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

740.00111A.R.–N.C./162½

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

Rio de Janeiro, December 14, 1940.

Dear Mr. Welles: In order to keep you in touch with the work of our Neutrality Committee I am enclosing herewith a copy of a preliminary draft of the convention on the Security Zone, which the Committee was instructed by the Havana Meeting to prepare.

The draft was submitted to the Committee yesterday by a subcommittee consisting of Sr. Martinez Mercado and myself; and it is obviously nothing more than a first stage in the preparation of the final draft. As you will observe, I followed closely the recommendation of the Committee submitted last April 27th,¹⁵ eliminating superfluous argumentation from the Considerando and making the Articles more concise.

The draft emphasises the need of an independent determination of the facts in the case of a violation of the Zone, to determine which belligerent took the initiative; and it suggests that the Neutrality Committee might be the appropriate body to pass upon the facts and give an opinion. It would then be for the Governments, after consultation, to decide what measures to adopt under the circumstances.

Discussion in the Committee yesterday centered upon the “measures of international cooperation” which the Havana Meeting asked the Committee to propose;¹⁶ but the suggestions were of the vaguest character. The problem is to find sanctions of a “pacific character” which will nevertheless indicate that the American Republics intend that the Zone be respected by the belligerents.

Our Committee is proceeding on the assumption that the American Republics want us to draft a convention, whether or not they choose to ratify it after it has been drafted. We are not unaware, of course, of the practical conditions with which a number of the American Governments are confronted.

Under separate cover I am sending to Mr. Bonsai the interpretations given by the Committee to certain questions which he submitted to me from the Navy and the Treasury Departments. These questions, not having been formally submitted to the Committee by the Department, were answered without reference to their origin.

In respect to the Neutrality Code, which the Committee was asked by the Havana Meeting to prepare, I am undertaking to draft a series of articles dealing, one by one, with the topics included in the Analytical Draft which I enclosed in my letter of November 27th. I shall forward these separate sections to you as they are completed.

I might add, in respect to the draft on the Security Zone, enclosed herewith, that no action is likely to be taken by the Committee before the end of January. One of our members is leaving next week for three weeks absence on account of health, and we shall be for the time without a working quorum.

With warm personal regards,

Sincerely yours,

Charles G. Fenwick

P. S. Needless to say the Committee will welcome criticisms and suggestions in respect to the enclosed draft, allowance being made for the fact that the draft is of the most tentative character.

[Enclosure]

Preliminary Draft of the Convention on the Security Zone¹⁷

The Governments of the American Republics

Considering:

1) that the Declaration of Panama, approved October 3, 1939, solemnly asserts that “as a measure of self-protection, the American Republics, so long as they maintain their neutrality, are as of inherent right entitled to have those waters adjacent to the American continent, which they regard as of primary concern and direct utility in their relations, free from the commission of any hostile act by any non-American belligerent nation, whether such hostile act be attempted or made from land, sea or air”;

2) that the basis of this “inherent right” is the fundamental law of self defense, universally recognized in the relations of states as well as of individuals, which must take new forms to meet the new conditions presented by the present war;

3) that the assertion of the right claimed by the American Republics in respect to the Security Zone was made necessary not only by the establishment by the belligerents of war zones from which neutral ships have been excluded except at the risk of destruction without warning, but by the adoption by the belligerents of methods of warfare which have practically closed the highways of neutral commerce with many nations of Europe and have resulted in heavy losses to neutral shipping;

4) that in consequence of these unlawful acts of the belligerents the American Republics have been forced to segregate their own continental waters from the theater of war and to adopt measures for the protection of their own inter-American communications and assure to themselves the possibility of peaceful intercourse on this continent;

5) that the American Republics, in fixing the limits of the Security Zone established by the Declaration of Panama, were not claiming thereby any corresponding extension of territorial waters, but were seeking to ensure the safety of coastal towns and of local shipping as well as the protection of inter-American communications in the normal maritime routes of commerce and trade between the countries of America; the waters of the undisputed possessions of non-American states being expressly excluded from the zone;

6) that the American Republics recognize the necessity on their own part of taking measures to prevent their neutral ports from being made bases of operations by the belligerents, whether through the unlawful use of those ports by the belligerents themselves or through the acts of individual persons acting in the interest of the belligerents; and that in order to attain better this end they propose to keep a vigilant watch over all merchant vessels entering and leaving their ports and harbors so as to prevent as far as possible any contacts between such vessels and belligerent warships on the high seas;

7) that the American Republics, while acknowledging the right of self-defense which each belligerent may have in repelling an unprovoked attack by the other, do not intend to waive their claim to the Security Zone by leaving the decision as to the necessity of self-defense to the arbitrary determination of the belligerents, but propose to determine that issue for themselves by an independent investigation of the facts relating to a violation of the Zone and an official determination by their own authorized body of the responsibility for the said violation;

8) that the American Republics, while seeking, in accordance with the terms of the Declaration of Panama, to secure the observance of the Security Zone by joint representation to the belligerents of the reasonableness of the claim made in respect to the Zone, nevertheless are determined to use the means at their disposal, of a pacific character and within their rights under international law, in order to express their condemnation of acts of hostility that may be committed in violation of the Zone;

Have Resolved to conclude the following Convention:

I —The American Republics, in accordance with the terms of the Declaration of Panama, consider the waters included within the limits of the said Declaration as a “security zone” free from the commission of any hostile act by any non-American belligerent nation, whether such act be attempted or made from land, sea, or air.

These waters are defined as follows: All waters comprised within the limits set forth hereafter except the territorial waters of Canada and of the undisputed colonies and possessions of European countries within these limits. Beginning at the terminus of the United States-Canada boundary in Passamaquoddy Bay, in 44° 46' 36" north latitude, and 66° 54' 11" west longitude;

Thence due east along the parallel 44° 46' 36" to a point 60° west of Greenwich;

Thence due south to a point in 20° north latitude;

Thence by a rhumb line to a point in 5° north latitude, 24° west longitude;

Thence due south to a point in 20° south latitude;

Thence by a rhumb line to a point in 58° south latitude, 57° west longitude;

Thence due west to a point in 80° west longitude;

Thence by a rhumb line to a point on the equator in 97° west longitude;

Thence by a rhumb line to a point in 15° north latitude 120° west longitude;

Thence by a rhumb line to a point in 48° 29' 38" north latitude, 136° west longitude;

Thence due east to the Pacific terminus of the United States-Canada boundary in the Strait of Juan de Fuca.

II —Within the waters of the said Security Zone it is forbidden to exercise any belligerent activity or commit any hostile act, such as attack, capture, pursuit, visit or search of neutral vessels, laying of mines, cutting of cables, or any other operation of war, whether put into effect from land, sea or air, except only such measures as may be taken by a belligerent to resist an attack or operations begun without the Zone and continued within it without break in the continuity of the action.

III —The American Republics, in their character as neutral states, shall adopt, within their respective jurisdictions, the measures at their disposal both to prevent belligerent warships from using their neutral ports or their territorial waters as bases of naval operations by making repairs or by obtaining fuel and other supplies in excess of the limitations imposed by international law, and to prevent merchant ships, whether of belligerent or of neutral flag, from making use of their neutral ports to give assistance to belligerent warships whether during the time the said warships are in port or later when they are on the high seas.

IV —In the event of a violation of the Security Zone, in whatever manner it may come about, the American Republics shall make a joint investigation of the facts attending the said violation in order to determine which of the belligerents took the initiative in the said violation. To this end, the respective diplomatic officials of the American states resident in the country nearest to the scene of the violation shall, to the extent of their ability, collect the facts with regard to the violation and transmit them to their respective Governments as soon as possible, to the effect that the said Governments, in their turn, may place the facts at the disposal of the Inter-American Neutrality Committee, without delay. The Governments of the said country nearest to the scene of the violation of the Zone shall also on its part collect the facts with regard to the violation, in so far as the means at its disposal permit, and shall transmit them promptly to the Inter-American Neutrality Committee. The Committee, having before it the information thus submitted to it, shall forward to the Governments of the American Republics its opinion on the case.

V —The American Republics, having received the report of the Inter-American Neutrality Committee in respect to a violation of the Security Zone, shall consult, as promptly as possible, with regard to the opinion of the Committee and with regard to the measures to be taken in order to maintain the integrity of their right to the protection of the zone. Such consultation shall be without obligation on the part of any one of the American Republics in respect to the acceptance or approval of any such measures as may be proposed for the enforcement of the zone.

VI —The American Republics, acting in the light of their conclusions in respect to the report of the Inter-American Neutrality Committee, shall undertake to secure redress for the violation of the zone by one or more of the following measures:

1) they shall protest collectively to the belligerent which they consider to be guilty of the violation of the zone;

2) they shall refuse to admit to their ports the particular warships or airships guilty of the violation;

3) they shall refuse to admit to their ports all warships or airships of the belligerent responsible for the violation; provided, however, that denial of admission to port shall not prevent assistance of a purely humanitarian character being given to the crew of the said ships.

4) . . . . . .

5) . . . . . .

6) . . . . . .

15. Printed in Special Handbook prepared by the Pan American Union, Appendix F, p. 57. See also letter from the American Member of the Inter-American Neutrality Committee to the Under Secretary of State, May 3, ante, p. 301.
16. See Second Meeting of the Ministers of Foreign Affairs of the American Republics, Habana, July 21–30, 1940, Report of the Secretary of State, pp. 14, 59.
17. A notation on the original indicates that the Spanish text was entered in the minutes of the Neutrality Committee for December 13, 1940.