1940: International Law

Questions of Neutrality.

During 1940 international law has been subjected to the usual strain coincident with the existence of a world war and with the inevitable clash between the interests of belligerents and of neutrals. The principal questions concerning it, therefore, center about neutral rights and duties as affected by large-scale hostilities. While enlightened ideas may regard neutrality as evidence of disunity in the international society, yet in a major war only persistent efforts by neutral states can to any degree restrain the belligerents from total disregard of the rights of others, if indeed in modern times of economic interdependence any can be said to co-exist with large-scale hostilities. During 1940 the small neutral states ceased as such: Norway, Denmark, Belgium, Holland, the Baltic states, were lost; and in the Balkans at the end of the year only Turkey, Yugoslavia and Bulgaria remained outside the war, with the two latter precariously on the brink. Among the great powers, the Fascist phrase, 'not neutral, but only non-belligerent' described first Russia and finally the United States, with Italy a belligerent and Japan a member of the Axis. By spring the United States had renounced most of its neutral rights in its course of 'keeping out of other peoples' wars,' and by the end of the year its neutral duties had turned into 'full support of those resolute people everywhere who are resisting aggression and are thereby keeping war away from our hemisphere.'

The year has seen a revival of the belligerent practices that in the last war were either regarded as illegal save as alleged to be in retaliation, or protested vigorously as too great infringements on neutral rights. The same objections hold for the present submarine warfare, use of the air for hostilities and bombardment, wholesale mining of sea areas, sweeping blockade policy towards all goods to or coming from a belligerent country regardless of contraband character, interference with postal correspondence, and forcible diversion of neutral vessels into belligerent ports for examination of cargoes. The chief complaints of the United States centered on the four subjects of belligerent interference with the transmission of American mails, observance of the newly created 'safety zone' around the Americas, British blockade of German exports, and the forcible diversion and delay of American ships in British ports to which they were forbidden to go by the Neutrality Act. On the first three grounds the protests had little or no success; to meet the last the British devised the navicert system, compliance with which was declared by Germany as submitting to the enemy's will and thereby curtailing neutral character. Other complaints by neutrals had equally small success. Obviously the nature and instruments of modern warfare are incompatible with the preservation of neutrality and of the rules of the international law of war.

United States Aid to Great Britain.

A major problem for the United States concerned how far and in what manner it could supply war materials to Great Britain and still preserve its neutral status, since by international law a neutral government, its agencies, and officers, may not directly or indirectly participate in commercial or financial aid of a war. Airplanes leaving the country had first to be pushed across the Canadian frontier to comply with American neutrality legislation; next, an order of May 1940, permitted them to be flown to their Canadian destination under the theory that title to ownership passed when the plane crossed the border; and by December American civilian pilots were delivering bombers by flying them across the Atlantic. In the direct supply of arms and munitions the United States has adopted subterfuges that would seem to constitute violations of the fundamental principle of neutral abstention in aid of the war. Thus, the government arranged in June for turning back to manufacturers, as credit on new and improved models, old stocks of arms, ammunition, machine guns, etc., which then were sold to the Allied governments. An opinion of the Attorney General, June 2, ruled that the War Department might sell or dispose of, by exchange to private companies or individuals, War Department supplies then owned, provided they are declared to be surplus, and also that 'deteriorated and unserviceable ammunition and component parts thereof' might be exchanged for new materials of the same kind in condition for immediate use. Similarly the government made trade-in arrangements under which a large number of Army and Navy bombing and other planes were turned back to the manufacturers for sale to the belligerents, subject to later replacement by improved types of planes. Under Congressional restriction, June 28, the government was prohibited from further disposal of Army and Navy material unless the Chief of Staff or of Naval Operations certified it as 'not essential to the defense of the United States.'

The 'destroyer deal,' by which the United States exchanged fifty overage destroyers left from the Great War for ninety-nine-year leases on certain bases in British territories in the Western Hemisphere, was subjected to considerable attack on grounds of both domestic and international law. Only the latter is here considered. A strict interpretation of international legal rules would appear to differentiate between vessels as pure contraband, and hence subject to capture at sea, and those which have been constructed to order of a belligerent. A further consideration depends upon whether a vessel has been fitted out for 'a hostile expedition intended to operate on behalf of one belligerent against the other.' Thus the Attorney General distinguished between ships 'built, armed or equipped as a vessel of war, or converted from a private vessel into a vessel of war' with intent that the vessel should be delivered to a belligerent or employed in its service, and these destroyers, which were not built, armed, equipped or converted with the intent of trading them to Great Britain. He also held that neutral citizens should be permitted to build war vessels in the United States for future sale to a foreign belligerent as an ordinary commercial transaction, subject to the risk of seizure as contraband and cited evidence to support this difference between selling armed vessels and building them to order. If the United States were really neutral in the present conflict, it would be difficult to defend the supply to a belligerent power 'of warships, ammunition or war material of any kind,' which article 6 of the Thirteenth Hague Convention forbids; but as a non-belligerent, or better still as a 'supporting state' against aggression, the situation is different. Nothing in International law would appear to prevent the United States either from applying its own domestic neutrality regulations or from modifying these regulations according to its own judgment. Further aid to Great Britain in the way of equal sharing of war materials and provision for later repayment in kind belongs in the same case. In short, status as a neutral, non-belligerent, supporting, or belligerent state may be determined either by the state concerned or by a belligerent involved.

Altmark Incident.

One notable clash of neutral versus belligerent occurred in the case of the Altmark. On Feb. 14 the Altmark, a German naval auxiliary ship carrying 326 English seamen taken from British ships destroyed by the Graf Spee, entered Norwegian territorial waters armed with several anti-aircraft guns which had been dismounted. After having been hailed three times by Norwegian ships — to which false answers were given regarding the presence of belligerent seamen on board and the ship's port of origin — the captain refused search on the ground that the ship had already been 'visited.' Two days later a British destroyer, the Cossack, removed the prisoners over the protest of two Norwegian warships. The Norwegian government denied the British charge of breach of international duties, and general excitement, including that of American lawyers, rose high. On the one hand it was said that permitting a belligerent public vessel to use neutral territorial waters for safe transport of prisoners without real investigation of the ship's purpose, and consequent forced release of the seamen, constituted a breach of Norway's neutrality both by Norway itself and by Germany. But the more reliable opinion held the British action illegal and a violation of Norwegian neutrality, in that passage through territorial waters, even when carrying prisoners, does not constitute an act of hostility. It would seem that neither Norway nor the Altmark was guilty of illegality: the Altmark was not taking refuge in a Norwegian port but merely passing through its territorial waters, and thus no act of hostility was involved; Norway was not responsible for not discovering what the Altmark was carrying or whether the ship was using territorial waters to escape capture; a Norwegian proclamation of May 1938, expressly permitted passage of war vessels (except submarines); the Altmark as a public ship was free from visit and inspection and thus from penalty for false papers or answers; and the British seamen were technically not prisoners of war because not part of the armed forces.

Japanese Asama Maru.

In the Asama Maru incident on Jan. 21, a British warship forcibly removed, at a distance of thirty-five nautical miles from the Japanese coast, twenty-one of the fifty Germans on board a Japanese ship. The Japanese government formally protested that these persons were not actually incorporated in the enemy forces and alleged loss of prestige because the act occurred so close to its coast. To the latter objection the British in reply urged the necessities of the particular situation and, regarding the legal objection, asserted that international law and practice justified removals of persons not simply embodied in the armed forces but also those liable to compulsory military or naval service. After further Japanese insistence upon the incident as 'unjustifiable according to international law' and an earnest request to hand over the men seized, a compromise was arranged by which the British, while not accepting the validity of the Japanese legal arguments, released nine of the men as 'relatively unsuitable for military service,' and the Japanese instructed its shipping companies to refuse future passage to individuals either embodied in the belligerent forces or susceptible of such status. The legal question, regarding the right of forcible removal of enemy persons from a neutral ship, left unsettled an issue recalling the British-American episode in 1916 following removal of thirty-eight Germans from the United States steamship China. While the original Japanese position appears to be sound international law, there is also force in the British claim that enemy reservists on their way to join the enemy forces cannot be distinguished from those already incorporated in the forces. The practice of removing enemy subjects from neutral vessels on the high seas has not legally superseded the requirement of bringing them into a prize court for adjudication.

Problems of American Security Zone.

A similar incident happened in December when a British auxiliary cruiser removed twenty-two German passengers from a Brazilian coastal passenger ship, the Itape, eighteen miles off the Brazilian coast. The Brazilian government protested to the British, particularly on the ground of its violation of the American security zone. Other protests against belligerent acts within the zone have been made without success, as for example when in March the German freighter Wakama was scuttled about fifteen miles off Brazil in order to avoid capture by a British warship. A collective protest by the American republics claimed commission of a hostile act in 'waters adjacent to the American Continent, which the American republics have the right to keep free of any hostile act on the part of any belligerent nation.' No belligerent has recognized the validity of the American security zone. In response to the formal notification of the zone at the end of 1939, the Allies replied that unless the American states could give a satisfying assurance that German ships would not be permitted to enter the zone and would be interned if they did so, the Allies could not renounce their legal right to attack such ships. The German reply did not reject the zone summarily, but predicated its successful operation upon not permitting the Allies to use for military or naval purposes their bases in British and French colonial possessions in American waters. Thus the matter stands: by the Declaration of Panama the American states have established a safety zone averaging three hundred miles in width off their shores; no belligerent has conceded its validity and there have been several incidents of open violation; on three occasions protests have been sent to the belligerents without legal or tangible results. See also EUROPEAN WAR; UNITED STATES.