Morton, Henry Vignaud to Frederick T. Frelinghuysen, November 10, 1883

Messrs. Morton and Vignaud to Mr. Frelinghuysen.

Sir: The second session of the international conference for the protection of submarine cables was opened at Paris, on the 16th of October last, in one of the large halls of the French foreign office. The states represented were thirty-three in all. Switzerland and Guatemala were not present this year. Persia was not represented last year, but was present at this conference.

Mr. Cochery, in resuming the chair, explained that the convention signed the 2d of November, 1882, had met the approval of all the states parties to it, but that some of them had proposed certain modifications and additions, which it was now the object of the conference to examine and decide upon.

The conference proceeded at once to its task, each article of the draft convention being read in its order and taken up.

Articles I, II, III, and IV were approved without any change. In Article V some verbal alterations were made at the suggestion of Great Britain. Articles VI and VII were also approved without any changes.

To Article VIII the British delegates proposed to adhere conditionally; that is to say, if it was supplemented by such international agreements as may sufficiently provide for the case, not governed by the proposed convention, of a person injuring, within territorial waters, any cable within the definition contained in Article I, and afterwards escaping from the particular territorial jurisdiction to that of another state, a party to the convention. “This object,” said Her Majesty’s delegates, “will not be completely attained if the provisions made for it are limited to the case of the offender being a subject of the state in which he is found. An Englishman destroying a cable between France and England, in French waters, might, e. g., escape to Portugal or Belgium. Such a case might be provided for by an extradition agreement, if that were found practicable, or by a special penal law, making such an offender punishable, without distinction of nationality, in the country where he may happen to be. On principle, extradition would appear to Her Majesty’s Government to be the better way of meeting the case.”

But this suggestion, though well founded in justice, was liable to two serious objections. First, it violated this principle of international law, that offenses committed in one country, or in its territorial waters, are only amenable to the courts of that country; and second, it referred to a subject foreign to the object of the convention, which had only to deal with offenses committed on the high seas. It was therefore agreed that the suggestion of Great Britain would be made in the shape of a recommendation of the conference to the powers signing the convention.

It will be found in that form at the end of that convention, with the two other recommendations agreed upon in the last session.

Article IX was ratified without any change.

Article X, which is relative to the means of verifying offenses against the convention, gave occasion to an important debate. The British Government, considering the wording of this article as too vague and uncertain, had proposed as a substitute an article authorizing the officers of the ship verifying infractions to the convention to exact the production of papers establishing the nationality of the offending vessel, and also to search such vessel, if necessary, to obtain evidence of its guilt.

This article, which the British cabinet communicated in advance to the different Governments represented at the conference, had been assented to by Denmark and the Argentine Republic.

Although we had not received from the Department any intimation bearing upon the subject, we deemed it our duty to oppose the article in its main feature before we were aware of the views of other powers, but in so doing we were careful to state that we were not acting under instructions. We added, however, that should the proposition of Great Britain be confined to its first part, giving the right to exact the production of papers showing the nationality of an offending vessel, we would accept it.

In presence of the almost unanimous opposition made to their proposition, the British delegates withdrew its objectionable clause, and asked that the remaining part and the original text of Article X be referred to a committee of arrangement, which committee reported the next day the article as it now stands.

Articles XI, XII, XIII, XIV, and XV were adopted without modification. The British delegates had proposed, at first, an amendment to Article XV, the object of which was to make the enforcement of the convention by each contracting state conditional upon the necessary powers being given by the proper legislative authority of that state. But this amendment was withdrawn after a short debate, as it appeared to be open to many objections.

All the articles of the draft-convention having been received and their wording fixed definitively, except the 16th and last, which is purely formal, the British delegates submitted to the conference two additional articles, one relative to the position of the contracting parties in case of war, the other stating that the stipulations of the convention were not applicable to certain English colonies, but could be made applicable to them upon notice being given in a stated time.

It was suggested at first that this last article should be annexed to the convention in the shape of a protocol, because the English colonies were not independent states, but the commissioners of Canada having remarked that the British colonies differed from others in this, that they were political communities governing themselves, the article was accepted as presented, but with the understanding that when the convention should be signed diplomatically its proper place would be determined.

The other proposition of Great Britain caused a long and earnest debate, which occupied nearly the whole of the last sittings of the conference. It was in the following terms:

“The high contracting parties further agree that the present convention shall not be obligatory as regards any power if and whilst it is engaged in war, provided that notice has been given by such power to the other powers of its withdrawal during the time of war.

“The convention shall remain in force as between these other powers unless terminated as provided in Article XV.”

To understand the full bearing of this proposition it is necessary to recall here a declaration submitted last year to the conference by England herself, which, after being assented to without any objection, was ordered to be printed in the journal of the sitting,

It was made by the first British delegate, Mr. Kennedy, and reads as follows:

“In order to avoid all possible misunderstanding, I think it would be useful to declare formally, before reading the project of convention, that this convention for the protection of submarine cables which we are going to submit to our respective Governments, will be applicable only during peace.”

We did not, last year, interpret this declaration as meaning that in case of war between two of the contracting powers the convention would cease to be binding upon all countries parties to it; we could not imagine that from the moment Costa Rica, for instance, would open hostilities against Uruguay the convention would cease to be binding upon the United States and all the other Governments parties to it. But others did, and although Mr. Kennedy himself declared emphatically that he never had any such intention, the president ruled the language of the declaration was liable to this construction.

It was, therefore, to remove this misunderstanding, and to establish plainly that a belligerent could release himself from the obligation imposed by the convention, without impairing these obligations for all the non-belligerent parties to the convention, that England proposed the additional article above mentioned.

With this explanation it would seem that no reasonable objection could be made to the article, and, indeed, it met the approval of nearly the whole of the conference. But unfortunately the German delegate could not be persuaded to accept it. He declared we had been convened to make a convention for time of peace, and that he could not consent to any article having in view a possible state of war. If we insisted, he said, upon such an article being introduced in the convention, he could neither sign it nor recommend it to his Government. He intrenched himself in that position, from which nothing could draw him out. With the hope of conciliating him the refined scholars of the French delegation tried to turn the difficulty by shaping the proposition differently, but he resisted the temptation of their adroit language. The sense of the conference was taken and found to be overwhelmingly against him, but he was not moved. Finally, as he would not yield to us we had to yield to him. The British delegates withdrew their proposition, but announced that their Government would bring the subject diplomatically before the high contracting parties.

Nothing remaining for examination but the sixteenth and last article, it was so modified as to state that the ratification would be exchanged within one year from the day of the signature, meaning thereby the final signature of the instrument itself.

A protocol was then framed stating that the members of the conference had met on the 26th of October, 1883, to revise the project of convention signed on the 2d of Novvember last, and that having examined the remarks made by different states, they had agreed upon the project of convention which they engage themselves to recommend to their respective Governments for ratification.

It was also agreed upon, 1st, that the draft we were about to recommend was final. It cannot be revised again. The Governments to which it is submitted in its present form will have to accept it as it is or reject it. 2d, that the signature of the instrument would take place three months after the signature of the protocol.

We signed this protocol on the 26th of October, and as our powers are to that effect we shall also sign the instrument itself at the expiration of the delay above mentioned, unless otherwise instructed.

We retain the original paper bearing our signature and those of our colleagues, as it still awaits the signature of the minister of Persia, who is at present too ill to give it, but send a printed copy of both the protocol and convention, with the English translation of the same, as agreed upon with the British delegates.

If we had not daily hoped that the Persian minister would have been able to sign, this report would have been made earlier. Apologizing for this unavoidable delay,

We have, &c.,