1941: International Law

Alien Registration.

In a case involving the respective rights of the State of Pennsylvania and the Federal Government to enact alien registration laws (Hines v. Davidowitz et al.), the Supreme Court of the United States on Jan. 20 decided against the state. The Pennsylvania Alien Registration Act of 1939 disagreed in several respects with the Federal Act of 1940, and the Court maintained the right of Congress to set up an exclusive regulation system for aliens and thus to act freely in a matter affecting foreign relations. Its decision was based on the principle of supremacy of the national power in foreign affairs, including that over immigration, naturalization and deportation, the fullness of Federal legislation and treaties regarding aliens in the country, and, in the treatment of aliens, the importance of one uniform national system determined by Federal authorities. While not denying the state's power, the Court maintained the national supremacy in this field and subordinated to it state authority when applied to aliens once Congress has acted. Three justices dissented on the ground that aliens like citizens are subject to a dual sovereignty and that compliance with both laws involves no more difficulty than in such other dual regulations as revenue, licensing and police rules. This decision facilitates the conduct of foreign relations where concurrent legislation or state laws in conflict with treaty obligations might cause friction. A number of states still have alien registration laws remaining from the last war, and several others, and some municipalities, enacted such laws during 1941.

State Rights in Extra-territorial Waters.

The Supreme Court decided April 28 (Lambiris Skirotes v. State of Florida) that a citizen of Florida had violated a state law by using forbidden apparatus (diving equipment in taking commercial sponges) in the Gulf of Mexico two marine leagues from shore. The Court compared the right of Florida to govern its citizens' conduct outside territorial waters and on the high seas as to matters within the state's legitimate interest, with the similar control of the Federal Government, and denied that the criminal jurisdiction of the state courts could not extend beyond the international boundaries of the United States and therefore to farther than one marine league from shore. No question was raised of international law or of United States' control over its citizens beyond territorial limits, but solely that of Florida over its citizens outside its territorial limits. This control the Court upheld for matters in which a state has a legitimate interest and where there is no conflict with acts of Congress.

Postal Charge Exemption for Prisoners of War.

Few persons realize that, as the result of international legislation extending over about sixty years, an exemption from all postal charges exists for the benefit not only of prisoners of war but also for those who wish to correspond with them or to send them money and parcels. Today some 24 international agreements establish this privilege, the principle of which originated in the Franco-Prussian War, was adopted by the Hague Conference of 1907 as part of Convention IV, has been extended in various agreements of the Universal Postal Union, and was finally incorporated in the 1929 Geneva Convention for the Treatment of Prisoners of War. Various states have included the exemption in their laws. Considerable quantities of unstamped mail, both letters and parcels, addressed to prisoners, have been accepted by post offices in the United States for transmission to countries involved in the present war. The burden and expenses concerned are considerable, especially for transit countries having no immediate interest in forwarding the mail matter, yet the exemption constitutes a respected prescription of international law and must serve some interest if it has been so long respected. While no exemption for air mail appears to have been provided, on June 7 was announced an agreement between Great Britain and Germany for reciprocal use of air services to Lisbon for correspondence to and from war prisoners and interned civilians. On Dec. 27 the United States announced its intention to follow as a belligerent the 1929 Convention regarding treatment of prisoners.

Governments-in-Exile.

The situation of certain European countries raises interesting questions regarding their position in international law. Czechoslovakia, Poland, Norway, Greece, Yugoslavia, Belgium and the Netherlands have governments-in-exile in London, and the former United States Ambassador to Poland has been appointed American diplomatic representative to most of them. All have been conquered and occupied by Germany, and Poland no longer exists geographically; the Norwegian, Yugoslav, Greek and Dutch sovereigns are in England and head their exiled governments; Belgium and Holland possess large colonial territories which are administered by the governments in London, while the Polish, Norwegian, Yugoslav and Greek governments are without territory, although Polish and Norwegian leaders control fleets and airplanes. The Free French National Committee is not even a government although it wields authority locally. Military occupation has been recognized as not destroying title to sovereignty in international law and may prove to be merely an interregnum. The existence of popular sovereignty that does not accept military occupation and, instead, continuously struggles to regain expression of its will, may at the worst be only suspended. This element in an international entity bulks larger under the circumstances than the fact of occupation through conquest and should justify continuous recognition by other states as exemplified in the diplomat accredited by the United States to the governments-in-exile. The status of Denmark, occupied but not through conquest, and United States' relations with it received attention through Greenland and Ireland.

Question of American Jurisdiction over Greenland and Iceland.

The establishment of an American base in Greenland followed an executive agreement of April 10 made with the Danish minister in Washington. By it the United States, while recognizing full Danish sovereignty over the territory, accepted the responsibility of assisting Greenland to prevent its becoming a starting-point for aggression against the Western Hemisphere. For this purpose the United States assumed full jurisdiction over leased areas on which it has constructed and maintains defense facilities available to all American states. The Danish Foreign Office recalled its minister April 12 and strongly disapproved of the agreement as unconstitutional and made without authorization by a minister lacking competence. The question of validity involves, further, Denmark's capacity, under enemy occupation, to make an international agreement without the consent of the occupying power as to a colony, Greenland, which was not under occupation. Another point concerns the legal position of the United States regarding the agreement since it still maintained official relations with Denmark in Europe, recognized no other Danish government — in exile or having sovereignty over the colony; yet the United States denied that Denmark is a free agent by agreeing with the minister that it is under duress, and made with an unauthorized representative of that government an international agreement which was apparently regarded as binding legally despite Denmark's denial. A more acceptable basis for American action would seem to be the Monroe Doctrine and joint Pan American pronouncements against transfer of non-American territory in the Western Hemisphere, as was used in occupying Dutch Guiana. Preceding the establishment of bases in Iceland, that country declared its full independence from Denmark, and thus the United States was not concerned with any legal question apart from that of a neutral state. A commercial treaty with Iceland followed use of its territory.

United States Position of Non-Belligerency.

Until its declaration of war against Japan, Dec. 8, however, the United States had not been a neutral, according to international law, in the traditional sense. In such matters as policy, diplomacy, industrial and military aid, and naval activity, it had openly avowed partiality for the democratic powers and against the Axis. This position between neutrality and belligerency was described as that of a nonbelligerent or a 'supporting' state having half-way belligerent rights short of actual conflict, or aiding a defending state without armed conflict. In discussions preceding passage of the Lease-Lend Act Congressional committees on foreign affairs asserted the freedom of a non-belligerent to discriminate under the circumstances between belligerents (and thus to become a supporting state) and justified departure from the customary impartiality required of a neutral state, first, through the principle of self-defense, and, second, by the doctrine of mutuality. According to the latter, violation of a treaty is held to release other signatories from the obligations of impartiality and so nullifies the right of the first law-breaker to claim subsequent violation by another state. Thus, it was urged, the neutral duties prescribed by international law need not be observed toward a belligerent violating such a treaty as the Pact of Paris, which expressly binds signatories against the use of force, and financial and material aid might be supplied to the victim state that had been illegally attacked.

Beyond this, there exists the generally admitted sovereign right of a state in both peace and war to control all persons and property within its jurisdiction. While a non-belligerent, the United States took over idle foreign vessels in its waters: first, under the Espionage Act in a national emergency it took into protective custody Italian, German, Danish and French ships to prevent abuse of its ports by sabotage; later Congress authorized acquisition and use, with payment of just compensation, of all vessels whether by voluntary surrender or by forcible taking. The latter action, which was followed and supported by joint inter-American decision and by the American republics generally, rested legally upon the sovereign right of urgent need. On Dec. 8 and 11, the United States formally declared the state of war against Japan and Germany and Italy, respectively, that had been 'thrust upon it.' The right of angary by international law permits a belligerent state to take over any neutral transport facilities under extreme necessity upon payment of compensation. Thus, the United States lawfully requisitioned the French vessels, including the Normandie, the Swedish liner Kungsholm, and a Spanish liner. See also UNITED STATES; WORLD WAR II.