The obligation as to issuing a warning immediately before sinking a vessel will, in the view of the Austrian Government on the one hand, involve hardships otherwise avoidable, while, on the other, it may in certain circumstances be calculated to prejudice the rightful interests of the belligerent. In the first place it cannot be denied that saving lives at sea is nearly always a matter of blind uncertainty, since the only alternatives are to leave them on board a vessel exposed to the operations of the enemy, or to take them off in small boats to face the dangers of the elements. It is, therefore, far more in accordance with the dictates of humanity to restrain people from venturing upon vessels thus endangered by warning them beforehand. For the rest, however, the Austrian Government is not convinced, despite careful consideration of all legal questions concerned, that the subjects of neutral countries have any claim to immunity when travelling on board enemy ships.
The principle that neutrals shall also in time of war enjoy the freedom of the seas extends only to neutral vessels, not to neutral persons on board enemy ships, since the belligerents are admittedly justified in hampering enemy traffic at sea as far as lies in their power. Granted the necessary military power, they can, if deemed necessary to their ends, forbid enemy merchant vessels to sail the sea, on pain of instant destruction, as long as they make their purpose known beforehand so that all, whether enemy or neutral, are enabled to avoid risking their lives. But even where there is doubt as to the justification of such proceeding, and possible reprisals threatened by the opposing side, the question would remain one to be decided between the belligerents themselves alone, they being admittedly allowed the right of making the high seas a field for their military operations, of suppressing any interruption of such operations and supremely determining what measures are to be taken against enemy ships. The neutrals have in such case no legitimate claims beyond that of demanding that due notice be given them of measures contemplated against the enemy, in order that they may refrain from entrusting their persons or goods to enemy vessels.
The Austrian Government may presumably take it for granted that the Washington Cabinet agrees with the foregoing views, which the Austrian Government is fully convinced are altogether unassailable. To deny the correctness of these views would imply—and this the Union Government can hardly intend—that neutrals have the right of interfering in the military operations of the belligerents; indeed, ultimately to constitute themselves the judges as to what methods may or may not be employed against an enemy. It would also seem a crying injustice for a neutral Government, in order merely to secure for its subjects the right of passage on enemy ships when they might just as well, or indeed with far greater safety, travel by neutral vessels, to grasp at the arm of a belligerent Power, fighting perhaps for its very existence. Not to mention the fact that it would open the way for all kinds of abuses if a belligerent were forced to lay down arms at the bidding of any neutral whom it might please to make use of enemy ships for business or pleasure. No doubt has ever been raised as to the fact that subjects of neutral states are themselves responsible for any harm they may incur by their presence in any territory on land where military operations are in progress. Obviously, there is no ground for establishing another standard for naval warfare, particularly since the second Peace Conference expressed the wish that, pending the agreement of rules for naval warfare, the rules observed in warfare upon land should be applied as far as possible at sea.
From the foregoing it appears that the rule as to warning being given to the vessel itself before such vessel is sunk is subject to exceptions of various kinds under certain circumstances, as, for instance, the cases cited by the Union Government of flight and resistance, the vessel may be sunk without any warning; in others warning should be given before the vessel sails. The Austrian Government may then assert that it is essentially in agreement with the Union Government as to the protection of neutrals against risk of life, whatever may be the attitude of the Washington Cabinet towards some of the separate questions here raised. The Austrian Government has not only put into practice throughout the war the views it holds in this respect, but has gone even farther, regulating its actions with the strictest care according to the theory advanced by the Washington Cabinet, although its assurance as published only stated that was "essentially in agreement" with the Union Government's views. The Austrian Government would be extremely satisfied if the Washington Cabinet should be inclined to assist it in its endeavours, which are inspired by the warmest feelings of humanity, to save American citizens from risk at sea by instructing and warning its subjects in this direction.
Then, as regards the circular verbal note of February 10 of this year concerning the treatment of armed enemy merchant vessels, the Austrian Government must in any case declare itself to be, as indicated in the foregoing, of the opinion that the arming of trading ships, even when only for the purpose of avoiding capture, is not justified in modern international law. The rules provide that a warship is to approach an enemy merchant vessel in a peaceable manner; it is required to stop the vessel by means of certain signals, to interview the captain, examine the ship's papers, enter the particulars in due form and, where necessary, make an inventory, etc. But in order to comply with these requirements it must obviously be understood that the warship has full assurance that the merchant vessel will likewise observe a peaceable demeanour throughout. And it is clear that no such assurance can exist when the merchant vessel is so armed as to be capable of offering resistance to a warship. A warship can hardly be expected to act in such a manner under the guns of an enemy, whatever may be the purpose for which the guns were placed on board. Not to speak of the fact that the merchant vessels of the Entente Powers, despite all assurances to the contrary, have been proved to be armed for offensive purposes, and make use of their armament for such purposes. It would also be to disregard the rights of humanity if the crew of a warship were expected to surrender to the guns of an enemy without resistance on their own part. No State can regard its duty to humanity as less valid in respect of men defending their country than in respect of the subjects of a foreign Power.
The Austrian Government is therefore of opinion that its former assurance to the Washington Cabinet could not be held to apply to armed merchant vessels, since these, according to the legal standards prevailing, whereby hostilities are restricted to organised military forces, must be regarded as privateers (freebooters) which are liable to immediate destruction. History shows us that, according to the general law of nations, merchant vessels have never been justified in resisting the exercise by warships of the right of taking prizes. But even if a standard to this effect could be shown to exist, it would not mean that the vessels had the right to provide themselves with guns. It should also be borne in mind that the arming of merchant ships must necessarily alter the whole conduct of warfare at sea, and that such alteration cannot correspond to the views of those who seek to regulate maritime warfare according to the principles of humanity. As a matter of fact, since the practice of privateering was discontinued, until a few years back no Power has ever thought of arming merchant vessels. Throughout the whole proceedings of the second Peace Conference, which was occupied with all questions of the laws of warfare at sea, not a single word was ever said about the arming of merchant ships. Only on one occasion was a casual observation made with any bearing on this question, and it is characteristic that it should have been by a British naval officer of superior rank, who impartially declared: "Lorsqu'un navire de guerre se propose d'arrêter et de visiter un vaisseau marchand, le commandant, avant de mettre une embarcation à la mer, fera tirer un coup de canon. Le coup de canon est la meilleure garantie que l'on puisse donner. Les navires de commerce n'ont pas de canons à bord." (When a warship intends to stop and board a merchant vessel the commander, before sending a boat, will fire a gun. The firing of a gun is the best guarantee that can be given. Merchant vessels do not carry guns.)
Nevertheless, Austria-Hungary has in this regard also held by its assurance; in the circular verbal note referred to neutrals were cautioned beforehand against entrusting their persons or their goods on board any armed ship; moreover, the measures announced were not put into execution at once, but a delay was granted in order to enable neutrals already on board armed ships to leave the same. And, finally, the Austro-Hungarian warships are instructed, even in case of encountering armed enemy merchant vessels, to give warning and to provide for the safety of those on board, provided it seems possible to do so in the circumstances.
The statement of the American Ambassador, to the effect that the armed British steamers Secondo and Welsh Prince were sunk without warning by Austrian submarines, is based on error. The Austrian Government has in the meantime received information that no Austro-Hungarian warships were at all concerned in the sinking of these vessels.
The Austrian Government has, as in the circular verbal note already referred to—reverting now to the question of aggravated submarine warfare referred to in the memorandum—also in its declaration of January 31 of this year issued a warning to neutrals with corresponding time limit; indeed, the whole of the declaration itself is, from its nature, nothing more or less than a warning to the effect that no merchant vessel may pass the area of sea expressly defined therein. Nevertheless, the Austrian warships have been instructed as far as possible to warn such merchant vessels as may be encountered in the area concerned and provide for the safety of passengers and crew. And the Austrian Government is in the possession of numerous reports stating that the crews and passengers of vessels destroyed in these waters have been saved. But the Austrian Government cannot accept any responsibility for possible loss of human life which may after all occur in connection with the destruction of armed vessels or vessels encountered in prohibited areas. Also it may be noted that the Austro-Hungarian submarines operate only in the Adriatic and Mediterranean Seas, and there is thus hardly any question as to any action affecting American interests on the part of Austro-Hungarian warships.
After all that has been said in the preamble to this Memorandum, it need hardly be said that the declaration of the waters in question as a prohibited area is in no way intended as a measure aiming at the destruction of human life, or even to endangering the same, but that its object—apart from the higher aims of relieving humanity from further suffering by shortening the war, is only to place Great Britain and its Allies, who have—without establishing any legally effective blockade of the coasts of the Central Powers—hindered traffic by sea between neutrals and these Powers in a like position of isolation, and render them amenable to a peace with some guarantee of permanency. That Austria-Hungary here makes use of other methods of war than her opponents is due mainly to circumstances beyond human control. But the Austrian Government is conscious of having done all in its power to avoid loss of human life. The object aimed at in the blockading of the Western Powers would be most swiftly and certainly attained if not a single human life were lost or endangered in those waters.