McNair Paper Number 33 Chapter 4, January 1995

The legal significance of "nonbelligerency" does not permit of much doubt . . . the abandonment of a strict impartiality demanded by the traditional law . . . served to give rise to the belligerent right of reprisal.(Note 1)

The years immediately preceding World War II found the United States in a state of national ambivalence. The horrible memories of the great war had not diminished, and the isolationism those memories nurtured expressed itself legislatively in the Neutrality Acts of 1935, 1936, and 1937.(Note 2) These laws were more restrictive than international law required and their object was more than neutrality. The Neutrality Acts were intended to keep the United States clear of entanglements that might unwittingly lead to war. In taking this more restrictive tack, "The Neutrality Acts . . . had not abandoned international law, they had only determined not to assert all possible rights under it."(Note 3)

Valid concerns over the international situation as the world slipped ever closer to war eventually replaced the dominant

domestic desire for isolationism. When war swept through Europe in 1939, the pendulum of U.S. foreign policy was swinging from isolationism to internationalism with a force that soon proved irresistible. Domestic politics and public opinion combined to slow the United States' entry into the war as a belligerent but accommodated unneutral actions as a de facto "nonbelligerent."

The neutrality debate notwithstanding, in December 1939, the United States Maritime Commission issued orders to radio operators of U.S. flag ships to be circumspect in their discussion of the location of Allied shipping,(Note 4) but back in October the President had authorized the reporting of any "submarine or suspicious surface ship" in "plain English" by the ships and aircraft of the U.S. Navy's neutrality patrol. They worked throughout the American Neutrality Zone established by the Declaration of Panama(Note 5) to keep belligerent ships out of an area that reached up to 300 miles from the coastline of the Americas. Units on patrol were also required to maintain contact with these vessels as long as possible. The effect of this order was to alert nearby British merchant ships to the presence of this threat. Because the reports were in English, it also provided easy to use locating information, adequate for British warships to intercept and engage their enemy's ships and submarines. Further, while the United States avoided reporting Allied vessels, citing the danger of being considered unneutral under prize law, "submarines and suspicious ships" were reported and tracked in de facto cooperation with the British.

Secretary of State Cordell Hull asserted, "International law . . . does not recognize any intermediate status between neutrality and . . . belligerency."(Note 6) That being the case, into which category did the Secretary place the United States? The implication is the administration was consciously and purposefully acting at variance from what it perceived the law to require. It could also be that there was a major disconnect between the Secretary and the President over which policy options should be considered appropriate.

In May 1940, when German victory on the Continent of Europe seemed almost certain, Prime Minister Churchill appealed to President Roosevelt, saying "You should proclaim non-belligerency, which would mean that you would help us with everything short of actually engaging armed forces."(Note 7) While "non-belligerency" had no legal definition, it certainly enjoyed a great deal of practice. Of course, practice without an intention to comply with the law is insufficient to produce law.

The United States never formally declared any departure from neutrality, but U.S. actions varied widely from the legal obligations of an impartial neutral. While never engaged at a level of intensity comparable to the combat ashore in Europe or Asia, the United States behaved in a clearly unneutral manner. In fact, long before the attack on Pearl Harbor, the U.S. Navy was essentially at war with Germany in the Atlantic. Because Germany could not afford to bring the United States fully into the war the U.S. transgressions were met with some restraint. So while asserting de jure neutrality, the United States exercised de facto belligerence, or better put--courtesy of Germany, ex gratia non-belligerence. Mr. Churchill's request was answered with definitive actions but lacked the nicety of a declaration (which would have been politically inexpedient for President Roosevelt).

Other statesmen were not so constrained in their treatment of the law in public pronouncements. After the fall of France on 17 June 1940, Italy, which had been "non-belligerent," entered the war, and Spain became a "non-belligerent," eschewing the impartiality of a neutral.(Note 8)

The next January, Roosevelt acknowledged the fact the war was clearly the business of the United States in his State of the Union address: "The future and the safety of our country and of our democracy are overwhelmingly involved in events far beyond our borders."(Note 9)

In an attempt to shore up the British in March of 1941, the President provided 10 large Coast Guard Cutters and other military equipment to British forces through the Lend-Lease Act.(Note 10) Those who believed the U.S. had forsaken neutrality were in agreement with Senator Taft who is quoted as saying the act actually granted Roosevelt power "to carry on a kind of undeclared war all over the world, in which America would do everything except actually put soldiers in the front-line trenches."(Note 11) Prime Minister Churchill believed the Lend-Lease agreement and the cooperation between naval forces placed the United States very close to war with the Axis Powers. In his correspondence with Roosevelt he confided that the actions of the United States Navy might decide the outcome of the Battle of the Atlantic and that convoys were being routed to take full advantage of its protection.(Note 12)

The President was intent on walking a fine line. He was willing to be a source of wartime supply openly for Britain, but he did not want U.S. ports to become an operating base for a belligerent's forces. By the end of March 1941, however, the British were repairing their ships in U.S. ports.(Note 13)

Attorney General, Robert H. Jackson, in a speech to the Inter-American Bar Association in Havana on 27 March 1941, attempted to explain away the U.S. actions stating:

There has seldom, if ever, been a long period of time in the last three centuries when states, for their own self-defense or for other motives, have been completely impartial in relation to the belligerents. . . . It is safe to assert that the absolute category of neutrality on the one hand, and belligerency on the other hand, will not square with the test of actual state practice, there is a third category in which certain acts of partiality are legal even under the law of neutrality.(Note 14)

At first blush it appears the Attorney General and the Secretary of State had a major difference of opinion about the requirements of international law. In retrospect, it is more likely the Attorney General's remarks were either apologetics regarding the actions of the United States or an attempt to expand, in this forum of potentially persuasive legal opinion, the U.S. interpretation of the aspects of the law that could justify U.S. actions that appeared to place the United States outside the parameters of neutrality. Although the major premise of his argument--that unneutral behavior routinely occurs--may have been true, it did not affect the way the world interpreted the requirements of neutrality.

The assertion that traditional neutrality was no longer complete was not mere political rhetoric justifying a sensitive policy (though it was that as well)--it was an assessment of the situation the world confronted in the years immediately prior to the United States' entry into the war. It became increasingly apparent that law was not restraining aggression, and neutrality was an ineffective policy for both powerful and weak states. The many states either fully embroiled in the war or painfully aware it might soon engulf them understood the assessment as incontrovertible fact:

The violation by Germany of the neutrality of Norway, Holland, Belgium, and Luxemburg in the spring of 1940 had far reaching effects upon the neutral American States. Argentina proposed that an attitude of "non-belligerence" be adopted. . . . Uruguay proposed a joint declaration of the American Republics protesting the violation of neutrality in Europe, and this was adopted and published May 19, 1940.(Note 15)

In the United States, however, public appreciation of this truth was slowed by strong isolationist sentiment.