radio station under his "strictest liability"; that any violation of the restriction would be punishable by a suspension of broadcasting rights; and that broadcasting stations were forbidden to broadcast rumors or information the source of which could not be proved.

The First Secretary of Embassy at Habana (Beaulac) to the Secretary of State (Hull), no. 2396, Sept. 15, 1939 (enclosure), MS. Department of State, file 740.00111A.R./275; Cuban Presidential Decree 2214 of Sept. 7, 1939, Deák and Jessup, Collection of Neutrality Laws, etc., Supp. (1940) 462[13].

In a memorandum dated December 1, 1916 Secretary Lansing wrote:

It is not the part of a neutral to sit in judgment or to compare the conduct of belligerents in carrying on hostile opera- Public tions against one another. It is practically impossible for those officers having the administration of foreign affairs not to make such a comparison and not to form a judgment as to the justifiable character of violations of recognized rights, but it is nevertheless their duty to refrain from giving official sanction to such opinions or from in any way departing from the position of an impartial spectator, who while he may deplore the conduct of one combatant more than that of the other remains silent and strives to keep the official mind of the government free from prejudice, even though the public opinion of the nation may denounce acts as beyond the pale of right or of humanity.

MS. Department of State, file 763.72111/43322; I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 227, 230.

When the American Consul at Aix-la-Chapelle reported that he was attempting to investigate stories of German atrocities in Belgium, the Department of State instructed him to discontinue such investigations and to make no reports and to express no opinions thereon, pointing out that as the consul of a neutral nation he should take no action in the interest of either belligerent which would subject him or his Government to adverse criticism.

The Consul at Aix-la-Chapelle (Thompson) to the Secretary of State (Bryan), no. 820, Sept. 17, 1914, and the Director of the Consular Service (Carr) to Mr. Thompson, no. 14, Oct. 20, 1914, MS. Department of State, file 763.72/1039; 1914 For. Rel. Supp. 799, 804.

When the Mexican Embassy, during a period of revolutionary dis- Civil disturbances turbances, complained of the arrest in the United States of certain Mexican citizens who were embarking for Lower California to take part in defense of its territory against filibusters, Secretary Knox replied:

...

I must, however, take occasion to say that obviously the Government of the United States can scarcely undertake, as you seem to desire, to discriminate between the various more or less

Unequal operation of neutrality

independent insurrectionary movements which from your note would seem to exist within the Republic of Mexico. Obviously, this Department is not in a position to determine which, if any, of these movements are to be regarded as recognized insurrections and which, if any, are to be regarded as filibusters operating for ends and principles which the Government of Mexico cannot approve. It is quite clear that these are questions concerning the Government of Mexico only, and that the Government of the United States, obviously able to entertain neither disfavor, sympathy, nor interest for any such movements, must treat and consider all upon identic bases.

This being the legal status of the present situation, it is unnecessary to say that the Government of the United States will continue in the future, as in the past, to observe a strict impartiality, at the same time using its utmost endeavors to the end that there shall be no violation either of its obligations under the principles of international law, or of the proper observance of its own so-called "neutrality statutes."

The Mexican Ambassador (Zamacona) to the Secretary of State (Knox), May 27, 1911, and Mr. Knox to Señor Zamacona, no. 47, June 7, 1911, MS. Department of State, file 812.00/1984; 1911 For. Rel. 494, 501.

In communicating to the Attorney General a note from the Mexican Embassy requesting that Federal and local authorities of Arizona be instructed to maintain with greater vigilance the observance of the neutrality laws of the United States, Secretary Knox wrote that

the Department of State draws a clear distinction between, on the one hand, a vigorous enforcement of our so-called neutrality statutes and the due and proper observance of the rules governing international neutrality, and, on the other hand, activities such as are seemingly desired by the Mexican Government and which would, if carried out, amount in effect to cooperation and participation with a foreign government or with its agent in measures calculated to assist such foreign government in putting down revolution or in maintaining peace and tranquillity within its borders. These latter undertakings, in the absence of duties, rights or obligations arising from treaty, from conditions threatening the welfare of a foreign power, or from the interests of aliens requiring protection by their own Government, are quite obviously matters calling for action by the local sovereign rather than by a foreign power, which under normal conditions owes in general no international duty other than to be neutral and impartial.

Secretary Knox to Attorney General Wickersham, Jan. 3, 1912, MS. Department of State, file 812.00/2665; 1912 For. Rel. 708, 709.

In the enforcement of the laws of neutrality and in advocating an extension of neutral obligations, which domestic interests make expedient, this Government cannot take into account the advantage or disadvantage which may result to any of the bel

ligerents through the enforcement of neutral duties. If one belligerent has by good fortune a superiority in the matter of geographical location or of military or naval power, the rules of neutral conduct cannot be varied so as to favor the less fortunate combatant. To change such rules because of the relative strength of the belligerents and in order to equalize their opportunities would be in itself an unneutral act, of which the stronger might justly complain.

This Government, in the enforcement of the laws of neutrality and in exercising its influence over the people as to their conduct toward the belligerents, must consider the hostile nations to be upon equal footing and to possess equal opportunities in the conduct of the war. Any other course would make the rules of neutrality a fluctuating standard which would result in constant confusion and in innumerable charges of partiality. Whether one belligerent or the other is successful, is not a matter of concern to a neutral government, and it cannot vary its rules or change its policy because of a particular triumph or defeat by either during the progress of the war. It must hold strictly to its obligations and to its general policy, however they may benefit one belligerent or injure another.

Memorandum of the Counselor for the Department of State (Lansing) submitted to President Wilson, Dec. 9, 1914, MS. Department of State, file 763.72111/10742; I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 166,

169.

In his statement submitted to the Senate Committee on Foreign. Relations on February 5, 1936, Charles Warren stated:

Impartiality is one of the essential features of neutrality. But at the same time I must emphasize very strongly, and all legislators must always bear in mind, the fact that the statement that neutrality demands impartiality means simply impartiality in the application of law; it rarely ever results in impartiality in operation. International law imposes certain obligations upon a neutral nation which it must perform with reference to each belligerent in a war; but international law does not impose any obligation on a neutral to see that the performance of these obligations should operate in the same manner on each belligerent. And, in fact, a neutral obligation rarely, if ever, operates in the same manner on each belligerent. For instance, suppose that under the law a neutral may not admit into its ports a prize vessel taken by a belligerent on the high seas. When a neutral enforces this obligation against two belligerents, the very enforcement may injure greatly one belligerent who possesses no colonial ports, and may not harm at all the other belligerent, who may have ample ports in which to receive its prizes. So, in the World War, the impartial application of law to both belligerents as to shipment of arms by us, did not, in fact, result in equal treatment; for it enabled the Allies to get arms, while Germany could not get them in fact.

Hence it must be especially noted that legal neutrality, i.e., legal impartiality in treatment, does not result in actual impar

Impartiality in application of law

tiality of operation, when two nations differ in geographical or economic situation or differ in their control of sea or land communications.

Hearings before the Senate Committee on Foreign Relations, 74th Cong., 2d sess., Jan. 10-Feb. 5, 1936, on S. 3474 regarding Neutrality, pp. 249-250. In a statement transmitted by President Roosevelt to Congress on July 14, 1939, Secretary Hull said:

It is not humanly possible, by enacting an arms embargo or by refraining from such enactment, to hold the scales exactly even between two belligerents. In either case and due to shifting circumstances one belligerent may find itself in a position of relative advantage or disadvantage. The important difference between the two cases is that when such a condition arises in the absence of an arms embargo on our part, no responsibility attaches to this country; whereas in the presence of an embargo, the responsibility of this country for the creation of the condition is inevitably direct and clear.

There is no theory or practice to be found in international law pertaining to neutrality to the effect that the advantages that any particular belligerent might procure through its geographic location, its superiority on land or at sea, or through other circumstances, should be offset by the establishment by neutral nations of embargoes.

S. Doc. 94, 76th Cong., 1st sess., p. 2; Department of State, I Bulletin, no. 3, p. 44 (July 14, 1939).

"... Governments have the undoubted and unquestionable right to control the export of commodities from their territories and foreign governments have no right to complain 'regarding such control in the absence, of course, of treaty provisions prohibiting the exercise of such right. The only requirement of international law appertaining to a state of neutrality in this regard is that whatever restrictions or prohibitions are placed shall apply equally to all belligerents. . . .

"... The fact that one belligerent may be affected to a greater extent than the opposing belligerent has no bearing on the question of our neutrality. If no restrictions whatsoever were placed on exports, the belligerent in control of the seas would have unlimited access to our markets and the other belligerent would be entirely deprived of the privilege of obtaining needed supplies. As to this, it has been said that the United States would not be responsible for the situation and, consequently, there would be no grounds for complaint. This is perfectly true. But the argument is equally sound whether our markets are left entirely open or whether they be left open only to a limited extent. The test of neutrality is whether belligerents are allowed equal opportunity insofar as our law or regulations are concerned. Moreover, it is not accurate to state that the placing of restrictions may give rise to complaint, and that the failure to place such restrictions will avoid such complaint.

"The fact is that during the World War the Central Powers bitterly complained because we placed no restrictions on the exportation of munitions of war, and the Allied Powers, who were in control of the seas, were able to obtain unlimited supplies in the United States, while the Central Powers

were unable to do so. We answered that complaint

...

to the effect

that equal opportunity is afforded the belligerents insofar as concerns any action by this Government. Had we acceded to the request of the Central Powers we would have been unneutral, because we would have been acting at the behest of those Powers and for their special benefit. This does not mean that a neutral cannot change its position with respect to exports during the progress of a war. It merely means that the neutral cannot take such action at the instance of a belligerent, as distinguished from its own domestic policy, without showing partiality and hence becoming unneutral. If, on the other hand, the action is taken by the neutral in the national interest-for instance in order to conserve its own resources or to avoid complications with belligerents-no valid objection can be made. Belligerent governments have no right under international law to demand that a neutral country shall keep its markets open to them and supply them with the sinews of war if the neutral, for domestic reasons, shall decide to the contrary.

"During the World War, Denmark, Greece, the Netherlands, Norway, Portugal, Rumania, Spain, Sweden, and Switzerland issued lists of articles the exportation of which was prohibited, which lists in some cases were more comprehensive than the contraband lists issued by the belligerent governments. These prohibitions were imposed in the public interest because, probably in part at least, of the fact that those countries were under the necessity, owing to belligerent operations, of conserving their supplies. If a neutral may embargo exportations for these purposes without being unneutral, how can it be said that a neutral may not place an embargo for other domestic reasons, such as those stated in section 4, namely, to promote the security, to preserve the neutrality, to protect the lives and commerce of its nationals? Arguments against the right of a sovereign state to control the export of commodities either in peacetime or in time of war would seem to fall of their own weight."

Statement of the Legal Adviser of the Department of State (Hackworth), Feb. 5, 1936, before the Senate Committee on Foreign Relations, 74th Cong., 2d sess., Jan. 10-Feb. 5, 1936, Hearings on S. 3474 regarding Neutrality, pp. 299, 300. Cf., however, the attitude of John Bassett Moore and Borchard, ibid. 173 et seq.

ABSTENTION OF NEUTRAL GOVERNMENT

$660

In an article entitled "The New Isolation", written by Judge John Bassett Moore in 1933, appears the statement:

Neutrality, in the legal sense, embraces not only impartiality, but also abstention from participation in the conflict. The prohibition of the neutral government itself to supply arms and munitions of war is based upon the unquestionable fact that the supply of such articles to a fighting force is a direct contribution to its military resources, and as such is a participation in the war; and, if a government does this, it virtually commits an act of war. If it does this in behalf of one of the parties, it abandons its neutrality and is guilty of armed intervention; and

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