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It might not be deemed impractical for a treaty to contain provisions that any signatory state, without being charged with unfriendly or unneutral conduct, might forbid the removal from its territory of munitions of war and other forms of military aid which it had reason to believe were destined for the use of any other signatory state which, as a belligerent, resorted to practices or made uses of particular instrumentalities which by the express terms of the agreement were prohibited. A country such as the United States might deem it highly important not to agree to do anything which would necessarily impair its neutral status with respect to a war in which it was not a participant. On the other hand, it might be willing to agree that it itself or any other contracting party should be permitted to enjoy the right to withhold aid from a covenant-breaker, and even possibly agree to exercise that right as against such an offender, on the distinct understanding that such action should in no wise impair the neutrality of the withholding state. A still larger aspect of the situation presents itself. If the principal maritime Powers are sincerely desirous of further limiting naval armament, and find that their efforts are blocked by fears of what may take place when war breaks out, and that either the latitude or vagueness of the existing law encourages the retention of armament which they do not desire to construct, it is inconceivable that they will allow themselves to be thwarted by obstacles which it lies within their power to remove. Moreover, they must know that the economic and moral grounds which sustain their aspirations produce a lofty and convincing appeal to other and less powerful states. Restrictions which the principal maritime Powers are willing to agree to accept as binding upon each other in the event of war, especially in so far as they accord protection to innocent and unoffending commerce, and safeguard defenseless shipping, and tend to confine hostilities to contests between the essentially fighting ships of opposing belligerents, would be warmly welcomed by maritime countries possessed of small navies and substantial merchant fleets. No lack of approval need be feared by the Powers whose wills determine the mode by which future wars are to be conducted. That the representatives of five of those Powers convening at Washington in 1922, thought it feasible to agree to a prohibition of commerce destroying by submarines is a hopeful sign of the times. Even though the arrangement is not yet effective, it reflects the opinion of a group of statesmen of the first rank, that restrictions to govern the conduct of the most powerful belligerents are worth imposing because there is reason to believe that they will be respected when the conflict arises.

The obstacles that blocked the endeavors of the United States in 1922 to secure limitations on the construction of auxiliary naval craft, indicate those which today are likely to retard steps in the same direction. The naval or military advisor still stands uncontradicted when he points to the practices in which a future belligerent will in all probability indulge, or the uses to which it will put every available weapon. Moreover he is not to be chal

lenged when he asserts that no generally accepted rule of law forbids much that he anticipates, or that rules which his own country accepts in a particular way are given a widely different interpretation by other countries with which his own may be at war. Therefore, when he invokes these facts as reasons for rejecting proposals for limitation of naval armament, no satisfactory answer can be made.

If there is fresh zeal on the part of interested states to effect a further limitation to which they have heretofore been unwilling to agree, they must obviously be prepared to overcome the reasonable objections of their own technical advisors. If there is failure to do so, the prospect of a substantial achievement is not bright. As has been pointed out, it is highly desirable if not essential that such changes should be wrought in the laws of maritime warfare in so far as they concern the states which attempt to deal with each other, as may justify and compel a reconsideration of the general problem by military and naval experts. Opportunity must be given them to reconsider, on a new set of facts predicated on conditions differing from what have heretofore prevailed, what are the needs of their respective countries, and whether ratios based upon the existing tonnage possessed by those countries in respect to various forms of auxiliary craft, offer fair tests for lessening tonnage.

Effort has been made to indicate some of the matters respecting which agreement by the great maritime Powers would clear the air. Certain belligerent practices and certain uses of belligerent instrumentalities have been noted and their effect upon current opinion observed. It remains by way of summary to indicate briefly those practices and uses concerning which agreement would be appropriate, and also the character of certain undertakings which would simplify the problem of those who seek to bring about further limitation of naval armament.

First. Agreements as to the limits of contraband and the nature and scope of blockade would be not only valuable in themselves, but also a means of determining the feasibility of an arrangement looking to the immunity of enemy private property other than contraband from capture at sea. The difficulties to be anticipated in effecting such agreements cannot be overestimated. They are only equalled by the benefits derivable from an arrangement on the subject.

Second. Despite obstacles that may prevent agreement as to contraband or blockade, the feasibility of an arrangement contemplating neutral governmental certifications concerning the nature, destination and use of cargoes on neutral ships, by way of substitute for belligerent captures and searches in port, should be seriously considered. General agreement which by this process heeded the equities of both neutrals and belligerents, would also lessen the burden now imposed upon auxiliary craft and diminish proportionally the need of such tonnage.

Third. Inasmuch as the transformation of merchant ships at sea into

auxiliary cruisers encourages the enemy to arm its merchant fleet, the feasibility of an arrangement forbidding such conversion on the high seas deserves consideration. An agreement to that end would play its part in the larger endeavor to remove excuses for the maintenance of unlimited submarine tonnage.

Fourth. As relinquishment of the right to arm merchantmen would tend directly to diminish the need of submarine tonnage, and at the same time encourage general acceptance of the principle that submarine vessels should not be employed as commerce destroyers, the practical value of an agreement to keep guns off merchantmen is entitled to most earnest consideration. The influence of such an arrangement is beyond estimate.

Fifth. As the requisite assurance that agreements such as the foregoing would be respected when war ensued might be greatly strengthened by the zealous conduct of neutral states, the reasonableness of a general arrangement conferring the right, and even imposing the obligation upon neutral contracting parties, to prevent their respective territories from ministering to the needs of a covenant-breaking belligerent, merits consideration.

These suggested bases of agreement are merely submitted because they are believed to pave the way for the removal of obstacles that seemingly thwart the further limitation of naval armament. It will be observed that the several proposals are also calculated to save commerce from the ruthless hand of the destroyer or captor, and by processes which also forbid commerce to fight its own battles on the seas. By confining hostile engagements when unhappily they occur, to encounters between forces and instrumentalities dedicated to war, there are not only upheld the chivalrous views of a Roosevelt and a Choate, but also greatly simplified the task of those who seek to relieve maritime states from the burden of maintaining unnecessary naval armament.

THE LEGAL STATUS OF THE PAN AMERICAN UNION 1

BY WALTER SCOTT PENFIELD

Of the Bar of the District of Columbia

Many times inquiry has been made as to the legal status of the Pan American Union. Its friends have often wished that an opportunity might be afforded a court to determine that question. For the first time in its history, a court of the United States recently had occasion to pass on the matter.

A judgment having been secured in the Municipal Court of the District of Columbia against an employee of the Pan American Union, the court, on November 27, 1925, issued a writ of attachment on said judgment, directed to the Pan American Union as garnishee, notifying it of the seizure of the property and credits of said employee in its hands, and requiring the Pan American Union to appear in said court and show cause against such attachment proceedings. The writ and notice were served on the Chief Accountant and Disbursing Officer of the Pan American Union on November 28, 1925, by the Marshal of the District of Columbia.

Upon the request of the Director General, the attorney of the Pan American Union entered a special appearance in said court in its behalf, for the purpose of contesting the jurisdiction of the court, and filed a plea to the jurisdiction; setting out the facts with reference to the proceedings of the five Pan American Conferences, and with reference to the sources, the custody, and the disbursement of the funds of the Pan American Union; and contending that it was not subject to the process of said court by reason of the sovereign status of the members of the Union.

The case was tried on December 16, 1925, before Judge Charles V. Meeham of said court. After hearing the attorney for the Pan American Union, as well as the attorney for the plaintiff in the case, the court found in favor of the Pan American Union, sustained the plea to the jurisdiction, and dismissed the attachment proceedings, without, however, rendering any written opinion theron.

1 Substantially this entire article is taken from the author's trial brief, prepared by him for his use as attorney of the Pan American Union in defense of the garnishee proceedings. In the preparation of the case, the author carefully examined the pertinent provisions of the proceedings of the First International American Conference, held in Washington in 1889, those of the Second International Conference of American States, held in Mexico City in 1901, those of the Third International Conference of the American States, held in Rio de Janeiro in 1906, those of the Fourth International Conference of American States, held in Buenos Aires in 1910, and those of the Fifth International Conference of American States, held in Santiago, Chile, in 1923. But for the purposes of this article, it is only necessary to refer to the material portions of the proceedings of the last Conference, which supersede similar provisions adopted by prior Conferences.

FACTS IN REGARD TO THE PAN AMERICAN UNION

In order to ascertain the legal status of the Pan American Union, the resolutions of the various Pan American Conferences must first be examined. They disclose that "The Union of the Republics of the American Continent" is composed of the following sovereign states, to wit: Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Dominican Republic, Ecuador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Salvador, United States, Uruguay and Venezuela. They further show that said "Union of the Republics of the American Continent . . . maintains under the name of the 'Pan American Union', the institution which serves as its permanent organ and has its seat in the building of the American Republics, in the City of Washington."2

The Fifth Pan American Congress provided that the functions of the Pan American Union are:

To compile and distribute information and reports concerning the commercial, industrial, agricultural, and educational development, as well as the general progress of the American countries. To compile and classify information referring to the Conventions and Treaties concluded among the American Republics and between these and other States, as well as to the legislation of the former.

To assist in the development of commercial and cultural relations between the American Republics and of their more intimate mutual acquaintance.

To act as a Permanent Commission of the International Conference of American States; to keep their records and archives; to assist in obtaining ratification of the Treaties and Conventions, as well as compliance with the resolutions adopted; and to prepare the program and regulations of each Conference.

To submit to the various Governments, at the time of the holding of each Conference, a report upon the work of the institution since the adjournment of the last Conference, and also special reports upon any matters which may have been referred to it.

To perform such other functions entrusted to it by the Conference, or by the Governing Board by virtue of the powers conferred upon it by this resolution.

To carry out the purposes for which this institution is organized, the Governing Board shall provide for the establishment of such administrative divisions or sections within the Pan American Union as may be deemed necessary.3

The same conference provided that "the government of the Pan American Union shall be vested in a Governing Board, composed of the diplomatic representatives of the American Republics accredited to the Government of the United States of America, and the Secretary of State of that country."4 Art. I, Resolution pertaining to the organization of the Pan American Union, Fifth Conference of American States, Santiago, Chile, 1923.

Art. II. Same.
Art. V. Same.

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