Foreign Relations of the United States Diplomatic Papers, 1937, General, Volume I

711.00111 Armament Control/1582

The Spanish Ambassador (De los Ríos) to the Secretary of State

[Translation]

No. 137/12

Washington, November 19, 1937.

Mr. Secretary: The calling of the Congress of the United States into an extraordinary session⁹⁸ was preceded and followed by a series of solemn official statements on what the United States Government considers essential and sacred principles or norms of international law. This leads one to believe that the Government and the Congress are preparing to adapt the situation created by the so-called Neutrality Legislation⁹⁹ to the juridical and ethical principles that the highest representatives of this great nation, beginning with Your Excellency, have recently, publicly and repeatedly, invoked.

The fourteen points in which Your Excellency summarized, on July 16, 1937,¹ what might be called the international confession of faith of the United States, was the subject of full and unreserved adherence on the part of my Government. Among the principles emphasized by Your Excellency are found: “(a) faithful observance of international agreements; (b) principle of the sanctity of treaties; (c) respect by all nations for the rights of others and performance by all nations of established obligations”. Those same ideas were expressed by Your Excellency in your splendid address of September 19, last,² and it all acquired special emphasis and worldwide attention when the Chief of State, President Roosevelt, in his speech of October 5, last, at Chicago,³ described “the reign of terror and international lawlessness” in which we were living and uttered these words which coincide absolutely with the aggressions suffered by my noble Spain: “Without a declaration of war, without warning and justification of any kind, civilians, including women and children, are being ruthlessly murdered with bombs from the air.”

“In times of so-called peace, ships are being attacked and sunk by submarines without cause or notice. Nations are fomenting and taking sides in civil warfare with nations that have never done them any harm. Nations claiming freedom for themselves deny it to others.”

Lastly, raising the hopes of those who still trust in justice, he asked for “the return to a belief in the pledged word, in the value of a signed treaty, in the sanctity of international treaties, in the maintenance of international morality”.

Two subsequent acts have revealed to my Government that really the United States “actively engages in the search for peace”: One was the “conclusion contained in the statement on the Far Eastern crisis issued by the Department of State” in relation with the Japanese aggression (October 6, 1937),⁴ and the other the just non-application to China of the Neutrality Law, in spite of the magnitude of the—undeclared—war, existing there.⁵

Since the approval by the Congress, January 8, 1937, of the “Joint Resolution” by virtue of which the exportation of “arms, ammunition and implements of war from the United States to Spain” was prohibited, I have repeatedly expressed to Your Excellency, in a friendly way, but firmly, how that measure signified the negation of the rights of Spain, whose juridical personality and rights of sovereignty continue to be manifested in this country by the legally recognized Government. Those conversations I deemed it necessary to recall to Your Excellency in the memorandum I submitted to you on August 28, of the current year. Today, in view of the declarations of principles to which I refer in the beginning, certain that the ideas of Your Excellency and of the President of the United States express, not a pious wish, but a determination of policy, with the deepest respect and with a hope of success which I could not cherish when the principle of neutrality was the one invoked, I formulate to Your Excellency, in the name of my Government, my formal protest against the “Public Resolution” approved January 8, 1937, and against the “Joint Resolution and Proclamation” of May 1, last, inasmuch as both represent the negation of two essential principles without which there is no international life possible:

First: the embargo applied to the importation of arms, etc., represents the breaking of a treaty by a unilateral act, which conflicts with the statements of Your Excellency and the President, the Executive of the United States, on the sanctity of treaties and their modification by mutual agreement.

Second: it is the negation of the right, the vital right of a legitimate Government: that of acquiring the means whereby to defend itself against those who rise against authority and law.

With respect to the first point, it becomes obvious when the second article of the Treaty of Friendship and General Relations between the United States and Spain, signed at Madrid, July 3, 1902,⁶ is read: “There shall be a full, entire and reciprocal liberty of commerce and navigation between the citizens and subjects of the two High Contracting Parties”, this article says, and the reservations contained at the end of the same cannot give rise to any doubt whatever.

Neither can there be any hesitation as to its being in force, as article 30 of the said Treaty says:

“The present Treaty of Friendship and General Relations shall remain in full force and vigor for the term of ten years from the day of the exchange of ratifications. Notwithstanding the foregoing, if neither Party notifies to the other its intention of reforming any of, or all, the articles of this Treaty, or of terminating it twelve months before the expiration of the ten years stipulated above, the said Treaty shall continue binding on both Parties beyond the said ten years, until twelve months from the time that one of the Parties notifies its intention of proceeding to its reform or of terminating it.”

Now then, as the case contemplated has not arisen except with respect to the abrogation of articles XXIII and XXIV on July 1, 1916,⁷ the Treaty is in force.

So far as concerns the second point, it likewise appears evident: In 1913, 1916⁸ and finally in the Sixth International Conference of American States held at Habana in 1928,⁹ the doctrine of the United States as a signatory power appears clear: “in event of civil strife it forbids traffic in arms and war material, except when intended for the Government”,¹⁰ and it cannot but be so morally and juridically, because when the embargo is decreed against both, the rebel and the legal Government are placed in a situation of parity, and as a consequence, violence is encouraged. Unfortunately such is the political, juridical and ethical effect of the Neutrality Law; on that account Your Excellency and the Government with a high sense of justice, have not applied it to the third country victim of the present aggressive forces: China. But it remains in force as regards Spain, the Government of Spain, with the aggravating circumstance that the aggressor peoples, for example Italy—as appears from the “White Book”, [“]The Italian Invasion of Spain,” presented to Your Excellency—or Germany (author of the bombardment of Almería), enjoy the right to export arms for themselves and their protégés, the rebels, while the legally recognized Government suffers a diminution of its rights as a member of the international community, a diminution which renders more profound its sufferings and its privations in its struggle for liberty.

Because of the aforesaid reasons, I formulate to Your Excellency my formal protest against “Public Resolution No. 1”, approved January 8, 1937, and the “Joint Resolution” and “Proclamation” of May 1, 1937, as contrary to the rights of Spain contained in the Treaty of 1902, protected by the basic rules of international law.

My Government, recognizing the value which the norms of international law have in the life of civilization, has followed with deep joy and hope the statements and acts of the highest authorities of the United States since July, and awaits, full of confidence, this hour having arrived, the Resolution which is proper in justice in so far as regards Spain and which, with all respect, I take the liberty of requesting.

I avail myself [etc.]

Fernando De los Rios

98. Second session of the 75th Congress, November 15–December 21, 1937.
99. Acts approved August 31, 1935 (49 Stat. 1081), February 29, 1936 (49 Stat. 1152), January 8, 1937 (50 Stat. 3) and May 1, 1937 (50 Stat. 121).
1. Post, p. 699.
2. Department of State, Press Releases, September 25, 1937, p. 239.
3. Ibid., October 9, 1937, p. 275.
4. Department of State, Press Releases, October 9, 1937, p. 284.
5. See vol. iv, pp. 520 ff.
6. Foreign Relations, 1903, p. 721.
7. See ibid., 1918, pp. 3, 10, and 861.
8. Presumably references to circular telegram, March 12, 1913, ibid., 1913, p. 7, and circular telegram, January 24, 1916, item IV, ibid., 1916, p. 3.
9. See ibid., 1928, vol. i, pp. 527 ff.
10. See section 3, article 1, of the Convention Regarding the Duties and Rights of States in the Event of Civil Strife, signed at Habana, February 20, 1928, ibid., p. 612.