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The Transfer of Destroyers to Great Britain

Published online by Cambridge University Press:  12 April 2017

Quincy Wright
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American Journal of International Law , Volume 34 , Issue 4 , October 1940 , pp. 680 - 689
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Copyright © by the American Society of International Law 1940

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References

1 Department of State Bulletin, Sept. 7, 1940, Vol. III, p. 201; Supplement to this Journal, p. 183.

2 Department of State Bulletin, loc. cit.; this JOURNAL, infra, p. 728.

3 “No vessel of the navy shall hereafter be sold in any other manner than herein provided, or for less than such appraised value, unless the President of the United States shall otherwise direct in writing.” (Act of March 3,1883, Sec. 5, U. S. Code, Tit. 34, Sec. 492.) “The word ‘unless’ qualifies both the requirements of the concluding clause.” (Levinson v.United States, 258 U. S. 198, 201.) “Notwithstanding the provision of any other law, no military or naval weapon, ship, boat, aircraft, munitions, supplies or equipment, to which the United States has title, in whole or in part, or which have been contracted for, shall hereafter be transferred, exchanged, sold, or otherwise disposed of in any manner whatsoever unless the Chief of Naval Operations in the case of naval material, and the Chief of Staff of the Army in the case of military material, shall first certify that such material is not essential to the defense of the United States.” (Act of June 28, 1940, Sec. 14 (a).) “Thus to prohibit action by the constitutionally created Commander in Chief except upon authorization of a statutory officer subordinate in rank is of questionable constitutionality.” Waiving this question, and in view of the legislative history of the act, “It is my opinion that in proceeding under Section 14 (a) appropriate staff officers may and should consider remaining useful life, strategic importance, obsolescence and all other factors affecting defense value, not only with respect to what the Government of the United States gives up in any exchange or transfer, but also with respect to what the Government receives. In this situation good business sense is good legal sense.” (Opinion of Attorney General Jackson, Aug. 27, 1940.)

4 President Fillmore authorized an executive agreement with Great Britain for acquiring Horseshoe Reef near the outlet of Lake Erie, on condition that the United States would not fortify it and would erect a lighthouse on it. Congress had made a provisional appropriation for the lighthouse in 1849 and subsequently made an additional appropriation. (Miller, Treaties, etc., of the United States, Vol. 5, p. 905 ff.) President Theodore Roosevelt acquired a naval base at Guantanamo by executive agreement with Cuba in 1903, in pursuance of a general provision in the Platt Amendment of 1901 and the United States-Cuba Treaty of 1903. (Crandall, Treaties, Their Making and Enforcement, Washington, 1916, p. 139.) Texas and Hawaii were annexed by exchanges of notes in 1845 and 1898, transmitting acts of the respective legislative bodies. (Miller, op. cit., Vol. 4, p. 689 fif. ; Crandall, op. cit., p. 135 ff.)

5 United States v. Curtiss-Wright Export Corporation (1936), 299 U. S. 304, this Journal, Vol. 31 (1937), p. 334; United States v. Belmont (1937), 301 U. S. 324, this Journal, Vol. 31 (1937), p. 537. See also Watts v. United States (Washington Territory, 288, 294), upholding an executive agreement for joint occupation by the United States and Great Britain of the Island of San Juan in Fuca Sound.

6 Wright, Q., Control of American Foreign Relations, pp. 235, 238, 346, 349Google Scholar.

7 The purpose of the agreement cannot, of course, be fulfilled unless Congress makes appropriations to develop the bases. There is, however, no international obligation to do so.

8 “Sec. 2. During a war in which the United States is a neutral nation, the President, or any person thereunto authorized by him, may detain any armed vessel owned wholly or in part by American citizens, or any vessel, domestic or foreign (other than one which has entered the ports of the United States as a public vessel), which is manifestly built for warlike purposes or has been converted or adapted from a private vessel to one suitable for warlike use, until the owner or master, or person having charge of such vessel, shall furnish proof satisfactory to the President, or to the person duly authorized by him, that the vessel will not be employed by the said owners or master, or person having charge thereof, to cruise against or commit or attempt to commit hostilities upon the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with which the United States is at peace, and that the said vessel will not be sold or delivered to any belligerent nation, or to an agent, officer, or citizen of such nation, by them or any of them, within the jurisdiction of the United States, or, having left that jurisdiction, upon the high seas.

“Sec. 3. During a war in which the United States is a neutral nation, it shall be unlawful to send out of the jurisdiction of the United States any vessel built, armed, or equipped as a vessel of war, or converted from a private vessel into a vessel of war, with any intent or under any agreement or contract, written or oral, that such vessel shall be delivered to a belligerent nation, or to an agent, officer, or citizen of such nation, or with reasonable cause to believe that the said vessel shall or will be employed in the service of any such belligerent nation after its departure from the jurisdiction of the United States.” (Act of June 15, 1917, 40 U. S. Stat. 221; U. S. Code, Tit. 18, Secs. 32, 33; Deák and Jessup, Neutrality Laws, Regulations and Treaties, Washington, 1939, Vol. 2, p. 1092.)

9 In this, the Attorney General accepted the opinion expressed in a letter to the New York Times, Aug. 11, 1940, by C. C. Burlingham, Thomas D. Thacher, George Rublee, and Dean Acheson.

10 Vol. 2, Sec. 334 (5th ed., p. 574 ff.), citing La Santissima Trinidad, 7 Wheaton 340 (1822), and The Meteor (1866), Balch, 201, 202. Oppenheim adds “though logically correct” the distinction is “hair-splitting” but “will probably continue to be drawn.”

11 The first rule of the Treaty of Washington was the same except that “to use due diligence” appears in place of “to employ the means at its disposal.” The duty under the first sentence of this article was adequately met by Secs. 3 and 4 of the United States Act of 1794 which, with a few amendments, has been incorporated in Secs. 23 and 24 of the United States Code, Tit. 18. Earlier legislation had not provided for enforcing compliance with the duty accepted by the second sentence; consequently such decisions as the Santissima Trinidadand the Meteor were possible. ( Wright, Q., The Enforcement of International Law through Municipal Law in the United States, Urbana, 1916, pp. 117-119 Google Scholar; Fenwick, C. G., The Neutrality Laws of the United States, Washington, 1913, pp. 37, 48, 108Google Scholar.) Oppenheim paraphrased the second sentence in the Hague convention “the neutral is bound . . . to prevent the departure from his jurisdiction of any vessel which by order of either belligerent has been adapted to warlike use” (op. cit., Vol. 2, Sec. 334), obviously changing its meaning. While there was at first doubt whether the rules of the Treaty of Washington could be regarded as declaratory of customary international law (see Moore’s Digest of International Law, Vol. 7, pp. 1064 ff., 1068 ff.), and while some writers, like Oppenheim, following W. Beach Lawrence and Wharton (Criminal Law, 8th ed., Philadelphia, 1880, Vol. 2, p. 626 ff.), have attempted to read the old distinction between commercial and belligerent intent into them, the overwhelming opinion and practice have ignored this distinction in the case of warships and have considered that a warship, built or outfitted in neutral territory, and proceeding on its own keel, is not merely contraband (its inclusion in that category in the Declaration of London (Art. 22) was to assure the belligerents’ right of capture in case the neutral failed in its duty), but cannot be allowed to leave neutral territory for belligerent use. (See Harvard Research Draft Convention on Neutrality, Art. 7, this Journal,Supp., Vol. 33 (1939), pp. 249, 254; G. A. Finch (unsigned), this Journal, Vol. 9 (1915), p. 177; Hyde, C. C., International Law, 1922, Vol. 2, pp. 710, 762Google Scholar.) During the Spanish American War, Great Britain refused to allow the departure until the war was over of two war vessels under construction in British shipyards for Brazil, but purchased by the United States from Brazil before the war began. (Moore’s Digest, Vol. 7, p. 861; Benton, International Law and Diplomacy of the Spanish American War, Baltimore, 1908, p. 182.) The North German Lloyd and the Hamburg American Line sold to Russia during the Russo-Japanese War, four of their merchant vessels designed to be converted into war vessels in time of war. Germany made no effort to prevent the transaction and apparently Japan did not protest. (Moore’s Digest, Vol. 7, p. 863; Oppenheim, op. cit., Vol. 2, Sec. 321.) During the World War it was contended that neutrals must prevent the sale even of merchant vessels to belligerents from their territory. (Hyde, op. cit., Vol. 2, p. 762 ff.) While this is not an established rule of law, unless the merchant vessel is in condition to be immediately converted at sea, it is believed that the rules of the Hague Convention are. Consequently the fact that at least one state engaged in the present hostilities (Poland) is not a party to this convention is unimportant. If the situation were one of war and neutrality, and the facts were pertinent, the rules quoted would be applicable.

12 The commentary to the Harvard Research Draft Convention on Neutrality cites “operating against enemy craft from neutral refuges ’’ as among acts constituting neutral territory a “base of operations.” (Loc. cit., p. 338.)

13 Supra, note 3.

14 This Journal, Supp., Vol. 33 (1939), p. 235.

15 Ibid., p. 238. See Deák, and Jessup, , Neutrality Laws, etc., Vol. 2, p. 1256 Google Scholar; Moore’s Digest, Vol. 7, p. 863 ff.; Hyde, op. cit., Vol. 2, p. 698; Oppenheim, op. cit., Vol. 2, Sec. 321; Woolsey, L. H., “Government Traffic in Contraband,” this Journal, Vol. 34 (July, 1940), p. 498 Google Scholar ff.

16 Arts. 1 (g), 10, this Journal, Supp., Vol. 33 (1939), pp. 879, 902. Acts of Brazil, Costa Rica, El Salvador, Guatemala, Peru, and Uruguay, after American entry into the World War in 1917, and acts of most of the members of the League of Nations in applying sanctions against Italy in 1935, are cited as indications of this status. Other terms used with a similar meaning have been “non-belligerent,” “benevolent neutral,” “partial.” ( Wright, Q., Proc. Am. Soc. Int. Law, 1930, p. 86 Google Scholar.)

17 International Law Association, Report of 38th Conference, Budapest, 1934, p. 4; this Journal, Supp., Vol. 33 (1939), p. 825.

18 House of Lords Debate, Feb. 20, 1935, quoted, International Law Association, loc. cit.,p. 310 ff., especially statements of Lord Howard of Penrith, who, as ambassador in Washington, assisted in the negotiation of the treaty (p. 320 ff.), and Lord Chancellor Sankey, speaking for the Government (p. 340 ff.).

19 Foreign Affairs, Supp., October, 1932.

20 See Wright, Q., “Neutrality and Neutral Rights following the Pact of Paris,” Proc. Am. Soc. Int. Law, 1930, p. 79 Google Scholar ff.; “The Meaning of the Pact of Paris,” this Journal, Vol. 27 (1933), p. 59; “The Present Status of Neutrality,” ibid., Vol. 34 (July, 1940), p. 401 ff.

21 This Journal, Supp., Vol. 33 (1939), p. 823.

22 See Wright, Q., “The Present Status of Neutrality,” loc. cit., p. 404 Google Scholar ff.

23 “The text of the joint declaration by the American Republics with regard to the invasion of Belgium, Holland, and Luxemburg proposed by the Uruguayan Government and agreed to by the other American Republics was released, May 19, 1940, by the President of Panama and reads as follows:

“The American Republics in accord with the principles of international law and in application of the resolutions adopted in their inter-American conferences, consider unjustifiable the ruthless violation by Germany of the neutrality and sovereignty of Belgium, Holland and Luxemburg.

“In paragraphs four and five of the Ninth Resolution of the Meeting of Foreign Ministers held at Panama in 1939, entitled ‘Maintenance of International Activities in accordance with Christian Morality,’ it was established that the violation of the neutrality or the invasion of weaker nations as a measure in the conduct and success of war, warrants the American Republics in protesting against this infraction of international law and the requirements of justice.

“ The American Republics therefore resolve to protest against the military attacks directed against Belgium, Holland and Luxemburg, at the same time making an appeal for the reestablishment of law and justice in the relations between countries.” (Department of State Bulletin, May 25, 1940, Vol. II, p. 568.)

24 “Force and military aggression are once more on the march against small nations, in this instance through the invasion of Denmark and Norway. . . . The Government of the United States has on the occasion of recent invasions strongly expressed its disapprobation of such unlawful exercise of force. It here reiterates, with undiminished emphasis, its point of view as expressed on those occasions.” (Statement of the President, April 13, 1940, Dept. of State Bulletin, Apr. 13, 1940, Vol. II, p. 373.) “The cruel invasion by force of arms of the independent nations of Belgium, Netherlands, and Luxemburg has shocked and angered the people of the United States and, I feel sure, their neighbors in the Western Hemisphere. The people of the United States hope, as do I, that policies which seek to dominate peaceful and independent peoples through force and military aggression may be arrested.” (Letter of the President to the King of Belgium, May 11, 1940, ibid., May 11, 1940, Vol. II, p. 493. See also the President’s Charlottesville address, June 10, 1940, ibid., June 15, 1940, Vol. II, p. 637, and Secretary of State Hull’s address to the American Society of International Law, May 13, 1940, ibid., May 18, 1940, Vol. II, p. 532.)

25 Joint Declaration of American Republics, supra, note 23. See also address by Secretary of State Hull on anniversary of signature of Pact of Paris, Aug. 28, 1940.

26 See statements on non-recognition of conquest of Poland (ibid., Oct. 7, 1939, Vol. I, p. 342; Nov. 4, 1939, Vol. I, p. 458); on non-recognition of changes in Western Hemisphere (ibid., June 22, 1940, Vol. II, p. 681); Habana Declaration and Convention (ibid., Aug. 24, 1940, Vol. III, pp. 138, 145) ; and on non-recognition of conquest of France (ibid., June 15, 1940, p. 639).

27 “Making every possible effort under present conditions, the Government of the United States has made it possible for the Allied armies to obtain during the weeks that have just passed airplanes, artillery and munitions of many kinds and this Government so long as the Allied governments continue to resist will redouble its efforts in this direction. I believe it is possible to say that every week that goes by will see additional matériel on its way to the Allied nations. … So long as the French people continue in defense of their liberty which constitutes the cause of popular institutions throughout the world, so long will they rest assured that matériel and supplies will be sent to them from the United States in ever-increasing quantities and kinds. I know that you will understand that these statements carry with them no implication of military commitments. Only the Congress can make such commitments.” (President’sletter to French Premier Reynaud, June 15, 1940, ibid., Vol. II, p. 639.)

28 The situation has some analogy to that of insurgency in which states have exercised a certain discretion in applying neutrality regulations. (Moore’s Digest, Vol. 7, p. 1077 ff.; Wilson, G. G., Naval War College, International Law Situations, 1904, pp. 41-51 Google Scholar; Padelford, N. J., “International Law and the Spanish Civil War,” this Journal,Vol. 31 (1937), p. 230 Google Scholar ff.)

29 These include Germany’s non-aggression agreements with Poland, Jan. 26, 1934, Belgium, Oct. 13, 1937, and Denmark, May 31, 1939.

30 The Harvard Research draft does not permit a state to be treated as an aggressor until its resort to armed force “has been duly determined by a means which that state is bound to accept, to constitute a violation of an obligation.” (Art. 1 (c), this Journal, Supp., Vol. 33 (1939), pp. 847, 871.) It appears, however, that general recognition constitutes such a method under customary international law. ( Wright, Q., “Present Status of Neutrality,” this Journal, Vol. 34 (July, 1940), p. 403.Google Scholar) It is believed that at least 35 parties to the Pact of Paris and four other states have recognized Germany as an aggressor in recent hostilities. These include Great Britain, France, Canada, Australia, New Zealand, South Africa, India, Egypt, Poland, Denmark, Norway, Iceland, Belgium, Netherlands, Luxemburg, Ethiopia, Czechoslovakia, Portugal and the 21 American Republics (supra, note 23), four of which, however (Argentina, Bolivia, El Salvador, and Uruguay), are not parties to the Pact. Of the remaining 28 parties to the Pact, four are, or recently have been, engaged in aggressions (Germany, Italy, Japan, Russia) ; ten, as present or recent victims of aggression (Austria, Albania, Spain, Danzig, China, Finland, Latvia, Lithuania, Estonia, Rumania), and seven as small states in close proximity to the aggressors (Bulgaria, Greece, Hungary, Sweden, Switzerland, Turkey, Yugoslavia), are not in a position to take any independent action. The position of the seven remaining parties to the Pact (Afghanistan, Iran, Iraq, Ireland, Liberia, Saudi Arabia, Siam) is not clear.