1 For the text of the convention, see Pan American Union, Congress and Conference Series, No. 22, p. 33; this Journal, Supp., Vol. 31 (1937), p. 53. For comment on the significance of the convention, see this Journal, Vol. 31 (1937), p. 201.

2 For the text of the Declaration of Lima, see Pan American Union, Congress and Conference Series, No. 27, p. 92; this Journal, Supp., Vol. 34 (1940), p. 199. For comment on the significance of the Declaration, see this Journal, Vol. 33 (1939), p. 257.

3 For the text of the treaty, see this Journal, Supp., Vol. 28 (1934), p. 79.

4 For the text of the convention, see Pan American Union, Congress and Conference Series, No. 22, p. 37; this Journal, Supp., Vol. 31 (1937), p. 53 ff.

5 See Report on the Meeting of the Ministers of Foreign Affairs of the American Republics, Pan American Union, Congress and Conference Series, No. 29.

6 For the text of the declaration, see ibid., 14; this Journal, Supp., Vol. 34 (1940), p. 9.

7 For the text of the address, see Atas da Comissão Interamericana de Neutralidade, Jan. 15, 1940. At the present writing the minutes of the Committee are available only in Portuguese. Provision was made, however, at the Havana meeting for the publication of the minutes by the Pan American Union, which will doubtless put out English, Spanish and French texts as well.

8 The decision of the Committee, taken at this time, that under the terms of its mandate it could not communicate directly with the Governments, was later altered by the meeting of Foreign Ministers at Havana. See below, p. 37.

9 While the meeting of Foreign Ministers at Havana, July 21–30, 1940, gave approval in general terms to the recommendations of the Committee, the approval has not yet been registered in the legislation of all of the individual states.

10 At its opening meeting the Committee consisted of the following members: Luiz A. Podestá Costa, of Argentina; Afranio de Mello Franco, of Brazil; Mariano Fontecilla, of Chile; Alejandro de Aguilar Machado, of Costa Rica; Charles G. Fenwick, of the United States; Roberto Córdova, of Mexico; and Gustavo Herrera, of Venezuela. Señor Aguilar Machado was replaced in March by Manuel F. Jimenez; Señor Córdova was replaced in May by Salvador Martinez Mercado; and Señor Podestá Costa was replaced in October by Don Eduardo Labougle.

11 This note was struck in the address of Sr. Fontecilla at the opening meeting, Atas, Jan. 15, 1940.

12 The divergent opinions of the members on this subject may be found in the Atas, Jan. 18, 19 and 23, 1940.

13 See Atas, Jan. 23, 1940.

14 The text of the communication of the Government of Uruguay may be found in Atas, Jan. 16, 1940.

15 For the text of the recommendation, see this Journal, Supp., Vol. 34 (1940), p. 75; Atas, Jan. 26, 1940.

16 In coming to the decision against recommending the release of interned officers on parole certain members of the Committee were influenced by the fact that experience had shown that the officers of certain governments might be less trustworthy than privates, good faith in the observance of treaties having no longer the sacredness it formerly possessed.

17 The interpretation was based upon the Spanish and Portuguese texts of the recommendation in which the words “penetrem” and “penetrarem” were used where the English text refers to persons in the armed forces of the belligerents who “enter” neutral territory. “As defined in the dictionaries,” says the interpretation, “this word conveys the idea of entering into the interior of an area in spite of some difficulty or obstacle; so that it can not relate to individual persons who, although belonging to the armed forces of the belligerent, enter neutral territory after having fulfilled the normal conditions required for entrance.” Atas, Nov. 25, 1940.

18 Art. I, k. See above, n. 6.

19 The preamble of the recommendation of the Committee recites “that the majority of the Committee considered it desirable to recommend the exclusion of submarines from neutral ports and harbors, being led to that conclusion not only by the difficulties attending the regulation of the activities of submarines but by a desire to give expression in that manner to the universal reprobation of the use of submarines as commerce destroyers.”

20 For the text of the recommendation, see this Journal, Supp., Vol. 34 (1940), p. 78.

21 For the text of the recommendation, see this Journal, Supp., Vol. 34 (1940), p. 80.

22 The term “auxiliary transports”, used in the General Declaration of Neutrality adopted at Panama, was applied to belligerent merchant vessels which supplied belligerent warships with fuel. Art. 3, g.

23 See above, n. 13.

24 Atas, April 2, 1940. Appendix. The reply, sent by the Director of the Pan American Union by cable, was as follows:

“Would inform you that the Governments of the 21 American Republics agree that the Committee should take competence of the problems presented by the Declaration of Panama relative to the security zone in order that the Committee may formulate recommendations both in respect to the conditions that appear to give rise to difficulties in securing observance of the Declaration of Panama as well as in respect to possible methods of obtaining more effective observance of the Declaration on the part of the belligerents.”

25 For the text of the Declaration; see Pan American Union, Congress and Conference Series, No. 29, p. 19.

26 For an analysis of the Declaration of Panama, see C. G. Fenwick, American Neutrality: Trial and Failure, p. 129 ff.; P. M. Brown, C. G. Fenwick, Q. Wright, this Journal, Vol. 34 (1940), pp. 112, 116, 246.

27 For the text of the protest, see Department of State Bulletin, Dec. 23, 1939, Vol. I, No. 26, p. 723; Pan American Union, Law and Treaty Series, No. 13, Supp. No. 1, p. 30.

28 For the text of the British reply, see Department of State Bulletin, Feb. 24, 1940, Vol. II, No. 35, p. 199.

29 For the text, see ibid.

30 For the text, see ibid.

31 The note referred to the British and French possessions on the American continents as constituting “exceptions to the Monroe Doctrine” — a statement so inaccurate historically as to suggest an intention to prejudice American opinion against permitting the British and French to use them. The possessions antedate the Monroe Doctrine; and President Monroe specifically excluded them from its application in his statement that “with the existing colonies or dependencies of any European Power we have not interfered and shall not interfere.”

32 The implied assumption in the German note that it was the duty of the neutral state to offset the advantages which one or other of the belligerents might have by reason of its geographical situation was an utterly unfounded interpretation of neutral duty, which could lead to the conclusion that the neutral state, in order to be “impartial”, would be obliged to equalize its relations with the belligerents by “partiality” towards the less favored belligerent.

33 For the text of the recommendation, see this Journal, Supp., Vol. 35 (1941), p. 38.

34 The distinction between a fundamental principle of international law and a concrete rule of international custom was discussed at length by members of the subcommittee appointed to draft the recommendation. Nothing is clearer in international law than that there are wide differences in the intrinsic importance of the rules of conduct which it prescribes, some being derived directly from the primary assumptions and essential conditions of a community of nations, others being the result of mutual convenience embodied in the consistent practice of states. The dynamic character of international law, as of constitutional law, consists in the constant adaptation of fundamental principles to the changing conditions of passing years. In a well-organized international community this adaptation would and should be effected by the orderly processes of peaceful negotiation.

35 See above, n. 21.

36 Had the security zone been limited to an average width of fifty, or even thirty, miles, the claim to it would doubtless have seemed to the public at large as a more reasonable one; yet every argument advanced by the belligerents against the wider zone would have been as effective against the narrower zone, while the inconvenience to neutral commerce would have been far greater.

37 The meaning of this somewhat vague phrase, that “the undisputed possessions of European countries which happen to be within the zone are expressly excepted from the zone” is that the Committee read the terms of the Declaration of Panama to signify that the zone stopped at the territorial waters around these possessions, so that, for example, an attack by a German raider upon British shipping lying in the harbor of Trinidad would not be a “hostile act” within the zone. Doubtless the declaration went too far in making that concession, which might result in losses to neutral shipping making temporary stops at ports located in these possessions. But it was difficult for the Committee to avoid interpreting the declaration to that effect. The insertion of the word “undisputed” before “possessions” was made in order to prevent even an indirect inference from being drawn in respeet to pending controversial claims. In signing the declaration the Argentine Government took occasion to announce that it specifically reserved and maintained intact “the legitimate titles and rights of the Argentine Republic to islands such as the Malvinas (Falklands), as well as to any other Argentine territory located within or beyond the said zone.” Guatemala was impelled by the reservation of the Argentine delegate to make “a like declaration and reservation” with respect to its controversy with the British Empire over Belize.

38 The Committee discussed at length the legal basis upon which the neutral state might detain belligerent merchant vessels which had overstayed the time required for their normal commercial purposes. Three arguments were used: that the presence of these vessels in the regular centers of shipping constituted an obstacle to normal traffic; that experience had shown that they took advantage of opportunities to give unlawful assistance to belligerent warships; and that their departure might give rise, under certain circumstances, to a violation of the security zone. Underlying the arguments was the principle of international law that foreign merchant vessels have no absolute right to enter and remain in neutral ports apart from the transaction of normal commercial business.

39 Art. 9 provided that a neutral Power must apply impartially to the two belligerents the conditions, restrictions or prohibitions made by it in regard to the admission of belligerent warships and their prizes to its ports. “Nevertheless,” the article continued, “a neutral Power may forbid a belligerent vessel which has failed to conform to the orders and regulations made by it, or which has violated neutrality, to enter its ports or roadsteads.” The phrase “which has violated neutrality” seemed to the Committee sufficiently broad to include a violation of the security zone, which the American States claimed as a neutral right.

40 This was a concession which the Committee felt must of practical necessity be made to the belligerents, there being no probability that the weak sanctions attending a violation of the zone would deter a belligerent from pursuing its enemy into the zone when the battle appeared to be going in its favor.

41 The Committee was obviously proceeding cautiously in the matter of sanctions, due not only to the probable difficulty that would attend the determination of which belligerent took the initiative in violating the zone, but to the anticipated reluctance of certain of the American States to take any action that might be regarded by the belligerents as compromising their neutrality.

42 The recommendation was subsequently made public, being included in the Special Handbook prepared by the Pan American Union for the use of the delegates at the Havana meeting.

43 For the text of the project, see Atas das Reuniōes ExtrorOfieiais, May 15–21, 1940.

44 The proposal of the Government of Uruguay that a joint declaration be made by the American Republics protesting against the violation of neutrality in Europe may be found in Department of State Bulletin, May 18, 1940, Vol. II, No. 47, p. 541. For the declaration as adopted, see ibid., May 25, 1940, Vol. II, No. 48, p. 568.

45 For the text, see Atas das Reuniōes Extra-Oficiais, May 15–21, 1940.

46 See notes 43, 44.

47 Atas, May 29, 1940.

48 See Atas, April 3, 1940.

49 If this should appear to be too broad an assumption in view of the fact that the Eleventh Hague Convention did not embody generally observed international practice at the time of its signature, the attitude of the Committee was that there was a difference between the technical binding character of a multilateral convention, such as the one in question, and the value of the same convention as evidence of what was regarded at the time of the signature of the convention as the rule which should prevail in the future.

50 The conflicting practices of the leading nations in the years before 1907, together with the concessions made by Secretary Lansing during the World War, may be found in Harvard Draft Convention on Rights and Duties of Neutral States (P. C. Jessup, Reporter), this Journal, Supp., Vol. 33 (1939), pp. 175, 640 ff.

51 The problem was almost identical with that confronting Secretary Lansing during the World War. But a number of American Governments appeared to be unwilling to make the concessions which Secretary Lansing then thought necessary. Compare the position taken by the Department of State in the note of Secretary Hull, released Jan. 2, 1940, protesting against the removal by the British authorities from American and other neutral ships of American mail addressed to neutral countries: “This Government readily admits the right of the British Government to censor private mails originating in or destined to the United Kingdom or private mails which normally pass through the United Kingdom for transmission to their final destination. It cannot admit the right of the British authorities to interfere with American mails on American or other neutral ships on the high seas nor can it admit the right of the British Government to censor mail on ships which have involuntarily entered British ports.” Department of State Bulletin, Jan. 6, 1940, Vol. II, No. 28, p. 3.

52 The purpose of this suggestion was primarily to protect the confidential character of business correspondence, in view of the complaints during the World War against the advantage taken by the authorities censoring neutral mails.

53 For the text of the recommendation, see this Journal, Supp., Vol. 34 (1940), p. 135.

54 The assertion by the Committee, in the preamble of the recommendation, that the inviolability of correspondence was a “fundamental juridical concept, designed to protect, along with the recognition of the other rights of man, the full development of individual activities within the state and in the relations of the international community,” parallels in its abstract character other attempts of the inter-American community to restrain belligerents by appeals to principle. Compare the Panama resolution on contraband of war, below, n. 74.

55 In other words, the neutral state must find some way of assuring itself of the genuine “epistolary” character of sealed correspondence without opening letters to investigate their contents.

56 The principle relied upon was that in the conflict between the belligerent claim to search for contraband and the neutral claim to the inviolability of “genuine” correspondence, the relatively small loss to the belligerent resulting from the inclusion in sealed letters of the forbidden articles was more than offset by the advantage to the neutral resulting from the protection of business secrets and other confidential material from belligerent censorship.

57 This issue had figured prominently in the controversy between the United States and Great Britain during the World War. See Secretary Lansing’s letter of Jan. 4,1916. U. S. Foreign Relations, 1916, Supplement, p. 592. Secretary Lansing’s position was reaffirmed by the Department of State in its note of protest to Great Britain released on Jan. 2, 1940. Department of State Bulletin, Jan. 6, 1940, Vol. II, No. 28, p. 3.

58 Members of the Committee observed in the discussions that international law seemed unable to take into account the losses to neutral mails incident to the destruction of merchant ships at sea and of postoffices on land by unlawful methods of warfare. Compare, in this respect, the reference in the British note of Jan. 17,1940, to the sinking by the German naval authorities of four vessels “all of which were known to have been carrying mails to or from neutral countries, with as little regard for the safety of the neutral correspondence on board as for the lives of the inoffensive passengers and crew.” Department of State Bulletin, Jan. 27, 1940, Vol. II, No. 31, p. 91.

59 Atas, Feb. 2, April 17, 1940.

60 Atas., April 19, 1940.

61 The position that only the interests of neutrals should be taken into account is expressed in Atas, June 10, 1940.

62 The problem of the extent of the marginal sea, particularly in respect to bays and estuaries, was frequently before the Committee in indirect connection with other problems. See above, n. 20; and below, n. 83.

63 See Atas, June 13, 1940.

64 Fifth Hague Convention, Art. 8.

65 Arts. 4, 5.

66 See Deák and Jessup, A Collection of Neutrality Laws, Regulations and Treaties of Various Countries.

67 See Decrees and Regulations on Neutrality, Pan American Union, Law and Treaty Series, Nos. 12, 13. Deák and Jessup, op. cit., Supplement.

67a For the text of the recommendation, see this Journal, Supp., Vol. 35 (1941), p. 44.

68 An exception was made in favor of sending calls for help or messages indispensable to the safety of navigation while the vessel was in territorial waters or outside the port or airport.

69 The exception was later extended to neutral warships in port. Atas, Dec. 6, 1940.

70 The words “every ship” were later observed to be too comprehensive, and an “interpretation” of the recommendation was given making exception of neutral warships. Atas, Dec. 6, 1940.

71 This was later explained as meaning nothing more than throwing a switch in the station room.

72 With the exception of neutral military aircraft, as in the case of neutral warships, above, n. 69.

73 Owing to ambiguities in this article, its provisions were later “interpreted “ to mean that the interference must be by broadcasting stations belonging to the neutral state, and that the messages or broadcasts in question were those being sent from the territory or jurisdictional waters of the same state. Atas, Dec. 6, 1940.

74 For the text of the resolution, see Pan American Union, Congress and Conference Series, No. 29, p. 17; this Journal, Supp., Vol. 34 (1940), p. 13.

75 Research in International Law, in its Draft Convention on the Rights and Duties of Neutral States in Naval and Aërial War (P. C. Jessup, Reporter), considered the problem of conditional contraband insoluble in the light of usage during the World War, and for that reason proposed an entirely new approach to the problem. For a survey of the World War practice, see Neutrality, Its History, Economics and Law, Vol. III, The World War Period, by E. Turlington, pp. 8–33.

76 The documentary history of the problem may be found in the Foreign Relations of the United States for the years of the war, or, in more convenient form, in Savage, Policy of the United States toward Maritime Commerce in War, Vol. II.

77 This note had been struck by the Panama resolution on contraband, where it was said that “elemental humanitarian considerations impel the American Republics to deplore the deprivation of civilian populations of the normal means of subsistence.” But the note was not altogether in harmony with the other commercial aspects of the resolution.

78 See Atas, June 20, 1940.

79 Ibid.

80 See Atas, June 22, 1940.

81 Report of the Second Meeting of the Ministers of Foreign Affairs of the American Republics, Pan American Union, Congress and Conference Series, No. 32, pp. 3, 15.

82 For the text of the resolution (I), Bee this Journal, Supplement, p. 5.

82a See above, n. 8.

83 For the text of the resolution (VIII), see this Journal, Supplement, p. 12.

84 Atas, Nov. 13,1940. The minutes of the sessions of the Committee beginning Nov. 13, 1940, are not yet available (Dec. 1, 1940).

85 Ibid.

86 If the new code of neutrality was to be formulated in terms of protecting the rights of neutral states, it would seem to follow that it would have to be drafted without regard to the possibility that any one of the American Republics, now neutral, might at a later date become a belligerent. This question had been raised in connection with the discussions of the Committee on the subject of automatic contact mines (see above, n. 61), but no conclusion was reached in respect to it. The American Republics had reaffirmed at Havana the neutral position they had taken at Panama. It was to be assumed that they wanted their interests as neutrals protected to the full extent of the law, with the presumption in their favor in cases of doubt. Whether a code formulated to accomplish that object might later prove embarrassing to them if they should be obliged in self-defense to abandon their neutrality was not a matter for the Committee to determine. When that time should come the opposing belligerent would already have put the issue beyond the range of law.

87 Atas, Dec. 13, 1940.

88 It is upon this principle that departures by a neutral state from the strict observance of neutral duty, without thereby abandoning its technical status as a neutral, may be justified. See C. G. Fenwick, this Journal, Vol. 34 (1940), p. 697. The argument that the illegal conduct of one of the belligerents justifies the neutral state in not being neutral toward that belligerent is to the same practical effect. See Q. Wright, this Journal, Vol. 34 (1940), pp. 680, 685.

89 No decision as to the character and scope of the neutrality code, or as to the method of procedure in the preparation of it, had been reached by the Committee up to the date of present writing (Dec. 1, 1940).