500.A15A4 Steering Committee/116: Telegram

The Secretary of State to the American Delegate (Wilson)

227. Your 416, October 21, noon. This exchange of telegrams was predicated on the assumption that the Convention would contain a prohibition of certain types of weapons. Davis’s telegram No. 631 of October 29, 6 [8] p.m., indicates that the French have reverted from the idea of abolishing or prohibiting the use in time of war of [Page 352]certain weapons to a system of gradual diminution of matériel. Should this plan prevail, the questions discussed herein are not immediately pertinent and you may be able to avoid becoming involved for the present in detailed discussions of supervision and control of the manufacture of and traffic in arms. In any case, we hope that, as a matter of tactics, you may be able to avoid such discussions until more positive progress is made on the actual steps to be taken toward the reduction and limitation of armament.

Your doubts as to the advisability of taking the position outlined in Section 2 of the Department’s 219 of October 17 resolve themselves into a question of law on the one hand and a question of expediency on the other.

1. With respect to the former, we stand by our opinion that “we would be justified in agreeing, by conventional arrangement, to prohibit all manufacture of prohibited types of weapons.” We have given sufficient study to the constitutional question to feel that we are on firm ground in the position above expressed and we would be prepared to take active measures, if necessary, to support it.

While, as already explained in our 219, we cannot assert that the prohibition and manufacture is definitely constitutional since the courts have not passed on it, we feel that in the event that the matter should come before the courts, adequate legal considerations exist which would justify the court in refusing to nullify a provision necessary to the successful execution of an effective disarmament treaty. We think that the vital connection between the abolition of aggressive weapons and the prohibition of their manufacture would be self-evident to Congress and the public. We do not feel that we should jeopardize the possible success of the negotiations for the limitation of armaments by invoking the Constitution merely on the possibility that the convention might conceivably run counter to the Constitution. It may be noted that no treaty negotiated by the President and ratified by him with the advice and consent of the Senate has ever been declared unconstitutional by the courts.

In this connection, you are, of course, aware that the Opium Convention of 191299 and the Narcotics Convention of 1931,1 which have been ratified by the United States, contain provisions for the control of the manufacture of narcotics and that no question as to their constitutionality has arisen.

2. As for the grounds of rejecting unacceptable provisions in the treaty, I gather that you feel it would be embarrassing for us to exchange the position that we can not constitutionally agree to do [Page 353]certain things for the position that we will not. I do not believe that such a shift should cause undue embarrassment. There should be no difficulty in drawing a sound line between a prohibition of offensive armament and an invasion of fields which might be considered to be exclusively within the internal domain of the states. We do not hesitate to refuse on grounds of expediency unacceptable provisions in treaties, and would prefer not to invoke the Constitution in such cases unless clearly applicable.

It is frequently impracticable to carry to its logical extreme every principle advocated. We have for instance given up our blanket opposition to budgetary limitation, and have accepted it as a supplementary method of limiting land matériel, without thereby agreeing to the extension of this principle to other types of armament.

It would seem entirely feasible for you to present our agreement to prohibit the manufacture of prohibited weapons as naturally deriving from the President’s proposal to abolish aggressive weapons, unrelated to the problem of the international supervision of arms manufacture in general, as to which we still desire to maintain the position heretofore taken. Agreement to prohibit the manufacture of weapons which are to be abolished does not carry with it any obligation to agree to international supervision over such prohibition or to the international control of the manufacture of other types of arms which are distinct questions.

3. If you still feel, as stated in your penultimate paragraph, that an explanation of our change of approach to this problem is in order, please telegraph in advance for our approval, the text of the explanation you propose.

Stimson