Supplies

if it does it for both parties, although it may be said to be impartial, it does what neither of the parties themselves can do, namely, fights for each against the other.

27 A.J.I.L. (1933) 607, 625.

Of the acts of assistance coming from the neutral states, and the acts of commerce on the part of individuals, only the first are contrary to neutrality.

Article 15 of the convention on maritime neutrality, signed at Habana, Feb. 20, 1928, 4 Treaties, etc. (Trenwith, 1938) 4743, 4747; 47 Stat. 1989, 1993.

The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden.

Hague Convention XIII of 1907, art. VI, 2 Treaties, etc. (Malloy, 1910) 2352, 2359; 36 Stat. 2415, 2428. See also art. 16, par. a, of the convention on maritime neutrality signed at Habana in 1928, 4 Treaties, etc. (Trenwith, 1938) 4743, 4747; 47 Stat. 1989, 1993; Research in International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), art. 5, 33 A.J.I.L. Supp. (1939) 175, 235.

Article VII of Hague Convention XIII provides:

"A neutral Power is not bound to prevent the export or transit, for the use of either belligerent, of arms, ammunitions, or, in general, of anything which could be of use to an army or fleet." 2 Treaties, etc. (Malloy, 1910) 2352, 2359; 36 Stat. 2415, 2428.

In a public circular issued October 15, 1914, Secretary Bryan distinguished the action of the Government from that of private individuals who sell contraband, saying:

For the Government of the United States itself to sell to a belligerent nation would be an unneutral act, but for a private individual to sell to a belligerent any product of the United States is neither unlawful nor unneutral, nor within the power of the Executive to prevent or control.

1914 For. Rel. Supp. 573, 574. With respect to the legality of such transactions by individuals, see post, §684. With respect to the measures which belligerents may take to prevent or interfere with such trade, see ante, ch. XXII.

"... The problem is raised by the existence in some States of government ownership or control of one or more industries or business activities. The extreme case is presented by the U.S.S.R. where all commercial, financial and industrial activities are those of the State itself. If one applies to the case of the Soviet Government the existing rules of international law, it would seem that the Soviet Government would be compelled as a neutral in time of war to give up all commercial and financial relations with the belligerent. It is obvious that a situation of this kind was not contemplated when this rule of international law developed. Short of the extreme case of the Soviet Union, attention

may be called to a situation, as in France, where the nationalization of the munitions industry is authorized by law and is under way. It would seem that if France or any other country completely nationalized its munitions industry, France or any other such State would be compelled as a neutral to prevent all shipments to a belligerent of products of that industry. One may also call attention to the numerous other cases of Stateowned businesses, such as the French potash and tobacco monopolies, the numerous match monopolies, the Italian sulphur monopoly, etc." Research in International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), 33 A.J.I.L. Supp. (1939) 175, 238.

The Department of State took the position in 1910 that the United States Government should, as a matter of policy, refuse to accept a shipment of ordnance and ammunition via the Panama Railroad Steamship Line destined for Corinto, Nicaragua, during a revolution in that country, stating: "As a matter of strict law it may be that this Government, being engaged in the business of a common carrier for gain, might in the ordinary course of its business legally undertake to carry arms and ammunition in the due and ordinary course of trade, and by so doing it would not perhaps, violate any strict rule of international or national law in furnishing such service.

"However it would seem safer and wiser for this Government to lay down and follow the rule without exception that it will not, as a common carrier, undertake to carry contraband of war for belligerents where war exists between separate governments or between separate factions in the same country."

The Acting Secretary of State (Adee) to the Secretary of War, Aug. 2, 1910, MS. Department of State, file 6369/1284.

In 1933 when there was a possibility of hostilities between Peru and Colombia the Department of State advised the Secretary of War that, in the case of the possibility of armed conflict between two American states, the Government of the United States had adopted the policy of refraining from facilitating in any way the preparations of either party. In furtherance of such policy dry-dock facilities of the Government were denied to warships of both the Peruvian and Colombian Governments. The Assistant Secretary of State (White) to the Secretary of War (Hurley), Jan. 20, 1933, MS. Department of State, file 721.23/859; see also ibid. /860.

The Department of State indicated that it had no objection to the issuance of instructions by the United States Coast Guard that in case a belligerent merchant vessel or a neutral merchant vessel under belligerent control were in immediate danger on the high seas because of unseaworthy conditions resulting from stress of weather it should be taken into port but that if the unseaworthy condition resulted from military action the crew and persons on board should be rescued but the vessel should not be taken in tow. MS. Department of State, file 740.00111A-Ports/4, Apr. 18, 1940.

"The duty of a neutral not to participate in hostilities between belligerents, and, therefore, not to attempt to thwart military or naval operations outside of its own domain must be apparent. It is not believed, however, that this duty is necessarily violated when the commander of a neutral vessel of war endeavors to rescue from drowning the occupants or former occupants of a belligerent vessel that has been subjected to attack, and makes no attempt in so doing to remove them from the control

Loans and credits

of a captor. Such a service is not to be deemed a military benefit to the State to which such vessel belongs, so long as the neutral makes appropriate effort to deprive that belligerent of the services of the persons rescued, throughout the remainder of the war." II Hyde, International Law, etc. (1922) 701.

The neutral state is forbidden:

b) To grant it [the belligerent] loans, or to open credits for it during the duration of war.

Credits that a neutral state may give to facilitate the sale or exportation of its food products and raw materials are not included in this prohibition.

Article 16 of the convention on maritime neutrality signed at Habana in 1928, 4 Treaties, etc. (Trenwith, 1938) 4743, 4747; 47 Stat. 1989, 1993.

It would be manifestly improper for this Government to take any part in facilitating a loan to one of the belligerent governments.

The Acting Secretary of State (Lansing) to the Chargé d'Affaires ad interim in Petrograd (Wilson), telegram 39, Oct. 20, 1914, MS. Department of State, file 861.51/78; I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 134.

Mr. Lansing later took the position that the Department of State could not transmit messages for the Russian Government to an American banking house if they referred to Russian Government loans, saying that

Such participation is contrary to the accepted rule of international law that neutral Governments should not lend their assistance to the raising of war loans by belligerents.

The Secretary of State (Lansing) to the Ambassador to Russia (Francis) telegram 860, June 8, 1916, MS. Department of State, file 861.51/110; I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 149-150.

you refer to the fact that neither the Johnson Act nor the so-called neutrality legislation prohibits loans to belligerents by the Government of the United States.

as regards the making of loans and the sale of munitions of war a distinction is to be made between acts of the Government as such and acts of private citizens. Neutral governments are, under international law, prohibited from making loans and from selling munitions of war to belligerents, but such prohibition does not apply to private people. In the absence of domestic legislation to the contrary the latter are free to make loans and to sell munitions of war, assuming, of course, the risks involved. For the reasons just stated it was unnecessary to incorporate into

the neutrality legislation any provision with respect to such transactions by this Government.

The Legal Adviser of the Department of State (Hackworth) to J. M. Weis, Aug. 2, 1937, MS. Department of State, file 811.04418/281.

PERFORMANCE OF NEUTRAL DUTIES
§661

Since a neutral state is under certain duties to belligerents with respect to events within its jurisdiction and upon its territory, most states enact laws or decrees to insure the performance of such duties and to prevent individuals within their jurisdictions from performing acts regarded as breaches of neutrality.

"While a neutral State cannot alter or lessen, its duties as such towards the belligerents, it is free to devise and apply its own methods in performing those obligations which the law of nations has imposed upon it. In one sense, therefore, the procedure adopted is a matter of domestic rather than of international concern. Inasmuch, however, as the task of enforcing neutral duties is of immediate importance to the parties to the conflict, the processes whereby the neutral endeavors to fulfill its obligations possess more than local significance." II Hyde, International Law, etc. (1922) 767. "... Inasmuch as neutrality laws are municipal in character and are binding only within the jurisdiction of the state enacting them, they may be looked upon as embodying the concept of international duty as understood by the individual state, together with such additional restrictions as the state may choose to impose upon its citizens from motives of policy. Whether the state has understood its duty correctly or not is a further question. Accordingly, in some cases neutrality laws may go beyond the requirements of the international obligations of the state by restricting the action of its citizens to a greater extent than international law demands. while a state will naturally seek, in framing its neutrality code, to conform to the obligations of international law, it may find it expedient, especially where it has particular reasons for maintaining an unassailable position of neutrality, to make its municipal laws more stringent than is required by a faithful compliance with international law.

...

"Just as the municipal laws of a state may exceed the actual requirements of international law, so, on the other hand, they may be narrower and less comprehensive than those requirements. In such cases the neutral state is, of course, not released from responsibility for acts committed by its citizens or others within its jurisdiction, by which its neutrality is compromised."

Fenwick, Neutrality Laws of the United States (1913) 11-12, 13.

Neutral duty, which is defined by the established rules of international usage, by conventional agreements and by municipal statutes, is enforceable by the Executive operating under enacted law and the treaties in force. Beyond such legal authority the Executive possesses no power to compel obedience.

"Due diligence"

"Means at its disposal"

Law is the sole measure of neutrality and of the government's duty to preserve it.

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.

When the British Chargé d'Affaires called attention to the three rules of the Treaty of Washington, signed May 8, 1871, and to article VIII of Hague Convention XIII of 1907, stating that the British Government would hold the United States Government responsible for any damages to British trade or shipping or other injury to British interest which might be caused by German merchant vessels equipped at, or departing from, ports of the United States for conversion on the high seas into armed vessels, Secretary Bryan said:

As the communication apparently lays great stress on the expression "due diligence," contained in the Treaty of Washington, it is believed material to the present occasion to quote the following definition of it, contained in the Geneva Award of

1872:

"The 'due diligence' referred to in the first and third of the said rules ought to be exercised by neutral Governments in exact proportion to the risks to which either of the belligerents may be exposed, from a failure to fulfill the obligations of neutrality on their part."

The expression "due diligence" was contained in the draft submitted by the British Delegation to The Second Hague Conference, upon which Article VIII was based. Article VIII as finally adopted is as follows:

"A neutral Government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations, against a Power with which that Government is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which had been adapted entirely or partly within the said jurisdiction for use in war."

As the expression "due diligence" was considered obscure, it was rejected, as the learned reporter of the Convention, Mr. Louis Renault, says in the elaborate report which accompanies the Convention, and which is, in accordance with the practice of international conferences, to be considered as the official and authoritative interpretation of the Convention which it explains, justifies, and interprets. "The expression of due diligence," he says, "which has become celebrated by its obscurity since its solemn interpretation, was rejected. The Convention merely requires in the first instance (On se contente de dire