740.0011 EW ’39/18197½
Memorandum by the Legal Adviser (Hackworth)
The Saint Pierre-Miquelon Incident
v.
The Habana Convention of 1940
Paragraph Two of the preamble to the convention signed at Habana in 19401 contemplates situations in possessions in this hemisphere of European powers resulting from events which were then taking place in Europe “which may extinguish or materially impair the sovereignty which they [the European powers] exercise over them, or leave their government without a leader”. Such a situation is declared to constitute a danger to the peace of this hemisphere.
Paragraph Three of the preamble states that force “cannot constitute the basis of rights” and that the American republics condemn all violence “whether under the form of conquest, of stipulations which may have been imposed by the belligerents in the clauses of a treaty, or by any other process”. The fourth paragraph states that any transfer or attempted transfer of the “sovereignty, jurisdiction, possession or [Page 397] any interest in or control over any such region to another non-American State, would be regarded by the American Republics as against … the rights of American States to maintain their security and political independence”. Paragraph Five states that no such transfer or attempt to transfer or acquire any interest or right in any such region, directly or indirectly, shall be recognized or accepted by the American republics “no matter what form was employed to attain such purposes”. Paragraph Six states that “the acquisition of territories by force cannot be permitted”.
Article I of the convention provides that if a non-American state shall directly or indirectly attempt to replace another non-American state in the sovereignty or control which it exercised over any territory located in the Americas, “such territory shall automatically come under the provisions of this convention and shall be submitted to a provisional administrative regime.”
The convention then proceeds to state how the administrative regime shall be created and shall exercise its functions, all of which is to be of a temporary character pending the time when the region in question is in a position to govern itself or is restored to its former status, the whole purpose of the convention being to safeguard the interests of the inhabitants of the region or regions and the security of the American republics.
The islands of Saint Pierre and Miquelon were occupied by force and the French governmental administrator was replaced by a military official of the Free French. The action was plainly in contravention of provisions of the convention in that (1) the sovereignty exercised by the Government of France over the islands was at least “materially” impaired; (2) the action was taken through the use of force; and (3) regardless of whether there was a transfer of sovereignty, there was a transfer of “jurisdiction, possession or any interest in or control over” the islands, within the meaning of paragraph Four of the preamble to the convention. The American republics declared in paragraph Five that no such transfer or attempt to transfer or acquire any interest or right in any such region will be recognized by them regardless of the “form … employed to attain such purposes.”
While the convention refers to action taken by a non-American state, and while the Free French organization is not a state, its action is clearly within the intendment of the convention, which had for its purpose the keeping of possessions in this hemisphere of European powers free from fluctuations in the fortunes of war then and now going on in Europe. Moreover, it is not to be forgotten that the Free French could without great difficulty acquire the status of a state, the control over territory and people being among the essentials of statehood. It might moreover be said, whether with [Page 398] or without justification, that the Free French have acted as the agent for some other state. In any event, the convention was designed to prevent these regions from becoming the object of barter or of military operations. In other words, it was the purpose of the convention to maintain the status quo during the period of the war with respect to European possessions in the Western Hemisphere. It was for these reasons that article I of the convention provided that if a non-American state should attempt to replace another non-American state “in the sovereignty or control which it exercised over any territory located in the Americas”, such territory should automatically come under the provisions of the convention.
Another reason why the fact that the Free French do not constitute a state cannot be construed as eliminating the Saint Pierre-Miquelon incident from the operation of the convention, is the further fact that if the term “state” as used in the convention should be construed strictly, the whole structure of the convention could be undermined by such methods of procedure. For example, Germany, Italy or Japan could create and send out expeditions under similar titles, such as “Free Germans”, “Free Italians” or “Free Japanese”, ostensibly opposed to the respective Governments but in fact instrumentalities of those Governments, with all the potentialities of danger to the American republic envisioned by the convention. While we are friendly to and have been assisting the Free French in other directions, and while the action of the Free French in Saint Pierre and Miquelon may not present any immediate and direct danger to the Western Hemisphere, indirect dangers may exist in other directions. If the French Government should see that the Habana convention and the Monroe Doctrine afford no protection to her possessions in this hemisphere, she might conceivably find it necessary to take military action to protect them, or what might be worse, she might enter into an alliance with our enemies in connection with which these and other possessions would be made available to our enemies, and the danger which the convention was designed to avoid would become an actuality.
In brief, the Saint Pierre-Miquelon incident standing alone is not of great moment, but the precedent which it would establish might become serious. It is contrary to the spirit of assurances given by this Government to the Vichy government, which assurances it is believed have had a stabilizing influence on that government as regards its outlying possessions, its fleet, and the general attitude of the French people, all of which could in the pivotal situation readily be turned to the advantage of our enemies.
- See Foreign Relations, 1940, vol. v, pp. 180 ff.; for text of treaty, see Department of State Treaty Series No. 977 or 56 Stat. (pt. 2) 1273.↩