USE OF NEUTRAL TERRITORY

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• Document Creation Date: December 22, 2016
• Document Release Date: August 11, 2011
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• Content Type: REGULATION

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legitimate mili-
.t of State by the
first of the inci-
iered that such
Roosevelt's mes-
property.' On
to one of these
with respect to
President in his
pressed therein
out that ppolicy
ender conclitions
~ IInited States
ct can properly
,o legal liability
Lack of a legal
y the provisions
;n the Holy See
y Feb. 11, 1929 ;
which Italy ac-
proper, but not
i known as the
ncluding Castel
sides that--
forming apart
~nj oy the immu-
fle embassies of
atives that since
;utral state, but
located in the
basis on which
nection it is of
ibassies of neu-
.te legal obliga-
~n City and the
to be accorded
ected in a mes-
General Eisen-
~lly as follows
.dependent neu-
ry of the Vati-
IISE OF NEII'I'RAL TERRITORY
" 3. Allied troops must also avoid the Papal Domains which,
although not haveng international status as neutral territory,
are entitled to full diplomatic immunity. tiVliile every precau-
tion must be taken to avoid violating territory of the Vatican
City during the assault upon Rome, the diplomatic immunity
of the Papal Domains should not be allowed to interfere with
military operations, artillery fire, bombing, etc., during assault.
"On December 10, 1948 the Vatican presented to us a claim
for X1,523,810.98 in damages. However, the IInited States Army
Claims Service determined through a survey of the damage that
a reasonable assessment, based upon the costs of labor and mate-
rials as of April 1945 and calculated according to the then pre-
vailing eschan~e rate of 100 lire to the dollar, would be
964,199.35. It is understood that the principal reason for the
difference between the Vatican figure and the IInited States
Army figure is that the latter does not take account of the cul-
tural and artistic value of the destroyed or damaged property.
"tiVhile the Department agrees with the intent of H. R. 10766
that payment of an appropriate sum should be made as com-
pensation for the damage sustained at Castel Gandolfo, it be-
lieves that such payment is a special matter for determination
by the Congress, and that the record should show that the pay-
ment is made eg gratis and not as a matter of legal liability."
Letter from Assistant Secretary of State Hlll to the Chairman of the
Committee on Foreign Relations, IInited States Senate (George), Jnne 11,
1956, S. Rept. 2292, 84th Cong., 2d sess., pp. 2-3. For appeals by the
Vatican to the IInited States and British Governments in 1942 that they
refrain from bombing Rome, see 1942 For. Rel., vol. III, pp. 791-800. See
also 1944 For. Rel., vol. IV, pp. 1274-1314.
Bills for the payment of $1,523,810.98, the full sum claimed by the
Vatican, were introduced in the House of Representatives in 1956. In
the House, the sum was reduced to $964,199.35. The measure providing
for the payment of the reduced amount was passed by the Congress and
approved by the President on July 3, 1956, and funds for payment were
included in an Act approved July 27, 1956. See 84th Cong., 2d seas.,
H.R. 10766 and H.R. 10767, H. Rept. 2251, p. 1, and 70 Stat. 495, 689.
USE OF NEUTRAL TERRITORY
Base o f Operations
?10
j The duty of a neutral State to prevent its territory from being used
1 as a base of belligerent operations has been widely acl~owledged in
treaties and proclamations of neutrality but the content of the
obligation has proved difficult to define.
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212 1vEIITRALITY IN A CHANGING WORLD
See Tucker, "The Law of ~Var and Neutrality at Sea", U.S. Naval `Var
College, Internation?l L?w Studies, 1955 (1957) 226-231 and authoritiQs
cited therein. Thus, the obligation was specifically mentioned in the "General
Declaration of Neutrality of the American Republics", October 3, 1939
(Report of the Delegate of the ITnited States of America to the bteeting
of the Foreign Ministers o~ the dmeric?n Republica, Held at P?n?mQ
September Q3-October 3, 1939, p. 54) ; in the Declaration between Den-
mark, Finland, Iceland, Norway, and Sweden Establishing Similar Rules
of Neutrality, Stockholm, May 27, 1938 (C%LII Br. & For. St. Paps. (1938)
533) ; and in the Neutrality Declarations of Belgium, Estonia, Latvia,
and the Netherlands in 1939 (C%LIII ibid. (1939) 356, 471, 557, 584).
"By a base of operations in neutral territory is meant a place
where, contrary to international law, a belligerent may augment
his strength to wage war more effectively against his enemy, as
by recruiting and fitting out expeditions, taking refuge there,
establishing a rendezvous, disseminating military information,
or performing other acts of a like character. A place may
constitute such a base even though it is not under the control
of the belligerent and the assistance is rendered throwggh ppri-
vate persons. Although habitual use of the place by the bel-
ligerent for such purposes would constitute clear evidence that
it was a base of operations, even use on a single occasion may
give it that character. [VII Hackworth, Digest of Interna-
tional Law (1943), 391-396; III Hyde, International Law Cliiefliy
as Interpreted and applied by th.e United States (2d ed., 1945),
2249-2253.)"
Greenspan, The Modern Law of Land W?rf?re (1959) 542.
"...The prohibition against bases on land comprises the following rules
... a neutral State may not either permanently or temporarily surrender
forti~tc?tions or portions of its territory nor its sovereign rights to a
belligerent. This prohibition remains in force even though the fortifica-
tion or territory concerned is far removed from the actual theatre of
war." Castr~n, Tlae Present L?w of War ?nd Neutrality (Helsinki, 1954)
472.
The concept of "base of operations" is broader than the estab-
lishment of airfields or military bases by belligerents on nominally
neutral territory. Liberia and Portugal, which granted such facili-
ties, regarded their action as giving them special claims to protec-
tion by the belligerents which benefited. Ireland refused to cede or
lease ports as British air or naval bases on the ground that such
action would constitute a breach of neutrality.
See, on the establishment of airfields in Liberia, the American Minister
in Liberia (Walton) to the Secretary of State, telegram, Dec. 22, 1941,
MS. Department of State, file 811.79682/33; 1941 For. Rel., vol. III, pp.
544-545 ; on the facilities granted by Portugal in the Azores, see Docu-
ments constituting Agreements between the IInited Kingdom and Portugal
concerning Facilities in the Azores, Lisbon, Aug. 17, 1943, CXLVI Br. &
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\Taval War
authorities
;he "General
ber 3, 1939
the ~lieetinp
?t P?n?md
tween Den-
milar Rules
'aps. (1938)
nia, Latvia,
584) .
.nt a place
y augment
enemy, as
uge there,
formation,
pplace may
he control
ouggh ppri-
y the bel-
dence that
asion may
f Interna-
zw Claie fly
ed., 1945),
swing rules:
y surrender
rights to a
he fortiflca-
. theatre of
sinl~, 1954)
the estab-
nominally
uch facili-
to protec-
to cede or
that such
an Minister
'c. 22, 1941,
vol. III, pp.
4 see Docu-
nd Portugal
~LVI Br. &
For. St. Paps. (1946} 44752; U.S. Agreement with Portugal on Santa
Maria Air Base, \Tov. 28, 1944, U.S. TIAS 2338; 2 UST 2124-2126; on the
refusal of the Irish Government to cede or lease ports, memorandum of the
Irish Legation to the Department of State, undated, annexed to memoran-
dum of conversation by the Under Secretary of State (Welles), Nov. 9,1940,
ASS. Department of State, Hle 740.0011 European War 1939/6918 ; 1940 For.
Rel., voL III, pp. 166, 167-168. See also 1941 ibid., voL III, pp. 240, 241-242.
The German Navy obtained the use of a base on the northern
Russian coast west of Murmansk for the repair and supply of sub-
marines in October 1939, at a time when the Soviet Union was officially
neutral in the war in which Germany was engaged. The Germans
abandoned this base in 1940 after their occupation of Norway.
Document8 on German Foreign Policy 1918-19.?5, Series D, vol. VIII
(1954) , pp. 213, 288 ; ibid., vol. XI (1960) , p. 29. As to the German
Navy's desire for further Soviet assistance in naval warfare, see also
ibid., vol. VIII (1954) , pp. 277, 278, 287-288.
At the Yalta Conference, at a time when the Soviet Union was
neutral in the war against Japan, the Soviet Chiefs of Staff informed
the United States Chiefs of Staff that airbases in Eastern Siberia
"would be given the United States Air Forces" and that arrange-
ments would "be made to open additional [weather] stations".
~Phen the United States Joint Chiefs of Staff met with Soviet
Chiefs of Staff at the Berlin (Potsdam) Conference to discuss the
campaign to be waged by both against Japan, the Soviet authorities
were willing to grant only limited facilities to United States Air
Forces in emergencies and refused to allow United States personnel
to operate weather stations in Eastern Siberia.
See memorandum for the United States Chiefs of Staff, Feb. 9, 1945,
For. Rel., The Conferences at l4lalta and Yalta, 1945, pp. 839, 840; Joint
Chiefs of Staff Diinutes, July 26, 1945, letter from President Truman
to Generalissimo Stalin, July 21, 1945, questions from the United States
Chiefs of Staff to the Soviet Chiefs of Staff, July 24, 1945, For. Rel.,
The Conference of Berlin (Potsdam), 1945, vol. II, pp. 408, 409, 413, 1326,
1327, 1328.
In October 1939 the Legal Adviser's Office (Department of State)
examined an informal inquiry by the British Embassy as to whether
there would be any objection on the part of the United States Govern-
ment "to the establishment in New York of a branch of the British
Ministry of Shipping, under the direction of a Comptroller of Ship-
ping, to supplant the agencies now in the IInited States of the several
British merchant marine lines." The point considered was whether
such action "would amount to the establishment of a base of operations
Comptroller
of
shipping
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in the United States within the meaning in which that term is generally
understood." The Legal Adviser declared
"A base of operations, as that term is generally employed in
international law, contemplates the use of a neutral port for
supplying warships, either directly or indirectly, through the
employment of naval tenders of the belligerent or belligerent or
neutral merchant vessels acting as tenders.
"~Vliile the setting up of such an office in the United States
would probably not be regarded as establishing in this country
a base of operations from which hostile expeditions or opera-
tions would be carried on, the establishment of such an office
would be going rather far in the direction of allowing opera-
tions by a belligerent in the United States. The ships under the
direction of the Comptroller of Shipping would, of course, be
devoted primarily to the movement of commodities in the in-
terest of belligerent needs; that is to say, the ships would be
required to give first consideration to those articles essential to
the carrying on of war by Great Britain. This would not pre-
vent us from applying our laws with respect to neutrality, but
it would clothe the operations in an atmosphere which it would
be difficult for us to explain as entirely in keeping with com-
plete neutrality.
"International law and the practice of nations recognize the
right of governments to exchange diplomatic and consular offi-
cers and to have attached to dlplomatic missions naval, mili-
tary, and commercial attaches. The establishment of trade
commissions is also resorted to occasionally. It would seem that
such functions as it is proper for a belligerent government to
exercise in this country mi~?ht be exercised through these rec-
ognized agencies without tie designation of a special officer
and the establishment of a special office for that purpose... .
Had the British Government, with our permission, established
a Comptroller of Shipping in the United States prior to the
war, it is highly. probable that no objection would now be raised
to the continuance of his functions, but the sending of such an
official here at this time-while probably not contrary to the
strict letter of our neutral obligations-cannot be viewed as
other than the implementation of Great Britain's belligerent
activities. I seriously doubt the advisability of our acquleseing
in any such arrangement "
The Legal Adviser (Hackworth) to the Chief of the Division of Euro?
pean Afeairs (Moffat), memorandum, Oct. 18, 1939, MS. Department of
State, file 841.24/115.
No objection on grounds of neutrality was raised when the question of
establishing an Anglo-French Purchasing Board in the IInited States for
the coordination of British and French pnrchasing during the war arose.
See memorandum of conversation by the Chief of the Division of Enro-
pean Affairs (Moffat), Sept. 25, 1939, MS. Department of State, file
841.24/109 ; 1939 For. Rel., vol. I, pp. 564-565.
In January
chase of land
used for the 1:
for belligerent
arrangement R
ernment" woul
operations."
The Lega
memorandui
The United
North Africa
of operations.''
The Actir
at Vichy (L
86224/631;
Article V of
"Bellige
as a base
particular
for the pi
on land or
Conventic
Naval War,
2352, 2359.
Article III o
"Bellige
"(a.) E
telegraphy
mumcatinf
"(b.) U
before the
military p
of public z
Article VIII
"A neut
use on beh
or of wire
panies or I
Conventic
Persons in
etc. (1910)
The Hags
drawn up 1
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;rm is generally
ly employed in
~utral port for
y, through the
r belligerent or
~ United States
in this country
lions or opera-
` such an office
allowing opera-
ships under the
1, of course, be
alias in the in-
ships would be
cles essential to
would not pre-
neutrality, but
which it would
ping with com-
s recognize the
ld consular offi-
-ns naval, mili-
trnent of trade
would seem that
government to
ough these rec-
s special officer
~t purpose... .
lion, established
;es prior to the
d now be raised
Sing of such an
contrary to the
t be viewed as
yin's belligerent
our acqulesoorg
Division of Euro-
[S. Department of
en the question of
IInited States for
ing the war arose.
Division of Enro-
,ant of State, file
In January 1940 the Legal Adviser took the view that "the pur-
chase of land in the United States by a Canadian national to be
used for the landing of planes that are being exported to Canada
for belligerent purposes, especially when we know that such an
arrangement would be made for the benefit of the Canadian Gov-
ernment" would amount to "the use of our territory for belligerent
operations."
The Legal Adviser (Hackworth) to Assistant Secretary of State Berle,
memorandum, Jan. 4, 1940, DIS. Department of State, Sle 842.24511/8.
The United S'cates regarded the fueling of Italian planes in French
North Africa in 1942 as "making use of French territory as a base
of operations."
The Acting Secretary of State (Wallas) to the American Ambassador
at Vichy (Leahy), telegram, Dlar. 24, 1942, b1S. Department of State, flie
862.24/631; 1942 For. Rel., vol. II, pp. 153, 154.
Purchase of
landing
field
Fueling
planes
Article V of Hague Convention VIII reads
"Belligerents are forbidden to use neutral ports and waters
as a base of naval operations against their adversaries, and in Telecom-
particular to erect wireless telegraphy stations or any apparatus
for the purpose of communicating with the belligerent forces
on land or sea."
Convention Concerning the Rights and Duties of Neutral Powers in
Naval War, The Hague, Oct. 18, 1907, II Malloy, Treaties, etc. (1910)
2352, 2359.
Article III of Hague Convention V reads
"Belligerents are likewise forbidden to
"(a.) Erect on the territory of a neutral Power a wireless
telegraphy station or other a paratus for the purpose of com-
municatorg with belligerent forces on land or sea;
"(b.) Use any installation of this kind established by them
before the war on the territory of a neutral Power for purely
military purposes, and which has not been opened for the service
of public messages."
Article VIII of the same Convention provides
"A neutral Power is not called upon to forbid or restrict the
use on behalf of the belligerents of telegraph or telephone cables
or of wireless telegraphy apparatus belonging to it or to Com-
panies or private individuals."
Convention Respecting the Rights and Duties of Neutral Powers and
Persons in War on Land, The Hague, Oct. 18, 1907, II ~ailoy, Treaties,
etc. (1910) 2290, 2297-2298.
The Hague Rules for the Control of Radio in Time of War, which were
drawn up by a Commission of Jurists in 1923, never became binding.
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These rules would have made certain modifications in the regime of the
Hague Conventions, notably
"Article 3. The erection or operation by a belligerent Power or
its agents of radio stations within neutral jurisdiction constitutes a
violation oY neutrality on the part of such belligerent as well as on
the part of the neutral Power which permits the erection or opera-
tion of such stations.
"Article 4. A neutral Power is not called upon to restrict or
prohibit the use of radio stations which are located within its juris-
diction, except so far as may be necessary to prevent the transmis-
sion of information destined fora belligerent concerning military
forces or military operations and except as prescribed by article 5.
"All restrictive or prohibitive measures taken by a neutral Power
shall be applied impartially by it to the belligerents.
"Article 5. Belligerent mobile radio stations are bound within
the jurisdiction of a neutral State to abstain from all use of their
radio apparatus. Neutral Governments are bound to employ the
means at their disposal to prevent such use." Commiasion of
Jurists to Consider and Report upon the Revision of the Rulea o1
Warfare, The Hague, December 11, 19QQ-February 19, 193 (The
Hague, 1923) 281; or "Commission of Jurists to Consider and Re-
port upon the Revision of the Rules of Warfare-General Report",
published in II.S. Naval War College, International Law Documents,
19Q4 (1926) 96, 100, 101.
Article 4 (b) of the Convention on Maritime Neutrality, signed at
Habana on February 20, 1928, provides
"IInder the terms of the preceding article, a belligerent state is
forbidden:
"b) To install in neutral waters radio-telegraph stations or any
other apparatus which may serve as a means of communication with
its military forces, or to make use of installations of this kind it
may have established before the war and which may not have been
opened to the public." IV Trenwith, Treaties, etc. (1938) 4743, 4745.
The United States Army field manual, the Law of Land tiVarfare,
in sections 528 and 529, repeats verbatim the teats quoted above from
Hague Convention O (arts. 3 and 8) . Section 530 states
?`The liberty of a neutral State, if it so desires, to transmit
messages by means of its telegraph, telephone, cable, radio, or
other telecommunications facilities does not imply the power so
to use them or to permit their use as to lend assistance to the
belligerents on one side only."
II.S. Department of the Army Field Manual (FM 27-10) on The Law
of Land Warfare (1956) 187.
The German High Command demanded in June 1941 that-
"6. Sweden will make her communications network available to
the German communication service. The necessary liaison person-
nel in matters of communication will be assigned to the German
Military Attach." Directive of the High Command of the Wehr-
macht, June 17, 1941, Documents on (3'erman Foreign Policy 1918-
1945, Series D, vol. XII (1962), pp. 1040, 1041. On Swedish com-
pliance, see ibid., vol. XIII (1964), pp. 302.
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__ ...
The United
tion 443c, prow
"Bellige_
roadsteads.
supplies o:
apparatus
forces on 1
Articles 5
tral states
tele raph
sea."
II.S. Depa
Law of Navy
printed in
(1957) 384,
The British r
"667. Ne
the neutra
postal, tel~
open to the
operated b
to private
them or pe
to render a:
of the other
"669. A
strict the i
have been
tion or rest:
the telegral
neutral Sta
served by
[Ha e] N
"670. Alt
of services
forbidden t
less station
with their ~
prevented f
tablished b~
of a neutra
paratus way
the Neutral
Great Brit:
of the Manual
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zt Power or
constitutes a
s well as on
in or opera-
restrict or
iin its ~uris-
he transmis-
[ng military
~y article 5.
utral Poa?er
Fund within
use of their
employ the
n~miasion of
he Rules of
194'3 (The
ier and Re-
cal Report",
Documents,
ions or any
ication with
:his kind it
t have been
4743, 4745.
Warfare,
bove from
transmit
radio, or
power so
Ice to the
vallable to
ion person-
ae German
the Wehr-
~iicy 1918-
edi,sh com-
USE OF NEUTRAL TERRITORY
The United States naval manual, Law of Naval Warfare, sec-
tion 443c, provides
"Belligerent warships may not make use of neutral ports,
roadsteads, or territorial waters to replenish or to increase their
supplies of war materials or their armaments or to erect any
apparatus for the purpose of communicating with belligerent
forces on land or at sea. [Hague Convention No. XIII (1907)
Articles 5 and 18. During World War II radically all neu-
tral states prohibited the employment by belligerents of radio-
tele raph and radiotelephonic apparatus within their territorial
sea."
U.S. Department of the Navy, Chie4 of Naval Operations, NWIP 10-2,
Law of Naval Warf?re (Sept. 1955, as amended July 1959) ; 1955 version
printed in U.S. Naval War College, International Law Studies, 1955
(1957) 384, 392, n.25.
The British military manual, TI~e Law o f mar on Land, provides
"667. Neutrality is not violated by a belligerent using, and
the neutral State permitting the use in its territory of, the
postal, telegraph (Including wireless) and telephone services
open to the public. It is immaterial whether such services are
operated b~ and belong to the neutral State, to companies, or
to private individuals. This does not imply the right of using
them or permitting them to be used in such a way as obviously
to render assistance to one of the belligerents to the disadvantage
of the other.
"669. A neutral State, however, is at liberty to forbid or re-
strict the use by belligerents of any or all the facilities that
have bean mentioned. In that case It must apply the prohibi-
tion or restriction impartially to both or all belligerents. Should
the telegraph and other services not be owned by the State, the
neutral State is specially bound to see that impartiality is ob-
served by the company or private owners concerned, see the
[Ha e] Neutrality Convention Arts. 7 8 and 9.
"670. Although belligerents may thus be ~ermitted the benefit
of services `opened to the use of the public , they are expressly
forbidden to Install on the territory of a neutral State a wire-
less station or any apparatus for the purpose of communicating
with their own forces on land, sea or air. Belligerents are also
prevented from using wireless stations or other apparatus es-
tablished by them for purely military purposes on the territory
of a neutral State before the war began, if such station or ap-
paratus was not previously open for the use of the public, see
the Neutrality Convention, Art. 3:'
Great Britain, War Office, The Law or War on Land, Being Part III
of the Manual of Military Law (1968) 191.
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Greenspan, after describing the provisions of Hague Von radio and
other forms of communication, declared
"The neutral power is, therefore, obligated to see that all belliger-
ents receive impartial treatment regarding communication facilities
on its territory, whether they are owned by the state, companies,
or private persons. No discrimination is permissible between the
belligerents, as for instance by keeping the communication offices
open at abnormal hours in order to favor a particular belligerent,
or by giving his messages undue priority." Greenspan, The Modern
Law of Land Warfare (1959) 542x643.
Guggenheim, after detailing articles III and V of Hague Convention V,
observed:
". .However, the general prohibition of the use of neutral terri-
tory for the transmission of military information to belligerent
assumes a much greater importance than the above-mentioned pro-
visions. The transmission of news of this character is illegal even
if it is done on a basis oP equality. The neutrality policy of differ-
ent neutral States has led them to embody this prohibition in their
national law." II Guggenheim, Traitd de Droit international public
(Geneva, 1954) 527 (unofficial translation).
Article V o4 Hague Convention V Respecting the Rights and Duties of
Neutral Powers and Persons in War on Land reads
"A neutral Power must not allow any of the acts referred to in
Articles II to IV to occur on its territory.
"It is not called upon to punish acts in violation oP its neutrality
unless the said acts have been committed on its own territory." II
Malloy, Treaties, etc. (1910) 2290, 2298.
Castryn noted
". .Neutral States have usually not permitted belligerents to
use, without censorship, wireless transmitters and other comparable
installations set up before the war, and they have sometimes even
been taken over by the neutral State .The requirements laid
down by the Hague rules may be made more severe by a neutral
State-this is not prevented by international agreements on tele-
communications-but imp?rtiality must be observed even in this
case."
Castryn also stated
"In practice, and particularly during the First and Second Worid
War, neutral States have issued many restrictions on the use of
telecommunications and they have exercised a strict control, for
example, by prohibiting the employment of cipher by any authorities
other than their own, except the legations of foreign Powers."
Castryn, The Present Law of War and Neutrality (Helsinki, 1964)
481, 484. Castryn also refers, p. 480, to the British prohibition on the
use of cipher, etc., by legations dust prior to the invasion of France
in 1944.
Lemoine writing on aerial neutrality in 1951, proposed that any radio
installation belonging to a belligerent on neutral territory should be closed
at the outbreak of war. This proposed rule was more severe than that
embodied in article III of the Hague Convention (V) oP 1907 on the Rights
and Duties of Neutral Powers sud Persons in War on Land, but, he argued,
it would avoid friction between belligerents and neutrals.
Lemoine also discussed the proposal set forth in article 5 of the Rules
for the Control of Radio in Time of War, drawn up by the Commission of
Jurists to consider and report upon the revision of the rules of warfare at
The Hague in 1922-1923. This proposed rule was as follows
"Belligere:
of a neutra:
Neutral Gov
to prevent s
Lemoine conside
belligerent civil
the like. He the
above-mentioned
civil aircraft in
nent regulations
landing in its ter
"La Neutrality
10-11. Article II
5 of the Hague
ante, p. 216.
The United Sta
1939, prohibited a~
signal apparatus
subject to the juri
distress and coma:
rangements for th
such harbors, port
waters; provided
material aid to the
against an opposir.
vessels may be sea
such seals shall nc
States except by p
4 Fed. Reg. 3`
vol. I, pp. 685, 6
The General Dec
Panama, October
can Republics sha
or their agents of
ritory of the Amer
to communicate w
ligerents."
Report of the
of the Foreign
September Q3-0
Republics for ti.
see Pan America
Regul?tio~is on
71, 79, 86, 88 ; ib
No.2 (undated),
646-719-68--
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USE OF NEUTRAL TERRITORY 219
hat all belliger-
cation facilities
:ate, companies,
ale between the
inication offices
filar belligerent,
an, The Modern
of neutral terri-
to belligerents
~-mentioned pro-
s is illegal even
policy of differ-
hibition in their
rnational public
of its neutrality
~n territory." II
l belligerents to
ther comparable
sometimes even
~quirements laid
re by a neutral
cements on tele-
ad even in this
id Second World
a on the use of
riot control, for
~ any authorities
'oreign Powers."
(Helsinki, 1954)
rohibition on the
Pasion of France
i that any radio
should be closed
severe than that
107 on the Rights
i, but, he argued,
e 5 of the Rules
fie Commission of
tee of warfare at
s:
"Belligerent mobile radio stations are bound within the jurisdiction
of a neutral State to abstain from ail use of their radio apparatus.
Neutral Governments are bound to employ the means at their disposal
to prevent such use."
Lemoine considered that this proposed rule interfered with the right of
belligerent civil aircraft to use their radios to obtain landing directions and
the like. He therefore suggested that the rule proposed in article 5 of the
above-mentioned Hague Rules should be modified to permit a belligerent
civil aircraft in neutral jurisdiction to use its radio to comply with perti-
nent regulations laid down by the neutral State for aircraft flying over or
landing in its territory or to ask for assistance in case of danger. Lemoine
"La Neutrality A(=rienne", 5 Revue Frangaise de Droit A~rien (1951) 1,
10-11. Article III of Hague Convention v is quoted ante, p. 215. Article
5 of the Hague Rules for the Control of Radio in Time of spar is quoted
ante, p. 216.
The United States Proclamation of Neutrality of September 5, Nentrallty
1939, prohibited all belligerent vessels from using "their radio and o ~teiecom
signal apparatus while in the harbors, ports, roadsteads, or waters mnnicationa
subject to the jurisdiction of the United States, except for calls of
distress and communications connected with safe navigation or ar-
rangements for the arrival of the vessel within, or departure from,
such harbors, ports, roadsteads, or waters, or passage through such
waters; provided that such communications will not be of direct
material aid to the belligerent in the conduct of military operations
against an opposing belligerent. The radio of belligerent merchant
vessels may be sealed by the authorities of the United States, and
such seals shall not be broken within the jurisdiction of the United
States except by proper authority of the United States."
4 Fed. Reg. 3809, 3811; 54 Stat. 2629 ; also printed in 1939 For. Rel.,
vol. I, pp. 685, 689.
The General Declaration of Neutrality of the American Republics,
Panama, October 3, 1939, provided in article 3 (c) that the Ameri-
can Republics shall prevent "the establishment by the belligerents
or their agents of radio stations in the terrestrial or maritime ter-
ritory of the American Republics, or the utilization of such stations
to communicate with the governments or armed forces of the bel-
ligerents"
Report of the Delegate of the Z7~ted Staten of America to the Meeting
of the Foreign Ministers of the American Republica, Held at Panamd,
September 2S-October 3, 1939, pp. 54, 55. For decrees by American
Republics for the control of radio and other means of communication,
see Pan American Union, Law and Treaty Series, No. 12, Decrees and
Regulations on Neutrality (Dec. 1939), pp. 3, 7, 8, 10, 12, 14, 26, 36, 49,
71, 79, 86, 88 ; ibid., No. 14, Decrees and Regulations on Neutrality, Supp.
No. 2 (undated), p. 14.
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Prohibitions on the use of radio on belligerent ships in territorial
waters were included in the neutrality rules of Belgium, Brazil,
Denmark, Finland, the Netherlands, Norway, and Sweden during
T~7,,,.1.~ LCT,... TT U,.1~7__~ Tl_~~__7_ T'~7___7 1~ wT ,i
Norway, and Sweden also included prohibitions on the erection ~
use of radio stations or other means of communication in the sero_
ice of one of the belligerent powers. Belgium and the Netherland
further forbade the use of radio stations within their jurisdiction
for broadcasting information about armed forces outside the jul.~;
diction. Switzerland authorized the commander of the army to
xeep watch over the publication and transmission of information
"particularly by post, telegraph, telephone, agencies of the p~
and information, radio, film, and picture."
See L?ws ?nd Regulations on the Regime of the Te~r{tor{?l Sea (II,X
p. 622 ; Denmark, p. 632 ; Finland, p. 638 ; the Netherlands, p. 650 ; N q-
way, p. ,654 ; and Sweden, p. 655. As to Switzerland, see II Guggenheims
waters contrary to Norwegian regulations, the Norwegian authorities
had violated regulations. Great Britain, Correspondence between
Dlajesty's Government in the United Isingdom and the Norwegian Goa
ernment respecting the German Steamer "Altmark", Cmd. 8012, Norway;
"while in port in Rio de Janeiro to communicate regarding ship mo
ments at sea.... The Wak?m? left port 36 hours thereafter, the infa-
Chief of the Division of the American Republics (Duggan), memoraa?
dum of conversation, Feb. 21, 1940, T1IS. Department of State, file 862.85f/
that he saw no objection to asking the Treasury Department to issae
regulation for the sealing of radios on foreign merchant vessels nndec
charter to a belligerent government when such vessels were in Unites
In June 1940 the Inter-American Neutrality Committee adopted a Iel!
tion, see Fenwick, "The Inter-American Neutrality Committee", 35 Am.
Int'1 L. (1941) 12, 33-35. For the test, see Pan American Union, Law
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on
the
d:
:'the
on w
snthc
"statior
a'~stati~
ich the
Sls~
_ bo
;Miqu~
19 O
Can
the L
that
an m
t9 tc
(?ian.:
subse
the Ui
on on
318-:
of 13
the cc
que a
1942,
of
~ntrary
Frenc
Eepre:
Oct.
 in territorial
Igium, Brazil,
weden during
Netherlands,
he erection or
n in the serv-
e Netherlands
it jurisdiction
tide the juris-
the army to
f information
of the press
tori?l Sea (U.N.
1, p. 618 ; Brazil,
ids, p. 650 ; Nor-
II Guggenheim,
n.2.
~egian territorial
n authorities in-
dltm?rk that he
ice between His
Norwegian Gov-
d. 8012, Norway,
;ign Policy 1918-
trazilian Govern-
using its radio
rding ship move-
eafter, the infer-
~mething'." The
;gan), memoran-
tate, ffie 862.857/
n March 6, 1940,
tment to issue a
nt vessels under
were in United
)ivision of Inter-
and Mr. Moore,
e FW 740.00111a-
'e adopted a rec-
the recommenda-
uttee", 35 Am. J.
i Union, Law and
lity, Supp. 2 (nn-
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-- In November 1941 the Canadian Government made the following
informal presentation to the United States of its concern about the
radio station on St. Pierre, which was under the control of Vichy
under consideration a proposal that Canadian personnel should
be stationed at St. Pierre to control all outward messages from
this station and to prevent the use of cypher or of any code
which they are not able to read. This Canadian personnel
might also be charged with inspecting the radio equipment of
fishing boats and other ships based on the islands of St. Pierre
and Miquelon, in order to make sure that their equipment is not
capable of long-distance transmission. They would also exer-
cise supervision over the other radio stations at St. Pierre."
The Canadian Legation to the Department of State, memorandum,
Nov, 3, 1941, MS. Department of State, flie 851A.74/5. "John D. Hicker-
son of the Division oY European ABairs in a memorandum of November 24,
stated that on November 8 the Canadians were informed orally that the
Canadian memorandum of November 3 `had been noted and we had no
comments to make.' He added : `This was intended and so understood
by the Canadians a,s constituting a green light for them to go ahead."'
MS. Department of State, file 841.8595/58 ; 1941 For. Rel., vol. II, p. 541
and n.3.
"In the opinion of the Government of Canada, a serious po-
tential danger to the safety of trans-Atlantic slopping arises
from the existence at St. Pierre of a short wave transmission
station which is able to communicate in cypher or in code with
the authorities in Vichy. The Government of Canada have
~ For subsequent discussions of this subject by Canada, the United ging-
dom, the United States, and Free French officials, see ibid., pp. 542-551.
;.p Despite these discussions, Free French forces occupied St. Pierre and
t:. Miquelon on December 24, 1941. For subsequent negotiations, see ibid.,
;. pp. 651-570; 1942 ibid., vol. II, pp. 654-671; Langer, Our Vichy (3?mble
tt (1947) 212-221; and Piekersgill, I The M?ckenxie Sing Record, 1939-1944
'~; (1960) 318,324. See generally D. G. Anglin, The St. Pierre ?nd Miquelon
3 ~ ~ d~'?ire of 1941 (Toronto, 1966) .
li
,;During the conversations between the United States Representative
Martinique and the French High Commissioner in the French West
dies in 1942, the latter declared that the establishment of American
Monitoring of telecommunications at Fort de France "would be di-
~ly contrary to our position of neutrality."
'~;; The French High Commissioner in the French West Indies (Robert)
to the Representative of the United States in Martinique (S. Reber) note
verbale, Oct. 27, 1942, MS. Department of State, file 851B,20/142~,F ; 1942
For. Rel., vol. II, p. 642..
Radio
station,
St. Pierre
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Secretary of State Hull stated in a telegram to the American Am-
Argentina bassador in Argentina
" . If you have not already done so, yo>L might point out in
your future uiterviews that even if the Argentme Government
should prohibit the transmission of messages in code and cipher
by radio it falls short of the terms of Resolution 40 of the Rio
Conference which was signed by Argentina and provides for the
closing of all radiotelephone and radiotelegraph communications
between the American republics and the aggressor nations. You
might also point out that denying the right to Axis missions to
transmit messages in code may be an inconvenience to them but
that failure to prohibit the transmission of such code messages
results in the loss of life and property belonging to the United
Nations, a most. one-sided interpretation of neutrality.
"In the last war, during the period of our neutrality, the only
means of communication between this country a_nd Germany was
by radio. We controlled the radio stations and refused to send
any menages in code for the diplomatic missions of the Central
Powers unless a copy of such code was furnished to the Navy per-
sonnel in charge of the radio stations. You might bring this
information to the attention of the Argentine officials...."
The Secretary oP State (Hull) to the American Ambassador in Argentina
(Armour), telegram, Dec. 1, 1942, MS. Department of State, file 810.74/628;
1942 For. Rel., vol. V, pp. 177, 178. For Resolution 40 oP the Rio Confer-
ence, see Report on the Third ~eetinp of the 3iinistera of Foreign dffaira of
th.e dmeric?n Republica, Rio de Janeiro, January 15-28, 1912 (Pan Ameri-
can IInion, 1942) 60.
Argentina continued, however, to permit "radiotelephone and radio-
telegraph communications with Japan, Germany and Italy". Press re-
lease, Sept. 8, 1943, IX Bulletin, Department of State, No. 220, Sept. 11,
1943, pp. 159, 164.
Aerial
observation
"The principle that neutral territory must not become the
base of activities directly connected with the war operations
imposes upon the neutral State the duty to use the means at
its disposal to prevent within its territory aerial observation
made for the purpose of conveying to a belligerent information
concerning the movements, operations or defences of the other
belligerent. The Hague Air Rules of 1923 [Art. 47] contain an
express provision to that effect, and so do various municipal
neutrality regulations. [The Scandinavian Neutrality Rules of
1938 provide generally that it is prolubited to carry out in neu-
tral territory `observations from an aircraft or in any other
manner, relating to the movements, operations or defence works
of a belligerent with a view to informing the other belligerent'
(Article 13). The neutrality regulations of numerous other
countries are to the same effect. See, e.q., Article 17 of the
Belgian Regulations of September 3, 1939....]"
II Lauterpacht, Oppenheim'a Intern?tional Law (7th ed., 1952), p. 751.
The Hague Air Rules of 1923 have not been brought into effect. Spaight
Ca
~ i~
iadir
lion
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ou might point out in
.rgentine Government
;es in code and cipher
solution 40 of the Rio
~ and provides for the
;Taph communications
~gressor nations. You
it to Asis missions to
ivenience to them but
-f such code messages
onging to the United
neutrality.
it neutrality, the only
try and Germany was
s and refused to send
.fissions of the Central
fished to the Navy per-
t'ou mi~,ht bring this
fine officials...."
Ambassador in Argentina
of State, file 810.74/628 ;
ion 40 of the Rio Confer-
~ters of Foreign 9ffairs of
15-28, 194$ (Pan Ameri-
~diotelephone and radio-
r and Italy". Press re-
State, No. 220, Sept. 11,
must not become the
n the war operations
to use the means at
ry aerial observation
alligerent information
defences of the other
[Art. 47] contain an
do various municipal
n Neutrality Rules of
i to carry out in neu-
raft or In any other
ions or defence works
the other belligerent'
s of numerous other
q., Article 17 of the
~....]?
o (7th ed., 1952) , p. 751.
fight into effect. Spaight
stated in 1947 that "there is no record in either great war of the use of
neutral atmosphere for aerial observation on behalf of a belligerent...."
Spaight, Air Pouer and War Rights (3d ed., 1947) 459.
Prohibitions of aerial observation were contained in the neutrality
regulations of Belgium, Denmark, Finland, the Netherlands, Norway, and
Sweden in World War II. See Laws and Regulations on the Regime of
the Territorial ,Sea (II.N. Legislative Series, 1957), ST/LEG/SER.B/6,
for Belgium, p. 618 ; Denmark, p. 632 ; Finland, p. 638 ; the Netherlands,
p. 650 ; Norway, p. 654 ; and Sweden, p. 658.
The British military manual, The Laiw of War on Land, states:
"668. Although a neutral State must prevent the establish-
ment on its territory by a belligerent of an official bureau for
intelligence purposes, it need not prevent the supplying of in-
formation by private individuals resident there."
Great Britain, War Office, The Law of War on Land, Being Part III
of tlae Manual or Military Law (1958) 191.
Castr~n stated that all forms "oE intelligence activity which would turn
neutral territory into a base for war operations must be prohibited, even
though it is often difficult to say on which aide of the line a particular
activity falls...." Castr~n, The Present Law of War and Neutrality (Hel-
sinki,1954) 507.
In July 1943 the British Ambassador in Spain presented to the Span-
ish Ministry of Foreign Affairs a memorandum dealing with instances
of unneutral facilities granted or not denied to the Asis. This included
complaints that the Germans had been allowed to set up night observa-
tion stations on both sides of the Straits of Gibraltar in Spanish terri-
tory, to build up an espionage organization in Spain, to install radio
transmission stations, and to set up meteorological stations in Spain. In
January 1944 the British Ambassador presented a similar, detailed ac-
count. After the agreement in May 1944 that Spain would expel German
agents, the British Ambassador presented a memorandum dealing with
methods by which the agreement was being circumvented. Sir Samuel
Hoare, Viscount Templewood, Ambassador on Special Miaaion (1946) 197,
199-200, 249, 251-252, 254, 26?-268. As to the agreement referred to see
X Bulletin, Department of State, No. 254, May 6, 1944, p. 412 ; the American
Ambassador in Spain (Hayes) to the Spanish Minister for Foreign Affairs
(Jordana), letter, May 1, 1944, encl. 1 in the American Ambassador in Spain
(Hayes) to the Secretary of State (Hull), despatch No. 2430, May 4, 1944,
MS. Department of State, 81e 711.52/472; 1944 For. Rel., vol. IV, pp.
409-410.
Castren wrote that it was difficult to take a position with respect
to information which, though not expressly military, might be
indirectly useful to belligerents, as, for example, weather informa-
tion in enemy territory.
Castr~n, "La Neutrality a~rienne", %IV Zeitschrift ficr ?usldndiachea
S~'entliches Recht and Vdlkerrecht (1951-1952) 115, 122.
Weather
information
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NEUTRALITY IN A CHANGING WORLD
On September 7, 1939, Argentina issued a special regulation with re-
spect to weather reports by a governmental radio station. The station was
forbidden to transmit weather despatches which were not part of the official
program of meteorological transmissions or to interchange weather com-
munications with radio stations not recognized by the Argentine Bureau o!
Meteorology, and it was instructed to seek official authorization for the
transmission of meteorological information requested by "institutions, coun-
tries, or vessels" which had not been recognized by the Argentine Bureau
of Meteorology. Pan American Union, Law and Treaty Series, No. 12,
Decrees and Regulations on Neutrality (Dec. 1939) 14-15; T;nglish transla-
tion in Doak and Jessup, Neutrality Laivs, Regulations and Treaties, Supp.
(1940) 32[16]-32(17].
In 1940 the Department of Agriculture addressed the following
inquiry to the Department of State
"The International Ice Patrol will bey n operations in the
near future for the 1940 season. Meteorolo~ICal information
transmitted from the United States Coast (xuard cutter em-
ployed in the Ice Patrol is of much interest to the Weather
Bureau of this Department. Since the patrol vessel will be
located in a region where weather information from slops is
much restricted by limitations imposed by countries now at war,
it is considered that possibly there Is a question of neutrality
involved in the transmission of meteorological information
from the patrol vessel to the yPeather Bureau. A statement of
the procedure in question is therefore submitted with request for
an opmlon from the State Department.
"When the patrol vessel is on duty, meteorological information
is broadcast or transmitted by radio in two separate and dis-
tinct operations, one of which is international in character, the
other being of a purely domestic nature. In the first operation,
the Coast Guard vessel broadcasts information concerning ice-
berg and includes weather information in plain language in
connection therewith. Presumably, any vessel, of whatever
nationality, is privileged to call upon the Ice Patrol vessel for
this information, and it is understood that it is freely given.
This operation is of an international character; the Weather
Bureau of this Department is not especially interested and no
question is raised here regarding the meteorological information
disseminated in this manner.
"The second operation is one carried on especially for the
Weather Bureau. Surface observations of meteorologlcal ele-
ments and upper air data secured by radiosondes are trans-
mitted to the tipeather Bureau from the Coast Guard cutter
at specified intervals. The Weather Bureau finances the radio-
sonde observations. No other country contributes to the cost
of these special observations. They are transmitted by ~,dio
in messages specifically addressed to, `Observer, Washington,
which is the radio-telegraphic address of the Weather Bureau.
er
m
n~
of
to
co
tlc
fc
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 regulation with re-
on. The station was
got part of the official
hange weather com-
Argentine Bureau of
uthorization for the
y "institutions, coun-
ie Argentine Bureau
eats Series, No. 12,
-15 ; English transla-
r ?nd Treaties, Supp.
sed the following
operations in the
Kcal information
ward cutter em-
t to the Weather
col vessel will be
ion from slops is
ntries now at war,
lion of neutrality
;ical information
.. A statement of
d with request for
~gical information
separate and dis-
l in character, the
,he first operation,
~n concerning ice-
~lain language in
ssel, of whatever
Patrol vessel for
it is freely given.
aer; the y~eather
interested and no
~gical information
especially for the
meteorological ele-
sondes are trans-
-ast Guard cutter
finances the radio-
ibutes to the cost
Ismitted by radio
ver, Washington',
Weather Bureau.
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USE OF NEUTRAL TERRITORY
The messages are not broadcast but are the property of the
Weather Bureau and are intended only for domestic uses.
Each year the Weather Bureau prepares the instructions for
coding the observations.
"Under present conditions, the Weather Bureau desires to use
a confidential code in the transmission of these special surface
and upper air observations to make sure that they are not inter-
cepted and utilized by unauthorized agencies. Unauthorized
interception might be inimical to the interests of the tiVeather
Bureau in its exchanges of meteorological information with
other countries. The Weather Bureau does not intend to divulge
the information to any agency of any other country, and it
believes that the nearest possible approach to complete secrecy
in the transmissions is the best assurance of neutrality. The
Weather Bureau believes that these messages, wluch are spe-
cifically addressed, are the property of the Weather Bureau
and may be held confidential, just as any other agency of the
government may receive point-to-point communications, spe-
cifically addressed, for its own confidential information.
"In previous Ica Patrol seasons the Weather Bureau has
received these surface and upper air observations in specifically
addressed messages and in codes devised by the Weather Bureau
for that purpose. Heretofore, however, the principal reason
for using codes was for brevity and not for secrecy.
"In this instance, the principal motive for using a confidential
code is to avoid any impairment of the existing arrangements
for exchange of meteorological information between the meteoro-
logical service of Canada and the Weather Bureau. A discussion
of this arrangement will be found in State Department file IN
842.9243/7, letter of October 12, 1939 and previous corres~ond-
ence on the subject. However, as previously stated, the Infor-
mation received in special message from the cutter on the Ice
Patrol is not to be a part of the exchange with the Canadian
meteorological service. The Weather Bureau is anxious that
unauthorized interception by another belligerent country shall
not render the observations objectionable to Canada or to any
other country which cooperates in the exchange of meteoro-
logical information.
"If the State Department sees no objection to the use of a
confidential code In the transmission of meteorological observa-
tions from the Ice Patrol vessel to the Weather Bureau, as set
forth herein, it is desired that the confidential code be put into
effect at the beginning of the Ice Patrol for the season of 1940.
It will be much appreciated if special consideration is given
to this question in order that the opinion of the State Depart-
ment may be known before the Coast Guard cutter leaves for
patrol duty."
The Acting Secretary of Agriculture (Theill) to the Secretary of State
(Hull), bIar. 23, 1940, 1TS. Department of State, file 800.83/859.
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226
Closing of
consulates
Secretary of State Hull replied to the Secretary of Agriculture
on April 15, 1940, stating
"I have received your Department's letter of March 23, 1940,
inquiring whether this Department perceives any objection to
the use of a confidential code in the transmission of meteoro-
logical observations from the International Ice Patrol vessel to
the Weather Bureau.
"I note from your Department's letter under acl~lowledgment
that the information thus obtained is solely for the use of this
Government and that the Weather Bureau does not intend to
divulge the information to any agency of any other country.
"From the foregoing it would seem that this is a domestic
matter purely within the cognizance of this Government and in
the circumstances this Department perceives no objection to the
use of a confidential code in the transmission of these meteoro-
logical observations from the Ice Patrol vessel to the tiVeather
Bureau."
The Secretary of State (Hull) (Assistant Secretary of State Long
signing for the Secretary) to the Secretary of Agriculture (Wallace),
Apr. 15, 1940, bIS. Department of State, file 800.83/859.
In 1941, the German High Command demanded that-
"4. Sweden will make certain that weather reports no longer go to
Soviet Russia, whereas they will be available to Germany In full."
Directive of the High Command of the Wehrmacht, June 17, 1941,
Documents on (3erm?n Foreign Policy 1918-1915, Series D, vol. XII
(1962) , pp. 1040, 1042. See further ibid., vol. XIII (1964) , pp. 47-48.
As to diplomatic exchanges between the United States and Ireland re-
garding alleged radio weather reports by Axis diplomatic agents in Ireland,
see memorandum of conversation prepared by the Under Secretary of
State (Weller), Oct. 29, 1942, MS. Department of State, file 811.24541E/7
and memorandum of conversation also prepared by the Under Secretary
of State (Weller), Nov. 16, 1942, with aide m~moire annexed, 1415. Depart-
ment of State, file 811.24541E/9 ; 1942 For. Rel., vol. I, pp. 771-?72.
The United States, while neutral, requested the closing of Italian
and German consulates in the United States because of activities "o>1t-
sidethe scope of their legitimate duties".
The Secretary of State (signed by Weller) to the German ChargB
(Thomsen), note June 16, 1941, MS. Department of State, file 702.6211/
1525~a ;the Secretary of State (Hull) to the American Ambassador in Italy
(Phillips), telegram, Feb. 28, 1941, 175. Department of State, file 702.6511/
1337a ; 1941 For. Rel., vol. II, pp. 629, 793, 794.
The Second Meeting of the Ministers of Foreign Affairs of the
American Republics, meeting at Habana in July 1940, adopted a
Resolution on Norms concerning Diplomatic and Consular Functions
and another on Activities Directed from Abroad against Domestic
Institutions. Secretary of State Hull, in his closing statement at
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 of Agriculture
March 23, 1940,
;,ny objection to
;ion of meteoro-
Patrol vessel to
acknowledgment
r the use of thls
es not intend to
other country.
us is a domestic
wernment and in
~ objection to the
>f these meteoro-
~ to the Weather
ary of State Long
(culture (Wallace),
i9.
~t-
orts no longer go to
i Germany in full."
icht, June 17, 1941,
Series D, vol. XII
:I (1964) , pp. 47-48.
rtes and Ireland re-
ic agents in Ireland,
Under Secretary of
te, file 811.24541E/ 7
:he Under Secretary
nnezed, 14IS. Depart-
, PP? 771-?72.
closing of Italian
of activities "out-
the German Charge
State, file 702.6211/
Ambassador in Italy
' State, file 702.6511/
gn Affairs of the
1940, adopted a
onsular Functions
against Domestic
sing statement at
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the Habana meeting, described the rationale of these resolutions as
follows
". . It is well known that members of diplomatic mis-
sions have well-recognized functions and that the members of
such missions are clothed with special immunities. When
they engage in activities foreign to those that are recog-
nized, they abuse their immunltles, and the government that
has received them may well be concerned. Likewise, the
functions of consular officers are generally defined in interna-
tional law and practice, and the officers themselves enjoy cer-
tain special consideration by the local authorities. But when
such officials engage in activities divorced from the customary
consular functions, they abuse the hospitality of the state in
which they serve.
"That situations of the foregoing character have developed in
many of the American republlcs, has been generally known for
some time past."
III Bulletin, Department of State, No. 58, Aug. 3, 1940, pp. 65, 67. The
tezts of the resolutions are printed in Second meeting of the ministers
of Foreign Affairs of the American Republics, Sabana, July $1--30, 1910,
Report of the Secretary of State (1941) 61, 64-65.
At the Third Meeting of the Ministers of Foreign Affairs held
at Rio de Janeiro, in January 1942, the prime objective of the
United States was "to obtain a joint declaration of all the American
Republics that they feel it necessary to sever all relations with the
Axis powers." Chile and Argentina were reluctant to agree to such
a joint resolution, arguing military unpreparedness. The United
States contended
"The preeminent issue presented is solely that those repub-
lics engaged in war shall not be dealt a deadly thrust by the
agents of the Axis ensconced upon the soil and enjoying the
hospitality of others of the American republics.
"The shibboleth of classic neutrality In its narrow sense can,
in this tragic modern world, no longer be the ideal of any
freedom-lovmg people of the Americas."
The Meeting of Foreign Ministers on January 28, 1942, adopted a
resolution recommending "the breaking of their diplomatic rela-
tions with Japan, Germany, and Italy".
The Secretary of State (Hull), to the American Ambassador in Argen-
tina (Armour), telegram, Jan. 7, 1942, MS. Department of State, file
?lO.Consultation (3)/254c; the American Ambassador in Uruguay (Daw-
son) to the Secretary of State (Hull), telegram, Jan. 3, 1942, MS. De-
partment of State, file 710.Consultation (3)/194; the American Ambassa-
dor in Argentina (Armour) to the Secretary of State (Hull), telegram,
Jan. 15, 1942, MS. Department of State, file 710.Consultation (3)/329;
Severance of
diplomatic
relations
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228 NEUTRALITY IN A CHANGING WORLD
1942 For. Rel., vol. V, pp. 12, 23, 27 ; speech by Under Secretary ~Velles
at opening session, VI Bulletin, Department of State, No. 134, Jan. 17,
1942, pp. 55, 60; Report on the Tlcird Meeting of the Ministers of For-
eiDn Affairs of the American Republics, Rio de Janeiro, January 15-38,
194 (Pan American Union, 1942) 32.
All the American Republics that had not broken off diplomatic rela-
tions with the Axis powers now did so with the exception of Chile and
Argentina.
The United States thereafter continued to press for the severance of
relations by the two latter Republics, presenting evidence linking Axis
diplomatic and consular officers with espionage activities harmful to the
other American Republics.
See, inter ?lia, Drafts of Memoranda on German Military Espionage
in Argentina, enclosure with despatch No. 7065 from the American Am-
bassador in Argentina (Armour) to the Secretary of State (Hull), Oct.
22, 1942, MS. Department of State, file 862.20210/1996; Summary of
?Memorandum on German Espionage Agents in Chile, Oct. 28, 1942, MS.
Department of State, file 862.20225/620 ; 1942 For. Rel., vol. V, pp. 217,
218, 225; address by Under Secretary Welles, Oct. 8, 1942, VII Bulletin,
Department of State, No. 172, Oct. 10, 1942, pp. 808, 810. In this con-
nection, see also Emergency Advisory Committee for Political Defense,
Annual Report, July 1913 (Montevideo, 1943), and Second Annul Re?
port, July 15, 19I~3-October I5, 191t1~ (Montevideo, 1944).
Chile severed diplomatic relations with the Asis powers on January 19,
1943, and Argentina took similar action on January 26, 1944.
On the effort by the IIuited States, supported by the United Kingdom, to
have the Irish Government request the recall of German and Japanese rep-
resentatives in Ireland or sever diplomatic relations with Germany and
Japan, see the Secretary of State (Hull) to the American Ambassador
in the United Kingdom (Winant), telegram, Feb. 3, 1944, MS. Department
of State, file 841D.01/235a ; 1944 I'or. Rel., vol. III, pp. 217-218. On the re-
fusal of the Irish Government, see the Acting Secretary of State (Stettinius)
to the American Minister in Ireland (Gray), telegram, Mar. 8, 1944, MS.
Department of State, file 841D.01/251a ; 1944 For. Rel., vol. III, pp. 232-233.
Sabotage "It is implied in the prohibition of more limited neutral
partialities, in the declaration of Article 1, that neutral terri-
tory is `inviolable', and in the duty of the neutral State under
Article 5 to punish any violations, that the neutral State must
prevent hostile acts against the enemy on neutral territory. As
to normal combat, this mainly affects territorial waters ... ;
but it is also important as to sabotage by belligerent agents
against enemy slops and property in neutral territory, which
was a prominent German activity m the United States both in
the 1914 and 1939 Wars. [During the 1914 War the German
Foreign Office authorised the German Embassy at Washing on
to procure acts of sabotage against Allied property in the United
States. See Lehiglz Valley Railroad Company and Others,
decided in Oct. 1930, by the Miaed Claims Commission between
the United States and Germany, 25 Am. J. Int'1 L. (1931)
147-169. The Commission's finding that this authority was not
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3er Secretary ~Velles
te, No. 134, Jan. 17,
he ~lfinisters of For-
seiro, January 15-23,
off diplomatic rela-
ception of Chile and
for the severance of
vidence linking Azia
pities harmful to the
i 3ilitary Espionage
n the American Am-
fState (Hull), Oct.
/1996 ; Summary of
~, Oct. 28, 1942, biS.
Rel., vol. V, pp. 217,
~, 1942, VII Bulletin,
g, 810. In this con-
~r Political Defense,
Second Annual Re-
144).
ewers on January 19,
i, 1944.
United Kingdom, to
an and Japanese rep-
; with Germany and
merican Ambassador
.944, DI S. Department
. 21?-218. On the re-
of State (Stettinius)
m, :llar. 8, 1944, MS.
vol. III, pp. 232-233.
'e limited neutral
shat neutral terri-
~utral State tinder
ieutral State must
tral territory. As
real waters ... ;
belligerent agents
1 territory, which
ted States both in
VPar the German
sy at ti~ashinaton
~erty in the United
~an~ and Others,
~mmission between
. Int'1 L. (1931)
authority was not
carried out was reversed in 1939, when the Commission reopened
the case.]"
Stone, Legal Controls of International ConRict (New Yorl:, 1959) 390.
For articles I and V of Hague Convention V of 1907, see II Malloy,
Treaties, etc. (1910) 2290, 2297, 2298.
On the conflict between German political and military authorities as to
the advisability of sabotage in the United States in 1939 and 1940, see Docu-
ments on f}erman Foreign Policy 1918-19/t5, Series D, vol. VIII (1954),
pp. 89-91 and 700-701 and notes ; ibid., vol. IX (1956) , pp. 398-400 and
notes, 410-412, 491, 502, and 543.
For present United States law with respect to conspiracy to injure the
property of a foreign government, see 18 U.S.C. ? 956.
As to the powers granted to the President to safeguard vessels, harbors,
and the like Prom sabotage or other subversive acts by regulating the anchor-
age and movement of vessels during a national emergency by reason of war
or disturbance of the international relations of the United States, see 50
U.S.C. ? 191.
As to dissatisfaction with Argentine measures to prevent acts of sabotage
in ports, see the American Ambassador in Argentina (Armour) to the Sec-
retary of State (Hull), telegram, Jan. 2, 1942, MS. Department of State,
file 710 Consultation (3)/188; 1942 For. Rel., vol. V, p. 12.
In October 1943 the American Ambassador in Spain (Hayes) pro-
tested to the Spanish Government concerning an Italian sabotage force
in Spain engaged in activities in the harbor of Gibraltar. In 1944
Spain agreed to expel Agis sabotage agents from Spain and Spanish-
controlledterritory.
The American Ambassador in Spain (Hayes) to the Secretary oP State
(Hull), Oct. 2, 1943, MS. Department of State, 81e 862.20252/216; 1943 For.
Rel., vol. II, pp. 619-620. As to the 1944 agreement between the United States
and Spain, see the American Ambassador in Spain (Hayes) to the Spanish
Minister for Foreign Affairs (Jordana), letter, :flay 1, 1944, encl. 1 in the
American Ambassador in Spain (Hayes) to the Secretary of State (Hall),
despatch No. 2430, May 4, 1944, MS. Department of State, file 711.52/472;
1944 For. Rel., vol. IV, pp. 409-410.
As to British protests regarding German and Italian sabotage of mer-
chant shipping in Spanish waters and the Bsy of Gibraltar, see Sir Samuel
Hoare, Viscount Templewood, dmbassador on Special hfission (1946) 251-
254, 268.
The British Embassy inquired in June 1941 whether Secretary
of State Hull perceived any objection to the employment of British
military personnel as watchmen against the sabotaging of British
merchant vessels in American ports and whether the men would
have to remain on board rather than on the docks during guard duty.
The reply was that-
"The Secretary of State perceives no objection to the Em-
bassy's proposal provided that the guards perform their duties
British
armed
guards
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exclusively aboard the vessels concerned. It is, of course, under-
stood that such guards as may be assigned for duty on British
registered vessels by the masters thereof will not lnterfere in
any way with the right of Coast Guard officers and men to
board the vessels at will in carrying out their official duties,
that such guards will not interfere wlth the duties of any other
officers of the Federal Government or the state or local Gov-
ernments presently exercised by those officers in carrying out
their official functions, and that the military status of the guards
will in no way affect the right of Amerlcan Courts to take
jurisdiction in the event of disturbances occurring in territorial
waters of the United States."
The British Ambassador (Halifax) to the Secretary of State (Hull),
note, June 16, 1941, 14iS. Department of State, file 841.8595/51; the Secre-
tary of State (Hull) to the British Charge (Campbell), note, Oct. 6, 1941,
MS. Department of State, file 841.8595/51; 1941 For. Rel., vol. I, pp. 391-
392, 39495.
Hostile Expeditions
"tiVhoever, within the United States, knowingly begins or
sets on foot or provides or prepares a means for or furnishes
tion or enterprise to be carried on from thence against the
territory or dominion of any foreign prince or state, or of any
colony, district, or people with whom the United States is at
peace, shall be fined not more than $3,000 or imprisoned not
more than three years, or both."
1s u.s.c. ? sso.
"The duty of a State not to permit its territory with the
persons who inhabit it to wage war against another State with
tion, organized on neutral soil for the purpose of engagingg in
military operations against a belligerent State, is permltted to
depart from the national domain and in consequence causes
injury to that State. [It should be observed that this broad
obligation is not attributable to the law of neutrality. It exists
whether the foreign State be at war, or endeavoring to suppress
unrecognized insurgents, or enjoying freedom from any internal
disturbance. It has not been as a neutral that the United
States has most frequently felt the burden of this particular
duty....]"
III Hyde, International Law Chiefly as Interpreted and dpplied by the
Tlnited States (Little, Brown and Co., 2d rev. ed.,1945) 2253-2254.
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 I
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STAT
[? 356
The case is likewise different when a belligerent intends to
erect in a neutral country, or in a neutral port or neutral
waters, a wireless telegraphy station, or any apparatus
intended as a means of communication with belligerent
forces on land or sea, or to make use of any installation of
this kind established by him before the outbreak of war for
purely military purposes, and not previously opened for the
services of the public generally. According to Articles 3 and
5 of Convention V. and Article 5 of Convention ~iIII., a
neutral is bound to prohibit this. When in 1904, in the
Russo-Japanese War, during the siege of Port Arthur, the
Russians installed an apparatus for wireless telegraphy in
Chifu, and communicated thereby with the besieged, this
constituted a violation of neutrality.
(4) It is obvious that his duty of impartiality must prevent
a neutral from allowing belligerents to establish intelligence
bureaux on his territory.l On the other hand, a neutral is
not obliged to prevent leis subjects from giving information
to belligerents, be it by letter, telegram, telephone, or wire-
less telegraphy. In particular, a neutral is not obliged to
prevent his subjects from giving information to belligerents
by wireless telegraphy apparatus installed on a neutral mer-
chantman. Such individuals run, however, the risk of being
punished as spies, if they act clandestinely or under false
pretences,z and the vessel is liable to be captured and con-
fiscated for rendering unneutral service.
On the other hand, newspaper correspondents making use
of a wireless installation on a neutral merchantman for the
purpose of sending news to their papers s may not be treated
as spies-although during the Russo-Japanese War Russia
Channel to England and from there
back to France-Great Britain re-
fused her consent on account of her
neutrality. Again, in 1898, during
war between Spain and the United
States of America, when the latter
intended to land at Hong-Kong a
oable proposed to be laid from
Manila, Great Britain refused her
consent. See Fauchille, ? 1321(1);
Phillipson, op. cit., p. 92 ; Lawrence,
YVar, p. 219.
1 See Fauchille, ? 1476 (1), on the
attitude of the Swiss Government
during the First World War.
' See above, ? 159.
s See the case of the Haimun
(Lawrence, Il~ar, pp. 85-92). On the
position of newspaper correspondents
in naval warfare, as it was before the
First World ~Var, see. Higgins, il'ar and
the Private Oitizen (1912), pp. 91-112,
and in Z.V., 6 (1912), pp. 19-28,
and the literature and cases there
cited.
357]
threatened to tre;
may not be confisc
the presence of s~
course, an indivi~
spondent for a ne
then be punished
? 356x. The pri
become the basis
war operations im
use the means at
aerial observation
belligerent inform
Lions or defences
Rules of 1923 1 cc
and so do various
Hall, ?? 227-229-Laws
-Letters by Hinton
149-162-Taylor,
?? 429-433-Moore,
-Heffter, ? 146-~
Ullmann, ? 191-1
Pradier-Fodere, vii
2666-Fiore, iii. T
Dupuis, Noe. 332-3.
132-Hyde, ii. ?? >
Machte im Seekrie-
ii. ? 562-Harris i
Research (1939), pp
? 357. Many wr
only treat under t
z The Scandinaviai
ILules of 1938 (see a
pruvide generally thtit i
to carry out in neu
`observations from an
any other maimer, re
movements, operation
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