Foreign Relations of the United States, Diplomatic Papers, 1933, General, Volume I

811.113/297

The Secretary of State to the Senate Committee on Foreign Relations ³¹

undated

Memorandum, H. J. Res. 93—To Prohibit the Exportation or Arms or Munitions of War From the United States Under Certain Conditions

I

This legislation was originally recommended to Congress by President Hoover in a special message of January 10, 1933.³² As S. J. Res. 229, It was favorably and unanimously reported out of the Senate Committee on Foreign Relations and unanimously passed by the Senate during the last weeks of the 72nd Congress. Its passage was blocked, however, by a motion to reconsider in the Senate and it did not come to a vote in the House. President Hoover again urged the enactment of this legislation in a special message of February 20, 1933, in the following words:

“Peace would be promoted and the killing of men checked in various parts of the world today, if the Executive had the authority to join with other nations in preventing the shipment of arms to such localities. I earnestly recommend that the legislation proposed for this purpose be enacted.”³³

The 72nd Congress adjourned, however, without acting upon this resolution.

The present administration after a careful consideration of all the objections which had been brought against the resolution during January and February and after a careful study of all the questions of law and policy involved in this proposed legislation has continued to urge its enactment.

The Resolution was reported out favorably by the House Committee on Foreign Affairs after a series of hearings at which the views of the Department of State were made clear by a representative of the Department, and at which representatives of interests opposed to this legislation were given a full opportunity to voice their objections. It was passed by the House of Representatives on April 17.

This legislation would complete a structure which has been being gradually built up over a long period of years. The Joint Resolution of Congress of April 22, 1898, (30 Stat. 739) conferred upon the Executive the power to prohibit the export of war materials “in his discretion, and with such limitations and exceptions as would seem to him expedient.” Although this resolution was a war measure passed in connection with the war with Spain, it remained on the statute books for 14 years and the power conferred by it was used on October 14, 1905, when President Roosevelt issued a proclamation (34 Stat. 3183) in which “for good and sufficient reasons unto me appearing” he forbade the export of arms to any port in the Dominican Republic. This resolution was amended by the passage of the Joint Resolution of March 14, 1912 (37 Stat. 630) as follows:

“Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the joint resolution to prohibit the export of coal or other material used in war from any seaport of the United States, approved April twenty-second, eighteen hundred and ninety-eight, be, and hereby is, amended to read as follows:

“That whenever the President shall find that in any American country conditions of domestic violence exist which are promoted by the use of arms or munitions of war procured from the United States, and shall make proclamation thereof, it shall be unlawful to export except under such limitations and exceptions as the President shall prescribe any arms or munitions of war from any place in the United States to such country until otherwise ordered by the President or by Congress.

“Sec. 2. That any shipment of material hereby declared unlawful after such a proclamation shall be punishable by fine not exceeding ten thousand dollars, or imprisonment not exceeding two years, or both”.

By the Joint Resolution of January 31, 1922, (42 Stat. 361) this authority was extended to include any country in which the United States exercises extraterritorial jurisdiction. These countries are, at present, China, Morocco, Egypt, Ethiopia, and some of the lesser states of Arabia. Pursuant to the authority conferred by these two resolutions, this Government has been enabled to act in the interests of peace by preventing shipments of arms on many occasions, as the following table of embargoes proclaimed by the President will indicate:

• Brazil: Proclaimed October 22, 1930. 46 Stat. 3036. Revoked March 2, 1931. 46 Stat. 3050.
• China: Proclaimed March 4, 1922. 42 Stat. 2264. Still in effect.
• Cuba: Proclaimed May 2, 1924. 43 Stat. 1946. Revoked August 29, 1924.
• Honduras: Proclaimed March 22, 1924. 43 Stat. 1924. Still in effect.
• Mexico: Proclaimed March 14, 1912. 37 Stat. 1733. Revoked February 3, 1914. 38 Stat. 1992. Proclaimed October 19, 1915. 39 Stat. 1752. Revoked January 31, 1922. 42 Stat. 361. Proclaimed January 7, 1924. 43 Stat. 1934. Revoked July 18, 1929. 46 Stat. 3001.
• Nicaragua: Proclaimed September 15, 1926. 44 Stat. 2625. Still in effect.

The principle underlying these resolutions was confirmed by the Convention relating to the Rights and Duties of States in the Event of Civil Strife, signed at Habana on February 20, 1928, under which the United States, as a party to the Convention, is obligated to prevent the export of arms intended for the use of rebels against the authorities of such Governments as have ratified that Convention.

The authority of the Executive over the export of arms and munitions of war was, under the Joint Resolution of April 22, 1898, practically unlimited. Under the Joint Resolutions of March 14, 1912, and January 31, 1922, it was limited to exports destined to certain prescribed parts of the world and to cases of civil strife. Under the proposed legislation, the President would have authority to proclaim an embargo on the export of arms and munitions of war not only to American countries and to those countries in which we exercise extraterritorial jurisdiction but to any part of the world, and not only in cases of civil strife, but in cases of threatened or actual international conflict. However, the authority conferred upon the President by this resolution would differ from that conferred by the three former resolutions in that it could be exercised only after he has secured the cooperation of other governments, whereas his authority under the three former resolutions is unlimited by any such restriction.

Authority similar to that which this resolution would confer upon the American Executive is already possessed by the Executive Departments of most of the important Governments of the world, including: Belgium, Canada, Denmark, France, Germany, Great Britain, Italy, Spain, Sweden, the Netherlands, the U. S. S. R. The authority of the Government of Sweden in this respect is even more far reaching, in that exports of arms are prohibited by law except when the Executive issues a license covering any individual shipment. The Spanish Government, without awaiting the cooperation of other Governments, has already put into effect an embargo on the shipment of arms to Bolivia, Colombia, Paraguay and Peru—the four South American countries at present engaged in international conflict.

II

The authority which the passage of this resolution would confer upon the Executive would be exercised by any Chief Magistrate of the United States to the sole end of maintaining the peace of the world and with a due and prudent regard for our national policies and national interests. The special circumstances of each particular case which may arise would dictate what action, if any, would be taken in that case, but the authority to act on terms of equality in cooperation with other governments when the occasion arises, should be left to the discretion of the Executive Branch of the Government which is charged, under the Constitution, with the conduct of our foreign relations. In justice to the firm convictions of the American people and to its own dignity, this Government should no longer be left in the position of being unable to join the other governments of the world in preventing the supply of arms and munitions for use in an international conflict when it is exercising its diplomacy and the whole weight of our national influence and prestige to prevent or put an end to that conflict. The enactment of this legislation would strengthen the position of this Government in its international relations and would enable us to cooperate more efficiently in efforts to maintain the peace of the world.

The phrase “after securing the cooperation of such governments as the President deems necessary” is unnecessary from the standpoint of the eventual exercise of the authority granted by this resolution as it would be obviously absurd for this Government to attempt to prevent or put an end to an international conflict by any act which would serve merely to divert the trade in arms and munitions from this country to other countries, but it serves a useful purpose in emphasizing the necessity for international cooperation in this matter and in making clear to the people of this country that there is no intention of sacrificing the interests of American manufacturers to those of foreign manufacturers. The late Senator Walsh of Montana proposed the insertion of this phrase in the resolution when it was under consideration in the Committee on Foreign Relations during the last session of Congress. It is a happy phraseology in that it makes no attempt to hedge the authority to be conferred with specific restrictions which might prove to be entirely inapplicable in some particular case. In a matter of this kind, wide discretion must necessarily be left to the Executive and any attempt to specify particularly the governments whose cooperation it would be necessary to secure in order to exercise this authority would be certain to result in defeating the very purpose of the Resolution. In any particular case, the Executive would secure the cooperation of those Governments whose cooperation was necessary to ensure the cessation of the supply of arms and munitions from abroad to some particular country or countries. Which governments those would be would depend upon the geographical location of the country or countries in question, the supplies of arms and munitions on hand in certain countries, the contracts which had already been entered into, the international situation existing at this time and other unforeseeable factors. In some cases, the cooperation of all the principal producing countries might be necessary to attain the desired end. In other cases this end might be attained by securing the cooperation of only a few of the principal producing countries. In still other cases the cooperation of the contiguous countries through which arms or ammunition would have to be shipped to reach their intended destination might be sufficient. In other conceivable cases, the cooperation of both producing and transshipping countries might be necessary. Conditions might vary to such an extent that the cooperation of certain governments which was not necessary when an embargo was placed would become necessary during the period in which the embargo was in effect.

The securing of the cooperation of other governments in a matter of this kind would not take the form of treaties between this Government and other governments and probably not even that of the less formal Executive Agreements. What the Resolution proposes is not that the President should enter into engagements with other governments, but that he should enter into negotiations with them with a view to the adoption of a common policy in the particular circumstances then existing. These negotiations would ensure the effectiveness of the action of this Government through parallel action by other governments. The understandings resulting from these negotiations would, under the terms of the Resolution, be terminable at any moment by action of Congress or of the President.

In defining the commodities of which the exportation would be prohibited under a Proclamation issued in pursuance of this Resolution, the Department of State which would be charged, in cooperation with the Department of the Treasury, with the administration of the embargo, would follow its unvarying practice in interpreting the identical phraseology which appears in the Joint Resolutions of March 14, 1912 and January 31, 1922. This practice is based upon an opinion communicated to the then Secretary of State by the Attorney General Mr. Wickersham on March 25, 1912, which reads as follows:

“The President has requested me to send to you and to the other Departments concerned in the enforcement of the proclamation issued by the President March 14th, 1912, pursuant to the joint resolution of Congress approved on that day, respecting the exportation of arms and munitions of war into Mexico, a definition for practical use in the carrying out of such proclamation.

“In my opinion the phrase ‘arms and munitions of war’, as used in the said Joint Resolution and the President’s proclamation should be interpreted as referring to those articles which are primarily and ordinarily used for military purposes in time of war, such as weapons of every species used for the destruction of life, and projectiles, cartridges, ammunition of all sorts, and other supplies used or useful in connection therewith, including parts used for the repair or manufacture of such arms, and raw material employed in the manufacture of such ammunition; also dynamite, nitroglycerine or other explosive substances; also gun mountings, limber boxes, limbers, military wagons, field forges and their component parts, comprising equipment of a distinctly military character, articles of camp equipment and their distinctive parts, and implements manufactured exclusively for the manufacture of implements of war, or for the manufacture or repair of arms or war material.

“Foodstuffs, ordinary clothing and ordinary articles of peaceful commerce are not included in the prohibition.”³⁴

In enforcing the embargoes proclaimed under the Joint Resolutions of March 14, 1912, and January 31, 1922, the Department of State has at various times drawn up lists of commodities included within the Attorney General’s definition of arms and munitions of war. These lists have varied in minor respects, but the following list of articles for which an export license is required under the President’s Proclamation of March 4, 1922, placing an embargo on the shipment of arms and munitions to China will serve as an example:

1. Aircraft when fitted with armor, guns, machine guns, bomb-dropping or other military devices, or mountings for such guns or devices.

2. Apparatus which can be used for the storage or projection of gases, flame acids, or other destructive agents capable of use in war-like operations.

3. Arms, small arms of all kinds other than those classed as toys, together with spare parts of such arms.

4. Equipment for military purposes exclusively.

5. Explosives as follows: Gun powder, powders used for blasting, all forms of high explosives such as dynamite, nitroglycerine and TNT, blasting materials, fuses, detonators and other detonating agents, and smokeless powders.

6. Guns, machine guns, and spare parts thereof, and gun grease.

7. Gun mountings and limbers; tanks, armored motor cars, armored trucks, and armor-plate.

8. Machinery—such as cartridge-making machines, specially manufactured for use in making arms and ammunition.

9. Mines (submarine) and their component parts.

10. Projectiles, charges, cartridges, and hand grenades of all kinds with their component parts.

11. Range finders and their component parts.

12. Shot, shells and cartridges for small arms, both loaded and empty, and their component parts.

13. Warships, including boats and their component parts of such a nature that they can be used on war vessels.

14. Radio apparatus designed expressly for military use.

It is impossible to foresee all the circumstances under which the President might exercise the authority granted by this Resolution. In many cases of threatened or actual international conflict an embargo on the export of arms placed by other nations not involved in the conflict would be of little or no avail in preventing or putting an end to that conflict. In such cases, the President would obviously take no action. In other cases, an international embargo on the shipment of arms and munitions to both parties to the conflict might be an effective means of preserving or restoring peace. It is conceivable that in certain cases the matured opinion of this Government might accord with the opinion of the rest of the world in fixing the responsibility for a conflict upon an aggressor nation. In such cases, an international embargo on the shipment of arms and munitions to one party to the conflict might be deemed an equitable and effective method of restoring peace. This method nevertheless would certainly not be adopted by this Government without such effective guarantees of international cooperation as would safeguard us against the danger of this country’s being involved in the conflict as a result of such action. In a case of this kind, this Government would naturally take into careful consideration the international law of neutrality taking into account the definite, although perhaps as yet undefined, effect of the Kellogg-Briand Pact³⁵ and other treaties designed to prevent war upon the concept of neutrality.

It has been urged by some that action by the President pursuant to this Resolution might result in involving this country in war. If a President were disposed to stir up conflicts with other countries, he would have, under the authority already conferred upon him many simpler and more expeditious means of doing so than by the use of an arms embargo. This is a peace measure and it would be used to promote peace.

III

It is natural that this Resolution, although it was originally proposed in pursuance of the development of the peace policy of this Government and without reference to specific cases, should be considered with reference to the cases of actual international conflict existing at the present time.

If this legislation were enacted, this Government would be disposed, in cooperation with other governments, to place immediately an embargo on the shipment of arms to Paraguay and Bolivia. The information in our possession leads us to believe that a request from other powers for our cooperation would be forthcoming and that international cooperation could be obtained to a degree sufficient to ensure the complete stoppage of shipments of arms to those countries. As neither country is a producer of arms or munitions of war, such action would tend to bring about a cessation of the hostilities now being carried on between them.

Efforts are now in progress to put an end to the conflict between Colombia and Peru. Both Governments are members of the League of Nations. The Council of the League has submitted to these Governments a proposal for the settlement of the differences between them. The Government of Colombia has accepted this proposal. The Government of Peru still has this proposal under consideration. The question of an arms embargo in this case does not, therefore, arise at this time. The action if any which this Government might be disposed to take in this case pursuant to the proposed legislation would depend upon the unpredictable conditions which may exist in the future.

It has never been the intention and is not now the intention of this Government to use the authority which would be conferred upon the Executive by this Resolution as a means of restoring peace between China and Japan. An embargo on arms and munitions of war would not be an effective means of restoring peace in this case. Japan is an important producer of arms and munitions of war. Her industry is sufficiently developed to supply her present and probable future needs. China is dependent upon her importation of these commodities. An embargo on the exportation of arms and munitions to both China and Japan would, therefore, militate against China and in favor of Japan. An embargo directed against Japan alone would probably result in a Japanese blockade of Chinese ports, in the seizure by the Japanese of arms and munitions intended for China, and thus its ultimate effects would probably be to decrease China’s supply of arms and increase, by virtue of seizures, Japan’s supply. As this Government concurs in general in the findings of the Lytton Commission³⁶ which place the major responsibility upon Japan for the international conflict now proceeding in China, this Government would not be disposed to take any action which would favor the military operations of the Japanese. From the information in our possession, it would appear that this view of the situation is shared by the principal powers members of the League of Nations. We do not, therefore, envisage the probability of proposals by the League or by its principal members to this Government to cooperate with them in an embargo on the shipment of arms and munitions to Japan. Should such proposals be made, we would not be disposed to give them favorable consideration, and we would not under any circumstances agree to participate in an international embargo of this kind unless we had secured substantial guarantees from the governments of all of the great powers which would ensure us against the effects of any retaliatory measures which the Japanese might undertake. In brief, this Government does not expect to take any action of this nature in connection with this case; if any action is taken it will certainly be taken with a due and prudent regard for American interests and in particular for our paramount interest of remaining free from any entanglements which would involve this country in a foreign war. One of the most important reasons for the passage of this Resolution at this time is, however, connected with the present situation in the Far East. There is danger that if this legislation is not enacted, certain European governments may find it to their interest to make it appear that this Government is responsible, by virtue of its not being in a position to cooperate, for a failure on their part to proceed with the imposition of sanctions to which they are committed by reason of their membership in the League of Nations. Thus they would make this country appear in the eyes of many of their nationals and of a large section of public opinion in this country to bear the onus of their failure to make effective the peace machinery which they have built up. If the Resolution is passed, it would no longer be possible for them to make the excuse that their failure to come to an agreement among themselves in regard to a course of action was due to the fact that we were not in a position to cooperate with them if requested to do so. Under these circumstances, failure on their part to take action would manifestly be due solely to their own inability to reach an agreement on the basis of which to request our cooperation, and the facts of the situation would be obvious to all the world; they could attribute no responsibility or blame to us.

It is not our policy to have this Government posing before the world as a leader in all the efforts to prevent or put an end to wars but on the other hand it is not our policy to lag behind the other nations of the world in their efforts to promote peace. The passage of this Resolution is necessary in order that this Government may keep pace with other Governments of the world in this movement.

31. Department notation of May 18, 1933: “The attached memorandum was, at the direction of the Secretary, read by Mr. [Joseph C.] Green of the Division of Western European Affairs at a meeting in executive session of the Senate Committee on Foreign Relations on May 17, 1933. A copy of Parts I and II was left with the Committee.”
32. Congressional Record, vol. 76, pt. 2, p. 1448.
33. Ibid., pt. 4, p. 4553.
34. Opinions of Attorneys General, vol. 29, pp. 375–379.
35. Foreign Relations, 1928, vol. i, p. 153.
36. League of Nations, Appeal by the Chinese Government, Report of the Commission of Enquiry (Geneva, October 1, 1932). Reprinted by Department of State in Far Eastern Series No. 2: Manchuria, Report of Commission of Enquiry Appointed by the League of Nations (1932).