Foreign Relations of the United States, Diplomatic Papers, 1940, The American Republics, Volume V

740.00111A.R.–N.C./103

The American Member of the Inter-American Neutrality Committee (Fenwick) to the Under Secretary of State (Welles)

Rio de Janeiro, May 6, 1940.

Dear Mr. Welles: I do not want to trouble you with the affairs of our Neutrality Committee here in Rio, for I know you have weightier matters on your mind at the moment. Nevertheless, just to keep you in touch with what we are doing, I would like to make a few observations on the subject of Postal Correspondence, which is being considered by the Committee in response to an inquiry of Brazil.

As I explained in my telegram a few days ago,⁷³ the members of the Committee are divided as to the best way to handle the problem. Some of them want to do no more than re-affirm the principle of inviolability without any exceptions or qualifications other than those prescribed in the Hague Convention. This group proposes to overlook entirely what happened during the World War and to be satisfied with re-affirming the principle of inviolability even though they know there is no chance whatever that their recommendation on the subject will have the slightest effect on the belligerents.

A second group, including myself, feel that as “technical experts” we cannot turn our backs upon the practice of governments during the World War, when it was conceded that the inviolability of postal correspondence was limited to “genuine” postal correspondence and did not include sealed mail which contained contraband.

But this second group is divided as to how to solve the conflict between the right of the neutral to inviolability and the right of the belligerent to search for contraband,—a conflict which Secretary Lansing pointed out very clearly in his notes on the subject. The plan which seems to find favor with this group is to re-assert the principle of inviolability but to concede that it must be limited to genuine postal correspondence; and in order to determine what is genuine postal correspondence the suggestion is being taken up that the neutral State undertake to do this, since only in this way could it prevent the belligerent from doing so.

For myself, I believe that this is the better way to handle the problem, to limit our demand for inviolability to what is feasible and to take a stand on that. The objection is of course that if we limited our demand for inviolability to certain designated mailbags certified as not containing contraband, the belligerent would feel that he had a free hand in searching other mail. But he is doing that already and is at the same time censoring genuine correspondence which he has no right whatever to do.

The system we are discussing by which the neutral might certify that certain mailbags contain only genuine postal correspondence would be an entirely voluntary one on the part of those sending the letters and it would not involve censorship of any kind by the postal authorities of the neutral State. It would be something in the nature of registration, except that in this case the registration of “certification” would precede or rather attend the sealing of the letter in the presence of the postal authorities. That could be done without the authorities reading the letter or doing more than observe that it contained no contraband.

The postal authorities here seem to think the plan entirely feasible; but inasmuch as the postal authorities in Washington do not think so probably the recommendation of the Committee will not get very far even if it is made. But inasmuch as we are a technical committee we feel that we must handle the problem not from the point of view of political considerations but from the point of view of reconciling belligerent and neutral claims and salvaging something from the unlimited censorship that is going on at the present day.

This is all tentative and I am merely letting you know what the Committee is discussing and shall keep you in touch with later developments.

Sincerely yours,

Charles G. Fenwick

[Enclosure]

Draft Contention for the Sub-Committee, Submitted by C. G. Fenwick, May 5, 1940

Postal Correspondence

Considering

1 —that Article 1 of the XI Hague Convention of 1907, relative to certain Restrictions with regard to the Exercise of the Right of Capture in Naval War, recognized the principle of the inviolability of the postal correspondence of neutral states found on the high seas by a belligerent on board a neutral or enemy ship;

2 —that the grounds for the recognition of this principle were the fact that the grave inconvenience and harm done to neutral states by the search of their mails overbalanced any military advantages that might accrue to the belligerents from the detention of correspondence destined directly or indirectly to the enemy;

3 —that although the Hague Convention was not ratified by all of the signatories, nevertheless the principles and rules it laid down may be regarded as expressing the consensus of opinion of the nations assembled at the Hague Conference;

4 —that during the World War of 1914–1918 certain of the belligerents asserted the necessity of distinguishing between genuine (“missive”) correspondence and other sealed packets enclosed in neutral mail bags, admitting the inviolability of genuine correspondence, but claiming that the other mail was subject to the belligerent right to search for and seize contraband destined to the enemy;

5 —that the experience of the World War showed the necessity of developing the principles of the Hague Convention so as to take account of certain uses of the postal service not contemplated at the time the Hague Convention was adopted, particularly the fact that sealed packets, normally entitled in many countries to the privileges of “first class” correspondence, may actually have no character whatever of postal correspondence but may be in respect to their contents no more than articles of merchandise;

6 —that the determination of what constitutes genuine postal correspondence as distinct from other sealed packets can not be left to the belligerent which intercepts neutral mails en route to neutral ports, in as much as such action on the part of the belligerent would of necessity result, and has in actual practice resulted, in the most minute and prolonged examination by the belligerents of sealed neutral mail, thus exposing to the belligerents confidential business correspondence and other equally confidential personal affairs, and subjecting neutral sealed mail to censorship of the most exacting character;

7 —that if belligerents are to be kept from searching neutral postal correspondence in order to prevent contraband goods from reaching the enemy the neutral states themselves must undertake individually to determine by preliminary inquiry the genuineness of the postal correspondence for which inviolability is claimed; so that, when the neutral state is assured of this fact, it may be able to insist more effectively upon the inviolability of postal correspondence thus segregated and bearing an indication of its genuine character;

8 —that this determination on the part of the neutral state of the genuineness of postal correspondence which may thus be guaranteed as to its character should be carried out in such a way as to be consistent with the domestic standards of the neutral state in respect to the inviolability of postal correspondence; and that in consequence submission to the methods of preliminary inquiry into the contents of the letters should be entirely at the option of the persons sending the letters which are to be guaranteed as being genuine postal correspondence;

9 —that it may also be possible for the neutral state to devise ways and means by which the genuineness of postal correspondence may be assured by resort to external tests, such as the size and weight of sealed mail packets; which tests, although not assuring absolutely the non contraband character of the contents of designated mail bags, would nevertheless do so to such an extent that the amount of contraband that might be included would be negligible relative to the importance of the principle of inviolability;

10 —that the claim of belligerents of a right to prevent “intelligence”, whether of a military character or otherwise, from reaching the enemy by way of sealed letter post is completely lacking in any basis of international law and must therefore be rejected as in contravention of the principle itself of inviolability, in as much as the enforcement of such a claim would require the censorship even of genuine postal correspondence never regarded heretofore as coming under belligerent scrutiny;

11 —that the inviolability attaching to neutral correspondence on the high seas is not in any degree lessened by reason of the fact that neutral vessels may be compelled by force to put into a belligerent contraband control port for purposes of search at the greater convenience of the belligerent; but rather that the inviolability remains the same in such case as if the vessel were on the high seas;

12 —that neutral states do not claim inviolability for correspondence destined to or proceeding from a blockaded port when there has been a violation of blockade by the vessel carrying such correspondence:

For These Reasons the Inter-American Neutrality Committee Recommends:

I —That the American States reaffirm the principle that postal correspondence, as distinct from post parcels, found by belligerents on neutral vessels on the high seas is inviolable.

II —Tha/t the American States recognize the exception, contained in the XI Hague Convention, of correspondence destined to or proceeding from a blockaded port, but only in case of violation of blockade.

III —That the American States, acting individually and each in accordance with its own national constitution and laws and regulations made in pursuance thereof, undertake to distinguish genuine postal correspondence from other sealed mail matter and to segregate the two classes of mail.

IV —That this distinction and segregation may be carried out by;

a) —establishing a special bureau in important post-offices at which persons may voluntarily submit letters destined to belligerent or neutral countries and have them sealed in the presence of the postal officer and certified as not containing contraband, this service being rendered without inquiry by the postal authorities into the message contained in the letter submitted and upon payment of a fixed charge for the service; registration of the said letter being also required by the neutral state when considered desirable;

b) —fixing, by special postal regulations, a limit for the size and weight and form of sealed mail packets with the object of preventing the transmission of contraband in more than negligible quantities;

c) —prescribing, when deemed desirable, penalties against the transmission in letters addressed to belligerent countries of money, in the form of bank notes, bills of exchange or otherwise, or other contraband destined directly to belligerent countries.

V —That correspondence thus determined to be genuine postal correspondence, and segregated from other sealed mail, be placed in mail bags specially marked as containing “letter mail”, “epistolary correspondence”, or other designation indicating that the said letters have been certified as not containing contraband.

73. Telegram No. 194. May 4, 11 a.m., supra.