1938: International Law

Protection of Foreign Representatives to the United States.

By international law every state must insure within its jurisdiction respectful treatment of foreign representatives and circumstances favorable to the discharge of their duties. In 1790 Congress imposed heavy penalties on any one who should 'offer violence to the person of a public minister,' but left untouched other acts which should also be prevented. To supply this deficiency, by joint resolution approved Feb. 15, Congress legislated to 'protect foreign diplomatic and consular officers and the places and premises occupied' by them in the District of Columbia — that is, to prevent 'picketing.' The act makes it unlawful to display, within five hundred feet of premises used or occupied by foreign officials, any device (such as a flag, banner, placard, etc.) intended to affect unfavorably any foreign government or organization or their officers or their political, social or economic acts, views or purposes, or to interfere with them. It also forbids congregating within the same distance and refusing to disperse when ordered by the police. These restrictions, however, do not prohibit picketing in bona fide labor disputes regarding repair or construction of premises occupied wholly or in part for business purposes by representatives of foreign governments. That legislative extension of these provisions outside the District of Columbia is desirable is evident from the various demonstrations during 1938 against consulates outside of Washington, as well as the increasing number of such disturbances in general. However, the right of the Federal Government to protect foreign representatives, their flags and premises, outside of the District of Columbia is undoubtedly a part of its responsibility under international law.

Export of Munitions.

Violation by the United States of treaty obligations in regard to export of arms and munitions to Germany was claimed in May by the National Lawyers Guild. That organization stated that the Treaty of Berlin (1921) between Germany and the United States by reserving 'all rights and advantages' under the Treaty of Versailles included Article 170 by which the 'importation into Germany of all arms, munitions and war materials of every kind shall be strictly prohibited,' and that therefore the licensing of munitions shipments to Germany by the Munitions Control Board was illegal. The Secretary of State's reply to the legal argument denied any obligation on the United States to forbid shipments of arms on the ground that Article 170 of the Treaty of Versailles did not forbid export of munitions to Germany and the Neutrality Act made it mandatory on the Secretary of State to grant licenses for exports not contrary to law or treaty. Further support for this legal position lies in the fact that even if the disarmament provisions of the Versailles Treaty had been applicable to the United States, they are so no longer, since Article 7 of the treaty between the United States and Germany of 1923 provided that 'each of the high contracting parties also binds itself unconditionally to impose no higher or other charges or restrictions or prohibitions on goods exported to the territories of the other . . . than are imposed on goods exported to any other foreign country.' Apparently this treaty in 1925 superseded the prohibition of Article 170. Because of German discriminations against American commerce, its non-discriminatory provision was ended by agreement in 1935 at the instigation of the United States, but Article 170 was not revived. Aside from the legal argument, precedent exists in British and French action in resuming munitions trade with Germany before the proposals to release Germany on certain conditions from the obligations of the disarmament sections of the Versailles Treaty. It should be mentioned that in September 1933, the Secretary of State called attention to Germany's obligation under Articles 1 and 2 of the Treaty of Berlin incorporating Article 170, by which Germany agreed to prohibit the importation and exportation of arms and war materials of every kind and stated that 'This Government would view the export of military planes from this country to Germany with grave disapproval.' This action related, however, to Germany's obligation not to import, rather than to that of the United States to prohibit export of arms and would concern Germany's violation of its treaty obligations to the United States.

Japanese Fishing in American Territorial Waters.

Salmon fishing in Alaskan territorial waters has caused discussion between the United States and Japan since the apparent interruption of United States protection of salmon propagation in Bristol Bay by Japanese vessels which intercepted the salmon runs in American territorial waters. These discussions, concerning what American public opinion regards as a distinctly American interest, have resulted in an agreement, in March, by the Japanese Government, without prejudice to rights under international law, to suspend its survey of salmon resources of Bristol Bay, to continue to suspend issuing licenses for salmon fishing there, and to take necessary and proper measures to prevent any further operations.

Canton and Enderbury Islands.

Announcement was made in Washington, March 3, that for reasons of commercial aviation and naval strategy, the State and Navy Departments had studied certain islands with a view to pressing claims to their ownership. Two days later formal claim was made to sovereignty over Canton and Enderbury Islands in the Central Pacific Ocean and to lands first visited by Americans in Antarctica. An American occupation expedition landed March 6 on the Pacific Islands, and March 9 Prime Minister Chamberlain told the House of Commons that Great Britain 'reserves her right over the islands.' The Department of the Interior April 1 issued a license granting commercial air rights on Canton Island. On Aug. 11 the Department of State announced that Britain and the United States had agreed to set up a régime for their common use of the two islands in connection with international aviation and communications, the question of title being left in abeyance 'for a protracted period of time.'

Radio Communications.

The Inter-American Radio Communications Convention proclaimed by President Roosevelt on Sept. 19, contained, among other provisions, recognition of certain general radio principles which are involved in this extremely important phase of international relations. Among them are: the present need for regional arrangements; establishment in the American continent of zones for control of radio communication; establishment of frequency-measuring stations; obligation of all commissioned aircraft to carry radio equipment; circulation of meteorological and safety information for air traffic and aircraft guidance; radio cooperation during periods of emergency in any country; promotion of exchange of international cultural, educational and historical programs in the Americas; encouragement of press transmissions to multiple destinations on a cost-basis founded upon time of transmission rather than word count; retransmissions of broadcasting programs; and suppression of clandestine transmitting stations. Provision is made for future conferences to meet the rapid development of radio communications. An Inter-American Radio Office will act as secretariat, headquarters and clearinghouse of information and transactions.

Question of Neutrality.

The Conference of the International Law Association at Amsterdam on Sept. 6 passed a resolution stating that: (1) Through general non-observance Article XVI of the League Covenant appears to be at the present time inoperative; (2) The rights and duties of a neutral cannot now be defined without consideration of the Pact of Paris; (3) Neutrality still exists between non-members of the League and between members and non-members; (4) According to the practice of nations, neutrality is not abrogated even as between members of the League.

Policies of Recognition or Non-recognition.

That the United States still follows the Stimson doctrine of non-recognition was made clear by the Secretary of State on May 12 when he stated that the United States did not intend to deviate from the policy of refusing to recognize territorial changes effected by force and that the President's comment of April 19 'on the recent Anglo-Italian conversations was not intended to affect or alter in any way our general position with regard to any of these principles.' Other states, however, appear to have relinquished this practice in the face of reality.

In the May meeting of the Council of the League of Nations, as requested by Great Britain because some members of the League had recognized Italian sovereignty over Ethiopia, the Council examined the consequences of the present situation in that country, and the majority felt that individual members should determine for themselves their attitude in the light of their own situation and obligations. Critical of the British attitude of thus yielding recognition of forcible territorial changes, were China, Soviet Russia, Bolivia and New Zealand; France, Belgium, Poland, Rumania, Sweden, Latvia, Peru, Ecuador, and Iran agreed.

It is claimed that Italian conquest and possession of Ethiopia have been recognized in some form as follows: de jure recognition by Albania, Austria, Costa Rica, Denmark, Finland, Germany, Hungary, Iraq, Ireland, Japan, Lithuania, Manchuria, Poland, Insurgent Spain, Switzerland, Yemen and Yugoslavia; de facto recognition of Belgium, Bulgaria, Czechoslovakia, France, Great Britain, Greece, Haiti, Iran, Peru, Rumania, and Turkey; while some form of recognition — chiefly that of accrediting diplomatic representations addressed to the King-Emperor of Italy — by Chile, Ecuador, Egypt, Guatemala, Netherlands, Nicaragua, Norway, Panama and Portugal.

The Chinese government protested against the decision of May 12 to establish immediate diplomatic relations and provide for a trade and shipping agreement between Germany and Manchuria. El Salvador is the only American state to recognize Manchukuo. Further recognition of the Franco government in Spain has been accorded by Guatemala, Hungary and Portugal, while Denmark and Norway have agreed to exchange agents without recognition.

Mexico on March 19, by note to the League, protested against the seizure of Austria and the League's action in not convoking the Council according to Article X, and it also announced its non-acceptance of Germany's act. In the American view, Germany's annexation of Austria, although not perhaps by violence, yet certainly involved threats of violence if not violence itself, and the State Department carefully limited its recognition of German assumption of control to 'necessity' and 'facts' and the consequences of this assumption to 'practical measures' and 'practical purposes.' It suggested the possibility of breach of the Kellogg Pact. The Secretary of State on May 28 issued to the press a reminder to the sixty-three nations signatory to the Kellogg Treaty that the pledge undertaken in 1928 was no less binding now. The statement, made without previous consultation with any other country, emphasized that 'any outbreak of hostilities in any part of the world injects into world affairs the factor of general disturbance.' It may be said that the Stimson Doctrine is implied from the Kellogg Pact as a duty not to recognize de facto changes brought about by means contrary to the pact. Hence a withholding of recognition implies violation of the pact, and there would follow a duty to assert that the treaty has been violated whenever violation has resulted in de facto changes. The Argentine Anti-War Treaty also provides that parties will not recognize any territorial arrangements not obtained by pacific means. The resolution of the House of Representatives in April, requesting information as to the infractions of treaties to which the United States is signatory, might be answered on this basis.