500.A14/167b

The Secretary of State to the American Delegation41

No. 1

Sirs: The President has instructed me to inform you of his desire that you should represent this Government at the forthcoming international conference to be held at Geneva on May 4, 1925, to consider [Page 28]the conclusion of a convention with regard to the international trade in arms, munitions and implements of war. You will be assisted by

  • Mr. Charles E. Herring,
  • Mr. Alan F. Winslow,
  • Major George V. Strong,
  • Commander Herbert F. Leary,

as technical advisers and secretarial staff.42

You are already familiar with the subject matter to be dealt with at the Conference and with the views of this Government as set forth in the instruction of the Acting Secretary of State of June 17, 1924.43 For your further information and guidance the Department has prepared and encloses herewith a confidential print which includes correspondence and documentary material for general reference purposes with respect to the question of arms traffic.44 You will note in this correspondence the text of the communications of the Legation at Berne under instructions from the Department of August 29 [28?], 1924 and December 7 [6?], 1924, indicating this Government’s willingness to be represented at the proposed conference. The confidential print also indicates the position this Government has taken with respect to the unratified Convention of St. Germain45 and also the views expressed at the meetings which were held in 1924 at Geneva and Paris to consider in a preliminary way the international trade in arms, munitions and implements of war.

To supplement the information contained in this confidential print and for your further guidance, the Department, in the following pages, indicates its attitude toward the draft convention which is to be considered at the Conference, pointing out changes which are considered necessary or desirable before any convention is submitted to the Senate for approval or to Congress for legislation.

General Considerations

This Government is prepared to give careful consideration to any constructive proposals for the proper regulation of the international trade in arms with a view not only to securing adequate publicity with respect to such trade but also for the purpose of reducing to a, minimum the traffic in arms which is calculated to foment disorder, encourage militarism or render more difficult the realization of this [Page 29]Government’s desire that further progress should be made toward an era of continuing peace.

In this connection it may appropriately be pointed out that the United States, while declining to ratify the Convention of Saint Germain has already complied with the spirit of that convention in the reductions which have been effected in its war times munitions industry and the consequent reduction to relatively small proportions of the American trade in arms and ammunition.

Further, it should be noted that of the High Contracting Powers specifically mentioned in Article 32 of the draft convention, the United States, in contrast with other Powers, is the only nation that does not maintain large Government arsenals for the supply of its own war time need. Consequently, in the event of any national emergency this Government will be dependent for its arms and ammunition almost exclusively upon the relatively meager private industry and manufacture of war material. It is therefore clear that this Government could not properly acquiesce in any measure which would be directed against private munitions factories while leaving government-owned or controlled factories in other countries free to continue their trade or production.

Further, it is clearly to be borne in mind that, with respect to the United States, the further control of the traffic in arms could only be made effective by Congressional action. It would, therefore, be useless for this Government to conclude a convention unless there were reasonable grounds to believe that it was of a character to commend itself to Congress and that the necessary legislation to make it effective could be obtained.

Agenda of the Conference

The Department understands that the Conference is to consider solely the question of the international trade in arms, munitions and implements of war, taking as a basis for discussion the draft convention prepared by the Temporary Mixed Commission of the League of Nations which was communicated to this Government under date of October 7, 1924.46 The Department further understands that the Conference is strictly an international conference and that all States, whether members or non-members of the League, will participate on the same basis in all the deliberations and functions of the Conference- It further understands that the draft convention, while serving as a basis for discussion, is susceptible of any and all modifications which may be considered desirable by the participating States.

[Page 30]

Before proceeding to a consideration of the draft convention article by article, the Department desires to take up the three important principles underlying the convention in its present form, as follows:

(1)
The licensing system;
(2)
The restriction of sales to recognized governments and belligerents, and
(3)
The prohibited zones.

The Licensing System

Under existing legislation the President is authorized whenever in his opinion conditions of domestic violence exist which are or may be promoted by the importation of arms from the United States, to prohibit such exportation except under licenses in the case of countries in this hemisphere and countries in which the United States exercises extraterritorial jurisdiction. The draft convention contemplates the extension of this system of licensing to cover all countries of the world in time of peace irrespective of the conditions prevailing in such countries. The purpose of the licensing system, as indicated in the Convention, in the securing of adequate information with regard to the movements of arms and ammunition and, taken in conjunction with other provisions of the Convention, to prevent such arms from reaching the hands of unauthorized parties.

As far as the United States is concerned, the statistical data could be obtained without requiring the somewhat elaborate system of licensing. In fact at the present time the United States published [publishes] statistics, both of production and of export and import trade, which are believed to be more complete than the corresponding statistics of any other country. While the Department is prepared to take up with Congress the question of securing the necessary legislation for the licensing of the export of arms and ammunition in international trade, in the event that an agreement at Geneva should be reached on this basis, nevertheless it seems preferable, and you are authorized to suggest, if occasion offers, that the ends of publicity would be equally well served by the requirement that in the case of each exportation of arms and ammunition, whether by a government or by a private company or individual, there should be filed with the appropriate local authorities an export declaration or statistical statement giving full data with regard to the nature, size, and destination of the shipment. A copy of such declaration could also accompany the shipment. (As indicated below, there would, however, be no objection to providing for a system of licensing with respect to the “prohibited zone.”)

The suggestion has been made that special export declarations for arms shipment be required rather than licenses granted by the Government. [Page 31]In this connection certain objections have been raised to the license system and the views of the War Department on this subject might briefly be summarized as follows:

(a)
Licensing might involve the Government in a responsibility as to the ultimate destination of the shipment, a responsibility which it is in no position to carry out since it has no control of the arms once the shipment leaves its territory.
(b)
Licensing might result in undue interference with private trade.
(c)
Non-producing States object to a requirement that they turn to other governments to secure licenses for the export from a foreign country of the arms necessary for their national defense.
(d)
A licensing system if it placed impediment in the way of acquirement abroad by non-producing States of the arms necessary to their defense would tend to force such States to become producers of arms. This result would not help toward world peace.

The Department therefore desires you to ascertain whether effectual agreement could be reached on the basis that the term “export declarations” or its equivalent should be inserted for “licenses” in various articles of the convention as hereafter indicated. This is not, however, a point of such vital importance as to justify a course of action which would seriously imperil the success of the Conference.

In the event, therefore, that the Powers represented at the international conference are generally agreed that the license system is the only satisfactory method of securing the control and the statistical data desired, the Department would not wish to jeopardize the success of the Conference by advocating the abandonment of the license system.

Sales Restricted to Recognized Governments and Belligerents

This provision of the Convention should be amplified so as clearly to reserve the right of this Government or of its nationals to make direct sale of arms and war material to the authorities of any self-governing dominion, colony, dependency, mandated territory, and to the federal or administrative subdivision thereof with the consent of the central authority. It is obvious that this Government could not acquiesce in the view that sales to self-governing dominions should be made exclusively by one State or that the Mandatory or Sovereign Powers should be permitted to monopolize the trade in arms with countries under mandate, or with their colonies and thereby defeat the principle of equality of opportunity.

There is a further question of no little difficulty, which arises under the provisions of the Convention restricting sales to recognized governments or belligerents. If this Government does not extend recognition to a particular régime while other countries extend such recognition, the result would be that other countries [Page 32]would be free to export arms to that country and American manufacturers would be prevented from so doing. This situation is taken into account in the modification of Article 3, Paragraph 1.

The Question of the Prohibited Area

The Department desires you to support the position that the Convention as at present drafted should be divided into two separate conventions—one dealing with publicity and the control of the general export trade in arms, the other dealing with the special supervision of the trade in the so-called prohibited zones which it is apparently the desire of certain Powers to place under a further system of control. In this connection you will note that the Department’s instruction of June 17th favored the division of the Convention as above indicated and that on page 147 of the League publication47 there is given a detailed statement as to the desirability of this procedure.

The Department believes that it would facilitate the consideration of the Arms Traffic question in this country if the two questions, that of the general publicity and control on the one hand and that of the prohibited areas on the other, were dealt with separately. They are distinct problems. The latter only concerns this Government to a very limited degree. The United States has no territorial possessions in the general region (i. e. Africa, South Western Asia, etc.) which have in the past been considered as possible prohibited areas. Further, neither this Government nor its nationals have ever engaged in any considerable traffic in arms with this area of the world. The question of the measure of control to be exercised in any such “prohibited zones” is largely a matter for determination by the Powers which have colonies or mandates in this region, provided, however, that no restrictions are imposed which would impair the principle of most-favored-nation treatment.

Whether this Government could properly be a party to a convention setting up a control of the arms trade in the prohibited areas can only be determined when the scope and purpose of the convention is more clearly defined. In any event the Department would not desire you to support any effort directed toward the placing in the “prohibited zone” of sovereign States, such for example as Persia, which the Department notes has already made vigorous protest against such action.

In taking up the discussion of the Convention, article by article, the Department will deal further with this question of the “prohibited zone” in considering Articles 9 to 25 inclusive.

[Page 33]

Shipments by Governments To Be Made Public as Well as Shipments by Private Parties

It should be made entirely clear that the Convention covers the full publicity for all export of arms by or on behalf of the governments themselves, (exclusive, of course, of shipments for their own military forces abroad) as well as shipments by private individuals or companies within the territories of the High Contracting Parties. The reasons for this are obvious. One of the chief purposes of the Convention is to obtain statistical information with respect to the volume, character, destination, etc., etc., of the international trade in arms and ammunition. In the case of certain countries such export is to a large degree carried on by or on behalf of the governments which manufacture the arms in Government factories or, as the case may be, directly control the bulk of the manufacture and trade. If the export of arms and ammunition by Governments is not given publicity, the result would be that the figures on exports from countries such as the United States, where the trade in arms is almost entirely carried on by private companies, would be out of its proper ratio if contrasted with the export of the countries of which the governments themselves engage in a considerable traffic in arms. This point will be dealt with in further detail in considering the specific articles of the Convention.

Consideration of the Convention Article by Article

preamble*

“Whereas the Convention of Saint Germain signed by the High Contracting Parties therein mentioned has not entered into full force and effect;

“Whereas it is necessary to exercise a general supervision over the international trade in arms, munitions and implements of war, with the object of securing the fullest possible publicity in regard to such trade;

“Whereas the existing treaties and conventions, and particularly the Brussels Act of July 2nd, 1890,48 regulating the traffic in arms and munitions in certain regions, no longer meet present conditions;

“Whereas a special supervision of the maritime zone adjacent to certain countries is necessary to ensure the efficacy of the measures adopted by the various Governments both as regards the import of arms, ammunition and implements of war into these countries and their export from their own territory;

“Have appointed . . . . . . . . . . . .”

[Page 34]

In view of the fact that the Convention of Saint Germain never became generally effective, it is considered preferable that it should not be mentioned in the preamble. Further, the statement that this Convention “has not entered into full force and effect” might lead to the erroneous conclusion that it was partially effective. The Department does not understand that this is the case with respect to any of the important producing countries. Further, there is already included in Article 27 a provision to the effect that the Convention of Saint Germain is to be superseded by the present Convention in so far as the Powers which ratified the former are concerned.

The second paragraph of the Preamble should be modified to avoid giving any ground for the erroneous conclusion that the purpose of the Convention is to provide for the international “general supervision” over the arms trade. It is suggested, therefore, that the second paragraph of the Preamble be modified to read:

“Whereas the High Contracting Parties are agreed as to the desirability of exercising, each in so far as it is concerned, a supervision over the foreign trade in arms, munitions and implements of war,” etc., etc.

In the event that the present draft convention is divided into two separate conventions, as heretofore suggested, the Preamble would of course be modified to meet this change.

article i

“This Convention applies to the following arms, munitions and implements of war:

Category I

“1. Arms and Munitions, Assembled or Component Parts, Exclusively Designed for Land, Sea or Aerial Warfare, Whatever Their Mode of Employment.

(List follows)

“2. Implements of War Hereafter Enumerated and Component Parts Which are Capable of Being Utilized Only In the Manufacture of the Said Material.

(List follows)

Category II

“Arms and Munitions, Assembled or Component Parts, Capable of Use Both For Military and Other Purposes.

(List follows)

Category III

“Arms and Munitions Having No Military Value.”

(List follows)

[Page 35]

It has been pointed out by representatives of American manufacturers particularly interested in the export of sporting arms and arms for personal self-defense that the division of arms into categories according to caliber is misleading and unless modified would result in placing in Category I, that is arms which can only be exported under license, certain sporting arms which could properly be exported without license. Further, it is to be noted that pistols and revolvers are in Category I.

It has therefore been suggested, and it seems reasonable to the Department, that the Categories as at present drafted should be modified so as to exclude from Category I pistols, revolvers and sporting arms.

In this connection the following recommendations of the War Department with regard to Categories as contained in a suggested redraft of Article 1 are deserving of careful consideration.

article 1

“This convention applies to the following arms, munitions and implements of war;

Category I

  • “(a) Arms, ammunition, and implements of war, exclusively designed for land, sea, or aerial warfare, which are, or shall be, comprised in the equipment of the armed forces of the different states, whether military, naval or aerial, with the exception of pistols and revolvers, and with the exception of sporting arms.
  • (b) All arms except pistols, revolvers and sporting arms and ammunition for the same, which, after having been employed in the services of the different states, are no longer part of their equipment but remain capable of being utilized for military purposes to the exclusion of any other utilization.
  • (c) Component parts of the items listed in (a) and (b) above, if capable of being utilized only in the manufacture or repair of the items listed in (a) and (b) above, for land, sea or aerial warfare.”

The War Department suggests the omission of Category II.

In view of the fact that the control of the export of such weapons as pistols, revolvers and sporting arms may be desirable within the “prohibited zone”, there would be no objection, in principle, to retaining a second category to include such arms. The export to the prohibited zone, except under license, of arms in both Categories I and II might be prohibited.

In connection with the definition of categories, or wherever in the convention it might be considered most appropriate, the Department would desire to see an article inserted absolutely prohibiting international trade in asphyxiating, poisonous or other gases for use in [Page 36]war. In this connection you will recall that the Treaty between the United States, Great Britain, France, Italy, and Japan, signed on February 6, 1922,49 contained, in Article 5, a prohibition against the use of such gases. This Treaty, it may be noted, is not yet effective as it has not been ratified by France. However, as this Government and various other governments are clearly committed to the principle that poisonous gases should not be used in warfare, there is every reason for you to press for the inclusion of an article prohibiting the shipment of such gases in foreign trade for possible use in time of war. The form which such an article might take, following in part the phraseology of the Treaty of February 6, 1922, might be somewhat as follows:

The use in war of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices, has been justly condemned by the general opinion of the civilized world and a prohibition of such has been declared in treaties to which a majority of the civilized Powers are parties. The High Contracting Parties therefore agree absolutely to prohibit the export from their territory of any such asphyxiating poisonous or other gases and all analogous liquids, intended or designed for use in connection with operations of war.

article 2

“The High Contracting Parties undertake not to export themselves, and to prohibit the export of arms, munitions and other implements of war enumerated in Category I, except on the conditions hereinafter mentioned.”

Instead of a general prohibition against the export of arms and ammunition followed by exceptions—a misleading form of drafting, since it is not the purpose of the Convention to prohibit the export of arms or ammunition—the Department considers that it would be preferable to combine Article Two with the first paragraph of Article Three, as indicated below:

article 3

“Notwithstanding this prohibition, the High Contracting Parties may grant in respect of arms, munitions and implements of war whose use is not prohibited by international law, licenses for the export of arms, munitions and implements of war enumerated in Category I, in the following conditions.”

If Article Two is suppressed as above indicated, the first paragraph of Article Three might well be modified to read:

“Each of the High Contracting Parties agree that the following conditions shall be applicable to the exportation or shipment [Page 37]from their territory, including self-governing dominions, colonies, protectorates, mandated territories, of all arms, munitions and implements of war enumerated in Article I, Category 1, exclusive of arms shipped for the use of their own military forces, whether such export is by or on behalf of the Government itself or by private companies or individuals.”

article 3, paragraph one

“Licenses are not to be granted except for a direct supply to a Government recognized as such by the Government of the exporting country.”

This paragraph should be modified somewhat as follows:

“Exports* are not to be permitted except for a direct supply to a government recognized by at least one of the High Contracting or adhering Powers or to the authorities in any self governing dominion, colony, protectorate, mandatory territory, or to the authorities in any federal or administrative subdivision thereof, with the consent of the central authorities of the importing country.”

article three, paragraphs two and three

(2)
“The Government acquiring the consignment must act through a duly accredited representative.”
(3)
“Such representative must produce a written authority from the Government he represents for the acquisition of each consignment, which authority must state that the consignment is required for delivery to that Government for its own use.”

To replace or to supplement the provisions of paragraphs two and three it is suggested that the visa of the consul of the importing country upon the export declaration (or license as the case may be) should be sufficient indication that the shipment referred to in paragraph 1 is authorized by the Government of that State.

article three, paragraphs four, five and six

(4)
“The form in which this license shall be given shall, so far as practicable, be that given as an appendix to the present Convention.
“Each licence must contain a description sufficient for the identification of the arms, munitions and implements of war to which it relates and the names of the exporter and the acquiring Government, ports of embarkation, and disembarkation, means of transport, intended route and destination.
(5)
“A separate licence shall be required for each separate consignment which crosses the frontier of the exporting country, whether by land, water or air, and shall accompany each separate consignment.
(6)
“A return of the licences granted shall be sent quarterly to the Central International Office referred to in Article 8 of the present Convention by the issuing Governments; importing Government, when High Contracting Parties, shall also forward quarterly to the Central International Office a return of the same licences enclosing particulars of the heading under which the imported goods will appear in their imports statistics.”

In the event that export declarations replace licenses, it would be necessary to make corresponding changes in the above paragraphs.

If licenses are retained it would be important to clarify exactly what is meant by the reference to the “return of the licenses” to the Central International Office. Does this mean a report of the total export of various categories of arms based on information obtained from the licenses or is it the intention that copies of the licenses themselves should be forwarded to the Central Office? In this connection your attention is called to the provision in Article 8 which would appear to indicate that the return of the licenses covers an indication of the quantities and the destination of the arms exported under licenses.

article 4

“Further, licences for the export to private individuals of component parts covered by Category 1 may be granted on the following conditions:

“The said component parts must be exported direct to a recognized manufacturer of war material, duly authorized by his own Government, on a declaration from him to the effect that the said component parts are required by him.

“The Government which grants the licence and the Government of the importer’s country shall take all adequate precautions to ensure that the said component parts are sent direct to their destination.

“The licences granted in the terms of the present Article shall, so far as practicable, be drafted according to the form annexed to the present Convention, and shall conform to the provisions of the present Convention, and particularly to those of Article 8.”

The provision that the exporting government shall “take all adequate precautions to insure that the said component parts are sent direct to their destination” is one which it would be difficult to carry out since the exporting country cannot control the shipment after it has left its territory. This provision should be modified or eliminated.

With respect to the shipment of component parts, the following suggested redraft of Article 4, prepared by the War Department, is submitted to you for your consideration.

“The export of items or component parts of items specified in Article 1, including samples for demonstration, may be permitted [Page 39]to recognized manufacturers, or to trade representatives of the exporter, on the following conditions:

1. The said items or component parts of items must be exported direct

(a)
to a recognized manufacturer of war material dulyauthorized by his own government; or
(b)
to a trade representative of the exporting manufacturer.

The export declaration (or license) must show that said item or component part is required by the importer.

2. The government which permits the export and the government of the importer’s country, shall take all reasonable precautions to insure that the said items or component parts are sent direct to their destination.”

article 5

“Without prejudice to any obligations to which they may have subscribed under international conventions dealing with transit, the High Contracting Parties, when they have reason to believe that any consignment of arms, munitions or implements of war in transit through their territory’ does not conform to the provisions of the present Convention, undertake to investigate the circumstances and if necessary to prohibit the transit.”

It is suggested that before the word “transit” the word “land” be inserted. The Department feels that it would be undesirable to conclude a convention which might conceivably be construed as authorizing the detention, for examination, of ships temporarily in transit through the territorial waters of one of the High Contracting Parties merely because of the suspicion that such ship might possibly contain a consignment of arms not properly authorized. Such a provision might easily lead to abuse. Further, this Government would not wish to be obligated by an international convention to exercise such a supervision with respect, for example, to ships passing through the Panama Canal. Nor would it desire that such a supervision be exercised under the present Convention upon American vessels passing through, or temporarily remaining in, the territorial waters of other countries.

The Department feels that the phrase “does not conform to the provisions of the present Convention” is too broad and general. It is suggested that it be replaced by the phrase “is not properly authorized.”

Furthermore, it might be pointed out that a third State would presumably have no opportunity to examine goods shipped in bond over its territory and shall not therefore be under any obligation to control arms so shipped. A provision to the effect that “articles shipped in bond” should not be disturbed might be considered in this connection.

[Page 40]

article 6

“Without prejudice to the provisions of Article 7, arms and munitions in Categories II and III may, if the exporter’s country so desires, be exported without licence. Provided, nevertheless, that in the case of arms and munitions of Category II the High Contracting Parties hereby undertake to determine from the size, destination and other circumstances of each consignment whether these arms and munitions are intended for war purposes. If such is the case, the High Contracting Parties undertake that the shipments shall become subject to Articles 2 to 5.”

While the Department concurs in the view that arms not in Category I should be shipped without license (except in the case of the prohibited zone) there is no reason why there should not be full publicity as to such shipments. In this way it would be much easier to detect and thus to prevent the shipment in large quantities of arms which are alleged to be for sporting purposes though in reality they may be for military purposes. Each of the High Contracting Parties would be free to provide the necessary machinery to secure the desired publicity but the items of information desired might well be indicated in the convention and it might further be provided that all such information should be sent to the International Central Office. The War Department prefers that Article 6 be omitted.

article 7

“The High Contracting Parties further undertake to prohibit the export of arms, munitions and implements of war enumerated in Article I, to the maritime or territorial zones specified in Article 9.

“Nevertheless, the High Contracting Parties may grant export licences, notwithstanding this prohibition, provided that they conform to the provisions of Articles 3 to 5. The competent authorities must satisfy themselves, before issuing the licences, that the arms, munitions or implements of war are not intended for export to any destination or for disposal in any way contrary to the provisions of this Convention.”

If the Conference adopts the suggestion with respect to the separation of the Convention into two parts, i. e. one covering publicity and the general control and the other the prohibited areas, it would be necessary to indicate definitely in Article Seven the extent of the prohibited zone. It is also desirable to include in this article a provision for most-favored-nation treatment.

article eight

“A Central International Office shall be established by the Council of the League of Nations for the purpose of collecting, preserving and publishing documents of all kinds exchanged by the High Contracting Parties with regard to the trade in and the distribution of [Page 41]arms, munitions and implements of war, as well as the text of all laws, orders and regulations made for the carrying out of the present Convention.

“Each of the High Contracting Parties shall publish an annual return of the export licences which each may have granted in respect of arms, munitions and implements of war in pursuance of the present Convention, mentioning the quantities and destination of the arms, munitions and implements of war to which the export licences refer. A copy of this return shall be sent to the Central International Office.

“The High Contracting Parties further undertake to forward to the Central International Office all information which they will be in a position to provide relating to consignments under contracts entered into before the coming into force of the present Convention.”

It is clear to the Department that any provision that the Central International Office should be established by the Council of the League of Nations would be objectionable and would seriously prejudice the prospect of the ratification of the Convention. It is noted that provision is made in a subsequent Article for a “conditional or partial adherence.” The Department feels, however, that it would be unfortunate for the Convention to be drafted in a form to make amendments or reservations essential. You should therefore endeavor to secure an alteration in Article Eight so that that Article shall not provide for the designation of the International Office by the Council of the League. In this connection the Department has noted, on pages 88 and 191 of the League publication,50 that various proposals for the separation of the International Office from the League have been made but not adopted by the League committees on the ground, chiefly, that committees of the League could hardly themselves suggest that the Central Committee be entirely divorced from the League. The International Conference, however, being entirely independent of the League, would be in a different position, and it would be appropriate for you to indicate this Government’s view that the Central International Body should be established by agreement among the High Contracting Parties or that it should be set up pursuant to the agreement of certain specified Powers.

Upon the opening of the Conference the Department would be glad to receive from you any further suggested formulae to cover this point which you feel might profitably be suggested to the Conference.

It is further suggested that the last paragraph of Article Eight be omitted. There will be considerable time between the signature of any convention and its going into effect. Arms manufacturers will be clearly on notice as to the conditions which they may be called upon to meet, in the event the Convention is made effective, and it would [Page 42]therefore seem proper that all shipments after Convention goes into effect should be subject to its terms, whether contracted for prior to or after such date. It would seem unnecessary, and perhaps prove to be impracticable, to endeavor to secure specific information relating to shipments made before the coming into force of the convention since the legal provisions for securing such information might not then be in effect in certain countries. However, in view of the fact that the United States already secures and publishes such data there would be no serious objection to this provision unless it meant, in effect, that the United States would be the only country to supply this information to the Central Bureau.

It is felt that this Article should further be amended to provide for a more frequent publication of statistics by the Central Bureau, which might well be done quarterly rather than annually.

Further it should be provided that the High Contracting Parties may submit to the Central Bureau information which they receive as to infractions of the Convention for circulation by the Central Bureau to the High Contracting Parties. It is doubtful, however, whether the Central International Office should undertake to pass upon the information so furnished. It should rather act merely as a channel of transmission and of publicity.

Finally it would be desirable to provide in Article 8 that the cost of the maintenance of the Central Bureau should be apportioned equitably among the High Contracting Parties. Possibly the best basis for computing the cost would be according to the Trade of each country as reported to the Central International Office.

III. The Question of the Prohibited Areas and the Control To Be Exercised Therein

articles nine to twenty-four, inclusive

As already indicated, it is not felt that this section of the proposed Convention vitally concerns the United States Government, which has no territorial possessions, colonies, dependencies or mandates within the zones contemplated as prohibited areas.

The only question which would appear to arise, so far as this Government is concerned, with respect to the Articles in question is whether it could consent that its nationals and their trade should be subject to the supervision proposed. As far as the provision for land surveillance is concerned, it seems clear that this Government could not object to any reasonable measure of control exercised in territory under the sovereign or mandatory control of other Powers. It would, of course, insist that such control should not result in discrimination, denial of the principle of equality of opportunity, or undue interference [Page 43]with legitimate trade. Subject, however, to these reservations, the Department would not be disposed to object to any agreement which might be reached among the interested Powers for a uniformity of control in the matter of importation of arms into the so-called “prohibited zone” if the zone is under the authority of the several Contracting Powers.

This Government would not, however, consent to third Powers exercising any form of control over its trade with other sovereign countries, subject of course to the rules applicable in time of war to contraband or blockade.

It should further be pointed out that this Government could not consider itself bound by any such provision as that included in the penultimate paragraph of Article Thirteen, which states: “In cases where a violation has been duly proved, no further transit license shall be granted to the offending State without the previous consent of the Council of the League of Nations.”

With respect to the question of maritime supervision, the question would naturally arise whether this Government could recognize the right of the High Contracting Parties to visit and search on the sea outside of territorial waters.

The Department understands from Article Eighteen that the supervision contemplated applies to “native vessels of less than five hundred tons.” From the foregoing it appears unlikely that vessels flying the American flag would be affected. As far as the Department can judge from the facts before it, it would not be disposed to object to the exercise of supervision of this character by other Powers within certain specified zones adjacent to their own territories with respect to native vessels of the tonnage suggested, but it would not undertake to participate in any such supervision.

As already suggested the Department is inclined to believe that it would not serve any useful purpose for this government to become a party to a convention comprising provisions similar to those in Articles 9–24. However, as this government is a party to the Brussels Act of 1890 which contains somewhat similar provisions the Department would be prepared to give careful consideration to the question in the event that you should affirmatively recommend the signature of such a convention.

article 25

“In time of war, Articles 2, 3, 4, 5 and 6 shall be considered as suspended from operation until the restoration of peace so far as concerns any export and transit of arms, munitions or implements of war to or on behalf of any of the belligerents recognized as such by the exporting country and the countries of transit, provided such recognition [Page 44]has previously been communicated to the other High Contracting Parties.”

You may wish to consider a modification of this Article similar to that suggested in the case of Article 3, paragraph 1, namely the substitution for “the exporting country” of the phrase “one of the High Contracting or Adhering Powers”.

It is further suggested that “and the countries of transit” be eliminated from Article 25. It is felt that this question of the right of the third State to stop munitions in transit destined for a recognized belligerent should be dealt with according to the applicable principles of international law. A third State, because it does not recognize the belligerent in question, should not be placed under any special obligation by this Convention to stop arms in transit.

It is further recommended that the provision that recognition of belligerency must be communicated to the other High Contracting Power be omitted.

In the event that the license system is abandoned this article would be unnecessary but in that event Article 3, paragraph 1 should be amended to include “belligerents.”

article 26

“Any Government may, on signing or adhering to the present Convention, declare that it accepts its provisions partially or conditionally, provided that the High Contracting Parties consent and that it does not thereby affect the effectiveness of the supervision of the trade in arms, munitions and implements of war.

“Nevertheless, the Convention shall only apply to Powers availing themselves of the option provided in the previous paragraph if, within the period of one year from the notification by the French Government of the deposit of their ratification (or adherence), partial or conditional, no opposition to such ratification (or adherence) has been raised by any of the Contracting Parties.”

No comment.

article 27

“All the provisions of former general international Conventions relating to the matters dealt with in the present Convention, including the Convention for the Control of the Trade in Arms and Ammunition and the protocol signed at Saint Germain-en-Laye September 10th, 1919, shall be considered as abrogated in so far as they are binding between the Powers which are Parties to the present Convention.

“The present Convention shall in no way affect the rights and obligations which may arise out of the provisions either of the Covenant of the League of Nations or of the Treaties of Peace signed in 1919 and 1920 at Versailles, Neuilly, Saint German and Trianon or of the Treaty limiting Naval Armaments signed at Washington [Page 45]on February 6th, 1922,51 and the provisions of Agreements registered with the League of Nations and published by the League up to the date of coming into force of the present Convention, so far as the Powers which are signatories of or benefit by the said Treaties or Agreements are concerned.”

Your attention is particularly directed to the provisions in Article 27 that the “Convention shall in no way affect the rights and obligations which may arise out of the provisions …52 of Agreements registered with the League of Nations and published by the League up to the date of coming into force of the present Convention. In view of the large number of agreements which have been so registered, the Department desires you, before acquiescing in any such provision, to ascertain whether any of the Powers parties to the proposed Convention have concluded and registered arrangements the terms of which conflict with those of the proposed convention. In the event that such is the case, the Department would wish you to consider the bearing of such arrangements upon the effectiveness of the control proposed before consenting to the insertion of any such provision as that quoted above.

article 28

“The Council of the League of Nations shall cause to be published an annual report on the operation on [of] the present Convention.

“This report shall be presented to the Assembly of the League of Nations.”

The Central International Office should publish the report quarterly rather than annually. If the Council of the League also desires to make a report, it would of course be entirely free to do so without any provision in the Convention to that effect.

article 29

“The present Convention, of which the French and English texts shall both be authentic, is subject to ratification. It shall bear today’s date and shall be open for signature by the Powers until . . . . . . . . . . (date).

“Each Power shall address its ratification to the French Government, which shall at once notify the deposit of ratification to each of the other signatory Powers.

“The instruments of ratification shall then remain deposited in the archives of the French Government.”

No comment.

[Page 46]

article 30

“The High Contracting Parties will use their best endeavors to secure the accession to the present Convention of the other States, whether members of the League or not. On and after . . . . . . . . . . (date) the present Convention may be acceded to by any Power. Accession shall be effected by an instrument communicated to the French Government, which shall at once notify such deposit to all Powers which are signatories of or accede to the Convention.

“The instruments of accession shall remain deposited in the archives of the French Government.”

Omit “whether members of the League or not.”

article 31

“Disputes between the Parties relating to the interpretation or application of this Convention shall, if they cannot be settled by direct negotiation, be referred for decision to the Permanent Court of International Justice. In case either or both of the Parties to such a dispute should not be parties to the Protocol of Signature of the Permanent Court of International Justice, the dispute shall be referred, at the choice of the Parties, either to the Permanent Court of International Justice or to a court of arbitration.”

It might be well to insert after “Justice” the following: “to the Hague Tribunal.”

article 32

“The present Convention will not come into force until it has been ratified by twelve Powers, among whom shall be the following: Belgium, the United States of America, France, Great Britain, Italy, Japan and Russia.

“The date of its coming into force shall be the … day after the receipt by the French Government of the twelfth ratification. Thereafter, the present Convention will take effect in the case of each Party … days after the receipt of its ratification or accession.”

The important point to be considered in connection with Article 32 is that a sufficient number of arms producing States should be included among the Powers whose ratification is necessary before the Convention enters into full force and effect. Further, it should be noted that if any of the participating or adhering powers have not been recognized by the United States the Department might desire to consider whether a reservation at the time of signature would be necessary to safeguard its position.

article 33

“The present Convention may be denounced by any Party thereto after the expiration of ten years from the date when it came into force in respect of that Party. Denunciation shall be effected by notification [Page 47]in writing addressed to the French Government, which shall forthwith transmit copies of such notification to the other Parties, informing them of the date on which it was received.

“A denunciation shall take effect two years after the date on which the notification thereof was received by the French Government, and shall operate only in respect of the notifying State.”

The Department considers that the period of ten years for the effectiveness of the Convention is far too long. The question of the control of the traffic in arms is yet in its experimental stage, and this Government would not desire to be bound for any such protracted period without an opportunity to examine the effectiveness and practicability of the contemplated procedure. It is therefore suggested that “ten years” be replaced by “three years” and that denunciation should take effect “one year” after notification.

It might be well to add that after the expiration of three years the Convention, unless denounced, would continue to remain in force until one year after denunciation.

article 34

“The High Contracting Parties agree that, at the conclusion of a period of five years, the present Convention shall, in the light of the experience then gained, be subject to revision upon the request of a third of the said High Contracting Parties.”

“Five years” should be replaced by “three years” to bring this Article in line with the preceding one.

In conclusion, the Department desires again to emphasize the position indicated in the early pages of this instruction; namely, that it would welcome any agreement which, while protecting the legitimate interests of this Government, might be calculated to lessen the evils of the illicit trade in arms and war material and thereby aid in the preservation of peace.

In working toward this end, this Government does not desire that its representatives at the Conference should be bound by instructions on points of drafting or phraseology. It is believed, however, that the foregoing instructions will serve to indicate the points of particular interest to this Government.

You should consider the proposed rephrasing of the various Articles of the Convention as suggestive rather than as mandatory. In the event that the discussions at the Conference should raise questions involving substantial modifications on matters of principle, you should communicate with the Department for further instructions.

Before any agreement is signed, the Department desires you to indicate the final form of the Convention in order that specific instructions with respect to the signature of the Convention may be given.

I am [etc.]

Frank B. Kellogg
  1. Theodore E. Burton, chairman of the delegation, member of the Committee on Foreign Affairs, House of Representatives; Hugh S. Gibson, vice chairman of the delegation, Minister to Switzerland; Rear Admiral Andrew T. Long, Navy Department; Allen W. Dulles, Chief of the Division of Near Eastern Affairs, Department of State; Brig. Gen. C. L’H. Buggies, Assistant Chief of Ordnance, War Department.
  2. Charles E. Herring, commercial attaché at Berlin; Alan F. Winslow, secretary of legation at Berne; Maj. George V. Strong, General Staff, War Department; Comdr. Herbert F. Leary, assistant naval attaché at London. Maj. Earl J. Atkinson, War Department, was also later attached to the delegation as technical adviser.
  3. Foreign Relations, 1924, vol. i, p. 40.
  4. Not printed; for correspondence on the subject referred to in this paragraph, see Foreign Relations, 1924, vol. i, pp. 17 ff.
  5. For text of convention, see ibid., 1920, vol. i, p. 180.
  6. Ibid., 1924, vol. ii, p. 76.
  7. League of Nations, Conference for the Control of the International Trade in Arms, Munitions and Implements of War (C. 758. M. 258.1924. IX).
  8. In each case the text of the provision as contained in the Draft Convention is quoted and then followed by discussion and comment. [Footnote in the original.]
  9. William M. Malloy (ed.), Treaties, Conventions, etc., Between the United States of America and Other Powers, 1776–1909 (Washington, Government Printing Office, 1910), vol. ii, p. 1964.
  10. Foreign Relations, 1922, vol. i, p. 267.
  11. (Footnote: In the event that it is decided that licenses rather than export declarations are to be provided this and subsequent articles should be modified accordingly.)
  12. See footnote 47, p. 32.
  13. For text of the treaty limiting naval armament, see Foreign Relations, 1922, vol. i, p. 247.
  14. Omission indicated in the original instruction.