724.3415/4082
The Consul at Geneva (Gilbert) to the Secretary of State
[Received September 5.]
Sir: I have the honor to submit below a summary of the present situation at Geneva relating to developments in the Bolivia–Paraguay dispute, particularly as regards (1) the status of the embargo [Page 281] and (2) action on the substance of the dispute. The observations set forth below are based on a study of the communications from the various governments consulted on this question by the President of the Committee of Three and on conversations with responsible officials of the Secretariat.
I. The Embargo
(1) Observations on the Position of Certain States.
The Department will have observed from the series of telegrams despatched by the Consulate in conformity with the Department’s telegraphic instruction No. 70 of June 20, 11 a.m.7 that all of the governments to which the President of the Committee of Three addressed his circular letter of June 15 (Consulate’s telegram No. 168, June 15, 6 p.m.) have replied thereto except the following: Argentina, Brazil, Austria, China, Guatemala, and Luxemburg. Secretariat officials have expressed themselves as feeling no concern in regard to the absence of replies from Argentina and Brazil whose respective positions were clearly stated, from a formal standpoint at least, in their replies to the first communication sent by the Committee of Three on this subject on May 19, in which each of these governments referred to its declaration of neutrality and stated that from the moment the declaration was issued a complete embargo had been put into effect (Consulate’s telegrams No. 94, May 24, 4 p.m. and No. 110, May 30, 4 p.m.8). Likewise no concern is felt in regard to Austria, China, Guatemala, and Luxemburg since Austria has stated that internal legislation (presumably in fulfillment of her obligations under the Treaty of St. Germain) prohibits the exportation of arms, and the other three countries in their replies to the communication of May 19 accepted the embargo proposal unconditionally. Nevertheless it is felt that the status of Luxemburg will not be entirely clear until Belgium, which I shall discuss later, has given a definite reply, it being assumed that the attitude of Luxemburg will depend to a large extent on that of Belgium. In passing it may be observed that the Committee’s letter of June 15 was not sent to Germany and Japan inasmuch as it was felt that it would not be possible to obtain any information concerning their position on the matter further than that received from them as a result of the first communication sent out by the Committee of Three on May 19. The positions of Germany and Japan were reported in the Consulate’s telegrams No. 101, May 29, 11 a.m., No. 149, June 9, 10 a.m., and No. 157, June 11, 2 p.m. The position of Germany as thus made known does not afford any cause for anxiety, but Secretariat officials have frequently expressed [Page 282] concern in regard to Japan who merely stated that it “had never exported arms” to the belligerent countries. It is considered possible here that if the embargo is rendered effective by measures taken by all the other manufacturing states, one or both of the belligerents might succeed in obtaining arms from Japan since that country has given no engagement not to ship arms in the future.
Coming now to the governments which have replied to the circular letter of June 15, the Department will have observed from the documents which the Consulate has transmitted regularly under cover of despatch that the replies have varied greatly in form and in degree of precision. With the exception of the neighboring states of Chile and Peru, however, to which I shall refer later, the replies of only three countries are causing the Secretariat any serious concern, namely, Belgium, Norway, and Finland.
The position of Belgium is important not only because that country is a large manufacturer of arms but also due to the circumstance that the action of Norway and Finland and the continued favorable action of several other states has been made contingent on that of Belgium. As reported in the Consulate’s telegram No. 216, August 16, 11 a.m.,9 Belgium has expressed a readiness to decree an embargo but requested to know the position of the other states. The delay in answering the Committee’s letter of June 15 and the follow-up telegram despatched on July 25 to several states including Belgium, together with this request for additional information when in fact the Belgium Government has been informed regularly of the replies of the other governments or at least could have readily ascertained the position of any given state or states at any time, has given rise to some doubts as to Belgium’s sincerity.10 Recently the Italian Government addressed a letter to the Committee of Three (see document C.280(m)M.120(m). 1934.VII enclosed with despatch No. 977 Political of August 24, 1934)11 which contains a warning that if the other states fail to take appropriate measures in the near future to prevent effectively the shipment of arms to the belligerents Italy would consider this as justification for revoking her own embargo measures. I have been given to understand in the strictest confidence that the Italians sent this letter because they alleged that they were aware that Belgium was withholding a definite reply in order to allow time for Belgian manufacturers to fill orders for large shipments of arms. I have likewise been apprised in confidence that the British are now exerting pressure at Brussels, and it is hoped that as a result of this action Belgium will fall into line.
[Page 283]Norway has expressed a willingness to apply an embargo on condition that Great Britain, France, Italy, Belgium, the Netherlands, Poland, and Czechoslovakia do the same. This condition seems to be fulfilled with the exception of Belgium. But in addition Norway reserves the right to make deliveries up until December 1 “under a few outstanding contracts.” The responsibile League officials have no information concerning the extent of these contracts, but I understand that they intend to approach shortly the Norwegian representative here in order to obtain information on this head and to attempt to persuade the Norwegian Government to revoke this reservation.
The Finnish Government has made its acceptance contingent on the effective application of an embargo by some 21 governments including Belgium, Norway, Chile, and Peru. Belgium and Norway are the only manufacturing countries designated by Finland which have not accepted the embargo proposal. The matter is further complicated, however, through the inclusion on the list of Chile and Peru whose situation with respect to cooperation in the application of the embargo, so it is understood here, is rendered difficult by the existence of treaties between these countries and Bolivia guaranteeing free transit to the latter. Holsti, the Finnish permanent delegate to the League, is now in Helsingfors. I understand that he has been requested to attempt to persuade his government to remove Chile and Peru from the list. The Secretariat is now waiting some word from him.
In addition to the obstacles to the effective application of the embargo which I have already described there has been evident here some apprehension in regard to the possibility of irregular shipments of arms reaching the belligerents even if all the manufacturing countries agree to place an embargo in effect. Although all of the governments may honestly enforce the embargo insofar as concerns direct shipments to Bolivia and Paraguay, it is felt that the possibility is not excluded that shipments despatched ostensibly to private companies in other countries may be diverted to the belligerents. It is difficult to judge at this distance from the region of the conflict, and without special knowledge of local conditions, whether this apprehension has any foundation in reality, but I have heard the opinion expressed that there is a danger of irregular shipments being successfully brought through to Paraguay by way of the water channels connecting that country with the ocean. Bolivia, it is felt, is not as favorably situated geographically for obtaining irregular shipments of arms as Paraguay, but even here the uncertain position of Chile and Peru relative to the embargo does not allow this possibility to be excluded.
Furthermore, the reservation made by Norway in regard to allowing shipments to continue until December 1 (and this may be followed by other similar reservations) constitutes a serious danger for the [Page 284] successful outcome of the embargo action because other countries such as Italy, in view of this situation, may decide to revoke the measures which they have already taken, and even if this does not occur, the continued shipment of arms to the belligerents for such a long period of time would greatly diminish the effectiveness of the embargo.
(2) Embarrassment Caused by the Uncertain Legal Basis of the Embargo.
In several of my telegrams to the Department I have discussed certain difficulties from a legal point of view which have tended to militate against any incisive action on the part of the League with respect to obtaining agreement or a concerted policy among the states on the embargo proposal. I refer in particular to telegrams No. 85 of May 19, 12 midnight, and No. 131 of June 4, 10 a.m., paragraph 26. From the very beginning of the embargo movement Bolivia has protested vehemently against the measure as being inequitable in practice, out of harmony with the spirit of the Covenant, and legally subversive of the provisions of the Covenant relating to the settlement of disputes. Even among non-belligerent states, notably Italy and Czechoslovakia, there was great hesitancy in accepting the proposal which they at first more or less openly opposed on the ground that the embargo was in effect a sanction and that the application of such a sanction against both belligerents contravened the prevalent conception that the value of sanctions as an element of security lies in their special applicability against the belligerent which has been determined to be the aggressor or otherwise primarily responsible for the conflict. The states having such scruples consented to give their assent to the proposal and their agreement to put it into effect only on the understanding that the Chaco dispute, as borne out by the report of the League Commission of Inquiry, was a special case which should not constitute a precedent. Moreover, from a legal point of view the League Council was unable to act directly, under Article XI, on account of the unanimity rule. Wherefore the plan was evolved, which the Bolivians apparently consider as a mere subterfuge to hide what is in effect a direct responsibility of the League, of conducting the consultations under the aegis of the League through the Committee of Three but at the same time laying emphasis on the argument that the action on the embargo was in essence a matter for the individual states, both as to the initiative in formulating the proposal and as to the responsibility for carrying it out. In view of these considerations some of the responsible officials of the Secretariat have felt that from the League’s standpoint the legal basis of the embargo was extremely tenuous and have expressed misgivings in regard to the possible repercussions of this affair on the League and the consequences it may have in relation to the final settlement of the dispute.
[Page 285]Bolivia has repeatedly protested against the embargo itself and against the part played by the League therein. I have been informed confidentially that Bolivia has likewise protested to the British Government individually and that the latter has been embarrassed to find an adequate reply. I understand that the British, who initiated the movement, have attempted to shift the responsibility to the League, or at least to thrust a share of the responsibility on the League, not in so many words perhaps but by implication. The Bolivians have replied that in League quarters they were met with the argument that the embargo action was a concern of the individual states and not a responsibility of the League. The British Government, finding itself in this dilemma, had recourse to the Secretariat for help in finding arguments to meet the Bolivian onslaught. As a result of this appeal, an official of the Secretariat prepared a memorandum, of which a translation made by this office is enclosed,12 in which an attempt is made to reconcile realities with legal scruples. This memorandum, after receiving the tentative approval of the President of the Committee of Three, was forwarded to Paris and London with the injunction that, inasmuch as it had not yet been considered by the full Committee, the document should be used as background only from which arguments might be drawn in meeting the Bolivians but should not be shown to them. Recently the Secretariat has privately requested of the two governments to be informed as to what use they have had occasion to make of the document. The French have replied that having received no protests from Bolivia they have had no occasion to employ it. The British have not yet replied.
The Secretariat is now considering the opportuneness of making this document public after first submitting it to the scrutiny of the Legal Section. It is now planned to present the memorandum to the Committee of Three which is expected to meet in the near future, when a decision will be made, in the light of the observations which the British may submit on the subject and of the general situation with respect to the Bolivian position on the matter, whether publicity will be given to the memorandum in its present or in a modified form.
This document was handed to me in the strictest confidence with the understanding that it be treated as such and considered for the present as being entirely unofficial. The member of the Secretariat on handing it to me observed that, although it might not be entirely watertight from a legal standpoint, he felt that it was a practical rebuttal of the Bolivian arguments. In any case it seems to me to be of interest both as showing the dilemma in which the League is placed and as an excellent example of legal tight-rope walking.
[Page 286](3) The Effect on the Embargo of the Invocation by Bolivia of Article XV.
From the moment when Bolivia invoked Article XV of the Covenant officials of the Secretariat have maintained that this action would in no wise interfere with the embargo. Up until now this view seems to have been correct and may possibly remain so throughout the League’s treatment of the dispute. There is a feeling, however, at the present moment that matters may so develop that it may be desirable, or even necessary, to attempt to correlate the embargo action with the action of the League on the substance of the dispute under Article XV. It has been suggested that the Assembly’s “recommendations” under paragraph 4 of Article XV might include an injunction to the members of the League to apply an embargo equally to the two belligerents, since in the view of the Chaco Commission as set forth in its report it was impossible to determine the aggressor in this conflict, that both parties were violating the Covenant in continuing the war, that neither had shown any real intention of seeking a peaceful solution, and that both are consequently equally guilty.
There are two schools of thought in the Secretariat in regard to this matter, one which considers the foregoing as legally possible and supports it, another which maintains that such a procedure is not legally sound, chiefly, I understand, because they consider the “recommendations” envisaged in this Article as being addressed to the two parties to a conflict and not to the members of the League. In this connection the Department will recall that the recommendations of the Assembly under this Article for the settlement of the Sino-Japanese conflict did in fact include a corollary injunction to the members of the League not to recognize the “Manchukuo” régime.
This matter has not developed far enough yet to allow of making any appraisal of possible developments on this head. Probably no decision can be reached until the statements of the two parties have been examined and the feeling of the Assembly on the question as a whole has become manifest. This would seem to be particularly true because the dispute has been under the competence of the Council in the past and affairs may take an entirely new turn when the matter is brought before the Assembly in accordance with the Bolivian request reported in my telegram No. 158, June 11, 4 p.m.13
II. Action on the Substance of the Dispute
As intimated above, the action on the substance of the dispute under Article XV is still in abeyance. I have been informed in confidence that the Secretariat is now in possession of the statements of each of the parties required by paragraph 2 of Article XV. Strange to [Page 287] say, these statements have not yet been submitted officially to the Secretary-General but were handed in unofficially as advance copies of what is presumably the official versions. As a matter of fact the status of these documents is very nebulous. In the case of Paraguay the representative of that country handed the document over without a covering communication stating that it should not be made public until it was possible to make public simultaneously the Bolivian statement. This would seem to indicate that the text of the Paraguayan statement in the possession of the Secretariat is in fact the official version. As to the Bolivian document, I have been unable to ascertain exactly how it came to the Secretariat but I am informed by a responsible and reliable official that it is there. This official intimated, but did not say so directly, that the Bolivian representative, Costa du Rels, had handed it over as an advance copy. It is therefore not possible at present to ascertain definitely whether the text of the Bolivian statement in the possession of the Secretariat is the final official version. In any case, the Secretariat is now making translations of both documents. They will not be circulated, however, until their transmission to the Secretariat has been rendered official through some action of the governments concerned.
I have been informed that a cursory examination of these statements seems to indicate that they add nothing new to the mass of argumentation which the parties have already submitted throughout the long course of this conflict.
As to possible action on the substance of the dispute under Article XV, developments are not yet sufficiently advanced to afford the basis for even a summary appraisal. In view of the circumstance that Paraguay has not been as successful in pushing her campaign in the Chaco as she apparently felt that she would be during the first flush of victory, and in view of the strain on both parties, the Secretariat feels, but with little optimism, that possibly there may be some hope that the parties may return to Geneva in a more conciliatory frame of mind.
Respectfully yours,