823.248/253
The Peruvian Ambassador (Freyre) to the Secretary of State
Excellency: I have had the honor of receiving Your Excellency’s courteous notes of the 17th and 20th of the current month, both referring to the requisition of 18 Douglas planes, model 8A–5, belonging to the Government of Peru, which were in transit through territory of the United States.
My Government had hoped that the reasons set forth in this Embassy’s note of the 6th instant would induce Your Excellency to order the immediate return of the airplanes held in the port of New York to their legitimate owner; and it does indeed deplore the fact that such decision has not yet been taken, in violation of the fundamental rights of my country and with obvious disregard of every friendly consideration.
The preoccupation which dominates Your Excellency’s Government with respect to the problem of continental defense is also felt by the Government of Peru in the natural relativity of affairs. A sign of that preoccupation is constituted by all the statements and acts which Peru has recently made and performed in its eagerness to cooperate in the preservation of the vital interests of America.
But my Government has given, and is willing to continue giving such cooperation on the basis of absolute respect on the part of all the [Page 516] American Republics of the principle of the juridical quality of States. Freely, in the exercise of its attributes of sovereignty and in conformity with its own legislation, Peru could also have considered any suggestions which might have been made to it by the Government of the United States to the end that the planes belonging to it, in transit through American territory, be applied to meet supreme and undeferable needs of the armed defense of this Hemisphere. But Peru can by no means agree that another State, without consulting it and arrogating to itself a title which Peru is not willing to recognize to any nation, no matter how powerful it may be, may claim the right to decide unilaterally concerning goods which have already become part of Peru’s physical wealth. Such action is not only unfriendly, it is in open conflict with the Pan American spirit.
My Government also considers that the attitude of the Government of the United States does not rest on any sort of legal basis. It is true that the law of October 10, 1940 authorizes the President to requisition and attach certain military and naval items in the interest of national defense, but only such items as had been “ordered, manufactured, procured or possessed for the purpose of exportation” in American territory. The law referred to does not in any way allude to goods in transit, and the 18 Douglas airplanes, model 8A–5, which had been shipped at Toronto, Canada, and were consigned to Callao, Peru, were passing through this country on a journey which had begun and was to end outside the borders within which United States territorial law governs. The law of October 10, 1940 could not contain provisions contrary to the postulates on freedom of transit proclaimed by international law, postulates which the Government of this nation has on multiple occasions made its own; and it is for that reason that there was only included among its precepts the authorization for the President of the United States to requisition and attach goods intended for export. Such is the conclusion one unavoidably reaches in reviewing its structure. If this were not the case, this legislative work would constitute a menace for the security of international commerce.
My Government firmly believes, then, that the act of which it has protested and does protest is not based on any legal provision and, trusting in Your Excellency’s high sense of justice, instructs me once more to request the immediate return of the 18 Douglas planes, model 8A–5, held in the port of New York, and to renew its just claim for the damages and prejudices which it is being occasioned by the action injurious to its right and interests which has been perpetrated by the authorities of the United States.
I avail myself [etc.]