740.00111A.R.–N.C./55
The Inter-American Neutrality Committee Report Submitted by Mr. C. G. Fenwick, Covering January 15 to February 3, 194039
I. Organization of the Committee.
The Committee met a few days before its formal opening on January 15 and proceeded to settle details of organization. Dr. Mello Franco of Brazil was elected President of the Committee. Methods of work were discussed and it was agreed that time would be saved if the problems before the Committee were assigned to subcommittees which could report to the full Committee the results of their studies. It was agreed that all publicity respecting the activities of the Committee should be given out by the President of the Committee. The Committee then discussed the extent to which it was desirable to communicate directly with such Governments as might ask information of the Committee; and it was agreed that information as to the work of the Committee should be given out by the Chairman since the 21 American Republics had been informed of decisions through the Pan American Union. Emphasis was placed upon the fact that in accordance with the General Declaration of Neutrality adopted at Panama the Committee should not communicate directly with the Governments but only through the Pan American Union. The work to be undertaken by the Committee was then discussed and I submitted to the Committee two memoranda: one containing an outline of the problems to be considered (a copy of which is already in your hands) and another a series of questions based substantially upon the first memorandum.
II. Jurisdiction of the Committee.
Foremost among the problems discussed by the Committee at its first meeting, during which the organization of the Committee was worked out, was the question of the jurisdiction or competence of the Committee to discuss problems connected with the security zone created by the Declaration of Panama. Four members of the Committee were unwilling to have it take jurisdiction over the security zone and it was impossible to convince by argument. I stressed the fact that the jurisdiction of the Committee extended to “neutrality problems”, and that the security zone was clearly a neutrality problem. Other members insisted that the Committee was created by the General Declaration of Neutrality, that there was no mention of it in the Declaration of Panama, and that the Declaration clearly reserved to the Governments the decision as to what measures should be taken to [Page 283] secure its objectives. The result was that the Committee decided to make a formal inquiry of the 21 Governments, through the Pan American Union, of its jurisdiction to consider questions connected with the security zone. In view of the fact that it was probable that the answers might not all be in the affirmative, or if in the affirmative they might be restricted or qualified, the President of the Committee requested the Pan American Union to try to obtain from the Governments a “collective answer” so that the Committee would know whether it should proceed or not. No decision was taken by the Committee as to its course of action if a collective answer was not given.
III. Request from the Government of Uruguay for Opinion of Committee on Specific Points.
With the question of jurisdiction temporarily disposed of the Committee next took up the request of the Government of Uruguay for an answer on three specific questions. The Committee decided, however, that in formulating its recommendations on the questions submitted no specific reference should be made to the inquiry from the Government of Uruguay but that the answers should be in the form of general recommendations.
a. Internment.
The third question submitted by the Government of Uruguay dealt with the internment of the officers and crew of the steamship Tacoma,40 using that specific problem as the basis for a request on the general problem of internment. The Committee found no fundamental differences of principle on this point and it was more a question of working out the details of the problem. One question of interest concerned the release of officers on parole, in accordance with traditional international law. This the Committee opposed arguing that it was contrary to democratic principles and was a relic of older times. Another point of interest was the question whether the Government of the interned persons might employ them in its diplomatic and consular service. On this the Committee gave a negative recommendation, insisting that there be no connection between the interned persons and the belligerent Government.
b. Submarines.
In the inquiry from the Government of Uruguay it was urged that submarines be excluded from neutral ports because of the difficulty of watching their movements in order to prevent violations of neutrality. A majority of the Committee favored exclusion but two members after first giving the appearance of being willing to go with the majority and have a unanimous opinion refused to accept the principle of exclusion and argued at length that the Committee had no authority to offer recommendations upon the strict text of the General Declaration of Neutrality which created the Committee. In that General Declaration neutral states were given the option of either excluding submarines or of admitting them on certain conditions. I suggested the exclusion of submarines from ports and harbors, leaving the question [Page 284] of exclusion from territorial waters untouched. This was in an effort to win over members from Chile and Argentina, both of whom opposed complete exclusion. The underlying difficulty seems to have been the objection on the part of the Chilean and Argentine delegates to raising the question of territorial waters, Chile having an eye on the Straits of Magellan which it claims are wholly within its territorial jurisdiction, subject of course to an international right of passage, and Argentina having its eye possibly on the Falkland Islands which it is not yet willing to admit are not within its territorial waters. The subject of limiting the exclusion to ports and harbors was not acceptable and the compromise finally agreed upon was to recommend the alternative of complete exclusion, subject to conditions of force majeure, or of admission, subject to consent being obtained in each particular case of admission to ports and harbors. The recommendations were preceded by a preamble in which note was made that a majority favored exclusion, and with that compromise the recommendation offered the two alternatives. How far the desire of Argentina not to deny to British submarines the privileges of Argentine ports played a part in its decision is impossible to say. Remarks made by the Argentine member to the effect that his admiralty officers were pointing out to him the difficulties involved in exclusion suggested a political motive of that kind, but they might also have referred to the problem of territorial waters.
c. Auxiliary Transports.
The request from the Government of Uruguay on auxiliary transports came in the form of a desire for a recommendation of ways and means to meet cases similar to that of the Tacoma. In its larger aspects the problem dealt with means of preventing contacts between merchant vessels, whether of belligerent or neutral flags, and warships in the same neutral port or on the high seas. The principle at issue created no difficulties, because the rule of international law was clear that any such contacts were in violation of the duties of neutrality. The specific problem, however, consisted in formulating regulations which, while adequate to prevent such contacts, would not be unnecessarily burdensome to ordinary commerce. The Committee considered at length a wide variety of restrictions that might be imposed upon merchant ships in port, but in most cases it was found that while the restrictions would be helpful in preventing the forbidden contacts, it would be unnecessarily burdensome to commerce or it would require a degree of administrative supervision which some of the smaller states might not be able to furnish. Hence the regulations recommended laid down a number of general principles but confined the restrictive provisions to suspicious cases, leaving it to each state to determine what might be grounds of suspicion in accordance with the general rules laid down.
IV. Problems to be Considered Pending a Reply on Jurisdiction.
During the recess of the Committee, taken in order to enable two of the members to leave for important business at home, subcommittees were created to deal with a number of problems which were in urgent need of decision. In accordance with the resolution adopted at Panama the subject of contraband of war is now being studied in connection [Page 285] with the shipment of foodstuffs to the civilian population of the belligerent countries. A number of questions on the subject of mines were submitted by the Government of Uruguay, and there were inquiries from other Governments on the subject of control of radiotelegraphic communications, as well as other lesser problems.
V. The Committee is now at recess awaiting call from the President which it is expected will come as soon as an answer is received on the subject of jurisdiction.
- See Minutes of the Sessions Held by the Inter-American Neutrality Committee, Appendix A, Law and Treaty Series No. 15, pp. 23 ff.↩
- See note of January 3, 1940, from the Uruguayan Minister, vol. i, p. 682.↩