Foreign Relations of the United States Diplomatic Papers, 1934, General, the British Commonwealth, Volume I

500.A15A4 General Committee (Arms)/69

The American Delegate (Wilson) to the Secretary of State

No. 107

Geneva, November 26, 1934.
[Received December 11.]

Sir: I have the honor to invite the Department’s attention to the draft treaty on the manufacture of and traffic in arms which we presented at the meeting of the Bureau on Tuesday the 20th. In this connection, permit me again to express my appreciation of your thoughtful and prompt cooperation.

I append hereto a memorandum prepared by Colonel Strong giving an analysis of the differences between the text submitted to the Bureau and the text which we originally submitted to you in despatches Nos. 103, October 3,²² No. 104, October 13, and telegram No. 940, October 30, 6 p.m.^22a The memorandum is comprehensive but there are certain points brought out in it to which I would like especially to invite your attention.

In referring to the articles, I shall define them by the numbers used in the draft text as circulated by the Bureau, Conf. D. 167, copies of which have already been sent to the Department.

I. Category III, Paragraph (3)

Our original text drew a line of demarkation between airplane engines of above and below 400 HP, making the provisions of the convention both as to manufacture and as to export and import applicable to engines of that horsepower and above it, and exempting engines of below that horsepower from all provisions of the convention. The Department, on the contrary, has placed all aircraft engines in Category III, in so far as the provisions relating to traffic are concerned, but expressly exempts them from those provisions relating to manufacture. May I point out that, in view of the second paragraph of Article 10, the change would mean that no aircraft engines could be sold outside of the United States, except to a Government.

Needless to say the subject of the treatment of aircraft has been given endless debate, both in public and in private, since this Conference started. However much we insist upon the purely civilian aspect of civil aircraft, the fact remains that to the States in Europe, practically any aircraft is a potential weapon of war. This is peculiarly so, and in increasing degree, as the size of airplanes increases and their radius of action is extended. We feel here that it would be essential to make some concession to this widespread feeling, but we question whether the concession made in your suggestion is not more embarrassing perhaps and more limitative to legitimate trade than other possibilities. In order to show the contrast between the two extreme points of view, may I point out that we contemplated making mention only of military aircraft actually found in the armed forces, and purposely left out of the picture civil aviation even of types which can be readily adapted to military purposes in warfare. The Europeans, on the other hand, have tried to insist that all civil aviation should be subject to the same regime, especially as to control and inspection, as those articles covered by Categories I, II and III. As a great concession they might be willing to accept the point of view that aircraft below a certain specified horsepower, or radius of action, should be subject to publicity only, whereas the powerful, long-range machines should, at least for control purposes, be given the same treatment as Category I. With this in mind, could we consider a compromise? Could we agree in a separate article to give full publicity to all civil aviation, both as to production and export and import, and further agree that aircraft above a designated size should be included in Category V; that they should be considered as one of those articles which, in the event of war, could be adapted for war purposes? Such treatment would limit the control to the large planes only but would give the Europeans a measure of satisfaction by having full knowledge of the development of civil aviation.

In discussing this matter with a member of the French Delegation, he pointed out that in America there are approximately 10,000 registered planes. This means a yearly increment for replacement of approximately 2,000 civil planes, not to mention the production for export and for military purposes. Let us say roughly, therefore, their increment in the production for civil aviation is approximately 20 per cent. In Germany, on the other hand, their listed planes are 760. Under the Treaty of Versailles they would have to be all civil aircraft. This would mean, on the same basis as our own aircraft, a normal production increment of 150 planes per year, plus a small number which they export, but, added this Frenchman, 150 planes according to their information, is a comparatively low estimate of what they are producing monthly which gives immediate concern as to the warlike potentiality of this surplus. It is apparent from this argument how vital the Continental States would regard full information and as wide a control as possible on the production of civil aircraft. While the argument is not entirely sound, it represents certainly French views and probably the views of most Continental Powers.

To get back to my suggestion, may I state it briefly as follows: A practical solution of the present problem in regard to aviation would appear to be to delete sub-paragraph (3) under paragraph (a) of Category III, and place all aircraft engines in Category V where they would be subjected only to publicity and an export license, and to agree to put in the same Category, namely, Category V, all aircraft other than that covered in paragraph (a) (1) of Category III, which are above certain designated criteria as to size or carrying capacity or horsepower, taking care to limit this particular classification only to the large, long-range planes that might be capable of prompt adaptation to bombing. In this case the export of these civil planes would be subject to an export license. In addition to publicity, attention is invited to the fact that this would not subject the manufacturers to any of the provisions for licensing to manufacture, but would subject them to inspection and to the export license provisions of the Convention.

In addition to the foregoing, we might offer a measure of satisfaction by introducing an article on publicity which would operate to give full publicity as to production and export of all aircraft which do not appear in Category V and which do not come within other provisions of the Convention.

II. Category III, (a) (1)

I invite attention to Colonel Strong’s analysis.

III. Category V

The Department has instructed that the item of “commercial explosives” should be deleted. While I agree that commercial explosives are a large and important factor in civil exportation nevertheless the Europeans, particularly those of the French school have consistently, during the discussions of the past ten years, held that explosives are part of immediate war material and should be inserted in Category I. Since, under the heading of ammunition in sub-head (5) of paragraph (a), Category I, and paragraph (b), we have included explosives which normally are of military concern, I believe we would have a better chance to keep the remaining explosives or those we perhaps ill-advisedly designated “commercial explosives”, out of Category I, acknowledging their existence for publicity by putting them in Category V. In this connection, “explosives not covered in other Categories” might be substituted for the term “commercial explosives”.

In case doubt exists as to the adequacy of the present provisions of Category I, it might well be solved by adding a sub-head (8) of paragraph (a), under the term “propellants and fillers for the articles covered by items (5) and (6) above.”

IV

With reference to your instruction as to Chapter I, Article D, in the draft transmitted in despatch 103,²³ I am inclined to believe that on subsequent reflection we have done well to delete this article. In any case, as I outlined in my telegram No. 947, of November 19, 11 a.m.,^23a the article is of a highly controversial character and under any form would invite discussion as to the waiver or maintenance of Part V of the Treaty of Versailles. Since issuing our text at the Bureau, several representatives of other countries have spoken to me of the implications of our project upon the Treaty of Versailles, and have asked me how I thought the project would affect that Treaty. I have invariably replied that we have drafted a treaty which we believe to be workable and have not considered it our business to interpret the obligations of the Treaty of Versailles. Hence there would seem to be a real advantage not to lay down any article that even approaches this question, but to await the debate in committees and see what suggestions are made and at that time endeavor to accept only such suggestions as may best, on the one hand, satisfy the French and, on the other hand, still make possible for Germany to agree to this convention.

V

In Article 9, the Department instructed us to delete the reference to “fifteen days” and to insert in its place the words: “before that date.” I venture to ask for the reconsideration of this decision. While I recognize that your suggestion is simpler and from certain points of view preferable, nevertheless the insertion of the words “fifteen days” was the result of long discussion in the Committee in its sessions last spring. The Continental States felt that it was essential to have notice sufficient time in advance, in order that, in cases of grave doubt, the shipment might be checked even before its departure from the country of origin, and if necessary followed through to its ultimate destination. They regard this time interval as a very important part of the whole structure and, inasmuch as I do not conceive that we regard it of high importance, it might be better to acquiesce in their view, unless there is some compelling argument to the contrary of which I am unaware.

VI

With reference to Article 11, 1 venture to refer to Colonel Strong’s analysis. I am inclined to feel that you will agree that samples of articles in Category III may be included in Article 11, both in subparagraph (1) and (3) and that the omission thereof was done through inadvertence.

VII. Article 15

I have given further thought to the possibility of inserting your suggestion in this place, but the more I consider it, the more I feel that Colonel Strong’s reasoning, as exposed in his memorandum, is sound. In its essence the application of the article would be an embargo against a certain State or States, and one could conceive that the mere signature or ratification of the treaty under certain conditions would become a political act of the highest importance.

It seems to me further that if we admit in a treaty form an obligation to embargo a State or States in common action for the achievement of a political objective, we are entering upon the road which leads direct to economic sanctions as a measure of collective action, a slippery road which might take us far further into the Continental conception of security than we would care to go or be able to go.

I take it that the idea of your suggested article would be to encourage the States of the world to ratify the convention. I very much fear that it might have a contrary effect. For instance, a nonproducing State in one area, might argue that it might be better to allow its neighbors to ratify and not ratify itself, so long as there was one producing State which had not ratified. Thus the non-producing State would be the only one within its particular region which would be purchasing its goods without publicity and would have the benefit of all the publicity given to the purchases and shipments of its neighbors. Under the circumstances, it might be well to consider the deletion of this Article in any form, because it is believed that in view of the possible requirements as to ratification by all important producing States, the inclusion of this Article in the ultimate convention would serve no useful purpose.

VIII

There is a further conception which the French have recently discussed with us and in some measure with our Colleagues. Publicity in budgetary expenditure will presumably bear both on expenditure already made and on projected expenditure, that is to say, there will be publicity after the fact and publicity of intention, not that the latter would be binding, but a mere indication of intention. It has been suggested that this should be paralleled by some process in the chapter on manufacture of arms; that publicity should be given not only after an order is placed, but that declarations of intention by governments of their programs of construction for the ensuing year should be made public. Whether this should be made in the form of declarations of the proportion of the budget contemplated for construction of 0, and in what items, or whether the items themselves should be listed is a matter for thought if it seems advisable to accept the idea. It is argued that the presentation of programs would inevitably bring about regional agreements as to programs, perhaps informal agreements, negotiated outside the treaty and outside the Permanent Disarmament Commission. Such informal agreements might well tend for separate regions to crystallize into longer term agreements in the future.

As I understand it, when our military budget is presented to Congress, the Financial Committees of the House and Senate bring out the details of projected expenditure so agreement as to declarations of budget intention would not appear to reveal more in our case than we already reveal under examination of departmental testimony.

I can see real merit in the idea if it can be worked out in such a way as to form no limitation on the projected expenditure of the funds estimated for in the budget, and be confined to publicity of intention only and be kept simple enough not to become a burden. I believe that the French are working on this idea and may possibly present a draft of suggestions to us. If they do and the suggestions seem worth consideration, I shall forward them to you. I mention this for what it is worth but suggest that detailed consideration of the subject be deferred until such time as the French present us, if they do so, with a detailed text on the subject.

IX. Article 29

While at first glance the change which substitutes “recommendations” by the Permanent Disarmament Commission for “advice” between the contracting States appears to render more innocuous the consultation feature, I am concerned lest the result of this substitution should be a greatly enhanced political activity on the part of the Permanent Disarmament Commission.

The suggestion for recommendations would mean that the reports of any and all investigations undertaken under Articles 26, 27 and 28 could and might well give rise to recommendations to the High Contracting Parties in each case. It invites, it seems to me, rather than restrains the political consideration of these reports. We here have envisaged the Permanent Disarmament Commission as an essentially technical and fact-finding body and indeed in numerous discussions in committee the tendency has been marked to restrain the political activities of the Permanent Disarmament Commission to the minimum, leaving such activities, if any, to the High Contracting Parties or to the Council of the League of Nations. This question of recommendations was discussed in the committee and discarded as too political in character.

In this connection, I venture to invite your attention again to my despatch No. 104, of October 13, page 6, in discussing the article which was then denominated “N”. I made a suggestion as to a form of clause reading as follows:

“At the instance of one of the members of the Commission, the High Contracting Parties shall promptly advise as to the conclusions of the report, in the first instance, through their representatives on the Permanent Disarmament Commission.”

I have no desire—indeed very much the contrary—to invite consultation continuously between the Powers. It may be that the suggestion which I have just quoted does open the door too wide. Perhaps you would feel that the Permanent Disarmament Commission might be given the right to make one recommendation, and one only, namely, as to the advisability of consultation between the Powers; this to be done by a decision of the Commission itself. In that event, the clause might read somewhat as follows:

“On a recommendation to that effect by the Permanent Disarmament Commission, the High Contracting Parties shall promptly advise as to the conclusions of the report.”

In order to preserve the non-political character of the Permanent Disarmament Commission, it seems essential that they have no power to prejudge what action the States may take upon consultation.

I shall not reiterate the arguments which I previously made in Despatch No. 104 as to the advisability of having some form of consultation included in this document, such consultation to arise, of course, only on matters within the scope of the convention.

X. Article 30

I invite special attention to Colonel Strong’s analysis of Article 30. It seems plain to me that if we intend to limit inspection on the spot to the taking of testimony and the examination of documents, we are placing a very limited construction on the operation of inspection and a construction which has never been in the minds of any of the delegates here or in my own mind on the several occasions when President Roosevelt has declared it to be the policy of the United States not only to accept but to advocate permanent and automatic inspection. To be sure, in the first instance this policy was declared for the United States in relation to a general treaty on disarmament; but subsequently instruction No. 425, of June 5, 8 p.m.²⁴ (sub-paragraph 2 of paragraph 1), stated that we were willing to go as far in this direction for a special treaty for manufacture of and traffic in arms as we would in the case of a general treaty on disarmament. I share the instinctive Anglo-Saxon dislike of inspection. I feel sure, however, that no treaty which limits inspection to the examination of witnesses and documents will be accepted nor will the Continental States consider such procedure alone as constituting any but a fictitious investigation.

I have requested the staff of the Delegation to redraft Article 30 in such a way as to retain the form which the Department has ordered, but at the same time to carry out the idea of inspection which appears to us in harmony with the President’s declared policy.

You were good enough to request that we give special consideration here at Geneva to the draft Article 30. This we have endeavored to do and have endeavored in the draft submitted herewith to give a fair interpretation of the principle to which we believe we are committed, to provide for inspection on the spot in such a way that it will be a real inspection, ample enough to accomplish its purpose and at the same time rigidly limited in its scope to those matters falling within this convention.

“Article 30

• “(1) In the carrying out of investigations conducted by the Permanent Disarmament Commission at its permanent seat, whenever information in addition to that information furnished in pursuance of Articles 7, 9 and 14 is considered necessary or desirable, the Permanent Disarmament Commission may make request therefor to the H. C. P. from which it is desired. Such requests shall normally be made through the representatives of those H. C. P.’s on the Permanent Disarmament Commission. The H. C. P.’s agree to meet such requests and to furnish the information desired through the representatives on the said Commission or otherwise, subject to the right to decline to furnish the desired information upon certification that the information is within the scope of the exemptions hereinafter set forth in paragraph (4) of this article.
• “(2) The Permanent Disarmament Commission, during investigations conducted at its permanent seat, is privileged to examine such witnesses as voluntarily appear before it. A full record shall be made of such examination. No national of any H. C. P. may be so examined unless its representative of the Permanent Disarmament Commission, or an alternate designated by him, shall have been duly notified in advance of the examination and given an opportunity to be present thereat.
• “(3) In the carrying out of the investigations or inspections conducted by the Permanent Disarmament Commission or any committees thereof at any place other than its permanent seat, the scope thereof shall be limited to:

  (a) The examination under oath of officials or employees of the government of the H. C. P. designated by it, including those charged with the details of the execution of this convention.

  (b) The examination of pertinent documents under the jurisdiction or control of the officials indicated in (a) above.

  (c) The examination under oath of any person within the territory and under the jurisdiction of the H. C. P. The H. C. P. agrees to make available by all means at its disposal any such person whose presence is requested by the Permanent Disarmament Commission or its committees.

  (d) The examination provided for in (a), (b) and (c) above shall be made fully of record and conducted in the presence of designated representatives of the H. C. P. under investigation.

  (e) The inspection of arsenals, factories, manufacturing plants, warehouses, depots, yards, loadings standing or in transit and any other locations of stocks of completed articles of Categories I to V, inclusive, and fully processed component parts thereof shall be made in the presence of designated representatives of the H. C. P. under investigation.

  (f) The result of the inspections provided for in (e) above shall be made fully of record as a part of the required report of the investigating body, and all observations bearing on the subject under investigation shall be included therein.

• “(4) In the carrying out of any investigation provided for in this Convention, information covering any and all of the following matters shall be exempted from presentation to, investigation or inspection by the Permanent Disarmament Commission or any committee thereof:

  (a) Technical details of design, physical and chemical composition of materials, manufacturing processes and any matter related to these things which constitute a trade or defense secret.

  (b) Records, public and/or private, in so far as they contain information covering production costs, profit accounting, credit facilities, internal finance of the establishment, correspondence with prospective customers apart from orders actually entered or agreed to, studies and plans for possible future alterations or expansion of manufacturing facilities or any other correspondence, records or accounts pertaining to any production or any phase of production or accounting except the accounting of the completed articles in Categories I to V, inclusive, and the fully processed component parts thereof.

  (c) Production materials, installations, operations, processes, facilities and all plant construction other than that devoted to housing, storage or shipment of fully completed articles of Categories I to V, inclusive, and the fully processed component parts thereof.”

XI. Ratification

I concur in Colonel Strong’s argument regarding the 1925 Treaty.

We have discussed at length the possibility of submitting ratification articles for your approval, but we all feel that the type of ratification must be dependent upon the eventual contents of a treaty. Probably it will be dependent upon the attitude of various Powers, which will come to light during the discussions on that treaty. For these reasons it seems to us premature to endeavor to list now those States, or to list the number of States upon whose ratification the coming into effect of the treaty will depend. In the final analysis this may be a decision for each signatory to take for itself rather than to have a fixed group of States whose ratification is indispensable.

Respectfully yours,

Hugh R. Wilson

[Enclosure—Extract]²⁵

Memorandum by the War Department Adviser to the American Delegation (Strong)

[Geneva,] November 24, 1934.

. . . . . . . . . . . . . .

(b) Category III, Paragraph (1). (Telegram 940,²⁶ Category IV, paragraph (a) (1), and paragraph (m) (1) Department’s instructions.) The former text provided for the inclusion of two classes of aircraft: first, those “exclusively designed and intended for aerial warfare”, and second, those “of a type which is or shall be comprised in the armament of the armed forces of any State”, with exception being made, first, for training planes and second for those appearing in other Categories, notably ship-based planes included in Category II (telegram No. 940, Category III). The present text includes aircraft “designed, adapted or intended” for reconnaissance or aerial combat, and for bombing, if the latter be included in the term “combat”. The effect of the change directed is as follows:

(1) It makes the inclusion of a particular aircraft dependent upon its design or adaption to certain designated uses, rather than upon the purpose of the plane—or, as is less open to debate, its actual inclusion in the armed forces. The determination of a fact such as the actual inclusion of a plane of a given type in the military forces of a State, is far easier than determination of intention or evaluation of design.

(2) Training planes unsuited for combat or normal military employment are excluded by inference rather than specifically.

(3) Ship-based naval planes are now included in two categories, since they are “implements of war mounted on board and forming part of their normal armament,” as covered in Category II.

(4) The present terminology makes inevitable a battle in the Committee, and probably in the Bureau, on the matter of inclusion of a part of civil aviation, and probably invites the proposal of measures for the “control of civil aviation.”

. . . . . . . . . . . . . .

10. Article 11. (Despatch No. 103,²⁷ Chapter II, Article D–(1); and Departments instructions, paragraph G). The change directed was such as to change the word “Categories” to read “Category” and insert “I” after the word “Category”. The effect of this change is to authorize only the export of articles appearing in Category I to a manufacturer of war matériel and to prevent the export for such purposes of the articles appearing in Categories II and III. While the omission of Category II may not be important, I believe the prohibition, in so far as it concerns matériel in Category III, which deals with aeronautical matériel, is so unwarranted as to result in an undue restriction upon the aeronautical industry, and in consequence I believe indicates an inadvertent omission.

The same remark is applicable to sub-paragraph (3) which refers to samples for demonstration. In this case I believe Category I should be extended to include Categories II and III. In the latter case the error arose in this Delegation in sending the original text to the Department.

. . . . . . . . . . . . . .

18. The Department’s instructions also ask that we submit our ideas as to articles of ratification and suggest that such articles contain a provision to the effect that the Arms Traffic Convention of 1925²⁸ be considered as superseded by the coming into effect of this Convention. It should be noted that the 1925 Convention is not yet in effect, due to lack of sufficient ratifications.²⁹ Furthermore, the 1925 Convention—in reality a revision of the live portions of the Brussels Pact³⁰—covered a different field, was drafted for a different purpose, and, if ever put into effect, will serve a different end than the Convention we are considering. I consider it highly important that no reference at all appear in this Convention to the 1925 Convention nor to its predecessor, the abortive Convention of St. Germain;³¹ nor to its progenitor, the Pact of Brussels. Surely we want neither to revive nor discuss the subject of “Special Zones” nor to take any action to indicate that we have any idea of application other than absolute equality of treatment for all States, large and small, producers and non-producers—the same regime with equal benefits and with equal burdens for all.

As to articles of ratification, may I suggest the wisdom of waiting until such time as the Convention approximates final form in order that we can intelligently determine what we may have to ratify, and then consider the form and content of such articles.

Geo. V. Strong

22. Not printed.
23. Telegram No. 940 not printed.
23. October 3, not printed.
24. Not printed.
24. Ante, p. 102.
25. The portions of this memorandum here printed are those specifically referred to in the foregoing despatch by Mr. Wilson.
26. October 30, not printed.
27. October 3, not printed.
28. Foreign Relations, 1925, vol. i, p. 61.
29. For correspondence concerning efforts to secure ratification by the United States, see pp. 449 ff.
30. General Act for the Repression of African Slave Trade, signed July 2, 1890; for text, see Malloy, Treaties, 1776–1909, vol. ii, p. 1964.
31. Convention for the Control of the Trade in Arms and Ammunition, and Protocol, signed at Saint-Germain-en-Laye and Paris, September 10, 1919, Foreign Relations, 1920, vol. i, p. 180.