823.248/291
Memorandum by Mr. Raymund Yingling of the Legal Adviser’s Office
In reply to the Embassy’s statement that the action of the Government of the United States in seizing the airplanes does not rest on any legal basis, it may be pointed out that the planes are in the United States. They are therefore subject to the jurisdiction and amenable to the laws of the United States whatever may be their origin and whatever destination may have been intended for them. The Act of October 10, 1940 (Public, Numbered 829, Seventy-sixth Congress) authorizes the President, when he determines that it is necessary in the interest of national defense, to requisition and take over any military or naval equipment, munitions, et cetera, “ordered, manufactured, procured, or possessed for export purposes, the exportation of which has been denied in accordance with the provisions of section 6 of the Act approved July 2, 1940 (Public, Numbered 703, Seventy-sixth Congress).”40 The airplanes in question are admittedly possessed for the purpose of export to Peru. Their export has been denied in accordance with the provisions of section 6 of the Act approved July 2, 1940 (Public, Numbered 703, Seventy-sixth Congress) by the revocation of the export license issued in accordance with the provisions of section 6. The case is therefore clearly within the terms of the Act of October 10, 1940.
The Embassy’s note expresses the view that the Act of October 10, 1940 cannot “contain provisions contrary to the postulates on freedom of transit proclaimed by international law.” If this means that there [Page 519] is an absolute right for the transportation of foreign property across the territory of a state this Government knows of no such right under international law. The jurisdiction of a nation over its own territory is absolute and any exemption or immunity from such jurisdiction rests solely on the nation’s consent. It is not understood that the Government of Peru contends that it enjoys any such immunity. Every state undoubtedly possesses the right in case of emergency and subject to compensation to seize any foreign property on its territory.
- 54 Stat. 712.↩