The American Member of the Inter-American Neutrality Committee (Fenwick) to the Secretary of State
[Received December 10.]
Attention of Mr. Daniels, Division of Latin American Republics.
Dear Mr. Daniels: In pursuance of our recent conversation I am submitting herewith for the consideration of the Department some observations upon the work of the Inter-American Neutrality Committee, [Page 15] and the possible new fields into which its jurisdiction might be extended. My observations are purely personal, and without any reference to the views of the other members of the Committee.
A. Extension of the present functions of the Committee.
1. It seems clear that the task of preparing a convention covering the whole law of neutrality, assigned to the Committee by the Consultative Meeting of the Foreign Ministers at Havana in July, 1940, has lost its purpose and meaning so far as the war now in progress is concerned. For the past six months the Committee has continued to work on the project, not because of a belief in its intrinsic importance, but because the Committee has wanted to show the American Republics that it could be relied upon to do the work assigned it and do it well. Since the outbreak of war between the United States and Japan, however, it is obvious that, whatever future value the neutrality convention might have (and I myself believe it would be very little), it would hurt the standing of the Committee to continue to deal with problems in a vacuum.
2. There are, however, new problems growing out of the status of neutrality which might be assigned to the Committee. Last spring I submitted to Mr. Welles a brief analysis of the kinds of “claim cases” which might appropriately be assigned to the Committee.22 These cases might arise from the requisition by neutral American States of merchant vessels of the belligerents and of countries occupied by the belligerents; or that might arise from violation by belligerent warships and aircraft of neutral American rights; or, again, that might arise from damage by illegal activities of belligerent agents in neutral American countries.
My suggestion would be that if the functions of the Committee were enlarged to give it jurisdiction in respect to these “claim cases”, the recommendations of the Committee would deal chiefly with the legal principles involved in the settlement of the cases, and would have for the present an advisory character only.
B. Long-range Development of the Work of the Committee.
1. The Committee, during the period while its functions were still of intrinsic value, demonstrated to the American Republics the advantages of a small permanent committee meeting regularly and devoting its whole time to the tasks assigned to it. The resolution taken by the Foreign Ministers at Havana shows that the Committee, although not containing representatives of all the American States, had won the respect of the Inter-American community for the impartiality of its decisions. The experience obtained by the Committee and the precedent it has set for the handling of technical [Page 16] problems by a body of experts should not be lost. As has often been observed in matters of inter-American, as well as in international, organization, it is easier to build upon an existing institution than to create a new one. Problems calling for solution lie all about us. The present crisis would seem not only to demonstrate the need of a permanent legal committee but the opportunity that exists to create one.
2. The Inter-American Neutrality Committee might, therefore, without great difficulty be transformed into an “Intra-American Committee on International Law”. It would retain its purely advisory character and it would, as the suggested name implies, be limited in its functions to recommendations on questions of technical law. But its field would naturally range beyond that of neutrality, or of belligerency, into the domain of international law in general. The jurisdiction of the Committee would thus include the many problems, such as the law of foreign investments and the diplomatic protection of citizens abroad, in respect to which it has hitherto proved impossible to codify international law.
In relation to the numerous bodies engaged in the codification of international law in accordance with the provisions of Inter-American treaties and resolutions of recent years, the proposed Committee on International Law might well act as a central exchange or as a sort of secretariat with functions of its own, so that it could bring about the results desired from these bodies without disturbing their formal organization.
Consideration might be given to the absorption by such a Committee on International Law of the functions of the “Commission of Inquiry” provided for in the Gondra Treaty of 1923,23 and again in the Buenos Aires Treaty of 1936.24 The mere fact of the existence of a Committee on International Law, organized on a permanent basis and actively functioning, might facilitate the settlement of such disputes as the pending boundary controversy between Peru and Ecuador, where questions of mixed law and fact are involved.
3. Assuming the desirability of the creation of such a permanent Committee on International Law, it would be a question of practical detail whether its location should be at Rio de Janeiro, or at Washington where the advantages of library facilities are an important consideration. The Committee might readily be given “circuit functions”, which would lead it to meet from time to time in other capitals of the American States.[Page 17]
Consideration might also be given to the possible affiliation of the proposed Committee with the Pan-American Union, in case it were decided to locate the Committee in Washington. This might help to obviate any criticism that the Committee was too much under the dominance of the United States.
If it should be deemed feasible and desirable to create a Permanent Committee on International Law, it would seem necessary to give to it a competent research staff which the present Neutrality Committee does not possess.
I shall be glad to consult with you further in respect to the observations made under sub-head B. What I have suggested above may be regarded as first impressions.