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NEUTRALITY AND THE SALE OF ARMS
The extent to which belligerents may interfere with the commerce of neutrals, on sea or land, has been in all wars a question of warm and continued dispute. A powerful belligerent is apt to proceed lawlessly, and a powerful neutral is apt to claim more rights than the authorities concede. It could not be expected that the present state of war, involving every first class Power in the world, except the United States, and many of the lesser states as well, would be free from such complications, and this expectation has certainly been realized.
It would be improvident to undertake the discussion of so broad a topic as the whole of this controversy. This writer has several times, before considerable assemblies and in various publications, ventured to express his opinion on one limited portion of this dispute, namely, as to the right of neutrals to export munitions of war to belligerents and the extent to which the other belligerents are entitled to complain of or interrupt such trade.
He presented them orally at Philadelphia before the American Academy of Political and Social Science, before the National Convention of the Navy League of the United States at Washington, April 1916, and more briefly before the Annual Meeting of the American Society of International Law for 1916. He has expressed them in the publications of the societies named above, and also in The Outlook, March 3, 1915, and in the New York Herald, May 6, 1915, and these expressions have been somewhat quoted and made the text of editorial remark. The writer has been asked to restate his facts and arguments for this Journal for convenience of access, and complies with the request.
The suggestion that such export is illegal, immoral and impolitic proceeds from many respectable sources and especially from those, including clergymen and women, who desire to promote peace and incautiously endorse any expedient claiming that result. Senator La
1 See The Annals of the American Academy of Political and Social Science, Philadelphia, July, 1915, Publication No. 913.
Follette introduced a resolution asking for a congress of neutral nations to consider, with other matters, the prohibition of such exports. An active and extended propaganda through the press and otherwise has been conducted to establish such prohibition, and petitions have been extensively circulated for signature demanding an embargo on arms. The writer respectfully submits, as to the rights of our citizens, as neutrals, to sell munitions of war to any belligerent Power (to quote his address before the American Academy of Political and Social Science):
1. That these rights are in no way denied by the rules of international law.
2. That these rights are not forbidden by any municipal statute or ordinance except as to vessels of war and, in certain limited cases, as to our neighboring American republics, when the latter are involved in civil strife.
3. That such rights have been constantly exercised in this country since the beginning of its history and in like manner have been habitually exercised by the manufacturers of the most enlightened commercial nations of the world, not only in remote times, but during all recent wars.
4. That such rights were fully recognized and reserved by the conventions of the Second Hague Conference in 1907.
5. That the maintenance of such rights is wise and necessary as their abolishment would force upon all nations a policy of the highest military and naval preparedness, which policy is one of vast economic loss and deeply hostile, instead of favorable, to peace.
6. That the fact that certain belligerents are prevented by the forces of the other from taking advantage of our markets does not make sales to those who have such access a breach of neutrality.
7. That the powers which most severely attack this right have greatly profited by habitually exercising it in all recent wars and, under parallel circumstances, where the market was accessible to but one of the belligerents, have continued these sales to the other.
In support of propositions 1, 2 and 3, that such sales are not unlawful and have always been customary in this and all the leading countries of the world, he would call attention to the fact that Mr. Jefferson, when Secretary of State of the United States, wrote, very fittingly, to the British Minister as follows:
Our citizens have been always free to make, vend and export arms. It is the constant occupation and livelihood of some of them. To suppress their callings, the only means perhaps of their subsistence, because à war exists in foreign and distant countries, in which we have no concern, would scarcely be expected. It would be hard in principle and impossible in practice. The law of nations, therefore, respecting the rights of those at peace, does not require from them such an internal disarrangement in their occupations. It is satisfied with the external penalty pronounced in the President's proclamation, that of confiscation of such portion of these arms as shall fall into the hands of any of the belligerent Powers on their way to the ports of their enemies.?
In the same year Mr. Jefferson's great rival, Alexander Hamilton, in his Treasury circular of August 4, 1793, declares:
The purchasing within, and exporting from the United States, by way of merchandise, articles commonly called contraband, being generally warlike instruments and military stores, is free to all the parties at war, and is not to be interfered with.3
If either great party questions the soundness of our doctrine, we rest upon the authority of the founder of each.
Three years later, in 1796, Mr. Adet, then Minister of France, complained that contraband of war (to-wit horses) was exported to the enemies of France. Mr. Pickering, our able Secretary of State, fully maintained such right and practice, subject solely to the right of seizure in transit. He supports this view by judicial decisions, both Federal and State. 4
In 1862 Mexico was engaged in a struggle with the Austrian Archduke Maximilian, supported by the military power of Napoleon III. She complained of the export from this country of military supplies on French account. William H. Seward, the great Secretary of State under Abraham Lincoln, replied.
If Mexico shall prescribe to us what merchandise we shall not sell to French subjects, because it may be employed in military operations against Mexico, France must equally be allowed to dictate to us what merchandise we shall allow to be shipped to Mexico, because it might be belligerently used against France. Every other nation which is at war would have a similar right, and every other commercial nation would be bound to respect it as much as the United States. Commerce, in that case, instead of being free and independent, would exist only at the caprice of war.5
2 Mr. Jefferson, Secretary of State, to British Minister, May 15, 1793, 5 MS. Dom. Let. 105; 1 American State Papers, 69, 147; 3 Jefferson's Works, pp. 558, 560; quoted 7 Moore's Digest, p. 955.
3 American State Papers, Foreign Relations, p. 140; quoted Moore's Digest, p. 955.
* Mr. Pickering, Secretary of State, to Mr. Adet, Jan. 20, and May 25, 1796, 1 American State Papers, For. Rel. 645-649; 7 Moore's Digest, 956.
Mr. Seward and our whole people were most hostile to the French occupation, and ultimately compelled its abandonment, but the rule as to our right of export was too clear to dispute and too important to in any way abate.
Honorable John Bassett Moore, our ripest and most comprehensive publicist, prints eighteen pages of extracts to like effect from Presidents, Secretaries of State and Attorneys General, from Henry Clay, General Grant, Marcy, Fish, Evarts, Bayard, Frelinghuysen, Blaine, Foster, Olney and John Hay, and also a clear and strong opinion by Mr. Elihu Root, then serving as United States District Attorney at New York.
The courts of England and America fully uphold these doctrines as formulated by our statesmen and officials, holding consistently that contracts for the export of contraband by neutral citizens to belligerents are neither unlawful nor immoral; that they are merely subject to frustration by the other belligerent by seizure of the goods consigned on the high seas or in belligerent territory; that courts of justice will therefore fully recognize such contracts and afford remedies for their breach, although no such aid is given by them to contracts illegal, immoral or contrary to public policy. In a celebrated case Lord Chancellor Westbury? quoted the opinion of the Supreme Court of the United States written by Mr. Justice Story (probably our greatest judicial scholar in international law) in the Santissima Trinidad & that "there is nothing in our laws, or in the law of nations, that forbids our citizens from sending
munitions of war to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation.”
In 1901 the United States Circuit Court for the Eastern District of Louisiana was asked to restrain the export of horses and mules (contra
5 Mr. Seward, Secretary of State, to Mr. Romero, Mexican Minister, December 15, 1862, MS. Notes to Mexico, VII, 215; 7 Moore's Digest, p. 958.
• See 7 Moore's Digest, pp. 955–973.
7 See Ex parte Chavasse, in Re Grazebrook, 34 L. J., n. s., Bankruptcy, 17 (Scott's cases International Law, p. 779).
87 Wheaton, 340.
band) from the United States by Great Britain for use in the Boer War; but all such relief was denied and traffic by neutrals in contraband of war was held entirely lawful and unchanged by the treaty relating to the Alabama claims. It may be mentioned that the same person who brought the proceedings just mentioned sought to hinder the export of contraband in the present war but was denied all relief by the courts.
In 1905 the English courts declared the same doctrine as to the shipment of contraband by neutrals during the Russo-Japanese War. 10
The Hague Conference of 1907 adopted substantially identical conventions as to neutral duties in land war and in maritime war as follows:
A neutral Power is not bound to prevent the export or transit on behalf of one or the other of the belligerents of arms, munitions of war, or, generally, of anything which can be of use to an army or fleet.11
The note in Hershey's Essentials of International Public Law, page 459, to the above, shows that official protests by belligerent governments against this right are heard in nearly every war; that the view represented by these protests is championed by a small band of publicists, notably Hautefeuille, Phillimore and Kleen, which, Professor Hershey, who, by the way, holds a doctorate from Heidelberg University, adds very justly, "is without sanction, either in theory or practice."
One of the expert delegates of the United States at The Hague told this writer that he remarked at The Hague that apparently the main object of the Conference was to prevent any interference with the export of arms by the Krupps at Essen. 12
The conventions mentioned above were generally ratified, AustriaHungary and Germany both ratifying them on November 27, 1909. I do not refer to these conventions as establishing any new rule, but as stating clearly and agreeing explicitly to the existing rule.
A letter from Mr. Bryan, then Secretary of State, understood to have 9 See Pearson v. Parsons, 108 Fed. R. 461. Many more judicial decisions might be cited if deemed necessary.
19 See Law Guarantee and Trust Soc. v. Russian Banks, K. B. Div. H., Ct. Law Times, Vol. XVIII, p. 503. See also, 2 Oppenheim, International Law, p. 431; Taylor, International Law, p. 741.
11 See Hershey's Essentials of International Law, pp. 459 and 467.
12 Mr. Roosevelt quotes this statement by this writer and commends the article, in his late book Fear God and Take Your Own Part, pp. 156, 158, 160.