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War between the United States and the Axis Powers

Published online by Cambridge University Press:  12 April 2017

L. H. Woolsey
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Editorial Comment
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American Journal of International Law , Volume 36 , Issue 1 , January 1942 , pp. 77 - 83
Copyright
Copyright © American Society of International Law 1942

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References

1 "Japan in its recent professions of a desire for peace has been infamously false and fraudulent. . . ." Secretary Hull, State Dept. Press Release, Dec. 7, 1941.

2 The note was, however, bristling, if not hostile, in tone and content: " I t is presumed the above provision [of the American proposal] has been proposed with a view to restrain Japan from fulfilling its obligation under the Tripartite Pact when the United States participates in the war in Europe and as such it cannot be accepted by the Japanese Government." Compare the action of Japan in beginning the war with Russia in 1904. Hershey, International Law and Diplomacy in Russo-Japanese War, Chap. I. It is reported the Secretary of State as early as Nov. 27, 1941, warned other Departments of the Government of the possibility of an outbreak by Japan in some direction.

3 John Bassett Moore, the dean of international jurists, says, "Although a contest by force between nations may, no matter how it may have been begun, constitute a state of war, it by no means follows that nations, in precipitating such a condition of things, are not bound by principles of honor or good faith. If, for example, a nation, wishing to absorb another, or to seize a part of its territory, should, without warning or prior controversy, suddenly attack it, a state of war would undoubtedly follow, but it could not be said that the principles of honor and good faith enjoined by the law of nations had not been violated. . . . Nor is the practice of fraud and deceit permitted by a state of war supposed to be admissible in time of peace." (7 Moore, Digest of International Law, 171.) Professor Fenwick states: "A sudden attack by one state on another before negotiations looking to a settlement of the controversy have been undertaken or have reached the point where the redress demanded is apparently not to be granted, has been regarded from the earliest times as an act of international brigandage." (International Law, p. 453.) As to treachery, see G. G. Wilson, International Law Situations, 1917, p. 161; Amos S. Hershey, International Law and Diplomacy of Russo-Japanese War, Chap. I; Oppenheim, International Law, 3d ed., p. 311, Charles Noble Gregory, Proceedings of the American Society of International Law, 1921, p. 115. Warning as to war is required before the commencement of hostilities by Hague Convention III of 1907, which was signed and ratified by all of the main belligerents in the present war, including Germany and Japan, but excluding Italy.

4 Dec. 7, 1941, declaration of war against Japan by Canada; Dec. 8, by Honduras, El Salvador, Guatemala, Haiti, Dominican Republic, Holland, Greece, Free French and Panama; Dec. 9, by Australia, South Africa, New Zealand, China, Cuba, Costa Rica; Dec. 11, by Poland. For other declarations of war see State Department Press Releases, Dec. 15 and 18, 1941.

5 A review of the treaty evasions and breaches on the part of Japan and her ties with the Axis Powers and her diplomatic exchanges with the United States while carrying on her aggressive policies in Asia, will be found in President Roosevelt's report to Congress with attached documents, dated Dec. 15, 1941, reprinted in this JOURNAL, Supplement, p. 24.

6 See "Government Traffic in Contraband," by L. H. Woolsey, this JOUBNAI,, Vol. 34 (1940), p. 498. John Bassett Moore says, "But as the supply of arms and ammunition to a fighting force is a direct contribution to its military resources, a neutral government cannot itself supply such articles to the parties to an armed conflict, or permit its citizens to supply them to one party but not to the other, without abandoning its neutrality and making itself a party to the conflict, whether war has or has not been declared." (Foreign Affairs, July, 1933, p. 564.)

7 German Declaration of war, N. Y. Times, Dec. 11, 1941. In the last war France declared war on Austria-Hungary, Aug. 13,1914, because of "acts of military assistance given to Germany and incompatible with neutrality." (.International Law Situations, 1917, p. 88.) Italy declared war against Germany, Aug. 28, 1916, because of "systematically hostile acts . . . consisting in both an actual warlike participation and economic measures of every kind," mentioning the supply of arms, the participation of German officers and men and the suspension of debt payments to Italians (Id. pp. 171-2). (In an opinion of the German Reichsgericht at Leipsic, shortly before the war, appears the statement: "Formally there is not a state of war between Germany and Italy, but it must be admitted nevertheless that Germany participates in the Austro-Italian War in consequence of the treaties existing between Austria and Germany. According to these treaties, in case Austria is obliged to send troops to other theaters of the war, Germany should fill the vacancies thus caused by means of proper forces." Journal du droit international privi. Clunet, 43:1701). (Quoted, id., p. 172, note.) Germany declared war against Portugal, March 9,1916, for unneutral conduct, including the sale of a destroyer, guns and materials to the enemy, the extensive sojourn of war vessels in port and the seizure of German vessels. (Id., p. 105.) France declared war on Bulgaria, Oct. 16, 1915, because of the latter's military cooperation with the enemy. (Id., p. 91.) Austria-Hungary broke relations with Belgium, Aug. 22, 1914, because of the latter's military cooperation with France and Britain. (Id., p. 51.)

8 See "The Taking of Foreign Ships in American Ports," by L. H. Woolsey, this JOTTBNAL, Vol. 35 (1941), p. 497.

9 Freezing control is based on United States Code, Title 12, Sec. 95a, and certain constitutional powers of the President. See address of Edward H. Foley, General Counsel of Treasury Department, before American Bar Association, Sept. 29, 1941.

10 See President's proclamations and orders under the Act of July 2, 1940, 54 Stat., 714, and State Department Press Releases for that period.

11 Address of Edward H. Foley, supra.

12 Id.

13 John Bassett Moore, "An Appeal to Reason," Foreign Affairs, July, 1933, Vol. 11, No. 4, pp. 560, 585. See also his statement at Hearings before Senate Foreign Relations Committee on S. 3474, Jan.-Feb., 1936, p. 172 et seq.

14 The full text of the Japanese document, as well as the text of the last American document handed to the Japanese envoys on Nov. 26,1941, are printed in this JOURNAL, Supplement, pp. 44, 50.

15 This JOURNAL, Supplement, Vol. 35 (1941), p. 35. Secretary Hull has stated the meaning of the "new order" as follows: "Previous experience and current developments indicate that the proposed "new order" in the Pacific area means, politically, domination by one country. It means, economically, employment of the resources of the area concerned for the benefit of that country and to the ultimate impoverishment of other parts of the area and exclusion of the interests of other countries. It means, socially, the destruction of personal liberties and the reduction of the conquered peoples to the rdle of inferiors." (New York Times, Jan. 16, 1941.)

16 This JOURNAL, Supplement, Vol. 35 (1941), p. 191.

17 New York Times, Jan. 3, 1942.