Robert Phillimore, vol. iii., p. 734, gives numerous references to the Admiralty reports to show that ships are deemed to belong to the country under whose flag they navigate, and Oppen­heim, vol. i., p. 336, is unequivocal. "It is another universally recognized rule," he says, "that men-of-war of every state may seize and bring to a port of their own for punish­ment any foreign vessel sailing under the flag of such state without authority." Oppen­heim also calls attention to the Merchant Shipping Act of 1894, which legislates to the same end. That act, however, goes further and may well be referred to here as con­veniently introducing a notable exception to the general rule. This exception, apparently based upon the same international law which has heretofore recognized the use of neutral or enemy flags as a subterfuge by belligerent warships, is one that is directly applicable to the present issue affecting the use of the American flag, and, if valid, should be given the greatest weight.

After stating that a ship shall be forfeited whose owners, without warrant, fly the British flag, the act continues: "Unless the assumption has been made for the purpose of escaping capture by an enemy or by a foreign ship of war in the exercise of some belligerent right," When it is remembered that the act in question dates back twenty years before the present war, that it was the authoritative expression of a nation which had won for itself the title "Mistress of the Seas," and that it may properly be construed as opposed to her own interests, we are inclined to accept it as an unbiased expression of the reasonable judgment of a people versed in Admiralty affairs and entitled to serious consideration as such. Whether or not this marked departure from custom is worthy of adoption as a rule of international law is another matter.

Sir Edward Grey under date of February 19, 1915, handed the United States Ambassador in London a note for transmission to the United States in which he expressed himself as believing that the British practice was similar to that recognized by some other nations and "forbidden" by none. If he is right, there is certainly much to be said on the side of those who favor this usage, and distinct reasons why a neutral people, during a time of flux in which it will be difficult to secure any agreement on the part of belliger­ents, should be cautious in arrogating to themselves a right which may lead them into inextricable complications. This does not mean that they or their government should not make recommendations. It was mani­festly proper for Washington under date of February lo, 1915, and after the German Admiralty declaration of February 4th, to suggest the "serious consequences" to Ameri­can vessels that might follow the British Government's authorization of the use of neutral flags. It was also strictly correct for President Wilson's Administration to ask both Germany and Great Britain under date of February 20th "to require their respective merchant vessels not to use neutral flags for the purpose of disguise, or ruse de guerre."

Had this proposition been cordially re­ceived and acted upon, it would undoubtedly have been for the direct advantage of Ameri­can shipping. Meantime while such repre­sentations are most fitting, it is exceedingly doubtful if a neutral government can judi­ciously push very far beyond the limit which is thus suggested because of the personal rather than national character of the offense.

Circumstances and ministerial correspond­ence since the opening of this latest, if not greatest, of all wars, have developed three phases of the question: (i) that which has to do with the several and specific cases in which misuse of the flag is alleged; (2) that which is suggested by the United States Government in its proposal that belligerents require their respective merchant vessels not to use neutral flags, etc.; (3) that which arises because of the claim that the British Government has instructed its merchant fleet to fly neutral flags in the zone patrolled by German submarines. Of the three only one, and that the last, appears to be of a sufficiently objectionable character to warrant a breach of amicable relations.

It is quite conceivable that a neutral might, with some spirit, resent such orders as those which appear to have been given by Great Britain to ships of her great commercial fleet, if the instructions were persisted in after protest. This is because the belligerent ag­gression would be as positive and direct as if neutral territory were violated, and because a responsible government can be readily called to account for the wrong done.

The second phase, that which arises when a belligerent government fails to comply with a neutral request that it officially forbid the use of a neutral flag, may be deemed another matter.

Without the evidence of positive admiralty orders to commit a breach of international comity, a neutral is not justified in presuming that a belligerent government is responsible for the defaults of its subjects. The same will be true, whether or not the aforesaid belligerent refuses to send out manifestoes which are in accord with the formally expressed wishes of the neutral. To argue that noncompliance is an unfriendly act, and to threaten reprisals as a consequence, would hardly accord with the dignity of the dis­comfited Power or serve its own interests. This being conceded, how impossible appears the task of satisfactorily meeting and dis­couraging such individual practices in using a neutral flag when imperiled as are grouped under the first phase of the question now so seriously debated.

Let us for the moment presume that the United States intends to discourage the im­proper use of its flag by belligerent merchant­men—that Great Britain not only acquiesces in the request of our State Department that obnoxious orders be withdrawn, but generously complies with the overtures of June 20th and forbids British merchantmen to use our flag under any circumstances—what then? Is there any reason why the Mary Jane or any other craft belonging to his Britannic Majesty's marine should not, within twenty-four hours after Admiralty instructions of the sort referred to are issued, fly the American flag when in a position of deadly peril? Except for the near presence of an enemy submarine, she is alone on the sea. Neither a British nor American man-of-war is near enough to be cognizant of what is happening. If she escapes who shall say that the United States which gravely disapproves of the practice has failed in its duty to Germany or that Great Britain has offended the neutrality of the United States? Yet this is a fair instance of what happens when the American flag is hoisted by a belligerent merchantman. It is unfortunate and much to be deprecated, but if the Mary Jane's govern­ment is not officially responsible, and if a United States war vessel is not at hand to take due action, it is difficult to understand how anything can come from the naïve insistence of the public that the United States prevent the use of its flag. The case in point selected for illustrative purposes only is that of a British ship. Exactly the same circumstance would arise if a German or Austrian acted in similar disregard of government orders. It is doubt­ful if a neutral has any other recourse when its rights are thus infringed than that which may be exacted by one of its own national vessels at the time. As for the enemy, why is it not sufficiently safeguarded by its belligerent rights of search and the machinery of the prize courts?