SOME QUESTIONS OF INTERNATIONAL LAW IN THE

EUROPEAN WAR 1

XI

THE SALE AND EXPORTATION OF ARMS AND MUNITIONS OF WAR TO BELLIGERENTS

The policy of the United States Government in permitting the exportation of arms, munitions, and other war supplies for the use of belligerents during the present war has been the subject of much discussion in Congress and in the press and has provoked diplomatic remonstrances from the Governments of Germany and Austria-Hungary. As a general proposition, it has been admitted by those who complain of the extensive traffic which has gone on between American manufacturers and certain of the belligerents, that neutral governments are not by the existing rules of international law bound to prevent their nationals from engaging in such traffic; but it has been argued that special circumstances to which the present war has given rise give a "new conception to the aspect of neutrality" and that an abnormal and unprecedented situation has been created which makes the continued furnishing of arms and munitions to the belligerents on one side, when their adversaries are unable to avail themselves of the American markets, a violation of the spirit of strict neutrality.

In consequence of the unexampled magnitude of the war and the huge demand which it created for American arms, munitions and other supplies, a demand which was augmented by the closing of the markets of the neutral states of Europe to the various belligerents, the arms and munitions industries of the United States quickly "soared to unimagined heights." Existing establishments were promptly enlarged, and were operated night and day to the full limit of their capacity, two and sometimes three shifts of workingmen being employed for the

1 Continued from previous numbers of the Journal.

purpose. As a result, their output was doubled, and in some cases trebled. In some instances establishments for the manufacture of clocks, typewriters, locomotives, and other articles were converted into manufactories for the production of war supplies. So enormous were the demands and so alluring were the profits that new industries were quickly organized, and in several instances populous cities sprang into existence as if by magic, the entire populations of which were engaged in the manufacture of supplies to meet the necessities of the war.3 The Governments of Germany and Austria-Hungary, as well as large numbers of their sympathizers in this country, protested and asserted that in permitting the territory of the United States to become the seat of such a traffic, in fact for the benefit of the Entente Powers alone, the government was violating the spirit if not the letter of the law of neutrality.

Do the established rules of international law impose on the governments of neutral states an obligation generally to prevent their nationals from selling and transporting arms and munitions to any belligerents who may wish to buy? If not, are there conceivable special circumstances which may make it their duty to do so in order to preserve the

2 The Remington Arms Company is reported to have added eleven new buildings at a cost of approximately $3,000,000 to its plant during the early months of the war. 3 It is impossible to give even approximately correct figures of the volume of this trade. The daily press frequently contained reports of contracts with agents of the British, French, and Russian Governments for fifty-million and hundred-million dollar orders. According to statistics compiled by the Department of Commerce (published in the Congressional Record of January 13, 1916, pp. 1071–1072) the value of exports of munitions alone during the first nine months of the year 1915 exceeded the value of those for the corresponding months of 1913 by $160,000,000. It was estimated that the value of the exports of explosives and fire arms to belligerent countries during the month of October, 1915, exceeded that of October, 1913, by $18,000,000. The increased exports of such articles as horses, woolen goods, automobiles, etc., during the same month amounted to $21,000,000. The increase in food stuffs, a very large proportion of which was doubtless used for feeding armies, amounted to $26,000,000. According to information given out by the Department of Commerce on May 31, 1916, the total purchases of arms and munitions in the United States during the first twenty months of the war amounted to $388,000,000. By July 16 the amount had gone up to $446,000,000. During the month of March more than $50,000,000 worth of munitions were exported from the United States. Shipments of high explosive shells and shrapnel, it was said, amounted to $1,000,000 per day, while $500,000 worth of powder was being exported daily to Europe.

spirit as well as the form of neutrality? And if so, may it be done at any time during the progress of the war when the effect would be to alter the existing situation to the advantage of one belligerent and to the detriment of the other?

The first question can only be answered in the negative. A neutral government is not legally bound to forbid its nationals from selling and transporting for the use of belligerents, arms, munitions, or any other supplies which they may wish to buy. Fully nine-tenths of the textwriters on international law who have expressed opinions on the question have pronounced in favor of this view. It is the view on which states have generally acted in the past; and it is the view formally expressed in two international conventions adopted by the Second Hague Conference.

5

It would be a work of supererogation to cite all the text-writers and jurists of repute from Albericus Gentilis to the present who have affirmed this view. The opinion expressed by Jefferson as Secretary of State in 1793, when the British Government complained of the sale by

4 This is expressly affirmed by Article 7 of the Hague Conventions Nos. V and XIII of 1907. The latter convention has been ratified by twenty five and adhered to by three non-signatory Powers, including Germany and Austria-Hungary, and none of them reserved their ratification to Article 7. It can hardly be maintained that because several of the belligerents in the present war have not ratified the conventions, Article 7 of either convention is not binding. This, because the rule laid down by Article 7 is declaratory, not amendatory, of the existing law of nations. Compare editorials in this JOURNAL for July, 1915, p. 688, and October 15, 1915, p. 932. Furthermore, the provisions of Article 20 of Convention V and of 28 of Convention XIII, that they shall apply only as between the contracting parties, have no force except in so far as the convention imposes restrictions on the sovereignty of neutral states; they do not, therefore, apply to provisions which merely affirm existing rights. Compare De Lapradelle, "Le marché des armes aux Etats Unis et le Devoir des Neutres" (Revue Politique et Parlementaire, Oct., 1915, p. 9). The discussions of the subject at the Second Hague Conference show very clearly that Article 7 of the two conventions was not intended to impose on neutral governments an obligation to forbid such trade. See especially the remarks of Herr Kriege, Actes et Documents, Vol. III, p. 859; of M. Renault (ibid., p. 867) and the report of Colonel Borel (ibid., Vol. I, p. 141). See also the review and comment of the editor of this JOURNAL for July, 1915, pp. 689-691.

5 When England complained in the sixteenth century of the sale by neutral merchants of munitions to Spain, says Gentilis, the complaint was probably well founded in equity but not in law. Quoted by Nys, Le Droit International, Vol. III, p. 637.

American citizens of arms and munitions to an agent of the French Government, that "our citizens have always been free to vend and export arms; that it is the constant occupation and livelihood of some of them;" that "to suppress their callings, the only means perhaps of their subsistence, because a war exists in foreign and distant countries in which we have no concern would scarcely be expected;" and that "it would be hard in principle and impossible in practice," has been affirmed and reaffirmed by nearly all American writers, judges, Secretaries of State, and Presidents who have had occasion to pronounce opinions on the subject. Field and Woolsey appear to be the only American writers of note who have questioned the expediency or morality of the existing rule. Likewise, the opinion of Jefferson and his successors has been that almost unanimously held by British writers," the only dis

8

6 Letter to the Minister of Great Britain, May 15, 1793, quoted by Moore, International Law Digest, Vol. VII, p. 955. The views of a large number of text-writers are given by Calvo in his Le Droit International, Vol. IV, Sec. 2625. Many pages in Moore's Digest (Vol. VII, pp. 955-975) are devoted to setting forth the views of American writers, Presidents, Secretaries of State, and judges on the subject. 7 Outlines of an International Code, Sec. 964.

8 Referring to the opinion of Story in the case of the Santissima Trinidad (7 Wheaton, 340) that "there is nothing in our laws or in the law of nations that forbids our citizens from sending armed vessels as well as munitions of war to foreign ports for sale; that it is a commercial venture which no nation is bound to prohibit," Woolsey (International Law, p. 320, note 1) expresses regret that Judge Story should have said this, if it be true. Such trade, Woolsey says, is "immoral and tends to produce lasting animosities." "A juster and more humane policy," he says, “would make all innocent trade with the enemy valid and require a neutral to pass stringent and effectual laws against contraband trade." Burgess (The European War, Ch. VIII) seems to be the only native-born American scholar of note who since the outbreak of the present war has attacked the American policy in regard to the right of neutrals to sell arms and munitions to belligerents. Professor Burgess is an ardent, almost violent, sympathizer with Germany, and his views can hardly be accepted as those of an impartial jurist. Lieber, in an article in the Revue de Droit International, Vol. IV (1872), p. 469, adverting to the sale of arms to the French in 1870 expressed the opinion that "no neutral government has the right to sell arms or other articles of contraband to one of the belligerents, nor can it permit individuals to sell directly those same articles." Apparently, however, he had reference only to the sale of arms from the government arsenals by individuals who had purchased them from the government.

9 Lord Stowell in the case of the Immanuel (2 Rob., p. 198), thus early expressed the view generally adopted by English writers and jurists: "Upon the breaking out of a war it is the right of neutrals to carry on their accustomed trade with the ex

senting voice apparently being that of Phillimore, who holds that it is contrary to neutrality for a government to permit the sale within its territory of munitions of war to a belligerent.10 Among French jurists the right of neutrals to engage in such traffic has been denied by only a few, the best known of whom are Hautefeuille," Pistoye, and Duverdy.12 Kleen, a Swedish jurist and writer of high repute, also holds the view that it is the duty of neutrals to prevent their subjects from engaging in contraband traffic, 13 and Brusa, an Italian writer, takes the same view.14

Among German writers, there has been almost the same unanimity of view in favor of the right of neutrals to sell arms and munitions to belligerents. Perels, at one time legal adviser to the German Admiralty, referring to the "oft-discussed question" as to whether a neutral state is obliged to prevent its subjects from loaning money to belligerents or furnishing them with war materials, etc., says: "It cannot be doubted in fact that unless there is a notorious favor shown towards one of the

ception of the particular cases of a trade to blockaded ports or in contraband articles (in both of which cases their property is liable to be condemned)."

10 "If," says Phillimore (Int. Law, Vol. III, Sec. 230), "the foundations of international justice have been correctly pointed out in a former volume of this work (Vol. I, pt. I, ch. 3), and if it be the true character of a neutral to abstain from every act which may better or worsen the condition of a belligerent, the unlawfulness of any such sale is a necessary conclusion from these premises." Phillimore (Sec. 229, note) quotes Lord Grenville (Letters of Sulpicius, p. 26) as saying, "If I have wrested my enemy's sword from his hands, the bystander who furnishes him with a fresh weapon can have no pretense to be considered as a neutral in the contest." Referring to the view of Bynkershoek (Questiones Juris Pub., Bk. I, C. 22), who holds that while war materials may not be carried by neutrals, they may sell them in their own country, Phillimore (Sec. 231) remarks that there is no difference in principle between the two permissions: "both are, on one and the same principle inconsistent with the duties of neutrality."

11 Droits et Devoirs des Nations Neutres en Temps de Guerre, Vol. II, p. 424. 12 Traité des Prises Maritimes, Vol. I, p. 394.

13 "Every neutral state," says Kleen (Lois et usages de la neutralité, Vol. I, sec. 93), "must not only itself abstain from furnishing to either belligerent contraband articles, but must watch over (surveiller) its subjects and other individuals who find themselves within its territory, to see that they do not furnish belligerents with such articles; it must prohibit by law such traffic and must prevent it as far as possible and punish such acts wherever it exercises sovereign authority." See also his Contrebande de Guerre, pp. 52, 67.

14 Revue de Droit Int., Vol. XXVI (1894), p. 404.