In view of the action which has been taken on the American Memorandum
of June 15, 1934, which arose out of Mr. Davis’ speech before the
General Commission on May 29, with reference to the manufacture of
arms, it is very probable that in the subsequent steps which must be
taken to prepare draft articles in regard to the trade in arms this
Delegation will be compelled to take the initiative.
It would be very helpful if the delegation could receive the
Department’s views on the subject matter of the enclosed memorandum
before September 1st.
[Enclosure]
Memorandum by the War
Department Adviser to the American
Delegation (Strong)
1. Paragraph 6 of the Report to the General Commission50 adopted by the
Committee for the Regulation of the Trade In and Manufacture of
Arms (Conf.D./C.C.F.47–(1)) states that, in the draft articles
accompanying the Report, more especial attention has been
devoted to manufacture than to trade, because the adaptation of
the Convention of 1925 to the needs of the General Disarmament
Convention has already been studied in the sub-committee on
Trade (Conf.D./C.C.F./40 and 40–(a)). It
is to be noted, however, that the report cited contains no
measure of unanimity as regards the extension of the provisions
of the 1925 Convention in order to meet the requirements of the
General Disarmament Convention. In consequence it appears
necessary to consider what specific measures should be taken
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in order that articles
may be drafted to bring the subject of trade in arms on a parity
with the provisions now being considered for the regulation of
the manufacture of arms.
2. Article “D” of the draft articles adopted for the manufacture
of arms contains, in paragraph two, an undertaking not to permit
the export or import of arms or implements of war without an
“export or import license”, and Article “H” refers to measures
of “permanent and automatic supervision” for which special
methods are to be laid down and one of the objects of which is
to verify that manufactures, exports and imports accord with the
provisions of the articles drafted. In consequence, in order
that the draft articles already adopted may be balanced, it is
necessary, for their clarification, to determine what steps may
be needed for the proper execution of the provisions in regard
to trade. In this connection, as a matter of principle, I
believe that whatever provisions may be drafted should be
complete in themselves and entirely divorced from the 1925
Convention.
It will be remembered that the 1925 Convention on the Traffic in
Arms was drafted to replace the abortive Convention of St.
Germain52 and
was in reality a revision of the live portion of the Brussels
Pact.53 Its principal
purpose was the regulation of trade in arms and the prevention
of gunrunning in certain special zones. It would be only
incidentally applicable to the remainder of the world. It was
drafted by an international conference54 separate and distinct from the General
Disarmament Conference and has not yet received sufficient
ratification55 to bring it into force. If it ever
does come into force the many troublesome questions, essentially
local in character, which will inevitably arise, might well
jeopardize the General Disarmament Convention, if the two were
bound up together. In consequence, as a matter of policy, we
should consider the inclusion in the General Disarmament
Convention only of such subject matter appearing in the 1925
Convention as is applicable to the problem of the limitation and
reduction of armaments, and this without any direct reference to
the 1925 Convention.
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3. The 1925 Convention provides, in Article 2, that the export of
arms covered by Category I should be for direct supply to a
government or a public authority subordinate to it, and that
permission to export articles of this category may not be
granted except on an order signed or endorsed by a
representative of the importing government. Article 3 provides
for certain exceptions which permits the export of articles
covered by Category I, to private persons such as manufacturers
of war matériel, rifle associations, and when destined simply
for demonstration purposes, upon an authorization from the
government of the importing country. The application of the
provisions of Articles 2 and 3 is provided for in Article 4, in
the form of a license or an export declaration approved by the
competent authorities of the exporting country.
4. The articles covered by Category II of the 1925 Convention may
be exported under cover of an export license and this does not
require any approval by the authorities of the importing
country, unless the legislation of that country requires it,
provided this fact has been notified to the exporting country.
Except for exports to the special zones designated in the 1925
Convention, no limitations as regards exports of other
categories of arms are found in the 1925 Convention.
5. For the purposes of the General Disarmament Convention, in
order to bring the provisions for trade on a par with those
tentatively adopted for manufacture, it would appear sufficient
to provide a graded system of supervision and control which
would depend essentially upon the revision of the categories of
arms. Assuming that the categories are revised so as to provide
separate categories for those arms limited qualitatively, those
limited quantitatively, those arms unlimited but which form a
part of the standard equipment of modern armies, a category for
naval armament, one for air armament and a category for
obsolete, obsolescent and sporting or non-military arms, the
system for regulation of trade might well be based upon the
following principles:
- (a)
- The prohibition of the trade, either export or import
of arms and implements of war, the manufacture of which
is banned, or the use of which is renounced as a result
of qualitative limitations appearing elsewhere in the
Convention;
- (b)
- The restriction of exports or imports of arms or
implements of war which are limited quantitatively, to
the supply of governments only, under cover of a special
permit issued by the exporting government with the
approval of the importing government;
- (c)
- For arms or implements of war which are limited
neither quantitatively not qualitatively, but which
appear in a category indicating that they are designed
for land, sea or aerial warfare and not covered by other
categories, trade might be allowed for the supply either
to a government, a public authority acting under it, a
manufacturer of war
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matériel or to a private person
provided the import was authorized by the government and
such authorization evidenced by either an import license
or a consular visa.
- (d)
- For arms and implements of war capable of being used
for both military and non-military purposes, which would
include obsolescent and possibly obsolete military arms,
export might well be allowed by merely a consular visa
by a representative of the importing country.
- (e)
- For those arms and implements or materials designed
and intended primarily for non-military use, but which
might conceivably be turned to some military use in the
absence of better matériel, it would appear sufficient
to cover these items merely by an export license and
publicity.
6. The application of this scheme is dependent, of course, upon
the contents of the categories referred to, but it seems to
offer a practicable solution to the difficulty and prevent undue
interference in the limited field left to the legitimate
activities of arms manufacturers. It is essential, I believe,
that normal commercial articles such as blasting powders and
other commercial explosives, automotive vehicles which might be
converted to military purposes, commercial aeroplanes and power
plants of various kinds, be subjected to as little interference
as possible under the circumstances.
7. Sight must not be lost of the fact that in considering the
Convention as a whole the greater the restrictions put on export
trade in its widest sense, the greater will be the general
difficulties experienced in the application of the other
portions of the Convention. For instance, it is quite possible
that in the application of the suggestions made in regard to
categories of arms limited quantitatively we may meet this
situation: a country entitled to one hundred military aeroplanes
may, at a given date, actually have sixty and on that date may
order twenty-five from licensed manufacturers in each of four
producing countries, our own included. Under the system of
publicity contemplated, it is probable that the Permanent
Disarmament Commission would have knowledge of the fact and
would take action prior to the date of shipment of these planes.
Under the provisions of the third paragraph of Article “C” we
might well refuse an export license for the twenty-five of these
planes made by the American manufacturer who had taken the order
in good faith, and then, as a government, we might face the
embarrassing situation—providing we were up to our limit of
military planes in this country—of having an excess of
twenty-five planes which would have to be destroyed or otherwise
disposed of. Under these circumstances an interesting question
arises as to the property rights of the manufacturer who has
acted in good faith. Take another instance: commercial
explosives are largely used throughout the world for
construction projects. The supply of such items to a bona fide
construction company carrying out a legitimate civilian
construction
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project
should not be hampered in any respect by the application of
provisions of the General Disarmament Convention even though
these explosives, for lack of something better, might in time of
emergency be turned to military use. These two illustrations
indicate the complexity of the problem to be faced and the
necessity of good judgment and careful thought in any attempted
solution.
8. The illustrations given in the preceding paragraph raise a
question as to whether or not, in the internal legislation
necessary to give effect to the articles governing manufacture
and trade it is not necessary to take some steps to provide for
losses sustained by a manufacturer who has taken an order in
good faith, but who later is prevented from making delivery
under that order due to operation of provisions of the
Convention in circumstances over which he has no control. Such
provisions, if contemplated, should of course be very strictly
drawn in order to prevent abuse. It is to be noted, however,
that if reasonable steps are taken to protect the interests of
manufacturers who have acted in good faith, it is very probable
that the arms manufacturers could be counted upon to give
support to the regulation of the trade in arms rather than
jeopardize the Convention as a whole by strenuous opposition to
these provisions.
9. I am strongly of the opinion that the system outlined in
Paragraph 5 of this memorandum, that is, a graded system of
control corresponding roughly to a reasonably graded system of
categories, offers the only practicable solution for the
question of the regulation of trade in arms.
Geo. V. Strong
Lt.-Col., G. S. C.
