The Department of Defence forwards a letter (undated) received by the Minister for Defence from Mr Nielsen, the New South Wales Trade Commissioner in America, and asks for advice as to whether the acceptance of Mr Nielsen's offer would involve questions of the neutrality of the United States of America.

The material part of the letter is as follows:

I wish to confirm by letter my offers made to the Prime Minister and yourself in connection with the present outbreak of war in Europe.

On the 5th instant as soon as I had secured information about the declaration of war, I sent to the Prime Minister the following cable:

Wish unreservedly place my services disposal of Commonwealth and Empire. Have eight years military experience. Can raise company Australians here to fight for their native land.

In the meantime another Australian at present living in San Francisco named Davison had also started securing the names of Australians at present living in California who would be prepared if necessary to go to Australia for purposes of defence. We have since been working together and the outcome of our efforts enabled me to send you a cable in the following words:

Can secure hundred Australians here return Australia if required assist defence.

Cable instructions.

In regard to the offer I wish to say that it remains open right on until the conclusion of the war, although some of those who have given in their names may be scattered if instructions do not come at an early date that they are to be sent along, still I feel confident that others could easily be obtained to take their places so I wish you to consider the offer as a standing offer of help from the Australians in San Francisco should their services at any time during the currency of the war be required. I realise that it may be necessary to send men from Australia to take possession of some of the German territories in the South Seas so that our trade routes in the Pacific may be kept open. Those who have volunteered to go to Australia for its defence would be prepared to assist in any expedition of the character indicated which was part of a move connected with Australian defence.

The question of enlistment by a belligerent in a neutral country is not a new one. The position now generally accepted is that the engaging of persons for military service being an act of sovereign authority can properly and lawfully be undertaken in any country only by the government of that country. The United States has in the past made vigorous protests against the use of her territories by belligerents for recruiting purposes, notably against the action of France in 1793 and of Great Britain during the Crimean War. In those cases there were certainly circumstances which are not present in the case now under consideration, for the enlistment was of or included American citizens, and in both cases the persons engaged were organised into a military or naval force either within or immediately outside of the United States territory. But these facts were important mainly as circumstances of aggravation, and the international wrong complained of arose substantially from the use of American territory by the agents of the belligerents for the purpose of military or naval recruitment.

The Hague Convention No. V of 1907, article IV, probably strengthens the neutral position in affirming that 'corps of combatants cannot be formed nor recruiting offices opened on the territory of a neutral power, in the interest of the belligerents'.

There is then no doubt that it would be a breach of international law likely to be resented by the United States Government if Mr Nielsen, as the agent of a British Government, were to enlist British subjects for service, or, without formal enlistment, were to engage them for service, or were to attempt to do the one or the other. In addition to the diplomatic embroilment that might arise Mr Nielsen would be liable to prosecution under the American Foreign Enlistment Act.

On the other hand, there is no rule of international law which prevents the subject of a belligerent leaving a neutral country with the intention to engage in the military service of his country. What one may do, a number may do separately or in association. There is nothing wrong in furnishing them with the means of so leaving. If then Mr Nielsen's action extended no further than making arrangements for the transportation of British subjects desiring to enter British military service, there would, in my opinion, be no breach of neutrality.

Practically, however, it might be difficult to avoid overstepping the line. Moreover, if the limits of neutrality are to be faithfully observed, the Australian Government would be entirely dependent on the good faith of the persons transported, who might refuse to undertake service after they had been carried to their destination.

[Vol.13, p. 100]