Foreign Relations of the United States Diplomatic Papers, 1934, General, the British Commonwealth, Volume I

500.A15A4 General Committee (Arms)/35

The American Delegate (Wilson) to the Secretary of State

No. 104

Geneva, October 13, 1934.
[Received October 23.]

Sir: I have the honor to supplement my despatch No. 103, October 3, 1934,⁷⁷ by the transmission herewith of Chapter IV accompanied by Annex I of the Draft of a Treaty on the Manufacture of and Traffic in Arms and Implements of War. Chapter IV envisages the setting up, competence and functions of the Permanent Disarmament Commission.

As we progressed in the study of this question, we became increasingly impressed with the fact that the limited scope of the convention now under consideration alters materially the nature and ends of supervision and especially of inspection within the territory. In the limited convention the inspection would appear to be for the purpose of establishing the accuracy of information submitted and would not, as in any general convention, occupy itself with any form of qualitative and quantitative limitation. This robs inspection somewhat of its dangerous character, since any adverse findings would be of a less serious nature as applying only to provisions of publicity rather than in contravention to limitations or restrictions on manufacture or possession. The scope now is more clearly limited by the convention itself, whereas in a general disarmament convention the scope of an investigating committee might conceivably have been applied to almost any form of national or local activity.

It is true, as the Department has no doubt realized, that the inspection provisions of Chapter IV of this Draft Convention seem overbalanced and out of focus, having regard to the limited character of the agreement under consideration. As we see it here, however, the supervisory or inspection features of a limited convention are those which many States will find more interesting and desirable than the other, or what might be termed substantive provisions of a proposed treaty relating to manufacture of and traffic in arms. This we believe is especially the case with France and Russia. Therefore it is felt that the successful conclusion of a limited convention regarding the manufacture of and traffic in arms depends measurably upon the extent to which supervisory provisions are included and the importance and extent assigned to this aspect of the treaty. This clearly does not obviate the necessity for a precise definition of the rights, duties and limitation of powers of these special committees. We have endeavored to comply in the fullest possible measure with the Department’s desire for precision in the relations and duties of the investigating committees. It is difficult at present to write with further precision what those duties will be. Presumably the discussion which will center around these articles will give us clarification as to those points on which precision is necessary. I should be grateful if the Department could point out shortcomings in the draft on which further precision could be formulated. The thing that gives me concern is the difficulty of defining the rights of an investigating committee after it arrives on the territory of the State to be investigated. The only precisions which we have written lie in the general limitation that the investigation shall apply to matters covered by the convention, and the specific restrictions contained in paragraph “O”. I am satisfied that this is not all that is necessary. But, as I stated above, at present writing I do not feel competent to go further.

The enclosed articles have reproduced, in so far as they are applicable, the sections of the British Draft Convention relating to the establishment of the Permanent Disarmament Commission and the amendments introduced into these articles as a result of the deliberations of the Committee of the Bureau on General Provisions. (See Conf. Doc. Bur./C. D. G. 3/Dec. 7, 1933.) In many instances these original articles will not fit in a convention dealing only with the manufacture of and traffic in arms and have been either modified to meet the changed circumstances or omitted where they no longer applied. New provisions for publicity of manufacture and trade have been inserted in this section.

Please refer to Article “K”. You will note that in the first paragraph we have provided “… the Commission shall be entitled annually, or more often if it so desires, to examine …” We have adopted this phraseology rather than using a more mandatory form in order not to create too cumbersome a machine for the purpose desired. If the Convention should make it obligatory that every State should be inspected every year, the machine would not only be cumbersome and expensive, but would accomplish innumerable investigations of States whose neighbors had no apprehension regarding their activities and in which the investigation was patently useless. We therefore thought it better to establish the principle of annual inspection but to leave it to the Commission itself to determine the frequency thereof. On the other hand, cases might arise where the Commission might feel that an inspection should be immediately followed by another inspection for the purpose of deciding specific questions, and to cover this contingency we inserted the words “… more often if it so desires …”

I should be happy to learn whether this meets your conception of automatic control or whether you would prefer to have the article drafted in a more mandatory form.

In relation to the first paragraph of Article “K” I give below the draft of another article to be inserted in Chapter I of the Draft Articles enclosed with my despatch No. 103, October 3, 1934, providing for a report to the Permanent Disarmament Commission of the national control set up by each contracting party.

“The High Contracting Parties shall inform the Commission of the provisions of the national control exercised over the manufacture of and trade in arms and implements of war within the territory under their respective jurisdiction.”

I invite attention to the fact that different types of committees are set up under Articles “K” and “M”. Article “M” deals with complaints, and a complaint immediately creates a more serious situation than a normal investigation and therefore, it seems to us, should be handled with special precaution. Hence the final paragraph providing that the two Parties to the complaint shall not be members of the special investigating committee, but shall be represented by assessors only; and the further provision for a majority of States on the committee not directly interested in the complaint. The precaution has also been taken in Article “M” of providing for a two-thirds majority of the Commission to acquiesce in the special investigation based on complaint.

Article “N” raises a question of considerable importance. The final sentence reads as follows:

“The High Contracting Parties shall promptly advise as to the conclusions of the report.

As you will remember, practically this phraseology was originally adopted by the Preparatory Commission in its Article 50 of the Draft Convention⁷⁸ and was designed to make consultation possible between all States signatories in the event of a grave situation arising. In the case of a limited convention it is, of course, unlikely that an infraction of the convention would bring about a threat of war. On the other hand, it seems essential that some form of consultation should be provided. For instance, consultation might be the best means of obtaining relief from the obligations of the treaty for the neighbors of a State which had persistently and with premeditation violated its provisions.

Presumably investigations under the limited convention would not be of immediate or vital importance, yet some consultation regarding them would seem necessary. It would appear advisable, therefore, to make some provision for this eventuality, but to make it in a way which would cause the least publicity and the least apprehension on the part of the public. The Contracting Parties might consult diplomatically, though this, of course, is a clumsy procedure. They might consult through the Council of the League, but this raises certain difficulties for us and is inevitably a matter of wide public comment. It has occurred to me that you might think it wise to phrase the final paragraph of Article “N” somewhat as follows:

“At the instance of one of the members of the Commission, the High Contracting Parties shall promptly advise as to the conclusions of the report, in the first instance, through their representatives on the Permanent Disarmament Commission.”

Such advice through the ordinary machinery of the Commission would seem to be sufficient to liquidate minor questions which might arise as to infraction. If more serious questions arise either the States could name special members to the Permanent Disarmament Commission for the purposes of consultation, or another form of consultation would readily be devised.

Obviously any clause in a treaty that deals with consultation has to be scrutinized with the utmost care on our part, since the setting up of any form of consultation might and very probably would invite attempts on the part of certain States to urge the use of collective measures in the case of violation. The limited nature of this treaty should nevertheless be the guarantee that at any time the American Delegate would be free to refuse to follow in any such action, I fully realize what a difficult matter is this question of advice and the general as well as specific objections to our making any undertaking in this connection. I do feel strongly, however, that even if we left out of any draft treaty any mention of advice it would be brought up from another source in a more objectionable form. Furthermore, our willingness to “advise” in this relation would be an important if not, perhaps, decisive factor in bringing about agreement on such a convention.

With reference to Article “O”, this text is adapted from the Draft Articles Relating to the Manufacture of and Trade in Arms approved July 2, 1934,⁷⁹ by the committee dealing with this subject. I ask your consideration of the phraseology adopted. I feel that it is indispensable that knowledge which could lead to unfair competition should not be made available to the trade rivals of the concern inspected. On the other hand, monies expended on certain types of materials may be an important index as to quantities produced or contemplated for production. I confess that I am not entirely satisfied as to the phraseology and would appreciate your observations on this article.

Articles “R”, “S” and “T” deal with functions of the Permanent Disarmament Commission which are entirely separate from the functions as specifically applying to the treaty on manufacture of and traffic in arms and implements of war. I am not sure what form exactly the wishes of the members of the Disarmament Conference will take as to the continuation of the Conference itself. It may be that they will decide to continue the Conference for active work, when conditions are ripe, on a general disarmament convention. It may be they will decide to continue the Conference purely as a façade while delegating the Conference work to the Permanent Disarmament Commission set up under this treaty. Or, it may be—a third alternative—that they will prefer to terminate the Conference and turn over its mandate to the Permanent Disarmament Commission. Whichever one of these alternatives meets general approval, there will probably be some attempt made to have the Permanent Disarmament Commission carry on the general disarmament work. We have therefore considered it wise to meet what we believe to be the general view by drafting Article “S” in such form that it could be readily adapted to any of the alternatives. In this connection please see my telegram No. 936, October 4, 10 p.m.

We have not attempted to draft articles of ratification since ratification inevitably differs in accordance with the document drawn up and can only be written effectively in the light of the text adopted.

Respectfully submitted,

Hugh R. Wilson

[Enclosure]

Chapter IV

permanent disarmament commission

Composition

Article A.

There shall be set up at the seat of the League of Nations a Permanent Disarmament Commission composed of representatives of the Governments of the H. C. P. Each such Government shall appoint one member of the Commission. Each member may be accompanied by substitutes and experts.

The Governments of the H. C. P. will inform the Secretary-General of the League of Nations of the names of their representatives, substitutes and experts on their nomination and on any changes being made.

Article B.

The Commission may be assisted by experts chosen by itself, not being experts appointed by the H. C. P. to accompany their representatives, it being understood, however, that these experts may not accompany either the inspection or special investigation committee.

Article C.

The members of the Commission, their substitutes and experts, and the experts and officials of the Commission, when engaged on the business of the Commission, shall enjoy diplomatic privileges and immunities.

Article D.

The Secretary-General of the League of Nations shall provide the Secretariat of the Commission.

Functions

I.

Article E.

It will be the duty of the Commission to follow and report upon the execution of the present Convention and to this end it will as hereafter provided

(1) examine the information furnished under the provisions of the present Convention,

(2) establish an adequate system of publicity for manufacture of and trade in arms,

(3) cause permanent and automatic inspections to be made,

(4) cause special investigations to be made.

Article F.

The Commission shall receive, co-ordinate and carry out an examination of the information furnished by the H. C. P. in pursuance of their obligations under the present Convention.

Article G.

With the view to following the execution of the present Convention, the Commission shall publish the results of its examination of the information received.

Article H.

The Commission shall publish within three months after the close of each quarter a return of the statistical data furnished under the provisions of Article G (Chapter I), duly co-ordinated, and showing the situation as regards the orders for the manufacture of, and the traffic in arms and implements of war. It shall likewise publish annually a duly co-ordinated table showing the production of arms and implements of war.

Article I.

Within the limits of the obligations assumed, the Commission may request the H. C. P. to supply, in writing or verbally, any supplementary particulars or explanations in regard to the information furnished.

The Commission may take into account any other information which may reach it from a responsible source and which it may consider worth attention.

In all cases it will examine information furnished by any member of the P. D. C.

Article J.

The Commission shall be entitled to hear or consult any person who is in a position to throw any light on the question which is being examined by the Commission.

Article K.

Within the limits of the obligations assumed under the present Convention, the Commission shall be entitled annually or more often if it so determines to examine upon the territory of each of the H. C. P.’s the conditions of the national control exercised by the H. C. P.’s over the manufacture of and trade in arms and implements of war; the operation of such control and the accuracy of the information furnished.

To this end the Commission shall create committees, which will be entrusted with the duty of proceeding to the local inspections provided in this Article.

The Commission shall determine the composition of these committees, and shall issue instructions within the scope of the rules set forth in Annex I.

Article L.

Any H. C. P. shall be entitled to request the Commission to conduct in its territory such investigation as may be necessary in order to verify the execution of its obligations under the present Convention.

On receipt of such a request, the Commission shall meet at once in order to give effect to it and to determine the scope of any such investigation and to lay down the conditions in which the investigation is to take place: it being understood that the Commission may decide not to hold such investigation if the H. C. P. making the request is satisfied with the results of the Commission’s deliberations.

Article M.

If one of the H. C. P. is of the opinion that the provisions of the present Convention have been infringed, such a Party may address a complaint to the Commission.

The Commission shall meet at once to consider the matter and will invite the H. C. P., whose attitude towards the fulfillment of its obligations has produced the complaint, to supply it with all the explanations which may be useful.

Should the Commission determine that the complaint is of such a nature as to warrant a special investigation, its decision to conduct the investigation on the territory of the H. C. P. in question must be taken by a two-thirds majority of all members of the Commission whether present at the meeting or not.

The special investigations provided for in the present Article shall be carried out by a special committee created for this purpose. These special investigating bodies shall include a majority of members from States of regional groups other than those including the States concerned.

The State making the complaint and the State undergoing special investigation shall not be represented on the special committee by members but shall name one or more assessors who shall accompany the committee during such inspections.

Article N.

The results of any investigation decided upon in accordance with Articles K. L. and M. shall be embodied in each case in a special report by the Commission.

The H. C. P.’s shall promptly advise as to the conclusions of the report.

Article O.

Processes, trade secrets, production costs and profit-accounting of manufacturing concerns shall be exempted from any investigations under the provisions of the preceding articles.

Article P.

Each member of the Commission shall be entitled to require that, in any report by the Commission, account shall be taken of the opinions or suggestions put forward by him, if necessary in the form of a separate report.

Article Q.

All reports by the Commission shall be immediately communicated to the H. C. P. and to the Council of the League of Nations.

II.

Article R.

The Commission shall furthermore receive and cause to be published the information which the H. C. P.’s are bound to communicate in respect of their armaments to the Secretary-General of the League of Nations in pursuance of their international obligations in this respect. The Commission may request the H. C. P.’s to supply in writing or verbally any supplementary particulars or explanations regarding the said information.

Article S.

The Commission shall undertake such studies as it may deem appropriate to carry on the work of the Conference for the Reduction and Limitation of Armaments and to facilitate the realization of further progress toward the establishment of a General Disarmament Convention.

Article T.

Within the limits of its functions, the Commission shall supply the Council of the League of Nations with any information and advice which the Council may request of it.

Operation

Article U.

The Commission shall meet for the first time, on being summoned by the Secretary-General of the League of Nations, within three months from the entry into force of the present Convention, to elect a provisional President and Vice-President and to draw up its Rules of Procedure.

Thereafter it shall meet at least once a year in ordinary session on the date fixed in its Rules of Procedure.

It shall also meet in extraordinary session:

(1) When such a meeting is prescribed by the present Convention;

(2) If its Bureau so decides, either of its own motion or on the request of one of the H. C. P.’s;

(3) On the request of the Council of the League of Nations.

Article V.

The H. C. P.’s will make available to the delegates of the Commission who are entrusted with the investigations referred to in Articles K. L. and M. the necessary facilities for the execution of their missions. The H. C. P.’s will employ the means at their disposal to secure the attendance of any witnesses whom the delegates of the Commission may wish to hear.

Article W.

Except in cases where larger majorities are provided for under the present Convention or in the rules of procedure of the Commission, the decisions of the Commission will be taken by a majority of the members present at the meeting, abstentions being counted as absences.

A vote may only be taken on the adoption of the rules of procedure of the Commission if half at least of the H. C. P. are represented at the meeting.

If, owing to this quorum not being reached, the Commission is unable to act, a second meeting may be called fifteen days later. At this second meeting the draft rules of procedure may be validly adopted, whatever be the number of members present.

The Commission may only validly consider modifications of the rules of procedure provided that the object of such modifications has been stated specially in the convocation.

The provisions stipulated above in this Article concerning the number of attendances necessary for the adoption of the rules of procedure shall apply to discussions of modifications thereto. Moreover, in order that the draft modifications may be adopted, a two-thirds majority of the members present at the meeting shall be required.

Article X.

The general expenditure of the Commission shall form the subject of a special chapter in the budget of the League of Nations.

The H. C. P. who are not members of the League shall bear a reasonable share of the said expenditure. An agreement to this effect will be reached between these parties and the Secretary-General of the Commission.

The travelling expenses and subsistence allowances of the members of the Commission, their substitutes and experts shall be paid by their respective Governments.

The Commission shall draw up regulations relating to the expenditure necessitated by its work.

Annex I

Article 1.

The Commission shall determine the number of inspection committees and the regions to be assigned to them.

The composition of the group of States under the jurisdiction of the same committee shall be determined in such a way as not to include any Powers not maintaining diplomatic relations with each other.

This composition may be modified at any time by the Commission.

Article 2.

The Commission will appoint the members of the inspection committees.

All States belonging to a regional group under the jurisdiction of a committee shall be represented thereon on a basis of absolute equality. Each Committee will, in addition, include nationals of other States.

While the Committee is proceeding to the local inspection in the territory of a State, the representatives of such State shall cease, temporarily and until the inspection is finished, to sit on the Committee.

On the other hand, the State undergoing inspection shall name one or more assessors who shall accompany the Committee during such inspection. These assessors shall be constantly at the disposal of the Committee in order to facilitate the accomplishment of its task. The Committee shall not refuse them the right to be present at its investigations.

Article 3.

The chairmanship of the Committees shall be assumed by each of the members in turn. The rotation will be determined by drawing lots.

Article 4.

The Committees will draw up the program of each investigation in conformity with the instructions given them by the Commission.

Article 5.

The Committees’ sole task shall be the establishment of facts. In particular they shall not give orders or make observations to the local, civil or military authorities. When help is required from these authorities it shall be requested through the intermediary of the assessors representing the State under inspection. These assessors must be provided with written instructions giving them all necessary powers for this purpose.

77. Not printed.
78. League of Nations, Documents of the Preparatory Commission for the Disarmament Conference Entrusted With the Preparation for the Conference for the Reduction and Limitation of Armaments, Series X: Minutes of the Sixth Session (Second Part) of the Preparatory Commission for the Disarmament Conference (Ser. L. o. N. IX. Disarmament 1931. IX. 1), p. 618; Department of State, Conference Series No. 7: Report of the Preparatory Commission for the Disarmament Conference and Draft Convention (Washington, Government Printing Office, 1931), p. 99.
79. Conference Documents, vol. iii, p. 894.