1942: International Law

Governments in Exile.

Eight foreign governments have been established in England — Belgium, Czechoslovakia, Greece, Luxembourg, The Netherlands, Norway, Poland and Yugoslavia. Rights of sovereignty exercised within the territorial supremacy of another state were permitted by Parliament in order to facilitate utmost cooperation among the United Nations. Thus the refugee governments on foreign soil have diplomatic status, the power to make and enforce treaties and laws, control of labor, maintenance of armed forces and conscription, and the administration of justice. The obstacle of sovereignty to the development of international order has in these cases not been insuperable.

However, the co-existence of two or more sovereign governments on the same territory creates unusual problems of law and functioning. One difficulty has been solved through the maritime courts created in England by the governments-in-exile for trying and punishing offenses committed on their national ships. These courts differ from the United States military courts which try members of the armed forces for crimes committed in Great Britain, since the latter reflect the traditional extraterritorial status of foreign armed forces. Parliament on August 4 granted this jurisdiction over all 'visiting' American military and naval forces.

Prize Courts and Prize Laws.

Thus far American prize courts have functioned little. The United States District Court for the Southern District of New York, however, issued in January a somewhat antiquated set of 'Prize Rules and Standing Interrogatories in Prize' which, by following nineteenth-century rules, seems out of date in totalitarian and air warfare. While American courts had few prize cases during World War I and consequently left their procedure unaltered, the British rules were revised four times between 1914 and 1917 under active use, and the new set issued in 1939 has had considerable application. New German and French rules for prize procedure were promulgated in 1939.

War Criminals to Be Tried.

Nine of the United Nations, European governments-in-exile, announced on January 13 resolutions declaring as a principal war aim the punishment, through the channel of organized justice, of persons guilty and responsible for war crimes whether through order, perpetration or participation. In response to their formal request, President Roosevelt not only gave solemn warning on August 21, but stated, October 7, that after the war, war criminals would be surrendered to the United Nations for trial before law courts — not concerned with mass reprisals, but with the punishment of ringleaders responsible for organized murder of the innocent. This referred chiefly to treatment of so-called hostages, who in occupied countries have been taken and shot for acts alleged to have been committed by unidentified civilians, as in the notorious slaughter of all the inhabitants of Lidice, Czechoslovakia, in partial reprisal for the murder of Heinrich Heydrich on May 27. Now, on December 17, this intention has been applied to Germany's 'policy of cold-blooded extermination of the Jews' through a new joint declaration of eleven United Nations and the French National Committee, including the United States and Great Britain. War crimes legally include also violations of recognized rules of warfare by the armed forces.

The attempt made in the Treaty of Versailles to punish notorious violations of recognized rules of war met with little or no success. The attempt to try the Kaiser for war responsibility had to be abandoned, and the Allies, unable to secure delivery of German officers deemed guilty of war crimes, could only compromise by accepting trial in Germany of some of the officers charged, with paltry and perfunctory results. The present move to secure international criminal prosecution of violators of international law, including persons guilty of 'barbaric crimes against civilian populations,' reflects the long-felt need for an international criminal code and a world court of criminal justice.

Treatment of Prisoners of War.

Inhumane and illegal treatment of prisoners of war also received attention following the October commando raid on Dieppe. After two months of mutual charges and threats regarding the shackling of prisoners by Germany and by Great Britain and Canada, the British government announced on December 11 that it would untie any shackled German prisoners in response to the proposal of the Swiss government that both governments should release their prisoners and abide by the Geneva Convention of 1929, to which the states involved are parties. No reply from Germany has yet been published. Japan is not a party to the convention.

Aliens in the United States.

The great number of aliens in the United States creates an unusual problem during wartime. While international law does not permit a belligerent to require from aliens military service directed against their own governments, it is not equally clear regarding services connected with the war effort or the right to draft neutral aliens for military service. From the liability to training and service imposed upon 'every male alien residing in the United States who has declared his intention to become' a citizen, the amended Selective Service Act now exempts aliens who have applied for exemption before induction, but penalizes them by taking away the right ever to acquire American citizenship. Registration has been required of all aliens, including those temporarily in the United States except specially exempt persons like non-resident students. Non-declarant aliens may choose service in the armed forces of a co-belligerent country, like Canada, with which the United States has so agreed. The amended Nationality Code facilitates the naturalization of resident aliens after honorable service in the armed forces during the present war, chiefly by not requiring a declaration of intention or a definite period of residence. The privilege of naturalization is denied to any alien dishonorably discharged and to a conscientious objector who performed no military duty or refused to wear the uniform.

The fact that so many aliens in the United States are refugees, hostile to the régime in their own countries, has emphasized the need for a practical distinction separating the friendly enemy alien from the alien enemy. On October 12, Attorney General Francis Biddle announced that about 600,000 unnaturalized resident Italians would no longer be classed as enemy aliens because of their loyalty to the United States — only 228 Italians have had to be interned. Notwithstanding Mr. Biddle's admission that the new treatment formed part of the country's psychological warfare, it has placed a large number of aliens in a better legal and humanitarian situation, and in many cases it will both aid aliens to secure employment and expand the labor supply. This action leaves in the United States 263,930 Germans, of whom half are said to be refugees, and 47,963 Japanese alien enemies. In addition, the government has regulated the activities of some 125,000 first and second-generation Japanese, largely for their personal and economic protection. Since the war began, 11,372 alien enemies have been taken into custody as dangerous to national security, and of these 3,617 were ordered interned — 1,228 Germans, 2,151 Japanese, 228 Italians, 2 Rumanians, 1 Bulgarian, and 7 Hungarians.

Future of International Law.

The future of international law has its place in current discussion. In December, 1941, the Grotius Society of London issued a brief report on the future of international law, summarizing the results of a prolonged inquiry and discussion. In the main its conclusions emphasize the function of international law as preserving peace and order, its inadequacy regarding this, its needed development, like municipal law, by limitations on national sovereignty and by means analogous to legislation, jurisdiction, and execution, and its extension to economic and social, as well as political, matters. In the United States a group of jurists, assisted by the Carnegie Endowment for International Peace, is already examining the premises of international law, and research into inter-American law is being conducted at the University of Michigan.

The Supreme Court and the Fifth Amendment.

In the case of U. S. v. Pink, appealed from the New York Supreme Court, the United States Supreme Court on February 2 decided a matter arising from the recognition of Soviet Russia in 1933. The court held that assets of over one million dollars belonging to the New York branch of the First Russian Insurance Company had reverted to the United States government rather than to the branch itself or the parent company, by virtue of the assignment in 1933 of Russian claims here to the government. Thus the sum would form a small part of the total American claims against Russia, rather than be distributed to foreign creditors of the bank as ordered by the New York court. In brief, the Supreme Court regarded the first decision as a collision between State policy under the Fifth Amendment and the foreign policy of the Federal Government exercised in recognizing Soviet Russia. It denied to the States any share in the exclusive power of the Federal Government over foreign affairs and any right of subjecting to judicial inquiry the national enforcement of this constitutional power. By its judgment the court has apparently taken the unprecedented position of giving effect to a foreign confiscatory decree as applied to property outside its jurisdiction, since Russian law attempted to confiscate assets of this branch company in the United States; the court thereby rested the Soviet title to assign this private property on Russian rather than New York law. It has also placed the executive agreement, used when the Soviet was recognized, on a par with treaties as the supreme law of the land and hence dominating State law. It further interprets the Fifth Amendment as permitting the United States to demand a preference for itself and its nationals over the owners and creditors of foreign private property against which it has claims. On these and other grounds international lawyers criticize the decision, which may later cause difficulties if European governments after the war issue confiscatory decrees involving property situated in the United States.

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.

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.

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.

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.