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munication to the Secretary-General of the League of Nations in which it was stated that
The U. S. S. R. is not at war with Finland and does not threaten the Finnish nation with war.
Mr. GIFFORD. Is the State Department gullible enough to accept that?
Mr. HACKWORTH. I am not undertaking to say what the State Department should or should not do. I am merely stating the facts as we have them.
Mr. GIFFORD. Well, you know better, do you not?
Mr. WILLIAMS. Has any formal declaration been made by Finland that it is not at war?
Mr. HACKWORTH. The Finnish Minister, in his communication to the Department of State, dated December 1, 1939, likewise stated that Finland was not at war against the Soviet Government.
Mr. GORE. Do you have his language?
First. Finland has not declared war on Soviet Russia. Second. The President's declaration of the state of war means an internal situation corresponding to a state of siege. Third. The State of War Act of 1930 presupposes a declaration of a state of war in order to make it possible, by way of decrees, to issue regulations in order to protect the internal order and to supply the army with the absolute necessary matériel.
That is taken from a formal communication sent to the Department of State by the Finnish Minister in Washington.
Mr. FORD. Is it a violation of international law for one country to declare that war exists as between countries that have not actually declared war?
Mr. HackWORTH. No; there is no violation of international law but it might be regarded as a rather serious step.
Mr. WILLIAMS. There is no obligation on this country to declare a state of war exists in that country unless the security of the people of our own Nation, their life or security is involved, is there?
Mr. HACKWORTH. I think that is correct. I might read if you will permit
Mr. GIFFORD. I want to go into that a little further. Do I understand our State Department has a policy that unless the citizens of a country themselves say they are carrying on a war, that we accept that, except where our own personal interests might be involved ? Is that the assertion?
Mr. HACKWORTH. I do not think it can be said that the State Department has any policy on that question. Each situation is considered in the light of facts obtaining at the time. That is not saying that the State Department has a definite policy.
Mr. GIFFORD. Well, sometimes they may have to have a policy.
Mr. SIMPSON. Do I understand the State Department now considers a state of war exists between those two countries?
Mr. HACKWORTH. Between Finland and Russia ?
Mr. HACKWORTH. The State Department has not had an occasion to pass on that question.
Mr. SIMPSON. Do you not think the State Department knows whether there is a state of war or not?
Mr. HACKWORTH. I would not say that it does not. I think that the Department has its own idea about it.
Mr. SIMPSON. That is what we are trying to find out.
Mr. HACKWORTH. But there is a difference in entertaining ideas and expressing ideas and I think it might be said the Department has not thought it desirable to express its view.
Miss SUMNER. Would it be fair to say that there are two kinds of war, what you might call a de facto war, and a war that might be called legal; that is, where a war has been declared by one or more countries involved. Would that be fair to say?
Mr. HACKWORTH. I would like, Mr. Chairman, with your permission, to read a short excerpt from a statement of Judge Moore.
Mr. SIMPSON. Mr. Chairman, I think Miss Sumner is entitled to have her question answered.
Mr. WILLIAMS. Perhaps this is the answer to it.
Mr. HACKWORTH. I think this will answer the question; that is the reason I would like to read it.
Mr. SIMPSON. Very well.
Much confusion may be avoided by bearing in mind the fact that by the term “war” is meant not the mere employment of force, but the existence of the legal condition of things in which rights are or may be prosecuted by force. Thus, if two nations declare war one against the other, war exists, though no force whatever may yet have been employed. On the other hand, force may be employed by one nation against another, as in the case of reprisals, and yet no state of war may arise. In such a case there may be said to be an act of war, but no state of war. The distinction is of the first importance since from the moment when a state of war supervenes third parties become subject to the performance of the duties of neutrality as well as to all the inconveniences that result from the exercise of belligerent rights. One of the most remarkable illustrations of the distinction here pointed out was the condition of things in China in 1900, when the armed forces of the allies marched to Peking and occupied parts of the country without any resultant state of war.
Now, I might add to the statement from Judge Moore a statement contained in a recent publication by the research in international law conducted under the auspices of the Harvard School of Law, which statement reads as follows:
The difficulty of distinguishing between "war" in its legal sense and armed conflicts such as that in China today (1939) requires no demonstration. . Regardless of the theoretical considerations or legal definitions, if the states of the world choose to regard a formal armed conflict between two of their number as not being "war" and particularly if the contestants themselves choose to take the same view, the law of neutrality is not in effect. That is the necessary conclusion from current international practice.
Mr. GORE. Mr. Hackworth, I listened very carefully to the reading of the statement of the Minister from Finland, and if I heard correctly, at no time did he say that they were not at war with Russia, and I believe the statement from the Soviet Union did say that Russia is not at war with Finland. Is that correct?
Mr. HACKWORTH. I did not read all the Finnish statement; I only read an excerpt. I might read the other part of that same note which probably would clarify the situation you have in mind. The note starts out by saying:
Referring to our conversation yesterday concerning the declaration of a status of war in Finland and to my statement that this did not imply a declaration of war, but only meant a purely internal measure introducing in Finland the state of emergency or seige, I have the honor of informing Your Excellency that I have received from the Foreign Office in Helsinski the following telegram explaining the meaning of this measure.
Then follows the statement that I read a moment ago.
Mr. GORE. But I want the record to show that in my opinion Finland has shown a regard for truth, but that Russia, characteristic of communistic Stalin, has not shown any regard for truth in making the statement that she is not at war with Finland.
Now, what is the attitude of the State Department, Mr. Hackworth, with respect to this bill? Is it the position of the State De
? partment that a loan to Finland, in compliance with the provisions of this bill, would not be a violation of our Neutrality Act?
Mr. HACKWORTH. That is the feeling of the Department of State.
Mr. GORE. I do not think he said they had no policy. He said, and I believe I so understood him, Mr. Gifford, that they had not been called upon to take a position with respect to whether or not a war existed between the two nations, and therefore had never taken any policy in that particular regard.
Mr. GIFFORD. I asked him if they had any policy and he said each problem was considered as it came up. That means there is no policy.
Mr. GORE. Well, of course, I cannot answer for Mr. Hackworth, but I cannot conceive that that Department was lacking in policy in any respect.
Mr. WILLIAMS. And undoubtedly he could not announce a policy that would require consideration of facts until the situation arose and the facts were known.
Mr. HACKWORTH. That is correct. I can answer the gentleman's statement by repeating what I said, that we have no fixed policy with respect to such matters; that each case must be considered on its merits and upon the facts obtaining at the time.
Mr. GIFFORD. Did he use the word “facts” before?
Mr. GIFFORD. You have no fixed policy, but you meet the conditions as they arise.
Now, I want to ask you this question, returning to the bill: Why do we not mark out the proviso?
Mr. HACKWORTH. Why do I not mark it out?
Mr. GIFFORD. Why do we not mark it out, that loans cannot be made in violation of international law as interpreted by the Department of State ?
Why not mark that out?
Mr. GIFFORD. It simply puts the burden upon Mr. Jones to protect himself. I do not know why we want that proviso, if we are here saying that we are going to interpret international law to provide that food and raw material includes typewriters and such
things as medicines, which I think should be furnished, why should that be put in there to cause disturbance; that it would have to be interpreted? Just leave it out. Why not?
Mr. HACKWORTH. As I said before, it is quite agreeable to me. It was not put in at the instance of the Department of State.
Mr. GIFFORD. The latter part of that states: for the purchase of any articles listed as arms, ammunition, or implements of war by the President of the United States in accordance with the Neutrality Act.
Now the Neutrality Act is already law. What is the need of inserting in legislation a statement that we cannot sell anything unless we recognize the existing law?
Mr. HACKWORTH. If we come to the conclusion that Finland is not at war we can legally sell anything.
Mr. GIFFORD. That is simply because we want to make a loan to them. I do very much. Now why put in that proviso? It is not necessary. It just raises a lot of possibilities in respect to making sales. Why put that in at all; why put in such a proviso that it has to have an interpretation of international law? Why force an interpretation, a strained interpretation?
Mr. HACKWORTH. You are speaking about the Habana Convention, I suppose.
Mr. GIFFORD. Yes; that is international law; is it not?
Mr. HACKWORTH. But, as I said a few moments ago in discussing the convention, while it specifies food products and raw materials, I do not think that we are necessarily limited to those articles.
Mr. GIFFORD. We would not be limited, but that is the law, which is limited to food and raw materials; a strained interpretation could be put on it, or any other meaning that you want to place on it, because the limitation was in there. Now, I object to the provision for the interpretation of international law. Why have that at all!
Mr. HACKWORTH. There is a restriction in the Habana Convention. The Habana Convention provides
Mr. GIFFORD (interposing). Yes; we have that here. Mr. WILLIAMS. Well, let him insert it. Mr. HACKWORTH. I do not know that you have. Mr. GIFFORD. Yes; I have it. Mr. WILLIAMS. Well, I asked that he read it. Mr. HACKWORTH. The convention states thatThe neutral state is forbidden: To deliver to the belligerent, directly or indi. rectly, or for any reason whatever, ships of war, munitions or other war material.
These come under the exception with respect to food supplies and raw materials.
Mr. GIFFORD. But Finland is not a belligerent.
Mr. GIFFORD. Well, are you obliged to say that there is any war anywhere?
Mr. MILLER. Just for my information I would like to know whether there was a declaration between Poland and Germany, or either side, of a state of war.
Mr. HACKWORTH. I would not be able to answer that definitely. The President's proclamation, of course, included Germany and Poland.
Mr. MILLER. That is what I say; did it include Poland ?
Mr. LUCE. We recognized a state of war existing between Great Britain, France, and Germany, although Germany has never declared war; France and Great Britain may have, that is true; but Germany never declared war on France or Great Britain, did she ?
Mr. HACKWORTH. I think that what Germany did was to accept the declaration on the part of Great Britain and France.
Mr. LUCE. She accepted the declaration of war.
Now suppose in the spring Germany decides to invade Switzerland or Holland without declaration of war, would it be necessary for us to consider those countries as being at war?
Mr. HACKWORTH. I would not be able to pass on that. We would have to consider the question in the light of prevailing circumstances at the moment.
Mr. LUCE. Sweden is probably now exempted by the Johnson Act Mr. HACKWORTH. I think that is correct.
Mr. GIFFORD. I want to finish my question about this bill, and ask why is it necessary to have that proviso in the bill?
Can you tell me who put it in the bill, or why it is there? That is, that portion of the bill which puts a burden upon the department to interpret international law.
Mr. HACKWORTH. The provision was inserted in the Senate; I am not certain whether it was the Foreign Relations Committee or Committee on Banking and Currency.
Mr. GIFFORD. Did you suggest it, Mr. Jones?
Mr. JONES. They put it in when they considered the bill in executive session.
Mr. GIFFORD. Just one further question: Since they do not have a policy in the State Department, you would not know what they might do. And I was wondering whether you would rather have it out.
Mr. JONES. I would rather have it in.
Mr. GORE. Mr. Hackworth, you just stated categorically that the position of the State Department was that a loan to Finland, based upon this act, would not be a violation of the Neutrality Act. Would you also state that it is the position of the Department that it would not be a violation of international law?
Mr. HACKWORTH. I think that I can make that statement.
Mr. SIMPSON. Do I understand vou to say that a loan under this act would not violate the Neutrality Act?