1939: International Law

Citizenship of Children.

The United States Supreme Court on May 29 decided unanimously (Marie Elizabeth Elg v. Frances Perkins, Secretary of Labor, et al.) that a child born in the United States of alien parentage becomes an American citizen and that such citizenship continues unless ended by a treaty or statute, or by voluntary action of the person concerned. The plaintiff's Swedish parents, who had been naturalized in the United States before her birth, took the child to Sweden at the age of four, where she lived until she was twenty-one. During her minority both parents resumed their former Swedish allegiance. Marie Elizabeth Elg returned to the United States on an American passport issued by the State Department, was admitted as a citizen, and continued to reside in the country until threatened, six years later, with deportation as an alien illegally in the United States and refused a further passport. This important decision reverses the attitude held in the United States during the last ten years that a parent's loss of American citizenship carries with it that of a minor child, who acquires the parent's nationality under foreign law.

Claims to Antarctica.

Application to Antarctica of the 'sector' theory of territorial possession (by which, claims to parts of the polar regions follow the parallels of longitude bounding the state that makes the claims) has led during 1939 to several new attempts at partition. On Jan. 14, as the result of exploring expeditions from 1929 to 1937, Norway claimed the eastern sector between the Falkland Islands Dependencies and the Australian sector, and announced its occupation of the region in order to protect the whaling industry. Germany on April 12 claimed an area of more than 231,660 sq. mi., based on discoveries of the German expedition under Captain Ritscher; part of this claim conflicts with that made by Norway. On July 7, President Roosevelt directed Rear Admiral Byrd to leave early in October in order to validate American claims in the Antarctic, based upon discoveries by both Byrd and Lincoln Ellsworth. This includes the sector between that of the Falkland Islands Dependencies and the Ross sector. The Argentine Republic on July 24 announced its claim to areas belonging to New Zealand and conflicting also with those of both Great Britain and the United States. Heretofore, the American policy has been against claiming territory based merely upon discovery and not reenforced by effective occupation. But lately the general tendency has been to relax the requirement of effective occupation for areas not suitable for human habitation. The motive behind these efforts at acquiring Antarctic jurisdiction seeks the conservation of the whale industry and possibly other marine resources of the area.

Revision of United States Neutrality Laws: Arms Embargo.

Questions involving the international law of war and neutrality arose with expected frequency after war began in September. The principal legal issue concerned in modifying the 'neutrality laws' of the United States during the special session of Congress aroused much discussion regarding the effect upon neutrality of a change made after war has begun. Concerning the repeal of the arms embargo, international lawyers in the United States differed categorically: weight of numbers denied its illegality; while possible weight of authority appeared to condemn the change. The underlying motive in the change for repeal would seem to be involved; and the desire to assist Great Britain and France, rather than the bare fact of change, entered into the question. The resumption of the 'cash and carry' provisions appeared to raise no issue of illegality as its motive was legitimate.

The City of Flint.

A serious protest from the United States concerned the City of Flint which, after being captured by a German vessel, was taken first to the Norwegian port of Tromsoe, from which the authorities ordered its departure, and two days later to the Russian harbor of Murmansk. The chief illegality alleged was Russia's compliance in permitting the vessel to be held in the port without interning the German prize crew and without the legal grounds for seeking refuge instead of proceeding to a prize court for adjudication. The State Department held that a prize crew may take a captured vessel into a neutral port without internment only in case of force majeure, and no such ground existed. After several days in Murmansk the German crew took the City of Flint again to a Norwegian port, where the Norwegian Government ordered it freed from the prize crew and permitted it to leave. The German Government protested to Norway against its action, which the latter considered according to international law as expressed in the Hague Conventions.

Admiral Graf Spee.

On Dec. 14, the British protested to the government of Uruguay against allowing the German pocket-battleship, the Admiral Graf Spee, severely damaged in a naval battle off the coast, to take refuge in Montevideo for more than twenty-four hours. When Uruguay compromised between its neutrality law and international law and ordered the Graf Spee either to leave within the three days needed for essential repairs or to be interned for the duration of the war, the German command ordered the vessel scuttled outside the harbor. See also URUGUAY.

Declaration of Panama.

Extension of territorial waters beyond the customary three-mile limit recognized by international law was intended by the Declaration of Panama in which the American states agreed upon a safety belt at sea, ranging from 250 to 1,250 miles wide, adjacent to the American Continent, where belligerent activities of the European war should not take place. No provision for patrol or other enforcement was made, and hence only a protest was registered against the naval battle and other encounters of December. However, on Dec. 23, the twenty-one American republics in consultation threatened penalties in case of future violations.

Contraband and the Blockade.

The contraband lists of both belligerents, besides the usual materials susceptible of military use, included as conditional contraband all kinds of foodstuffs and provisions, clothing, and the raw materials involved. The German list contained luxuries, and, later, various kinds of timber and wood, which affected practically everything exported by Finland. Argentina, in particular, protested to Great Britain the inclusion of food-stuffs as affecting civilians; and Russia refused to recognize as valid a unilateral declaration of 'the basic articles of mass consumption' as contraband. The Soviet likewise condemned as illegal for the freedom of merchant shipping the British rule obliging neutral merchant ships to call at designated ports for examination; since all such Russian ships are state property, it reserved the right to claim compensation for losses caused by detention for examination. When, in retaliation for Germany's alleged illegal mining of ship channels, the Allies proclaimed on November 28 a blockade of all goods of German origin or ownership, the United States maintained that a blockade applied to German exports was both a violation of international law and impracticable of operation, and reserved all American rights in case of infringement. Similar objections were made by Belgium, Denmark, Holland, Italy, Sweden, Japan and Russia. Germany described the ban on exports as piracy and open robbery of neutral shipping, and threatened further retaliation, while reserving its rights.

The German Government justified mine-laying in shipping lanes without notification on the ground that British use of convoys and arming merchant ships had destroyed any purely commercial lanes and that international law requires notification of the position of such mines only as soon as military considerations allow. It, therefore, becomes a normal means of retaliation and of hostile operations, determined by the German Government alone. Sweden protested the laying of a mine belt up to the three-mile limit of its waters as violating Swedish territory through its traditional claim to a four-mile limit.

While war was formally declared between the Allies and Germany, the status of Soviet Russia lacked definition. Although Germany's partner in the non-aggression treaty of Aug. 23 and the subsequent trade pact, Russia was not at war with the Allies; it did not declare war against Finland, and its blockade of that state, if effective, depended for its validity upon the existence of an actual, but undeclared, state of war, as in China. See also PERMANENT COURT OF INTERNATIONAL JUSTICE.