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Full text of "Collective security under international law"

NAVAL WAR COLLEGE 
NEWPORT, RHODE ISLAND 



INTERNATIONAL LAW 
STUDIES 



COLLECTIVE SECURITY UNDER 
INTERNATIONAL LAW 

by 
Hans Kelsen 



$ 



1954 

(1956) 

NAVPERS 15031 
Volume XLIX 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1957 



For sale by the Superintendent of Documents, U. S. Government Printing Office 
Washington 25, D. C. - Price $1.75 



FOREWORD 

The following study is an attempt to present a theory of collective security 
from a legal point of view. Its main purpose is to show that collective security 
is an essential function of law, national as well as international, and that, 
therefore, there exists an intrinsic connection between international security 
and international law ; in other terms, that collective security of the state within 
the international community is, just as collective security of the individual 
w r ithin the state, by its very nature a legal problem. 

The study does not intend to describe the historical development of collective 
security as a problem of international organization; it is restricted to its 
systematic analysis. Consequently, the material of positive international law 
referred to in the text and especially in the notes does not lay claim to complete- 
ness; but is to be considered as a selection of characteristic patterns illustrating 
the most important statements. 

Hans Kelsen. 

Berkeley, Calif. 

ii 



PREFACE 

The publication of this series was inaugurated by the Naval War College 
in 1894. This is the forty-ninth volume in the series as numbered for index 
purposes. This title has varied slightly from year to year. The preceding vol- 
ume, International Law Documents, 1952-53, was published in 1954. 

The present volume inaugurates a new form for this series. In 1953 a Chair 
of International Law was established at the Naval War College. One of the 
duties of the occupant of this Chair is the preparation of a study on a phase 
of International Law that is of special interest to the U. S. Navy. This 
volume on the legal theory of collective security, the first of a series sponsored 
by the Naval War College, was prepared by Dr. Hans Kelsen, the 1953-54 
occupant of the Naval War College Chair of International Law. 

The many significant events in this era of rapid change in world conditions 
have prompted the author to insert much new material into this volume before 
its final release. Thus, although for continuity purposes this volume is en- 
titled International Law Studies, 1954, some of the material and notes con- 
tained herein represent the views of the author as of about October 1, 1956:. 

The opinions expressed in this volume are not necessarily those of the U. Si 
Navy or the Naval War College. 



Thomas H. Robbins, Jr., 
Rear Admiral, United States Navy, 

President, Naval War College. 
Newport, 1 December 1956. 



hi 



TABLE OF CONTENTS 

Page 

I. THE CONCEPT OF COLLECTIVE SECURITY 1 

1. Individual and Collective Security 1 

2. Security and Law 5 

II. THE DIFFERENT DEGREES OF COLLECTIVE SECURITY. 10 

1. The Scope of Protected Interests 10 

2. The Centralization of the Procedure for the Ascertainment of a 

Delict (i. e., an Illegal Use of Force) and for Determining the 

Party Responsible for It 12 

3. The Prevention of the Illegal Use of Force by the Peaceful 

Settlement of Conflicts 15 

4. Legal (Justiciable) and Political (Non-justiciable) Conflicts 

(Disputes) 19 

5. Removal of the Causes of the Illegal Use of Force 22 

6. The Centralization of the Use of Force as a Sanction 23 

7. Self-Defense 26 

8. The Centralization of the Law- Creating Function (the Peaceful 

Change of Established Legal Relations) 28 

9. Universal and Regional Security Organizations 29 

III. INTERNATIONAL SECURITY 34 

1. Collective Security under General International Law 34 

(a) The helium justum principle 34 

(b) Alliances and the balance of power 39 

(c) The opposition to international security 42 

2. Collective Security under Particular International Law 53 

(a) Defining the use of force to be prohibited 53 

(b) The problem of aggression 58 

(aa) The military concept of aggression and the legal 

concept 58 

(bb) Aggression and self-defense as a restriction of the 

prohibition of the use of armed force 59 

(cc) Other exceptions to the prohibition of the use of 

armed force 62 

(dd) Aggression as conduct not including the use of 

armed force; indirect aggression 63 

(ee) The definition of aggression 66 

(ff ) The attempt to eliminate the problem of aggression . . 67 
(gg) Is the concept of aggression not susceptible to def- 
inition? 69 

(hh) The two methods of defining aggression 70 

(ii) The arguments against a pre-established definition of 

aggression 73 

(j j) Is aggression a political concept and not a legal one? . . 75 
(kk) General or enumerative definition of aggression .... 78 
(11) The difficulties in defining aggression and in de- 
termining the aggressor 83 

(mm) The problem of provocation 86 

v 



TI 

III. INTERNATIONAL SECURITY— Continued 

2. Collective Security under Particular International Law — Con. Page 

(c) Sanctions 101 

(aa) The concept of sanctions 101 

(bb) The execution of sanctions within an international 

security system 104 

(cc) Non-military sanctions 106 

(dd) Military sanctions 110 

(A) The opposition to military sanctions 110 

(B) The organization of military sanctions Ill 

(C) The international police force organized as a 

permanent and separate armed force at the 

direct disposal of a security organization 113 

(D) The procedure preceding the execution of sanctions . 1 20 

(E) Sanctions constituting individual responsibility for 

violations of international law 122 

(F) Sanctions consisting of the forfeiture of rights. . . . 125 

(d) Peace treaties and neutrality 152 

(aa) Peace treaties within a system of international 

security . 152 

(bb) Neutrality within a system of international security . 154 

(e) Preventive measures 171 

(aa) Consultation 171 

(bb) The peaceful settlement of international disputes. . . 181 
(cc) The peaceful change of legally established inter- 
national relations 194 

(dd) Disarmament 197 

Disarmament and security 197 

Physical disarmament 198 

The aim of disarmament 202 

Total or partial disarmament 202 

Immediate complete or gradual (progressive) dis- 
armament 204 

Proportional or balanced disarmament 205 

Geographical disarmament 205 

Reduction and limitation of expenditures 206 

Derogations 207 

Control 207 

Moral disarmament 210 

(ee) Economic cooperation 253 

(f f ) Universalism and regionalism 258 



COLLECTIVE SECURITY 

I. THE CONCEPT OF COLLECTIVE SECURITY 
1. INDIVIDUAL AND COLLECTIVE SECURITY 

Security is the condition of being protected against, or not exposed 
to, a danger. It is an objective condition of man which, rightly or 
wrongly, man assumes to exist. The effect of this assumption is a 
certain state of mind which may be described as freedom from fear, 
the fear of a danger. There are different kinds of security which 
may be distinguished according to the nature of the danger. Religion 
affords a spiritual security, protecting man against the dangers threat- 
ening his soul during his lifetime and especially after his death. There 
is a sanitary security established by health organizations to prevent 
or restrict, as far as possible, epidemics. To guarantee economic secu- 
rity is the ideal which socialism tries to realize in order to free man 
from his fear of being deprived of the means for satisfying his most 
vital needs. The security with which this book deals is the protection 
of man against the use of force by other men. 

"Collective" security is usually distinguished as the security of 
states in their relation to other states, sometimes called "international" 
security, from individual security as the security of individual human 
beings in their mutual, inter-individual, relations. 1 Consequently, the 
use of force against which states are supposed to be protected by a 
system of collective, or international, security is the use of armed 
force, especially that use known as war. 

However, it is not quite correct to consider collective security, the 
security of states within an international community, and individual 
security, the security of the individual human beings within a state, 
as opposite concepts. In the last analysis, the security of a state is the 
security of the individual human beings who are members of a state. 

According to a generally accepted view, the state is a political or- 
ganization. As an "organization" it is a normative order regulating 
the mutual behavior of men. As a "political" organization it is a 
coercive order because its specific means is the employment of force, 
i. e., the threat and use of force. This means that the norms of this 
order provide for coercive acts as reactions against human behavior 
considered to be harmful to society. Such reactions are the essence 
of the law or of a legal order. If a legal order is centralized — that is, 



if it institutes special organs for its creation and application and, 
especially, for the execution of the coercive acts, called sanctions — the 
social order is a state. As a social order, the state is not different from 
what is usually called the law of the state or the national legal order, 
for the state is a centralized legal order constituting a legal community. 

In the language of political theory, the state is described as not 
only a social order but also as an acting person. It is said that the state 
creates, applies and, especially, enforces the law, that is, the norms 
of the legal order. However, as an acting person, the state is only the 
personification of this order. In this capacity, the state manifests its 
existence in acts of state which are always acts of individual human 
beings determined by the legal order constituting the community. The 
acts concerned are those by which the coercive order is created and 
subsequently applied to other individual human beings whose behavior 
is thus regulated. The individuals performing these acts are "organs," 
organs of the legal order or, what amounts to the same thing, of the 
state as a legal order, in contradistinction to the individuals to whom 
the legal order is applied by the organs. These individuals are the 
subjects of the legal order, or the subjects of the state as a legal order. 
The statement that the acts concerned are acts of the state is a figure 
of speech which metaphorically expresses the idea that the state order 
is created and applied by these acts, that it operates through the in- 
dividuals performing these acts in their capacity as organs. This idea 
implies the personification of the order, the construction of a person 
to which these acts may be imputed. Since the order is a legal order, 
the person is a juristic person. The concept of a juristic person is an 
artificial device used to simplify the description of human relations 
interpreted according to a normative order presupposed to be valid. 

It stands to reason that neither the state as a social order, which 
means the state as a system of norms, nor its personification can be 
exposed to any use of force. Physical force can be used only against 
physical beings, not against an order as a system of norms ; and force as 
a psychic compulsion only against beings endowed with some kind of 
reason, feeling and will. Hence, as a condition of being protected 
against the use of force, security can be only the security of human 
beings. If there is a security of a state, it can be only the security of 
the human beings who are the members of the state — that is, the indi- 
viduals whose behavior is regulated by the state order either because 
they are its organs or because they are its subjects. 

The difference which exists between the security of the individual 
within the state, i. e., the national legal community, and the security of 
the state (as the security of individuals) within the international com- 
munity consists in the fact that the former is guaranteed by national 



law, the so-called law of the state, and hence may be properly called 
national security, whereas the latter is guaranteed by international law 
and for this reason is called international security. It is in both cases 
collective security, because it is security afforded by a social order ; and 
a social order always constitutes a certain degree of collectivization. 

Collective security must be distinguished from the security which an 
individual or a state may try to establish for itself. Because it is not 
afforded by a social order, this latter security may be considered to be 
individual security. It is only in this negative sense of being a non- 
collective security that individual security can be considered to be the 
opposite of collective security. However, this individual security is 
not true security at all, for an individual can never concentrate in his 
hands a sufficient amount of power to protect himself for any length of 
time against the united forces of several others. Furthermore, any 
association with other individuals for the purpose of common defense 
by mutual assistance is the first step towards a social organization 
affording collective security. This is precisely the idea which the 
natural-law doctrine of the 17th and 18th centuries tried to express by 
inventing the fiction of a social contract. According to this doctrine, 
men abandoned the state of nature as a state where no positive law was 
established because of its complete lack of security. They abandoned 
it by concluding a contract with the main purpose of protecting each 
member of the community by providing for a collective reaction against 
any violation of vital interests. In other words, the purpose of this 
contract was to establish collective security. 

The assumption that man existed originally in a state of nature is 
highly problematical. Men have probably always lived in society, and 
where there is society there is some kind of law — ubi soeietas ibi jus — 
although the law may be more or less effective. Transient periods of 
anarchy are possible and have actually existed in history. However, 
they are characterized by the fact that no security exists, and the 
attempts of single individuals to secure themselves against others are in 
vain. As we shall see, 2 the same is true with respect to any attempt by 
an individual state to establish a non-collective security for itself. 
Hence, since security can be only collective, collective security is a 
pleonastic term. 

If the security of the individual within the state (national security) 
and the security of the state within the international community (inter- 
national security) are both collective security because they are both 
guaranteed by a social order, and if this order is in both cases a legal 
order, collective security is by its very nature legal security in the sense 
that it is a security established by law. 3 An attempt has been made to 
distinguished two kinds of state or international security: legal or 



juridical security and political security.* According to this view, 
legal security is defined as "a condition in which a state that observes 
the objective law need not fear that its rights as a subject of inter* 
national law will be violated without redress" ; while political security 
is defined as a condition in which a state "regardless of its conduct, 
need not fear a successful attack from without." The difference 
between legal and political security is that only the former is guaran- 
teed by the law. The latter is brought about by the state itself by 
means which could also be applied if the state were not subjected to a 
legal order — in other words, if the state existed together with other 
states in a condition of anarchy. The question of whether so-called 
political security is achieved in a legal or in an illegal way is irrelevant. 
Hence, the so-called political security of a state is not collective security 
but rather a typical case of individual security. The political security 
of a state is the same kind of security which an individual human being 
tries to achieve without being protected by a legal order and which, as 
has been pointed out, is really not security at all. 

It has been maintained that the security of an individual within 
a national community or state (national security) and the security 
of a state within an international community (international security) 
are two totally different problems and that there is no real analogy 
between them, because "the first is a police problem, the latter a 
problem of social justice finding its protection in legislation." 8 How- 
ever, as we shall see later, international security is as much a police 
problem as national security is, and the latter is no less a problem 
of social justice than the former. There is another argument that 
has been advanced to justify the view that there is an essential dif- 
ference between national and international security, and that con- 
sequently the latter cannot be modeled exactly after the former. 
This argument has been formulated as follows: "The State requires 
of the individual, in case of need, the sacrifice of his life in the in- 
terest of the community. In this case individual security is strictly 
subordinated to collective security. Not so in the international field. 
Here collective security is the counterpart of individual security and 
cannot be in opposition to it. The collectivity cannot require a state 
to sacrifice itself completely in the interest of the collectivity." 6 
This argument is based on an erroneous hypostatization of the person- 
ification called the "state." An international organization constitut- 
ing a system of collective security cannot require a state to sacrifice 
its life because a state is not a living organism like an individual 
human being. However, there is no reason why an international 
organization should not require a member state to sacrifice the lives 
of its subjects in order to guarantee international security. Neither 



the nature of the state — that is the national legal order constituting 
the community — nor the nature of the international legal order ex- 
cludes such a request. As a matter of fact, an international security- 
organization which provides for military sanctions necessarily im- 
poses such an obligation upon the member states. If the proposition 
that a state sacrifices its life means only that a state which resorts 
to war against another state may cease to exist as a subject of inter- 
national law by being defeated and by having its territory annexed 
by the victorious state, the possibility that a state may lose its life 
certainly exists if military sanctions are applied. Furthermore, 
there is no reason why states should not be required to run such a 
risk in the interest of international security. However, since mili- 
tary sanctions are always organized as collective actions, the risk 
practically does not exist if a system of international security operates 
in conformity with its constituent treaty. The statement that "col- 
lective security is the counterpart of individual security and cannot 
be in opposition to it," amounts to a complete rejection of international 
security. 7 

If it is admitted, first, that the security of the state is the security 
of the individuals who are the members of the state, and, secondly, 
that the security of the state within an international community is 
collective security in the same sense as the security of the individuals, 
within the national community (the state) because both are guar- 
anteed by legal orders, a perfect analogy between them cannot be- 
denied. In both cases, security is established by the specific reaction 
for which the legal order provides in case of certain harmful be- 
havior by the members of the community. This behavior constitutes 
a violation of the order, and in both cases the most conspicuous 
violation is the illegal use of force. To be sure, there is a remarkable 
difference between the national and the international legal order, 
especially with respect to this reaction, that is the sanctions stipu- 
lated by these orders. However, if the normative order constituting 
an international community of states is considered to be international 
"law," and this means law in the same sense as the normative order 
constituting a state, it must be possible to show that the structure of 
both normative orders is, at least in principle, the same in all respecta 
relevant to the security they afford ; and this is possible. 

2. SECURITY AND LAW 

It is the purpose of any legal order to protect certain interests of 
the individuals subjected to it by providing for coercive acts as 
sanctions to be applied as reactions against violations of these inter- 



6 

ests. In this way, the law tries to prevent such violations. The most 
important interest protected in this way by the law is man's interest 
in maintaining his life. Since this interest of the individual is en- 
dangered by the use of force on the part of other individuals, the 
sanctions of law are directed primarily but not exclusively against 
this use of force (the term "force" meaning physical force). By at- 
taching a sanction to a certain behavior, especially to the use of force by 
one individual against another, the law forbids this behavior which, 
as the condition of a sanction, is to be considered as illegal, or, to use 
a term covering all possible violations of the law or legally protected 
interests : as a delict. The sanctions consist in the forcible deprivation 
of life, freedom or property of those responsible for the illegal use of 
force or other violations of the law. However, these sanctions, too, 
constitute a use of force. Hence the use of force is not absolutely for- 
bidden by the law. It is even authorized as a sanction; and not all 
kinds of the use of force are forbidden. But there exists in the evolu- 
tion of law a tendency to forbid not only the use of physical force 
destroying or endangering the life of human beings, but also other 
kinds of the use of force, to restrict, as far as possible, the use of force 
which has not the character of a sanction by attaching a sanction to 
it ; so that, as a rule, the use of force is to be considered either as a 
delict, that is, the condition of a sanction, or as a sanction, that is, the 
reaction against a delict. 

Consequently, there can be no law without force. For, by its very 
nature, the law is an organization of force. The law organizes the use 
of force in the relations of its subjects by determining the conditions 
under which definite individuals are authorized to use force. Force 
used under other conditions is to be considered as a delict. But in 
using force under the conditions determined by the law, which means 
in applying the sanction provided for by the legal order, the indi- 
viduals determined by law execute the order and thus act as organs 
of this order, or what amounts to the same, as organs of the community 
constituted by the legal order. Hence the use of force — the legal, but 
not the illegal use of force — may be imputed to the legal community 
acting through its organs. If the use of force is legal only as a sanc- 
tion, the legal order reserves the use of force to the legal community, 
in other words, the legal order establishes a force monopoly of the legal 
community. 

If peace is defined as the absence of force, it is the essential function 
of the law to guarantee peace in the relations among the members of 
the community, the subjects of the law. In guaranteeing peace by 
protecting the members of the legal community against the use of force, 
the law — any legal order — guarantees its subjects security. Hence, 



the prohibition of the use of force is an essential element of any 
system of collective, and that means, legal security. Legal security 
is identical with peace, or rather with that relative peace which a legal 
order can secure. It is a relative, not an absolute security. It is 
relative not only because the use of force is not absolutely forbidden, 
but also because no legal order can be so effective as to prevent the 
illegal use of force completely. A system of collective — and that 
means legal — security, the core of which is the prohibition of the use 
of force, is meaningful only if the possibility of an illegal use of force 
is presupposed. However, the legal order which prohibits the use 
of force may be more or less efficacious. The degree of its efficacy 
depends — in the first place — on the degree of its centralization. 

It follows that, by its very nature, the security afforded its subjects 
by a legal order is collective security because it is a security estab- 
lished by a social order. By regulating the mutual relations of 
individuals, every social order creates definite social relations among 
these individuals and thus brings about a certain collectivization con- 
stituting a community as a collective body. The collective character 
of the security established by a legal order manifests itself, firstly, in 
the fact that the use of force is forbidden by the legal order which is 
valid equally for all members of the community constituted by the 
order, and, secondly, in the fact that the reaction against an illegal use 
of force is a collective action. It is a collective action because it is 
an action performed by organs of the community and is therefore 
imputable to the community, even if the individuals concerned are not 
special organs, as is the case in both a primitive society under primi- 
tive law and the international community under general international 
law. 8 

In contradistinction to the law of a modern state (the national law) , 
the law of a primitive society does not institute special organs for the 
creation and application of the law. There are no legislative organs. 
The general legal norms are created by custom — that is, by the habitual 
behavior of the individuals subjected to the law. There are no courts 
competent to ascertain the fact that the law has been violated and to 
determine the person responsible for the violation. There is no sheriff 
and no police to execute the law — that is, to apply the sanctions for 
which the law provides. All these functions are left to the subjects 
of the law. In case of a murder — that is, in case the members of a 
group (especially a family) are of the opinion that one of them has 
been the victim of an illegal use of force by a member of another 
group — the law authorizes the relatives of the victim to take revenge 
on the murderer and his relatives, to use force in killing them. In 
case of other delicts, incest for example, the law authorizes every 



8 

member of the community to treat the delinquent as an outlaw — that 
is, to use any kind of force against him so that he is compelled to leave 
the community, which means to perish. In case of certain material 
damage by one individual to another's property, the law authorizes 
the members of the group to which the injured individual belongs to 
use force to deprive members of the group to which the delinquent 
belongs of some property as compensation for the damage. In effect, 
this means that the principle of self-help prevails. 

The principle of self-help is a consequence of the complete decen- 
tralization of a legal order. In a decentralized legal order, the essen- 
tial legal functions are not conferred upon special — or, what amounts 
to the same, central — organs which function according to the principle 
of division of labor but are left to the individual members of the com- 
munity. This does not mean that there are no legal organs at all under 
a decentralized coercive order. The coercive acts provided for by 
this order as reactions against its violation are sanctions, and the indi- 
viduals authorized by the order to execute these sanctions act as organs 
of this order or of the community constituted by it. However, these 
individuals are not special organs who function according to the prin- 
ciple of the division of labor — that is, they are not central organs. In 
the mind of primitive men living under a completely decentralized 
legal order, there is a clear distinction between an illegal and a legal use 
of force, between a murderer who violates the law and an avenger who 
executes it. However, in a concrete case, it is impossible to give an 
objective answer to the question of who is a murderer and who an 
avenger, or, more generally, whether a use of force is illegal (a delict) 
or legal (a sanction). Nevertheless, the use of force as a sanction is 
considered to be a reaction by the community against a delict, for even 
under a decentralized legal order, where the principle of self-help 
prevails, the use of force having the character of a sanction is con- 
sidered to be reserved to the legal community. The force monopoly 
of the community established by a legal order may be decentralized. 
Even a completely decentralized legal order affords its subjects a cer- 
tain degree of collective security ; but it is the lowest possible degree. 

Since under a completely decentralized legal order the question as 
to who is right and who is wrong in using force cannot be decided in 
an objective way, the social situation established by such an order is 
not clearly distinguishable from a situation where no security exists, 
just as, in its application to a concrete case, a completely decentralized 
coercive order is hardly distinguishable from a state of anarchy. This 
is why some writers refuse to consider a social order as law as long as 
that minimum of centralization constituted by the establishment of 
courts is not achieved, and also why in traditional terminology we 
speak of collective security only when the principle of self-help is 



9 

eliminated and replaced by a legal technique characterized by a certain 
centralization. Thus the organization of collective security, in the 
specific or narrower sense of the term, consists mainly, but not exclu- 
sively, in the centralization of the coercive order constituting the legal 
community. 

Since the extent of this centralization may vary, collective security 
may be established in different degrees. 

NOTES 

1. Cf. e. g., Maurice Bourquin, "Le Probleme de la Securite Internationale." 
Academie de Droit International. Recueil des Cours. 1934. III. Tome 49, 
p. 473 ; and Collective Security, a record of the Seventh and Eighth International 
Studies Conferences of the League of Nations. Paris 1934 — London 1935. Edited 
by Maurice Bourquin. Paris 1936, p. 131. 

2. Cf. pp. 4, 34 ff. 

3. Legal security in this sense must be distinguished from the "legal security" 
which is the translation of the German term "Rechtssicherheit". The German 
term designates the principle that the judicial and administrative acts of a 
state must be determined by pre-established general legal norms. In English 
terminology, this is called the "rule-of-law" principle. 

4. Professor Ludwik Ehrlich in : Collective Security, p. 152. 

5. Memorandum of the Canadian Institute of International Affairs, submitted 
to the International Studies Conference 1934-35, Collective Security, p. 132. 

6. Dietrich Schindler, in a memorandum on "The Notion of Neutrality in a 
System Including Repression of Resort to War," submitted to the International 
Studies Conference 1934-35 ; Cf. Collective Security, p. 26. 

7. Prof. Schindler advocated the above mentioned doctrine mainly for the 
purpose of justifying the maintenance of Switzerland's permanent neutrality 
within a system of international security. Cf. p. 169. 

8. Collective security is a function of law, regardless of the way in which the 
law is created, that is to say, with or without the participation of the individuals 
subjected to the law. In opposition to this view, Sir Alfred Zimmern, "The 
Problem of Collective Security" (in: Neutrality and Collective Security, edited 
by Quincy Wright, Chicago 1936), asserts: "Collective Security," which means 
"safety of all by all," "is a democratic notion" (p. 4). "Where there is no freedom 
[meaning a democratic constitution] there can be no cooperation for collective 
security" (p. 23). From this view follows that there can be no collective security 
within a non-democratic state, nor within an international community which is 
not composed exclusively of democratic states and is constituted by an interna- 
tional order which has not a democratic character. However, Zimmern says 
also : The principle of collective security "as applied to the world as a whole" 
means "a condition of law and order for the world" (p. 9). This statement is 
compatible with the doctrine that collective security is a democratic notion only 
under the presupposition that law is by its very nature a democratically created 
social order, that a social order created in another way is no law. Such a concept 
of law is inadmissibly narrow and in open conflict with the general use of this 
term ; for most of the social orders of the past, and many of the present day, 
generally called "law" have no democratic character. If collective security is 
protection against the use of force by one subject of the community directed at 
another subject, and hence is established by an effective prohibition of this use 
of force, historical experience does not support the doctrine that collective se- 
curity can be guaranteed only by a democratic legal order. 



II. THE DIFFERENT DEGREES OF COLLECTIVE 

SECURITY 

Since collective security is the function of a legal order, its organi- 
zation is closely connected to the fundamental relationship established 
by the law between delict and sanction, the relationship between a 
definite action endangering the security of the community and the 
corresponding collective reaction. The action against which the col- 
lective reaction of an international security system is directed is 
usually characterized as "aggression." The definition of this concept 
may be narrowly or widely delimited. The degree of collective secu- 
rity depends mainly on the extent to which the reaction is centralized. 
However, the importance of this centralization depends on the scope 
of the actions against which the more or less centralized reaction is 
directed. Hence, the degree of collective security increases not only 
with the extent to which the reaction against certain harmful actions 
which endanger security is centralized, but also with the scope of the 
actions against which the reaction of the security system is directed. 
The definition of aggression 1 is particularly important in this aspect. 

1. THE SCOPE OF PROTECTED INTERESTS 

With regard to the security which the members of a national com- 
munity enjoy, it makes a remarkable difference whether the social 
order constituting this community protects the members against every 
use of physical force by attaching sanctions to all of them or protects 
them only against that use of physical force which results in the de- 
struction of life — that is, protects them by providing punishment only 
for murder. Even under the most primitive legal orders, murder is 
not the only crime. The development of the law goes hand in hand 
with an extension of the interests protected by sanctions directed 
against their violations. These violations may consist of conduct 
which does not have the character of a use of physical force. For ex- 
ample, non-payment of a debt and slander are both delicts under posi- 
tive law, but neither constitutes a use of physical force. A legal order 
which provides for civil execution to be directed against the property 
of a debtor and imprisonment or fine to be inflicted upon a slanderer 
guarantees the security of the individual to a greater extent than a legal 
order which does not react against such conduct. All national legal 

10 



11 

orders provide for sanctions not only against delicts which consist of 
a use of force but also against other violations of interests. In other 
words, these national legal orders also protect interests which may be 
violated in a way other than by the use of force. However, no legal 
order can protect all the possible interests of its subjects. It is always 
up to the legal authority to decide which interests are worth being 
protected. Hence, there are always interests the violation of which 
is not a delict. This is another reason why the security guaranteed by 
the law is never absolute security. 

Since the security guaranteed by the law consists of protection 
against the violation of certain interests, 2 and since this violation is 
not limited to the use of force, the question arises as to whether or not 
the concept of legal, and this means collective, security may properly 
be restricted to protection against the use of force. Such a definition 
can be maintained only if the term "force" is meant to include not only 
physical force but any illegal conduct — that is, any conduct by a sub- 
ject of the legal order which is legally forbidden because of its harmful 
effect on another subject and which is therefore performed against or 
without the will of this subject. It is inevitable that this broader 
meaning of the term "force" be accepted if the sanctions provided for 
by positive law — the deprivation of life (capital punishment), of 
liberty (imprisonment), and of property (fine and civil execution) — 
are to be conceived of as a use of force or as enforcement actions. 
"Force," in the sense of physical force, is used to overpower an 
individual who offers resistance. This is normally the case under a 
primitive legal order when the execution of sanctions is decentralized — 
that is, when the execution is left to the individual members of the 
community. However, if the execution of sanctions is centralized, as 
under the law of a modern state, the individuals on whom these sanc- 
tions are inflicted normally offer no resistance, since the centralization 
of the execution of the law makes any resistance ineffective. Hence, 
these sanctions are a use of force (i. e., are enforcement measures, or, 
as it is usually formulated, are enforcing the law) insofar as they 
are carried out against or without the will of the subject concerned. 
Consequently, physical force is to be used only in the very exceptional 
case of resistance. A surgical operation performed by a physican 
with the consent of a patient is not a use of force. However, an action 
of the same kind performed against the will of a victim must certainly 
be considered to be an enforcement action. In this sense, force is im- 
plied in any illegal conduct of a person directed toward another person 
against or without the will of the latter. This means that any delict, 
just as any sanction, may be considered to be a use of "force." Thus 
the very concept of force, as it applies to the description of the essential 

870624—57 2 



12 

function of the law which is to provide for a sanction against a delict — 
that is, to provide for a use of force to prevent a use of force — changes 
its meaning under the influence of centralization. Such centralization 
results in greater effectiveness of the law and the collective security 
guaranteed by it. 3 

2. THE CENTRALIZATION OF THE PROCEDURE FOR THE 
ASCERTAINMENT OF A DELICT (I. E., AN ILLEGAL USE OF 
FORCE) AND FOR DETERMINING THE PARTY RESPONSI- 
BLE FOR IT 

This centralization refers to the enforcement measures which are 
taken under the legal order as a reaction, which means as a sanction, 
against an illegal use of force, in either the narrower or wider sense of 
the term. If a sanction is to be taken as a reaction against an illegal 
act, the existence of such an act must first be ascertained. Only after 
this function is performed, can a sanction be executed. These are the 
two stages in which every legal order is applied. The system of col- 
lective security established by a legal order operates through the appli- 
cation of this order. Both stages may be more or less centralized, and 
the centralization of one is not necessarily accompanied by the cen- 
tralization of the other. In principle, the centralization of the appli- 
cation of the law is independent of the centralization of the creation 
of the law — that is, independent of the establishment of the general 
legal norms to be applied in concrete cases. The centralization of the 
creation of the law is also important in determining the degree of col- 
lective security. This aspect of the problem will be discussed later. 

The complete decentralization of the first stage of the application 
of the law is a characteristic feature of a primitive legal order which 
does not institute special organs competent to ascertain objectively the 
fact that the law has been violated, i. e., that an illegal use of force, 
an act of aggression, has taken place ; nor are special organs competent 
to determine the individual or individuals responsible for such an act 
of aggression. The individuals involved in the conflict arising from 
a delict, either actually or allegedly committed, the conflict in which 
the two parties are those violated by the delict and those made responsi- 
ble for it, must decide the questions concerned themselves. If there 
is no agreement between them that the law has been violated and no 
agreement on the compensation for the violated interest, and for vari- 
ous reasons such an agreement is rarely possible, the only way to settle 
the conflict is by the resort to force by one party against the other. 
The question remains undecided as to whether this use of force is legal 
or illegal, whether it is a sanction or a delict, and, consequently, whether 



13 

it guarantees security or, on the other hand, is a factor of great insecu- 
rity. This is the most serious defect of a legal system in which the 
first stage of the application of the law, the ascertainment of the delict 
and the determination of the party responsible for it, is decentralized. 
It is more serious than decentralization in the second stage, the stage 
in which the use of force is authorized by the law as a sanction, al- 
though decentralization in this stage also renders the security function 
of the legal order problematical. The use of force operates as a 
sanction and hence acts as a guarantee of security satisfactorily if it 
normally results in overpowering the party against which it is directed. 
This result is not secured if the function concerned is decentralized. 
However, even if it is secured in some way, there must be a certain 
guarantee that the enforcement measures provided for by the law as 
sanctions are taken only against the party responsible for the delict, 
i. e., only against the party responsible for the illegal use of force, that 
is, against the aggressor. Consequently, first of all, there must be a 
legal procedure in which the decisive fact of the existence of a delict, 
i. e., of an illegal use of force, is established and in which the party re- 
sponsible for the delict, the aggressor, is determined in an impartial 
way by a decision binding upon the parties. This is done by taking 
the power of deciding the fundamental questions as to who is right and 
who is wrong away from the parties involved in a conflict and by con- 
ferring this power on a special organ. In other words, this is done by 
centralizing the legal function which is the basis of all further steps 
leading to the enforcement of the law. 

An essential condition for the impartiality of the organ concerned is 
that it be independent of the parties to the conflict as well as of other 
organs of the community, particularly the government of the com- 
munity. If the organ enjoys such independence, it has the character 
of a tribunal, and an individual fulfilling this function has the char- 
acter of a judge. Then the function of ascertaining the existence of 
the delict and determining the individual or individuals responsible for 
it is a judicial function. It is hardly possible to overestimate the 
importance of this step in establishing a system of collective security. 
As a matter of fact, historically it was the first step in the centralization 
of this system as applied within the legal community. Tribunals were 
the first central organs established within primitive society in time of 
peace. They functioned long before special legislative and executive 
organs came into existence. They were first created only by agree- 
ment of the parties to the conflict and only for particular cases. Later 
they became permanent institutions and assumed compulsory jurisdic- 
tion. This meant that they became competent to decide cases brought 
before them not only by an agreement of the parties but by one party or 



14 

even by none of the parties but by a special organ, the public prosecutor. 
The functions of tribunals were originally restricted to deciding 
whether or not the law had been violated and who had been responsible 
for the violation. They could recommend an agreement concerning 
compensation for an illegally caused damage. However, they did not 
have the authority to order and make binding the execution of the 
sanction in case no such agreement could be reached, and they had no 
means of enforcing the law at their disposal. This function was left 
to the party injured by the delict ascertained by the tribunal. Its 
centralization was the last step in the development of that system of 
collective security which is the law of the modern state. 

As long as only the judicial function but not the execution of the 
sanction is centralized, in other words, as long as the means for the 
enforcement of the law are not concentrated in the hands of a spe- 
cial organ strong enough to overpower any delinquent — that is, to 
render successful resistance against the executive force of the commun- 
ity impossible in principle — cases where the law remains unenforced 
because the delinquent is more powerful than his opponent may be 
quite frequent. Hence, only a relatively low degree of security is 
reached. Nevertheless, the importance of a centralization restricted to 
the establishment of tribunals without the centralization of the execu- 
tion of the sanction should not be underestimated. There is an essen- 
tial difference between a situation in which the question as to which 
party in a conflict between two parties is right and which is wrong can- 
not be decided in an objective and impartial way and a situation in 
which it can. The chance of the law being obeyed is much greater in 
the second situation than in the first even if the law cannot be enforced 
by a central organ of the community. If a party is declared to 
be wrong by decision of an impartial tribunal, it will be much less 
inclined to enforce its illegal claim against a party declared to be right 
by the tribunal or to refuse to comply with the legal claim of this party. 
Where courts competent to decide this question exist, the readiness of 
the parties to a conflict to settle this question by agreement is much 
greater than it is under a social order which authorizes each party to 
decide this question for itself, thus enabling it to justify any enforce- 
ment action taken for the realization of its interests. The moral power 
of courts has played a decisive part in the evolution of the law, and it 
remains greatly important for the efficacy of a legal order and thus for a 
collective security established by it. From the point of view of this 
security, the value of the centralization of the executive function re- 
mains problematical if this centralization is not preceded by the cen- 
tralization of the judicial function. In other words, this value is prob- 
lematical if the employment of force by the central organ of the com- 



15 

munity is not determined by the decisions of independent tribunals 
applying pre-established law, if this central organ can use its power 
not to maintain or restore this law but to realize political interests not 
necessarily in conformity with this law. In the field of internal rela- 
tions there are indeed systems of collective security which correspond 
to this type of organization. 4 

3. THE PREVENTION OF THE ILLEGAL USE OF FORCE BY 
THE PEACEFUL SETTLEMENT OF CONFLICTS 

The centralization of the first of the two functions of the application 
of the law — the ascertainment by special organs of the violation of 
the law and the determination of the party responsible for it — is the 
most effective means of bringing about the peaceful settlement of con- 
flicts. The establishment of such organs is particularly effective in 
this respect if, as is usually the case, they are also competent to recom- 
mend, or even to order, the guilty party to repair the wrong by 
restoring the situation which existed before the delict was committed, 
or, if this is not possible, to compensate for the illegally caused damage. 
If the party concerned complies with this recommendation or order, 
the use of force both by the parties to the conflict and by the com- 
munity (i. e., the use of force as a sanction) is actually prevented. 

Prevention of the illegal use of force is usually distinguished from 
its repression by the legal use of force, i. e., the execution of sanctions. 
However, this distinction is only relative. The purpose of repressive 
measures taken in a concrete case as a reaction against an illegal use 
of force is to prevent, by deterrence, the illegal use of force in the 
future. If special organs for the peaceful settlement of conflicts are 
established, and if the legal use of force (i. e., the execution of a sanc- 
tion) is permitted only after these organs have ascertained the exist- 
ence of the delict (i. e., an illegal use of force) and determined the 
party responsible for it (i. e., the aggressor), and only after this party 
has refused to comply with their decision, does the function of these 
organs form a preparatory stage in the total procedure of applying the 
law. This is just the procedure established within a system of collec- 
tive security as a reaction against an illegal use of force (i. e., an act of 
aggression). If there are no such organs established, a peaceful 
settlement of conflicts is possible only on the basis of a voluntary 
agreement by the parties involved in the conflict. However, for 
reasons already discussed, such an agreement can rarely be reached. 

As has been pointed out, the organ competent to ascertain the exist- 
ence of a delict and to determine the party responsible for it may or 



16 

may not have the character of a tribunal. If it does not have this 
character, it may be authorized by the legal order to settle the conflicts 
brought before it by applying not only the existing law, pre-estab- 
lished by custom or legislation, but also other norms, especially prin- 
ciples of political convenience. Such a quasi-judicial organ may have 
the power only to make recommendations to the parties concerning 
the settlement of a conflict, so that a conflict can be settled finally only 
by an agreement of the parties which comply with the recommenda- 
tions. However, if the decision of the quasi- judicial organ is legally 
binding upon the parties, it constitutes an individual legal norm, 
valid only for this particular case. If the organ has the character 
of a tribunal, it is usually authorized to apply only the existing, i. e., 
pre-established law. However, it is possible that a legal order may 
also authorize a tribunal to decide conflicts brought before it by 
applying norms other than those of the existing law. For example, 
a tribunal may be authorized to apply principles of justice or equity. 5 
This means that the tribunal would be authorized by the existing law 
to create new law for the case at hand. This principle has the advan- 
tage of rendering the legal system more flexible, for it enables the 
tribunal to adapt the law in each case to those particular circumstances 
which were not, and often could not have been, foreseen by the 
legislator. 

There can be no doubt of the fact that from the point of view of 
security it is preferable to have conflicts decided by judicial decisions 
legally binding upon the parties to the conflict. Furthermore, security 
is guaranteed to a higher degree if the individual norm, constituted by 
the judicial decision, is determined, as far as possible, by pre-estab- 
lished general norms of positive law rather than by principles of 
justice or equity. Since these principles — in contradistinction to the 
norms of positive law, especially those established by legislation — are 
not objectively discernible, the power to resolve conflicts of interest 
according to principles of justice or equity means that the conflict is 
decided according to the subjective opinion of a judge as to what is 
just or equitable. Hence, the advantage of flexibility is gained at the 
expense of security, for there is a higher degree of uncertainty concern- 
ing the content of the decision the tribunal will issue, and that means 
a lower degree of security, than there would be if the tribunal were 
bound by pre-established general norms of positive law. If these 
pre-established norms were applied, the decision could be foreseen, at 
least to a certain extent, by the parties concerned. This is the con- 
nection between the collective security guaranteed in general by a 
legal order and the above mentioned "legal security" (Rechtssicher- 
heit) established by the so-called rule-of-law principle. 



17 

It should, however, be kept in mind that the difference between a 
judicial decision applying pre-established general norms of positive, 
i. e., customary or statutory law, and a judicial decision applying 
principles of justice or equity, is not as essential as it is usually as- 
sumed to be. The assumption that there exists an essential difference 
between the two kinds of judicial decision is based on the idea that the 
judicial application of positive law has a merely declaratory character, 
whereas the judicial application of principles of justice or equity has a 
constitutive character, insofar as by the latter a positive obligation 
and the corresponding right is created or abolished, whereas the 
former has no such effect. According to this view a judge in deciding 
a case by applying positive law does not create an obligation and the 
corresponding right which did not exist, nor does he abolish an obli- 
gation and the corresponding right which did exist prior to the deci- 
sion. In a dispute, either the existence of the fact to which an undis- 
puted rule of law is to be applied or the existence of a rule of law to 
be applied to an undisputed fact may be disputed. The judicial de- 
cision, according to this view, only ends the dispute by ascertaining in 
an authoritative way either the existence or non-existence of the dis- 
puted fact, which implies that the undisputed rule of law is or is not 
applicable in this case, or by ascertaining the existence or non-existence 
of the disputed rule of law. Thus the judicial decision transforms,, 
so to speak, disputed law into undisputed and, finally, undisputable 
law. The fallacy of this doctrine is that the authoritative ascertain- 
ment of a disputed fact as well as the ascertainment of a disputed rule 
of law is not merely a declaratory but a highly constitutive act. 

In case a fact is disputed, the judicial decision, ascertaining that the 
fact has occurred, legally "creates" the fact and consequently consti- 
tutes the applicability of the general rule of law referring to the f acL 
In the sphere of law the fact "exists," even if in the sphere of nature 
the fact has not occurred. If a court of last resort declares that an 
individual has concluded with another individual a contract and has 
not fulfilled it or that an individual has committed murder, the dis- 
puted nonfulfillment of the contract or the commission of murder are 
legal facts, even if in reality the defendant has not concluded a contract 
or the accused has not committed the murder. As a "legal" fact — 
that is, as a fact to which the law attaches certain consequences (duties r 
rights, sanctions) — the fact, and accordingly its consequences, are 
"created" by the judicial decision; and it is only as a legal fact that 
it counts. In case a general rule of law is disputed, because the ex- 
istence or the meaning of the rule is doubtful, the decision of the court 
interpreting the legal order or a special rule of that order is not less 
creative than the authentic and definitive ascertainment of a fact as 



18 

the essential condition of the application of a general legal rule. The 
application of a general norm to a concrete case is by its very nature 
an individualization of this norm. That the judicial decision is legally 
binding upon the parties means that it is a legal norm, an individual 
legal norm constituting an individual obligation and the corresponding 
individual right of the respective parties. This individual legal norm 
is created by the judicial act. 

This becomes particularly evident when the meaning of a general 
rule of law is disputed. There are almost always two and sometimes 
even several different interpretations which, from a logical point of 
view, are equally possible. This means that the existing rule of law 
is a framework of several different rules. By choosing one of them 
the law-applying organ excludes the others and thus creates, for the 
concrete case, a new law. Prior to the decision, the question of law 
with respect to the dispute could be answered by referring to several 
rules equally applicable to the case, but after the decision the question 
can be answered only by referring to one of them, the one chosen by 
the law-applying organ. 

There is, to be sure, a certain difference between a judicial decision 
by which one of several different interpretations of a pre-existing rule 
of positive law is chosen and a judicial decision by which a principle of 
justice or equity — that is, a norm — is applied which cannot be pre- 
sented as one of several possible interpretations of a pre-existing rule 
of positive law. However, this difference is not as strongly marked as 
it seems to be. It is an undeniable fact that under the pretext of in- 
terpreting the pre-existing law courts have applied new principles and 
thus considerably changed the positive law. There is, indeed, only 
a difference of degree between a judicial decision applying a general 
norm of pre-established positive law and a judicial decision applying a 
new principle, whether this new principle is called justice or equity or 
something else. Even if a tribunal is not expressly authorized to de- 
cide cases according to principles of justice or equity, it is hardly pos- 
sible to restrict its power completely to the application of the existing 
law, to prevent the tribunal from creating new law, especially if the 
tribunal is the supreme judicial organ and its decisions are endowed 
with the force of law — that is, if its decisions are final. The applica- 
tion of the law necessarily presupposes an interpretation of the law 
to be applied, and even remarkable changes in an existing law may be, 
and often are, presented merely as interpretations of the law. 



19 

4. LEGAL (JUSTICIABLE) AND POLITICAL (NON- 
JUSTICIABLE) CONFLICTS (DISPUTES) 

The difference between settling a conflict by applying a general 
norm of pre-established law and settling it by having the organ com- 
petent to settle a conflict establish a new law has led to the distinction 
between two kinds of conflicts : legal conflicts and non-legal or political 
conflicts. "Legal" conflicts are considered to be those conflicts capa- 
ble of being settled by the application of a general norm of pre-estab- 
lished law, and consequently capable of being settled by tribunals 
which normally are competent to settle conflicts only by the application 
of the existing law. "Political" conflicts, on the other hand, are con- 
sidered to be those conflicts not capable of being settled in this way 
and consequently, if not settled by the use of force or by voluntary 
agreement of the parties, capable of being settled by the decision of 
an organ competent to create a new legal norm valid for the particular 
case. With respect to the capacity or incapacity of a conflict to be 
settled by applying pre-established law, legal conflicts are considered 
justiciable and political conflicts non- justiciable. 

This distinction between legal or justiciable and political or non- 
justiciable conflicts presupposes the view that there are conflicts which 
cannot be settled by the application of a general norm of pre-estab- 
lished law because this law does not contain a norm referring to the 
subject concerned — that is, to the interest with respect to which the 
parties are in conflict. Hence, according to this view, in this respect 
there is a gap in the law. If there is a gap — that is, if there is no gen- 
eral legal norm capable of regulating a definite subject — a conflict 
concerning this subject cannot be settled by the application of the exist- 
ing law. Consequently, if it cannot be settled by agreement of the 
parties, it can be settled peacefully only by a new legal norm to be 
created expressly by the judicial or quasi-judicial organ to cover this 
subject. 

The view that there are conflicts which cannot be settled by apply- 
ing the law which exists at the time a conflict arises because this law 
does not contain a general norm referring to the subject of the con- 
flict is erroneous. Whatever the content of a positive legal order, 
there are only two possibilities with respect to applying it to a 
conflict. A so-called dispute, i. e., a conflict which does not yet imply 
the use of force and hence which can still be settled peacefully, con- 
sists of one party, the plaintiff, claiming that another party should 
behave in a certain way, while this other party, the defendant, re- 
fuses to so behave. One possibility is that the existing law does 
contain a norm imposing an obligation upon the defendant to behave 



20 

in the way the plaintiff claims. In applying the existing law, then, 
the conflict would be decided in favor of the plaintiff. The other 
possibility is that the existing legal order does not contain a norm 
imposing an obligation upon the defendant to behave in the way 
the plaintiff claims. This would mean that the defendant would 
be legally free to behave as he pleases, the plaintiff's claim would have 
no legal basis, and, in applying the existing law to this case, the con- 
flict would be decided in favor of the defendant, since the claim of the 
plaintiff would be rejected. There is no third possibility. This is 
the consequence of the fundamental principle of a positive law that 
what is not legally forbidden is legally permitted, or — formulated in 
a positive way — if a subject is not legally obliged to behave in a 
certain way, he is legally free to behave as he pleases, and this freedom 
is a legal freedom, a freedom guaranteed by the law. This means 
that the subject matter of a dispute is regulated by the existing legal 
order not only if this order contains a general norm obligating one 
party to behave in a certain way towards the other party with respect 
to this subject, but also if the legal order does not contain such a 
norm. If the legal order does not regulate a subject in a positive 
way, it regulates it in a negative way. Hence, there is no subject 
which is not regulated — either positively or negatively — by a positive 
legal order. There are no "gaps" in a positive legal order, or, what 
amounts to the same, there are no cases where the law- applying 
organ is forced to declare a non liquet, that is to say, refuse to 
decide a dispute because there is no general norm applicable to it. 6a 
Under a positive legal order there are no conflicts which, on account 
of this subject, cannot be decided by the application of existing law 
and which, in this sense, are not legal or justiciable but political con- 
flicts. The assumption that a positive legal order may not be ap- 
plicable in a particular dispute because of a gap in this legal order is 
not correct. What is possible is that the application of the existing 
law to a concrete case is considered — from one point of view or 
another — to be not satisfactory, i. e., inequitable or unjust. The basic 
fact in the distinction between justiciable and non- justiciable con- 
flicts, which is usually presented as a "gap" in the existing law, is 
really the difference between the positive law as it actually is estab- 
lished and a law as it should be established if it is to conform with 
equity or justice. 6 What is presented as a logical impossibility is in 
truth a moral-political insufficiency. Yet the judgment that the posi- 
tive law, or its application in a concrete case, is inequitable or unjust 
is a subjective value judgment by which any application of the law 
may be disapproved. From the point of view of socialism, the 
entire legal order based on the capitalist principle of private prop- 



21 

erty is unsatisfactory, inequitable and unjust. The application of 
the existing law is always unsatisfactory from the point of view of 
the party whose claim is not confirmed by the decision which applies 
the law and satisfactory from the point of view of the party in whose 
favor the dispute is decided. Since, under the law of modern states, 
tribunals have compulsory jurisdiction and consequently are competent 
to decide a dispute even if only one party submits the case to the 
tribunal, and since normally at least one party to a dispute may expect 
a favorable decision from an application of the existing law, a dis- 
tinction between justiciable and non- justiciable disputes is of no 
practical importance. 

The situation is different in the case of a primitive legal order under 
which tribunals are established by agreement of the parties to an ex- 
isting dispute or, when already established prior to the coming into 
existence of a dispute, under which tribunals have no compulsory juris- 
diction. Under these conditions, it is quite possible that one party, 
by an agreement with the other party, would be willing to establish a 
tribunal competent to settle their dispute, or, again by agreement, to 
submit the dispute to an already established tribunal, but only if this 
tribunal were authorized by the agreement to settle the dispute not in 
conformity with the existing law but by a decision in which principles 
of equity or justice would be applied. In this case, a distinction be- 
tween disputes the parties want settled in conformity with existing 
law and disputes the parties want settled in another way would be 
justified. If it is this difference which is meant by the terms "legal" 
(justiciable) disputes and "political" (non- justiciable) disputes, the 
distinction is acceptable. 

When a legislator, aware of the fact that he cannot foresee all pos- 
sible circumstances and that consequently the application of the gen- 
eral norms he has established may not be appropriate in some cases, 
wants to authorize the tribunals not to apply these norms in these cases 
but to decide them by creating a new and more appropriate norm, he 
faces the problem of how to formulate the conditions under which the 
judge should be authorized to act, exceptionally, as a legislator. It is 
understandable that a legislator would not want to use the formula: 
if the application of the existing law is not satisfactory. This would 
be authorization for the judge to set aside the existing law whenever 
he does not consider this law to be satisfactory. On the other hand, 
this authorization cannot be restricted to cases in which the legislator 
considers the application of the existing law not to be satisfactory. 
Such a restriction would be possible only if the legislator could specify 
these cases, and if he could specify these cases he would not need to 
substitute the judge for the legislator. Hence the legislator has no 



22 

choice but to allow the judge to decide for himself the question as to 
whether or not the application of the existing law to a concrete case is 
satisfactory. In effect, this means that the judge has the power to 
set aside the existing law and decide a case as legislator whenever he 
does not consider the application of the existing law to be appropriate, 
for there are always circumstances which may justify the opinion that 
the application of the existing law is not appropriate and hence which 
may lead to the assumption that the legislator had not foreseen them. 
In order to avoid a formula which expressly confers such an extraor- 
dinary power upon a judge, the fiction of gaps in the law is used. The 
legislator authorizes the judge to act as legislator if the existing law 
cannot be applied to a concrete case because this law does not contain 
a general norm applicable to the case. Psychologically, this fiction 
may have the intended effect of restricting the authority of the judge, 
for if the judge believes that he is allowed to act as legislator when the 
law cannot be applied, he will make use of this authorization only in 
very rare cases. 7 

That there are gaps in the existing law because there are elements 
in cases which the lawmaker has not foreseen is a juristic fiction. Its 
purpose is to justify the fact that legislative power is expressly con- 
ferred upon, or actually exercised by, judicial organs. This justifica- 
tion applies particularly within a legal and political system based on 
the principle of the separation of powers in general and on the prin- 
ciple of the rule-of-law in particular. The power of the judge to act 
as legislator constitutes a remarkable restriction of these principles. 
On the other hand, it is the nearest approach to the ideal of a perfectly 
flexible law. If the judge makes use of this power, his decisions can- 
not be foreseen. As previously noted, this means that the degree of 
security afforded by the law is reduced. 

5. REMOVAL OF THE CAUSES OF THE ILLEGAL USE OF 

FORCE 

A more effective method of preventing an illegal use of force and 
thus of guaranteeing collective security than the establishment of 
organs for the peaceful settlement of conflicts is the removal of cir- 
cumstances which are the causes of these breaches of the peace. This 
point is stressed particularly in the political doctrine of socialism. 
Starting from the assumption that the main causes of the disturbance 
of a social order, the breach of internal peace, are of an economic 
nature, this doctrine arrives at the conclusion that only a social order 
which guarantees its subjects the complete satisfaction of their eco- 
nomic needs is able to guarantee peace and that collective security is 



23 

thus essentially economic security. Since only a socialist economic 
system can afford this guarantee, only under socialism can collective 
security be achieved, and achieved to such a degree that no coercion is 
necessary to maintain the order. When the causes of a violation of 
the order are removed, there is no reason for using force as a reaction 
against such violations. The social order of perfect socialism, which 
is called communism, is not a coercive order which means that it is 
not a legal order. A communist society of the future would be a 
stateless and lawless society. The collective security of communism 
would not be legal security. 

This is a Utopian scheme because its presupposition that violations 
of a social order are caused only or mainly by its economic insufficiency 
is contrary to all our social experiences. Even in a capitalist society, 
ambition and sexual desire are motives of violence which are no less 
effective than hunger, and it is more than likely that they would play 
an even greater part in a society in which economic motives for illegal 
conduct were removed. It is therefore an illusion to believe that, 
even if it could secure the satisfaction of all economic needs, a social 
order could prevent all its violations (i. e., every possible breach of 
peace by an illegal use of force) and thus make the legal use of force, 
as a sanction, superfluous. Hence, this concept of absolute security 
is an illusion, the illusion of a social order without force. It is nec- 
essary to be aware of this illusion because in the theory of international 
security there is a strong tendency to consider economic circumstances 
as the main causes of war and hence to assume that preventing war 
by removing its economic causes is more important than attempting 
to prevent war by providing for repressive sanctions to be imposed by 
internationally organized enforcement actions. If the development 
of collective security under national law can teach us anything with 
respect to the development of collective security under international 
law — and there is good reason to assume that the latter will not be 
essentially different from the former — it is that there is a danger im- 
plied in overestimating the economic factors of social life and in 
underestimating the necessity for a coercive order, that is, in under- 
estimating the necessity for repressive enforcement measures for the 
maintenance of peace, which means underestimating the necessity for 
a legal system of collective security. 

6. THE CENTRALIZATION OF THE USE OF FORCE AS A 

SANCTION 

As has been noted, the centralization of the second stage of the 
procedure by which the law is applied to a concrete violation, the 



24 

execution of the sanction (i. e., the use of force as a reaction against the 
delict) either may or may not be preceded by the centralization of the 
first stage, the ascertainment of the delict and the determination of the 
party or parties responsible for it. Furthermore, the second stage 
may be carried out in different ways each constituting a different degree 
of centralization. Even without instituting special judicial or quasi- 
judicial organs for the first stage of the procedure, the legal order may 
authorize not only the subject directly injured by a delict but also the 
other members of the community to execute the sanctions — that is, to 
apply the enforcement measures provided for by the law. This means 
that in case the legal order is violated, all the members of the com- 
munity have the right to assist the victim in his legitimate reaction 
against the violation of his rights — that is, against the illegal use of 
force which, in the narrower sense of the term, means only the illegal 
use of physical force, or, in the wider sense, means any violation of 
legally protected interests. Even the most primitive legal order must 
be interpreted as establishing this right. Under such a legal order, 
several subjects may enter an agreement for the purpose of mutual 
assistance. This agreement may impose an obligation upon the parties 
to the agreement to assist each other against an illegal use of force 
either on the part of subjects not parties to the agreement or on the 
part of members of the particular community constituted by the agree- 
ment. However, the legal order constituting the total community may 
impose such an obligation upon all its members, and even the most 
primitive legal orders do so, to protect the community against aggres- 
sion from outside the community, especially against Avarlike enforce- 
ment action taken by a hostile community. Defense of an entire com- 
munity against external aggression by another community requires 
organization, and organization means centralization, for example, the 
establishment of a special organ to direct defense, the appointment of 
a military leader, etc. Military leaders were probably the first central 
organs and military organizations for either defensive or aggressive 
purposes the first attempts at centralization in the process of social 
evolution. In the past, the centralization of the use of force by one 
community in its war against another community undertaken to guar- 
antee external security preceded the centralization of the use of force 
within the community guaranteeing internal security. 

The extent of the obligation imposed upon the members of a total 
or partial community to come to the assistance of the victim of an 
illegal use of force committed within this community may differ. 
The members of the community may be obliged to assist the victim 
only by means short of the use of physical force, or they may be 
obliged to give assistance by employing all appropriate means in- 



25 

eluding the use of physical force. Whether the members of the com- 
munity are only authorized or whether they are obliged to participate 
in the defense of the immediate victim, and whether their assistance 
is or is not limited to certain measures, the defense has a collective 
character. It is collective and no longer merely individual or self- 
defense. To speak of collective self-defense, a term used in Article 
51 of the Charter of the United Nations, is misleading. The mem- 
ber of a community who, without being injured himself, comes to 
the assistance of the victim of an illegal use of force (in either the 
narrower or wider sense of the term) does not defend himself, he de- 
fends another. Only if the individual is identified with the other 
members of the group to which he belongs can the defense of one mem- 
ber by the others be called collective self-defense. However, such iden- 
tification, if admissible at all, is justified only within a group in which 
the members are so closely connected that their thinking and feeling 
have a thoroughly collectivistic character. This is the case within a 
primitive family or tribe but not within an international community 
like the United Nations. Collective defense against an illegal use of 
force constitutes collective security. However, it is a very low degree 
of security as long as neither the first nor the second stage of the appli- 
cation of the law is centralized — that is, as long as neither special 
organs for the peaceful settlement of conflicts nor special organs for 
the legal use of force provided for as sanctions are established — and 
the principle of self-help prevails. 

The establishment of a judicial or quasi- judicial organ for the peace- 
ful settlement of conflicts is a first attempt to overcome this. However, 
the decisive step in eliminating the principle of self-help is the insti- 
tution of a central organ whose competence refers to the execution of 
the sanctions as reactions against violations of the legal order, or, what 
amounts to the same, against an illegal use of force in the widest sense 
of the term. This executive organ may or may not be a government, 
or it may or may not be subordinated to a government — that is, the 
community may or may not be so centralized that it has the character 
of a state. Even if the executive organ does not have the character 
of a government or is not placed under a government, it may be bound 
in the exercise of its function by the decisions of an independent tri- 
bunal, so that it may be able to take action only in case the tribunal 
has ascertained the existence of an illegal use of force, and only 
against a party which the tribunal has found responsible. However, 
an executive organ may have the power to decide these questions for 
itself, not in conformity with the existing law as a tribunal is sup- 
posed to decide, but by applying principles of political convenience. 
The organ may be competent only to make recommendations to the 



26 

members of the community concerning the exercise of their right, or 
the fulfillment of their obligation, to assist the victim of an illegal use 
of force. At a higher stage in the development of collective security, 
its decisions are binding upon the members of the community. As long 
as the executive organ does not have its own means to perform enforce- 
ment actions at its direct disposal, it can only direct the actions which 
the members of the community take to assist the victim of an illegal 
use of force either by making recommendations to the members of 
the community or by making decisions binding on the members of 
the community. In this case, the difference between this stage of 
collective security and the stage in which the principle of self-help still 
prevails is not very great. This is particularly true because the 
members of the community must remain armed in order to be able to 
exercise their right, or fulfill their obligation, to assist the victim of 
an illegal use of force. However, the executive organ may have a 
police force at its direct disposal. A police force is a body of armed 
individuals professionally trained and organized for the purpose of 
applying the enforcement measures provided for by the law as re- 
actions against an illegal use of force by a member of the community. 
If the executive organ has such a force at its disposal, it can effect the 
disarmament of the members of the community, one of the most im- 
portant conditions for an effective system of collective security. Only 
then is the complete centralization of the force monopoly of the com- 
munity, and thus the highest degree of collective security, achieved. 
This stage has been reached only within the modern state. 

It is important to note that the disarmament of the members of a 
national legal community is effected by the establishment of a police 
force rather than by express prohibitions concerning the possession of 
arms. Besides, such prohibitions are never absolute. Under the law 
of modern states, the legal possession of arms, or at least of certain 
arms, by private persons is normally possible if an individual obtains 
a special license granted by the administration. In certain military 
organizations, for example in the militia system of Switzerland, per- 
sons belonging to the reserve are obliged to keep their guns in their 
possession even during the period they are not in active service. 

7. SELF-DEFENSE 

With the establishment of a police force at the disposal of a central 
organ accompanied by the disarmament or effective control of the 
armament of the members of a community, the centralization of the 
force monopoly of a community approaches its culmination. Never- 
theless even at this stage the principle of self-help is not completely 



27 

eliminated. It is preserved in the right of self-defense which indi- 
viduals have even under the law of the modern state, the order guaran- 
teeing the highest possible degree of collective security. The right of 
self-defense is considered to be an application of the principle of 
self-preservation which is an inherent or innate right of man. Accord- 
ing to the natural-law doctrine, the right of self-defense authorizes an 
individual to protect his life, person and sometimes his property by 
the use of physical force against an attempt by another individual to 
inflict injury on him by an illegal use of physical force. This right 
may include the use of physical force for the purpose of defending not 
only one's own life, person and property but also the life, person and 
property of each of the members of one's own family. It may be 
exercised not only in case of an actual but also in case of an imminent 
illegal use of physical force. However, it may be exercised only in 
case of necessity — that is, only if there is no other possibility of defend- 
ing one's legitimate interest. 

The right of self-defense presupposes that, in principle, the use of 
physical force is legally forbidden. Hence, the use of physical force in 
the exercise of self-defense constitutes an exception to this prohibition. 
Under a social order which does not contain such a prohibition, no right 
of self-defense, as the right to react by the use of physical force against 
an illegal use of physical force, can exist. Under a primitive legal 
order which does not centralize the employment of force, the right of 
self-defense is implied in the principle of self-help which is the reaction 
of an individual against any violation of his rights. Even under a 
legal order which establishes a centralized force monopoly, self-defense 
is the indispensable minimum of self-help. It is indispensable because 
a centralized security organization cannot function at the same time 
that an illegal use of force is attempted. Since self-defense is per- 
mitted only as a reaction against an illegal use of force, its exercise 
involves a certain risk if a legal authority must eventually confirm its 
lawfulness. If it is lawful, its exercise may be interpreted as a decen- 
tralized function of the legal community acting through the individual 
who enforces the law of the community by using force in defending 
himself. 

There is a certain relationship between the right of self-defense and 
the delict of aggression. If the right of self-defense is the right to 
react by the use of physical force against an act of aggression as an 
illegal use of physical force, the right of self-defense and the delict of 
aggression are complementary: where there is an act of aggression 
there is a right of self-defense; and there is a right of self-defense 
only where there is an act of aggression. But within a system of col- 

370624—57 3 



28 

lective security the right of self-defense may be restricted to the 
reaction against an illegal use of physical force, whereas the legal 
order constituting the security organization may prohibit as acts of 
aggression not only the illegal use of physical force but other viola- 
tions of protected interests. Then there may be acts of aggression 
without a corresponding right of self-defense. 8 

8. THE CENTRALIZATION OF THE LAW-CREATING FUNC- 
TION (THE PEACEFUL CHANGE OF ESTABLISHED LEGAL 
RELATIONS) 

The development of national law is characterized by the fact that the 
centralization of the law-creating function has been preceded by the 
centralization of the law-applying function. Long after tribunals and 
central executive organs had come into existence, the law of states was 
created, in a completely decentralized way, by custom. The establish- 
ment of legislative organs was the last step in the process of centraliza- 
tion which led to the law of the modern state. Even when parliamen- 
tary bodies assumed the power to create general legal norms, great and 
important parts of the legal order preserved the character of customary 
law, e. g., the common law in the Anglo-Saxon countries. This is 
evidence of the fact that from the point of view of collective security 
the centralization of the law-creating function by establishing legis- 
lative organs is of minor importance. However, in the theory of inter- 
national security, it is still argued, and the argument is considered to be 
of great weight, that the establishment of courts and the organization 
of collective enforcement actions are useless as long as there are no 
international legislative organs to afford the possibility for a peaceful 
change of established legal relations which have become unbearable for 
one party for one reason or another. It is a widespread view that 
centralizing the law-applying function without centralizing the law- 
creating function results in conserving the status quo, and that the 
attempt to maintain existing legal relations in spite of changing power 
relations inevitably constitutes a serious threat to the peace, which 
means a serious threat to security. This argument is not confirmed by 
the development of national law which has actually led to the relatively 
highest degree of collective security. Those who apply this argument 
underestimate the decisive influence tribunals exercise on the formation 
of the law, especially when these tribunals have compulsory jurisdic- 
tion. The development of customary law stems mainly from the 
practice of courts ; nor is statutory law immune from being changed in 
the judicial process. Threats to the internal peace of a community 
arise from concrete situations, especially those established by contracts, 



29 

rather than from the insufficient content of general norms. In order to 
remove the danger implied in a concrete situation, as a rule it is not 
necessary to change these general norms by a legislative act. The 
danger may be removed by creating an individual norm providing a 
single exception valid only for the concrete case. This is the proper 
task of a tribunal. It is not the proper task of a legislative organ 
whose function is to create general legal norms. If such a judicial 
decision creating an individual norm constitutes a precedent followed 
in other judicial decisions of similar cases, a law-creating custom is 
established, and the general norm referring to these cases is abolished 
and replaced by a new general norm adapted to the circumstances 
which caused the precedent. The change of a general norm is not 
justified if its application proves to be unsatisfactory in only one case. 
It is justified if the circumstances which make its application unsatis- 
factory exist in several cases. It is difficult to decide whether the 
adaptation of the existing law to changing circumstances is better 
achieved by the function of the legislative organ within a system of 
statutory law or by the practice of courts within a system of customary 
law. However, there is no question that the necessary adaptation, and 
hence peaceful change, of legal relations which have become a threat to 
the peace is possible without the establishment of a legislative organ. 
The adaptation can be made by the courts, provided that the courts 
have sufficient jurisdiction to exercise this function. 

9. UNIVERSAL AND REGIONAL SECURITY ORGANIZATIONS 

A security organization whose members are individual human beings 
is universal if it comprises the whole of mankind ; it is regional if it 
comprises only a part of mankind. In this sense the difference be- 
tween a universal and a regional security organization is that of a 
total and a partial organization. However, by "regional" security 
organization may be meant not only a partial organization but also an 
organization of individuals living on definite territory, or an organiza- 
tion whose security functions are limited to a certain geographical 
area. As long as no world state exists, security organizations whose 
members are individual human beings must have a regional character. 
The states which exist today and which are constituted by national 
legal orders are regional security organizations in the sense that they 
are organizations of only parts of humanity and that their members 
are living on a definite territory. The security organization of a 
state guarantees not only internal security, that is, protection against 
internal aggression, the use of force by one subject directed against 
another subject of the state, but also external security, that is, protec- 



30 

tion against external aggression : use of force by another state. The 
internal security guaranteed by a state organization is evidently of a 
much higher degree than the external security it can insure; the latter 
reaches its highest degree only within a world state where, as a result of 
the universality of the organization, external aggression is excluded. 
Even if the world state had the character of a federal state within 
which the member states were not completely disarmed, so that the 
use of armed force by one member state against another were not abso- 
lutely excluded, this act of aggression would be, from the viewpoint 
of the world state, an act of internal aggression. Such an act of ag- 
gression, however, would risk an effective reaction by the police force 
of the world state and hence probably would be prevented by the 
organization. Hence the tendency toward the universality of the se- 
curity organization, the demand for a world state. 

The international community constituted by general international 
law is indeed a universal security organization, but its subjects are 
states. This does not mean that individual human beings are not its 
members, but it does mean that individual human beings are only indi- 
rectly (as subjects of states) members of the international security 
organization. As has been pointed out, collective security is always 
the security of individual human beings, and the acts of states regu- 
lated by an international security system are always acts performed 
by individual human beings. However, these individual acts are not 
determined directly by the legal order constituting the security sys- 
tem, as is the case within the national security organization of the 
state, but indirectly as the international legal order constituting the 
international security system determines these individual acts through 
the intermediary of the national legal orders. 

The universal security organization constituted by general interna- 
tional law, because of its high degree of decentralization, guarantees 
only the lowest possible degree of collective security (provided the 
helium justum principle is positive law) , 9 Where there exists a higher 
degree of centralization and hence a higher degree of collective security 
in the relations between states, it is established by particular interna- 
tional law, that is, by treaties to which not all of the states are contract- 
ing parties, such as the Covenant of the League of Nations and the 
Charter of the United Nations. Insofar as the one did not and the 
other does not comprise all the states of the world, the one was and 
the other is only a regional, not a universal, security organization. 
But since the overwhelming majority of the states of the world were 
members of the League and are members of the United Nations, and 
since both organizations were established with a tendency toward 
universality and the purpose to guarantee world peace, they may be 



31 

considered as quasi-universal security organizations. The question as 
to whether and in what sense within such quasi-universal international 
security organizations so-called regional security organizations are 
possible, shall be discussed later. 10 

NOTES 

1. Cf. pp. 66 ff. 

2. L. Ehrlich {Collective Security, p. 154) said: "Security, in the legal sense 
of the term, means the actual protection of the interests which are safeguarded 
by the existing legal system." This is a tautological definition. If interests 
are safeguarded by the law, they are protected by the law. Security, in the legal 
sense of the term (and there is no other sense in which this term may be con- 
sidered ) , means simply the protection of certain interests by the law. 

3. As we shall see later, the question of the narrower or broader meaning of 
the term "force" is also important in defining the right of self-defense — that is, 
the right to use force against some kind of aggression — and in interpreting the 
prohibition against the "threat or use of force" stipulated by the Charter of 
the United Nations. Cf. p. 57. 

4. Cf. pp. 120 ff. 

5. It is usual to distinguish between justice and equity; but there is hardly 
any difference between them insofar as equity is supposed to be — like justice — 
a system of norms different from positive law, conceived of as pre-established 
general norms created by custom, legislation or international agreement. In 
a study on "Justice and Equity in International Relations" {Justice and Equity 
in the International Sphere. The New Commonwealth Institute Monographs, 
Series B, No. 1, 1936, pp. 1-13), Gustav Radbruch, one of the leading legal 
philosophers, admits that the principles of justice and equity are identical (p. 5) 
but tries to differentiate two normative systems by the method of acquiring 
the knowledge of the principles concerned. The specific method by which the 
principles of justice called "equity" are established is the case method of the 
Anglo-American legal systems. This method does not consist, as Radbruch 
asserts, in the general principle of justice, applied by the tribunal, being derived 
from the nature of the concrete case — that is, by an inference from that what 
actually is to that what ought to be, or — what amounts to the same — from a 
fact to a norm or from social reality to a social value. Such an inference is 
based on a logical fallacy; nor can such a result be achieved by "intuition." 
Intuition is a highly subjective, uncontrollable faculty of the human mind. Two 
different judges, starting from the same case, by their intuition arrive at wholly 
different and even contradictory principles of justice or equity. To leave the 
decision of a case to the intuition of the judge means to leave it to his unlimited 
discretion, and this is indeed what the case method, at least to a certain extent, 
amounts to. It is characterized by the fact that the first case is decided by the 
application of a principle which the judge, within his subjective discretion, 
considers as just. This decision becomes a precedent and, in this way, finally a 
rule of customary law. It is the specific function of the case method to trans- 
form justice (or equity), and that means a principle which in the first case 
of its application is considered by the judge as a principle of justice or equity, 
into a rule of positive, namely customary, law which determines the decision 
of the following cases. However, in deciding the first case the judge is not 
determined by a pre-established general rule of positive law. The position of the 



32 

judge is the same as that of a legislator who, too, transforms a principle which 
he considers just into positive law. It is in this respect that the case method, 
as the specific method of customary law, differs from the method of statutory 
law according to which no judicial decision is possible without a pre-established 
general rule of positive law. Within this legal system, the rule-of-law principle 
has no exception, whereas within a system of customary law there are neces- 
sarily cases, the precedential cases, which are to be decided without a pre- 
established general rule of positive law being applied. 

It is of the greatest importance to be aware that the principle of justice or 
equity applied in these cases is not — as it is usually assumed to be as a matter 
of course — an objectively ascertainable value, a norm the cognition of which can 
be acquired independently of the subjective preferences of the judging subject in 
the same way that the knowledge of the rules of positive law is obtained. These 
rules are objectively ascertainable because they are established by legislation, 
custom or treaties — that is, by facts perceptible by our senses under the control 
of our reason. However, principles of justice or equity, applied in a first case, 
before being transformed into a rule of customary law, are not established by 
objectively ascertainable facts but are, in the last analysis, based on highly sub- 
jective, emotional elements of the human mind. Consequently, there is not one 
justice or equity as there is only one positive law — one French, one American, one 
international law — but many different and contradictory systems of justice or 
equity, each of them claiming validity for the same territorial and personal 
sphere. The idea that there exists only one justice or equity is one of the most 
misleading illusions, and to speak of justice or equity — as most writers do — as if 
there were only one system of norms properly called justice or equity is either 
an intellectual insincerity or a naive, but unpardonable, ignorance. Hence, to 
establish a tribunal of equity means : to establish a tribunal endowed with the 
power of deciding — at least first cases — according to its free discretion. The 
objection that even such a tribunal should be directed by considerations of 
general welfare, commonweal, interest of the community, and the like, does not 
hold. All these terms designate values which are no less subjective than justice 
or equity. 

5a. It has been objected that the denial of the possibility of gaps in the law 
and hence of a non liquet is limited to decisions of disputes ; that if the parties 
without asserting any right in the matter of their conflicting interests ask a 
court to decide the case, it may be that the court is not able to do so. Such a case 
may arise, e. g., when the frontier between two estates or two state territories is 
in question, insofar as there is between those parts of the two estates or state 
territories which are not in question a piece of land the legal status of which is 
uncertain. In these cases, too, there are only two possibilities. Either the court 
can ascertain facts which according to the existing law constiute property or 
sovereignty and consequently can, in applying the existing law, draw a definite 
line between the two estates or state territories. Or the court cannot ascertain 
such facts because none of the parties can prove that it has with respect to the 
piece of land in question performed acts which constitute property or sovereignty. 
Then the legal status of the piece of land in question is that of res nullius or of 
stateless territory, both statuses regulated by national and international law 
respectively. The court, in applying this law, has to make a decision to this 
effect. There is no gap in the law, but there may be a gap in the knowledge of 
facts. But facts which are not known to the law-applying organ and hence 
cannot be ascertained by it, legally do not exist. 






33 

t>. Sometimes the term "gap" in law is used to characterize merely technical 
defects in the drafting of a statute, e. g., if a statute provides that an assembly 
must elect its chairman, and that it must be convoked by its chairman, but 
contains no provision concerning the convocation of the first meeting of the 
assembly. However, such technical "gaps" are not decisive as far as the above 
mentioned doctrine is concerned. 

7. The above mentioned fiction is used in the famous paragraph 1 of the Swiss 
Civil Code which provides that in default of a provision of statutory law ap- 
plicable (to the case at hand) the judge shall decide in accordance with custom- 
ary law ; and in default of a rule of customary law in accordance with the rules 
he would establish if he had to legislate. 

8. Cf. pp. 59 ff. 

9. Cf. pp. 34 eff. 

10. Cf. pp. 258 ff. 



III. INTERNATIONAL SECURITY 

1. COLLECTIVE SECURITY UNDER GENERAL 
INTERNATIONAL LAW 

(a) The Bellum J us turn Principle 

As pointed out in the first part of this study, international security 
is the collective security which states enjoy within the international 
community constituted by international law. As it is an essential 
function of any legal order to afford security to the persons subjected 
to it, general international law, i. e., the system of norms binding upon 
all the states of the world, must also fulfill this function, provided 
that it is law in the specific sense, which means law in the same sense 
as national law, the law of an individual state. 

The nature of the normative order called "international law" may 
be, and actually is, described in different ways. From the considera- 
tions in the first part of this study, it follows that this description 
depends mainly on the answers to two preliminary questions: (1) 
does this order have a coercive character — that is, do its norms provide 
for the use of force as a sanction, as a reaction against a violation 
of certain interests of the states, the persons subjected to this order; 
and (2) is the use of physical force, which in international relations 
means armed force, permitted only as a sanction? In other words, 
is any use of armed force resorted to by one state against another to 
be considered as illegal, i. e., as a delict, if it does not have the character 
of a sanction ? 

As far as the first question is concerned, there is no doubt that there 
are enforcement measures provided for by general international law 
to protect certain interests of the states. General international law 
authorizes the states to react against a violation of these interests by 
acts called reprisals. Reprisals are usually defined as measures which 
are normally illegal but are permitted exceptionally as a reaction by 
one state against a violation of its rights by another state. A reprisal 
constitutes an interference by one state in the otherwise protected 
sphere of interests of another. A reprisal is a forcible interference, 
insofar as it is undertaken against the will of the state against which 
the action is directed, and in this sense, it is an enforcement measure, 
the term "force" used in its wider sense. A reprisal may even involve 
the use of physical, i. e., armed, force, as, for example, in case of a 
34 



35 

so-called pacific blockade. However, this forcible interference in the 
sphere of interests of another state must be limited to the violation 
of certain interests, in contradistinction to that unlimited interference 
undertaken by the armed force of a state against another state which 
is called war. A reprisal may be interpreted as being a sanction, be- 
cause a reprisal is provided for by general international law as a 
reaction against a violation of the law. Hence, general international 
law may be considered to be a coercive order — that is, a system of norms 
providing for coercive measures as sanctions. 

As far as the second question is concerned, the answer is rather 
doubtful. It is true that the limited use of force is considered to 
be illegal, i. e., a delict, if it is not a reaction against a violation of 
the law — that is, if it is not a sanction. However, as far as the un- 
limited use of armed force, war, is concerned, two diametrically 
opposed opinions are advocated in the theory of international law. 
According to one, war is never a delict under general international 
law. As a consequence of its sovereignty, every state may resort to 
war against another state for any reason whatsoever without vio- 
lating international law, unless a state has assumed an obligation in 
a treaty which restricts its freedom of action in this respect. Fur- 
thermore, war is not a sanction, for general international law does not 
provide for war, as it does provide for reprisals as specific reactions 
against the illegal conduct of a state. According to this opinion, 
only a limited use of force, but not an unlimited use of armed force, 
is a delict if it is not a sanction. Hence, under general international 
law there is no force monopoly of the community constituted by this 
law, not even a decentralized one, analogous to the force monopoly 
established by national law, constituting a community of individ- 
uals. A state which resorts to war against another state, even if it 
does so in defense against an attack, cannot be considered to act as 
an organ of the international community enforcing the law against 
a violator. In a war between two states, whatever the motive or 
purpose of either enforcement action, there is no legal difference 
between the use of force by one state and the use of force by the other — 
both are equally legal. The question of which of the belligerents is 
the "aggressor" is irrelevant. Consequently, under a general inter- 
national law which does not prohibit the resort to war, in case of war 
there can be no right of self-defense in the specific sense of this term, 
which means no right to use armed force against an illegal use of 
armed force. Since a war of aggression is not illegal, a counterwar 
is not a reaction against an illegal use of armed force. Only a re- 
prisal taken against an illegal action involving the use of limited 
force may be considered to be an exercise of the right of self-defense. 



36 

Reprisals are not possible against an aggressive war because in this 
case they are not directed against an illegal use of force. If interna- 
tional law does not prohibit the resort to war, it is hardly possible to 
maintain that it imposes upon the states the mutual obligation to 
respect their territorial integrity and political independence. The 
fact that war, as an unlimited use of armed force for the purpose of 
overpowering the opponent and enforcing upon him the conditions 
of peace, is not illegal, is incompatible with such an obligation. It 
is even doubtful whether it can be assumed that under general inter- 
national law states have any rights — that is, any legally protected 
interests — if general international law does not prohibit that unlim- 
ited interference in the sphere of interests of a state which is called war. 

If general international law does not stipulate the obligation that 
states must refrain from resorting to war except as a reaction against 
violation of the law, the mutual relations of states under this normative 
order are not very different from their mutual relations in a state of 
international anarchy. However, it must be admitted that only if war 
is not prohibited, which means only if there is no difference between a 
legal and an illegal war and all belligerents have the same legal status, 
is the usual interpretation of the status of neutrality consistent. Ac- 
cording to this interpretation, neutral states, the states not involved 
in a war, have equal obligations and equal rights in relation to both 
belligerents. Strict impartiality of the neutral towards the belliger- 
ents is the essential element of the institution of neutrality. Further- 
more, it must be admitted that only if all the belligerents are legally on 
an equal footing is it appropriate to terminate a war by a treaty, a 
so-called peace treaty concluded between two partners enjoying equal- 
ity of rights. 1 

The opinion that under general international law war is neither a 
delict nor a sanction is advocated by the majority of writers on inter- 
national law. If this view is correct, general international law is not 
law in the specific sense of the term as defined in the first part of this 
study. Since it is far from realizing the tendency toward a force 
monopoly of the community, since it does not forbide that use of 
armed force which is called war, this normative order does not guar- 
antee any degree of security to the states subjected to it. Interna- 
tional security can be established only within particular international 
organizations on the basis of treaties imposing upon the contracting 
parties — at least — the obligation not to resort to war, i. e., the use of 
armed force, in their mutual relations except as a reaction against a 
state which has resorted to war in violation of the constituent treaty — 
that is, except as a reaction against an aggressor. 



37 

According to the opposite opinion, such an obligation is already 
established by general international law which forbids the resort to 
war in principle and permits it only as a reaction against a violation of 
the law — that is, only against a definite conduct of states determined 
by international law. Like the limited use of force, which is called 
a reprisal, the unlimited use of force, which is called war, is legal only 
as a sanction. If it is not a sanction, it is a delict. This is the doctrine 
of helium justum or just war, the term "just" meaning legal or in 
conformity with positive law. 

Only if this doctrine is accepted, can general international law be 
conceived of as law in the specific sense of the term. By prohibiting 
war and by permitting this unlimited use of force as well as the limited 
use of force, reprisals, only as sanctions, general international law 
establishes a force monopoly of the international community, although 
it is only a decentralized force monopoly. A state resorting to re- 
prisals or war in conformity with international law may be conceived 
of as enforcing the law, acting as an organ of the community consti- 
tuted by this law. In a war between two states, only one of the two 
enforcement actions can be considered to be legal. The other is illegal. 
Hence, if the helium justum principle is recognized, it is necessary to 
distinguish between these two actions which may be termed war and 
counterwar. Consequently, the problem of "aggression," as the illegal 
use of armed or any other kind of force, is of the greatest importance. 
If it is necessary to distinguish between a legal and an illegal war, it 
is impossible to maintain the usual definition of war as a contest be- 
tween two or more states by their armed forces — that is, as a bilateral 
action. Only one of the two actions constituting the contest is legal or 
illegal. Hence, war must be defined as an enforcement action involv- 
ing the unlimited use of armed force, and the unlimited use of armed 
force has to be considered to be war even if it is not opposed by a coun- 
terwar. 2 War must be considered to be an employment of force di- 
rected by one state against another without regard to the counteraction 
of the latter, not only when war is a delict, but also when war is a sanc- 
tion. 3 This is of particular importance in case war is a collective 
enforcement action involving the use of armed force taken by an inter- 
national security organization as a reaction against a violation of in- 
ternational law. By calling such an action a "police action," we can- 
not deprive it of the character of war. If there is no legal equality in 
the relations between the two belligerents, the legal consequence of 
the status of neutrality may not be the strict impartiality of the non- 
belligerents in relation to the belligerents. Hence, the possibility of 
terminating a war by concluding a treaty between a state which is try- 



38 

ing to enforce the law and a state which is the lawbreaker becomes 
problematical. 4 

According to the helium justum principle, not only is the imme- 
diate victim of an international delict permitted to make war against 
a delinquent state but the other states who are members of the inter- 
national community are authorized to assist the victim in its legiti- 
mate reaction against a violation of the law. If the helium justum 
principle is part of general international law, this legal order guaran- 
tees a certain degree of security to the states as members of the 
international community. However, it is a very low degree of se- 
curity, for the international legal order is completely decentralized. 
It does not institute special organs for the legal functions of creating 
and applying the law. There are no courts, no executive and no 
legislative organs under general international law. All the legal 
functions are left to the individual states. If there is a conflict be- 
tween them, the states involved must decide whether or not the law 
has been violated and which state is responsible for the violation. 
If agreement cannot resolve these questions, each state may act in 
conformity with its own answer — that is, it may or may not resort 
to either reprisals or war. Even if the law is on its side, a state will 
not initiate such an enforcement action if its opponent is more 
powerful. However, if an enforcement action taken by one state 
meets with resistance in the form of an enforcement action by another 
state, the question as to which of these two actions is a sanction and 
which a delict remains open. For these reasons, many writers con- 
sider the helium justum principle useless as long as a certain minimum 
of centralization, at least the establishment of a tribunal competent 
to decide in an objective and impartial way which of the parties to a 
conflict is right and which is wrong, is not yet achieved. They further 
argue that even in this case the value of reprisals and war as sanctions 
remains highly problematical if their execution is left to the victim 
and to the voluntary assistance the victim may get from other states. 
Hence, the helium justum doctrine advocated by the followers of the 
natural-law theory during the 17th and 18th centuries was almost 
completely abandoned during the 19th century and was reassumed 
only after the first World War, and then only by a relatively few 
scholars. 

This doctrine then lost its importance because, as a result of this 
war, the use of armed force was forbidden by two treaties to which 
almost all of the states of the world were contracting parties: the 
Covenant of the League of Nations, 1919, (the first part of the peace 
treaties with Germany, Austria, Hungary and Bulgaria) and the 



39 

Treaty for the Renunciation of War, 1928, (the Pact of Paris or 
Kellogg-Briand Pact). If — in conformity with the opinion of the 
majority of writers on international law — the helium justum princi- 
ple is not considered to be part of general international law, the 
Covenant of the League of Nations together with the Kellogg-Briand 
Pact constitutes the first attempt in the field of international relations 
to establish a relatively universal system of collective security. As a 
matter of fact, it was only after the two treaties had come into force 
that the problem of collective security began to attract the attention 
of scholars and politicians and that the term became commonly used 
in the literature of international law. 5 

However, as an effect of the second World War, the Covenant of 
the League of Nations ceased to be valid. The second World War led 
to the conclusion by the majority of the states of the world of the 
Charter of the United Nations, by which not only war as the use of 
armed force but also the threat of force was forbidden and a system of 
international security established which displayed the highest degree 
of centralization reached until that time in the history of international 
law. 

(b) Alliances and the Balance of Power 

The idea of a universal international organization for collective 
security is directed against the policy of alliances in general and the 
so-called balance of power in particular. Though intended as a means 
of guaranteeing a kind of security to the states adhering to them, these 
policies have ultimately led to war. 

Alliance treaties are usually concluded for the purpose of preserv- 
ing the status quo in the relationships between allied states and other 
states by preventing the latter from expanding their power at the 
expense of the former. In this sense, they have a defensive character 
as they are directed mainly against an aggression on the part of states 
not parties to the alliance treaty. However, states may unite in an 
alliance not for the purpose of preserving but for the purpose of 
changing the status quo in their favor. The alliance then has an ag- 
gressive character. In a concrete case, it is hardly possible to dis- 
tinguish a defensive alliance from an aggressive one, because the 
purpose of an alliance depends on the intention of the allied govern- 
ments, and an aggressive intention is never admitted. The official 
purpose of an alliance is always defensive, although under general 
international law, if the helium justum principle is excluded, a war 
of aggression is not illegal. This is a fact which seems to prove that 



40 

the principle concerned is at least recognized as a rule of international 
morality. 

If alliances really have a defensive character, there is a certain simi- 
larity between them and regional organizations for collective security. 
An alliance treaty either expressly stipulates that the contracting par- 
ties are obliged to refrain from resorting to war in their mutual rela- 
tions, which, in this respect, makes it a non- aggression pact, or it tacitly 
presupposes such an obligation, at least in the moral sense of the term. 
An alliance treaty always imposes upon the contracting parties the 
obligation to assist each other in case of aggression. Hence, in this 
respect, it is a mutual assistance agreement. Prohibition of war and 
mutual assistance against aggression are essential elements of a col- 
lective security arrangement. However, it must be noted that a treaty 
of alliance, in the specific sense of the term, provides for mutual as- 
sistance only in case of external aggression, whereas universal collec- 
tive security organizations are directed only, and certain regional secu- 
rity organizations to some extent, against an illegal use of force within 
the organization. In case one of the contracting parties to a mutual 
assistance alliance violates the express or tacit obligation of non- 
aggression and attacks another contracting party, no obligation of 
assistance applies. It is precisely because alliances are directed against 
third states that they create an atmosphere of suspicion, lead to counter- 
alliances and, in many cases, have led to war. This is the reason why 
merely regional agreements for mutual assistance have been stigma- 
tized as "camouflaged alliances." 6 It has been suggested that the 
obligation of mutual assistance should be restricted to aggression origi- 
nating within an organization in order to avoid the possibility that 
a mutual assistance agreement will degenerate into a mere "alliance." 7 
This demonstrates an important aspect of regional arrangements. An 
agreement for mutual assistance can be an "alliance" only if it is re- 
gional — that is, only if it is restricted to a relatively small group of 
states on the basis of a common interest uniting them against another 
state or other states. If it is universal, it cannot be directed against 
a state outside the organization. If it is almost universal — that is, if 
it unites an overwhelming majority of the states of the world including 
all or the majority of the great powers — aggression by a state outside 
the organization is so unlikely that the relationship of the organization 
to non-member states is of secondary importance. Only regional or- 
ganizations for mutual assistance and not universal or quasi-universal 
organizations may be conceived of as "alliances." 

Regional arrangements for international security also differ from 
alliances in that the former provide for mutual assistance only in case 



41 

of an illegal use of force whereas in alliance treaties concluded under 
general international law, as it is usually interpreted, the legal or ille- 
gal character of the use of armed force is irrelevant, for aggression as 
an illegal use of armed force does not exist under a general interna- 
tional law which does not prohibit the resort to war. This means that 
a regional organization for international security can be established 
only within the framework of a universal or quasi-universal organiza- 
tion whose constituent treaty prohibits, in principle, the use of armed 
force, so that under this legal order particular agreements of regional 
character providing for collective action against aggression as the 
illegal use of armed force are possible. Under general international 
law, a treaty binding only upon the contracting parties may oblige 
these parties to assist each other in case of the use of force by a third 
state directed against one of them, but it cannot make the use of armed 
force by a third state an illegal act. Consequently, there can be no 
regional organization for international security without a universal 
or quasi-universal organization for collective security in the field of 
international relations, provided the principle of helium justum is not 
part of general international law. 

What has been said about alliances also applies to the so-called bal- 
ance of power policy which is almost always realized by alliances and 
counter- alliances. 8 By "balance of power," that political principle is 
meant which maintains or brings about by all means considered appro- 
priate by the policy-making state or alliance of states a situation in 
which power is distributed with approximate equality between this 
state or alliance of states and other states or another alliance of states. 
Insofar as this policy aims at preserving the status quo and tries to 
prevent the states against which it is directed from changing the exist- 
ing distribution of power by the use of armed force at the expense of 
the states parties' to the balance of power alliance, this type of alliance 
seems to pursue the same purposes as any other organization for 
collective security. This purpose is to protect the states who are 
parties to the alliance against the use of armed force on the part of 
other states and thus to guarantee to the former their territorial 
integrity and political independence. In addition, the collective 
measures provided for by the treaty which constitutes a collec- 
tive security organization are supposed to outweigh the power of any 
state or group of states as a potential aggressor. Hence, the idea of a 
certain balance of power seems to be implied in the principle of collec- 
tive security. However, if a collective security organization is uni- 
versal, or even almost universal, it differs from a balance of power 
alliance in that the latter is always directed against states outside this 
alliance. Furthermore, even if a collective security organization is 



42 

only a regional arrangement within a universal or qua si- universal col- 
lective security system, it still differs from a balance of power alliance 
as the latter pursues its purpose by all means, legal or illegal, without 
regard to the question of whether the action undertaken or intended 
by its adversary is legal or illegal, whereas a regional organization of 
collective security is supposed to react only in a legal way against an 
illegal use of force. Sa By its very nature, collective security is a legal 
principle, while the balance of power is a principle of political con- 
venience. 9 

(c) The Opposition to International Security 

A universal or quasi-universal international organization for collec- 
tive security is not a generally accepted ideal. There is a remarkable 
opposition to establishing such an organization, or if the organization 
has been established as in the cases of the League of Nations and later 
the United Nations, there is opposition to consolidating it by making it 
more centralized and thus more effective. The main arguments set 
forth by representatives of governments at international conferences 
and by writers of texts and monographs on international law and 
international politics will be discussed in this section. 

The first argument is that an international organization for collec- 
tive security is neither desirable nor useful unless it is of limited com- 
petence, because, by its very nature, it tends to preserve the existing 
distribution of power; in reality it constitutes only a legal ideology 
the purpose of which is to justify a status quo policy in general and a 
balance of power policy in particular. The second argument holds 
that because this ideology is in conflict with the nature of the state as a 
sovereign power and particularly w T ith its egotistic interests, an inter- 
national security organization cannot work in conformity with its 
principles. The third argument is that not only is an international 
security organization unable to prevent the use of force in international 
relations, it also makes the use of force, especially war, inevitable. 
Furthermore, it prevents the localization of war and hence leads to 
universal war. 10 

As to the argument that an international security organization tries 
to preserve the status quo as it exists at a particular moment and hence 
tries to prevent any change of this status, it must be remembered that 
a collective security organization, whether national or international, is 
a legal order. By its very nature, every legal order has a conservative 
tendency which manifests itself in the principle that relations between 
the subjects, constituting a certain distribution of possessions (as under 
national law) or of power (as under international law) , shall be estab- 
lished and consequently shall also be changed only in conformity with 



43 

the general norms of the legal order which prohibit the use of force. 
Hence, the argument referring to the preservation of the status quo is 
directed not only against collective security but also against a legal 
regulation of inter-individual or inter-state relations, and is based on 
an exaggeration of the conservative function of the law in general and 
of a collective security system in particular. That a legal order tries 
to preserve the status quo does not mean that it tries to prevent every 
change but only that it prohibits a forcible change of existing legal 
relations, a change brought about by an illegal use of force. This also 
applies to an international organization for collective security. Such 
an organization preserves as much or as little of the status quo in the 
relations among states as a legal order regulating the conduct of indi- 
vidual human beings preserves in the relations among its subjects. 
Even under the law of the most primitive society of human beings, just 
as under an international organization which guarantees the lowest 
possible degree of collective security, there is always a possibility for a 
peaceful change of the legal relations established among the members 
of the community. It is true that this possibility varies according to 
the stage in the development of the legal order. The more decentral- 
ized the legal order, the less chance there is of adapting an established 
legal relation to changing circumstance. The legal system guarantee- 
ing collective security is less flexible if there is no central legislative 
organ and no court with compulsory jurisdiction. Peaceful change of 
an established legal relation can be brought about only by agreement of 
the parties concerned, as is the case under general international law. 
However, despite this, international law is not a static force, for noth- 
ing in the nature of this law, just as nothing in the nature of national 
law, and consequently nothing in the nature of a national or inter- 
national system of collective security, can prevent the establishment of 
institutions which promote the possibility for a peaceful change of 
established legal relations. It is highly significant that the opposition 
to the establishment of these institutions, especially legislative or quasi- 
legislative organs, and particularly to the establishment of courts with 
compulsory jurisdiction which are the most effective instruments to 
bring about peaceful change, emanates from just those politicians and 
writers who are opposed to collective security because of its alleged 
tendency to preserve the status quo. If an international organization 
for collective security, such as the League of Nations or the United 
Nations, does not work, failure is due not to its allegedly necessary 
tendency to preserve the status quo, erroneously supposed to be inher- 
ent in such organization, but to the lack of willingness to provide for 
effective institutions for the peaceful change of legal relations within 
the organization. To a great extent, this lack of willingness is the 

370624—57 4 



44 

result of the same ideology which disparages collective security as a 
Utopian scheme. 

The conservative attitude which any legal order has in regard to any 
change of established legal relations is quite understandable if one 
takes into consideration the fact that preserving the status quo is not 
justifiable only if this status is not satisfactory or is even injurious. 
However, this is a highly subjective and relative value judgment. An 
established legal relation which is satisfactory to one party and hence 
considered to be just by this party may be unsatisfactory to the other 
party and hence considered to be unjust by this party. A change of 
this relation in favor of the latter may be very unsatisfactory to the 
former. It is a Utopian illusion to believe that any change could be 
made which would result in a distribution of possessions or power sat- 
isfactory to all parties concerned. Rightly or wrongly, a legal order 
presupposes the idea that a change of established relations by the use 
of force is more unsatisfactory than a situation in which a peaceful 
change is difficult, though not impossible. An international legal or- 
ganization for collective security presupposes the value of peace to be 
a higher value than the value of justice. Hence, it allows a change of 
established legal relations only by either agreement of the parties con- 
cerned or decisions by more or less objective central organs of the com- 
munity. The opposition to collective security based on the argument 
that it preserves the status quo is the consequence of an anti-legal, 
which means an anti-pacific, ideology, which, consciously or uncon- 
sciously, directly or indirectly, advocates power policy. 

If the preservation of the status quo which, to be correctly under- 
stood, should be stated as the prohibition of a forcible change of 
established legal relations, is an essential function of every legal order, 
and consequently also of an international organization for collective 
security, there is no reason to disparage such an organization by char- 
acterizing it as an "ideology" aimed at justifying the preservation of 
the status quo. "Ideology" is a specific concept of Marxian sociology. 
It designates an incorrect, illusive reflexion of social reality in the 
consciousness of man. By presenting a distorted picture of reality, it 
tries either to justify or, on the contrary, to disqualify this reality. 
According to Marx, bourgeois law is an ideology (or ideological super- 
structure set up above social reality) because it presents itself as a 
norm and thus tries to justify the actually established social relations 
which constitute the economic exploitation of one class by another. 
However, in truth the law neither justifies nor disparages ; it regulates 
social relations, and insofar as it is effective, the law is itself a part of 
the social reality. It is always only a specific theory which serves as 
an ideology by distorting the legal reality for the purpose of justifying 



45 

or rejecting it. A legal order establishing a system of international 
security really preserves the status quo only insofar as it prohibits 
changing established relations by the use of force. If there is an 
"ideology" at work, it is that theory of collective security which de- 
scribes the legal reality as an attempt to prevent a change of the status 
quo without insisting upon the fact that it is only the forcible change 
which a system of collective security tries to prevent. An interna- 
tional security organization may not be effective and a state or a group 
of states may pretend to apply the norms of the constituent treaty, 
although in reality they practice a balance of power policy directed 
against other states. However, this does not mean that the legal 
order constituting the organization is an ideology either justifying or 
disparaging the reality of the balance of power policy. It means only 
that a false interpretation of this legal order is used as an ideology to 
justify a reality not in conformity with this order. 

The view that a universal international security organization is 
impossible because it would be incompatible with the sovereignty of 
the state and with international law as an order regulating the mutual 
relations of sovereign states, is the consequence of a doctrine which 
prevailed prior to the first World War. According to this doctrine, 
international law is binding only upon states and not, as national law, 
upon individual human beings. There is an essential difference be- 
tween a state and an individual human being as the subject of a legal 
order. Therefore, there is an essential difference between national and 
international law. Consequently, what is possible under national law, 
namely collective security achieved by a general prohibition of the use 
of force and collective reaction against an illegal use of force, is im- 
possible under international law. To cite only one characteristic 
example, on the basis of this doctrine the Spanish jurist, Professor 
Antonio de Luna y Garcia, declared in an address delivered at the 
International Studies Conference on Collective Security at London in 
1935 r 11 

"The idea of sovereignty is not obsolete. . . . But since 
sovereignty is not obsolete, there arises a truly dramatic situ- 
ation in the international legal order, made up as it is of terri- 
torial units each of which is sole master of its own decisions 
and actions: namely, the impossibility in such an order, of 
ever realizing ... a security of the international society; 
only an increase of national security is possible. If interna- 
tional law wishes to perfect itself, it must begin by commit- 
ting suicide." 

This means that the centralization of the international legal functions 
is impossible because it would be contrary to the nature of interna- 
tional law. Professor de Luna's conclusion was: "Peace by law is, 



46 

then, a mirage." 12 Since it is easy to prove and indeed was proved 
prior to the first World War, that the doctrine at the basis of this oppo- 
sition to international security is erroneous, it may be assumed that 
the true reason for this opposition is not a theoretical consideration 
but a political tendency hidden by an incorrect doctrine. This was 
an essential element of fascist ideology. 

A characteristic document showing the attitude of this ideology 
towards collective security was the memorandum "The Idea of Col- 
lective Security" 13 presented by Professor Francesco Coppola to the 
above mentioned conference. The author asserted that a state could 
establish only its own security and that it could achieve this security 
by a military policy, by a policy of special alliances, or by pursuing 
both policies together. He spoke of the "myth of security," which 
he characterized as a "nightmare," and said that it "has disturbed 
and distorted political intelligence throughout the world and espe- 
cially in Europe," and has acted as "a paralyzing burden on European 
politics," constituting "one of the greatest obstacles to the establish- 
ment in the world, and especially in Europe, of a veritable peace." It 
must be recalled that the main objection to collective security is that 
it tries to preserve the status quo and thus immobilize history at a 
given moment in its perpetual development. Consequently, Professor 
Coppola postulated another system "giving elasticity and flexibility 
to the legal equilibrium set up by the treaties" which follow a major 
war. However, he did not answer the question of how to achieve 
this " flexibility." He also suggested that instead of organizing the 
repression of war, the causes of war should be eliminated. However, 
he did not say how this could be done. Although he tried to avoid 
the impression of defending war as a legitimate instrument of national 
policy, his attack on collective security could hardly be otherwise 
interpreted. He even tried to justify such a national policy by a kind 
of natural-law doctrine saying that it was quite "natural" that a 
state undertake war "on behalf of its special interests, i. e., on behalf 
of its national interest." However, it w r as his opinion that according 
to the principle of collective security : 

". . . nations would be forbidden to make war on behalf 
of their national interests, which are the only motives capable 
of arousing their passions to the point of braving this terrible 
danger and enduring suffering and death, while at the same 
time they would be obliged, on the contrary, to be always 
ready to engage in the terrible war of our time for reasons 
which do not concern them, which they do not understand, 
which do not by any means arouse their passions ; sometimes, 
even, they would be obliged to fight for interests contrary to 
their own historic interests, that is to say, they would be 



47 

forbidden to make war according to nature; and they would 
be ordered to make war against nature. This is evidently 
anti-historic and anti-human, and — since the nations are 
made up of men and not of machines — impossible." 

In addition "a particular war would be transformed, always and 
necessarily, into a world war." 

These arguments against collective security were set forth at a 
time when the international organization which had been established 
for the realization of this idea, the League of Nations, was obviously 
on the decline. However, similar arguments are advanced today by 
distinguished and influential writers ten years after the establishment 
of the United Nations, a security organization intended to be more 
effective than its predecessor organization, the League of Nations. 
The similar argument that is particularly proposed is that collective 
security is incompatible with the national policy of a state — the policy 
on the part of a state to cultivate its own national interest and only 
that interest — and that, from a realistic point of view, only this na- 
tional policy should be taken into consideration. It is asserted that 
any system of international security is doomed to failure because it 
demands that an individual nation forsake national policy which 
serves its own national interest, and because, by imposing upon indi- 
vidual nations the obligation of mutual assistance, it expects them 
to act in a spirit of self-sacrifice. However, this is impossible, for 
it is contrary to the only motive of national policy : national egotism. 14 

This argument is fundamentally wrong. For purely egotistic 
reasons, a state may conclude with other states a treaty establishing 
collective security and comply with all its provisions, just as an indi- 
vidual, for purely egotistic reasons, may comply with the norms 
of national law, either because he wants to avoid the evil of the 
sanctions or because he is aware of the fact that the effectiveness of 
the system which protects his own interests depends on the obedience 
of those subjected to it. An international legal order establishing 
the collective security of the states is neither more nor less a system 
for preserving the status quo than a legal order which regulates the 
mutual relations of individuals and thus guarantees their security. 
Similarly, the former is neither more nor less incompatible with the 
egotism of states than the latter is with the egotism of individual 
human beings. 

"Egotism" is a concept so broad that it comprises all possible motives 
of action. No attitude of human beings, and consequently no policy 
of government, is, by its very nature, necessarily incompatible with 
"egotism." Every attitude is actually motivated by "egotism" — in 
other words, the actions of an individual are motivated by his inten- 



48 

tion to realize what he considers to be his own interest. Hence r 
the argument that something is incompatible with egotism has no 
weight at all. No matter how a state acts, its action is motivated by 
egotism. A state may fulfill its obligation to come to the assistance 
of another state, of any other state, by resorting to war against an 
aggressor because its government is convinced that only in this way 
can the state secure its own national interest. On the other hand, a 
state may refuse to fulfill this obligation because its government feels 
that this fulfillment would not be in its interest. In both cases, the 
state acts motivated by its egotism, its "sacro egoismo,'' to use the 
terminology of Italian nationalism. That all actions of a state are 
motivated by its egotism is an undeniable fact and the ascertainment 
of this fact is a truism. However, the answer to the question of what 
is in the interest of a state is the result of a highly subjective value 
judgment. In the opinion of one government of a state a policy may 
be in the interest of the state, while in the opinion of another govern- 
ment of the same state under another political party, this same policy 
may not be in the interest of the state. 

The view that an international security organization is doomed to 
failure because sooner or later it must come into conflict with the 
interests of some of its members, could be accepted as an argument 
against the principle of international security only if the "own interest 
of the state" were ascertainable by an objective value judgment. How- 
ever, this is evidently not the case. The opposite view that an inter- 
national security organization always furthers interests of all the 
states which are members of the organization cannot be excluded by 
a scientific — that is, objectively verifiable — consideration, nor is it 
correct to argue that a treaty for collective security is impossible or 
unnatural because by imposing the obligation of mutual assistance 
upon nations it expects them to act in a spirit of self-sacrifice. 13 The 
fulfillment of this obligation motivates a state to risk self-sacrifice 
only if those who violate the constituent treaty, the aggressor or 
aggressors, are more powerful than those who comply with it — that 
is, only if the legal order constituting the security organization has 
lost its effectiveness to the extent that it may no longer be considered 
to be valid. A certain degree of effectiveness is the condition for the 
validity of any legal order, and its validity is its specific existence. 
As long as a collective security organization exists as a valid legal 
order, the risk of a state's being destroyed by fulfilling its obligations 
as a member of this organization is certainly less than its risk of being 
destroyed if no such organization exists. It is just for the purpose 
of diminishing this risk as far as possible — in other words, of pre- 
serving their existence — that states join a security organization. 



49 

Hence, this argument does not militate against the idea of an inter- 
national security organization but against the attitude of its members 
which deprives this organization of its effectiveness. 

The last argument — which holds that an attempt to organize inter- 
national security under contemporary conditions cannot prevent war 
but, on the contrary, makes war inevitable and, by preventing the 
localization of war, leads to a universal war — is the same exaggeration 
of an ideology which is hostile to the idea of international security 
as the argument that this idea necessarily implies a tendency to pre- 
serve the status quo. The only statement which can be made from 
the point of view of an unbiased analysis of international relations is 
that up to date the international organizations which have been estab- 
lished for the purpose of collective security have not been effective 
enough to prevent war, but, on the other hand, they certainly have 
not made, nor will such organizations ever make, war inevitable. 
Besides, the statement that an international system of collective 
security makes war universal contradicts the statement that such a 
system cannot prevent war, falsely presented by the exaggerated asser- 
tion that it makes war inevitable. It cannot prevent war because it 
cannot force the members of the security organization to fulfill their 
obligations. A security organization makes only that war inevitable 
which is resorted to by a state in fulfillment of the obligation imposed 
upon it by the organization. If a war between two states should 
become universal, this universal war could be attributed to a security 
organization only if this organization were so effective that it could 
force the overwhelming majority of its members, including some of 
the great powers, to fulfill their obligations to resort to war against an 
aggressor. However, if it were so effective, a local war would come 
to an end immediately, as soon as all the member states only showed 
their readiness to come to the assistance of the victim of aggression. 
Thus a war would not only be localized but even prevented. A uni- 
versal war cannot be the effect of an international organization for 
collective security. It can take place only if this organization is not 
effective. 16 

NOTES 

1. Of. pp. 152 ff. 

2. Even under general international law, when it is interpreted as not con- 
taining the 'bellum, justum principle, it is admitted that a unilateral enforcement 
action involving the use of armed force constitutes "war" if it is preceded by a 
declaration of war by the state performing the enforcement action, or if the 
state against which the action is directed declares that it considers the action to 
be an act of war. The question as to whether or not war is essentially a bilateral 
action should not be confused with the question as to whether or not it is nec- 
essary to determine that war exists and to ascertain who is competent to make 



50 

this determination. Like any fact to which international law attaches certain 
consequences, the fact of "war" must be ascertained by competent authorities. 
As long as no objective authority is established, the states concerned must deter- 
mine the existence of the fact of "war" in a concrete case. Hence, these states 
must decide whether there is or is not war in their mutual relations. However, 
a state attacked by another state may declare itself to be at war with an aggressor 
without resorting to a counterwar and without the aggressor formally declaring 
war. Consequently, the existence of a war does not depend on the existence of 
a counterwar. 

In the case of The Nyade (Great Britain, High Court of Admiralty, 1802, 165 
The English Reports 602-603), the question arose as to whether or not Portugal, 
an ally of Great Britain, was at war with France. The Court stated that "there 
was a wish on the part of Portugal not to consider herself as being at war with 
France," but declared that "it is by no means necessary that both countries 
should declare war. Whatever might be the prostration and submissive de- 
meanour on one side, if France was unwilling to accept that submission and 
persisted in attacking Portugal, it was sufficient." 

In The Eliza Ann (Great Britain, High Court of Admiralty, 1813, 1 Dodson 
244), the Court stated : "A declaration of war by one country only is not, as has 
been represented, a mere challenge, to be accepted or refused at pleasure by the 
other. It proves the existence of actual hostilities on one side at least, and puts 
the other party also into a state of war, though he may, perhaps, think proper 
to act on the defensive only." 

Article 16 of the Covenant of the Leage of Nations provided for sanctions in 
case a member should "resort to war in disregard of its covenants" against an- 
other member. A delict conditioning a sanction was committed even if an 
attacked member did not resort to a counterwar. It might omit doing so and rely 
on action by the other members obliged by the Covenant to take enforcement 
measures against a delinquent state. 

The Kellogg-Briand Pact forbade war as an instrument of national policy. 
However, only the employment of force by a state violating the pact and not a 
counteraction against this state could be characterized as an instrument of 
national policy. 

It is highly significant that in the provision of the Charter of the United 
Nations in which war is prohibited (Article 2, Paragraph 4), the term "war" does 
not appear. The Charter imposes upon the members the obligation to refrain 
from the use of force in their international relations. War, as the use of force 
by one state against another state, is forbidden, regardless of the attitude of the 
state against which force is used. 

3. Julius Stone, Legal Controls of International Conflict, New York 1954, 
pp. 304 f. : "The essentials of war under customary international law are two. 
International war is a relation of one or more governments to at least one other 
government, in which at least one of such governments no longer permits its 
relations with the other or others to be governed by the laws of peace. It is 
involved in this statement, as has been wittily observed, that, while it takes 
two to make a quarrel, it takes only one government to make a war." 

If the definition of war as a bilateral action is maintained, then within a 
system of collective security where war is permitted only as a sanction, the 
concept of war has no place. Cf. C. A. Pompe, Aggressive War an International 
Crime, The Hague 1953, pp. 35 ff. : "The traditional concept of war was bilateral; 



51 

the same juridical concept cannot be used to indicate simultaneously a lawful 
and an illegal proceeding. Today 'war' is either a sanction or a crime and there- 
fore 'war' does no more exist." Cf. also Hans Kelsen, Principles of International 
Law, New York 1952, pp. 25 ff. 

4. Cf. pp. 152 ff. 

5. Cf. Collective Security, p. 162. 

6. Cf. Bourquin, op. cit., p. 522. 

7. Bourquin, op. cit., pp. 522-23. He referred to the Treaty of Locarno (1925) 
as a model of such regional agreements for mutual assistance. 

8. Cf. Hans J. Morgenthau, Politics Among Nations, 2nd ed., New York 1954, 
pp. 155 ff., 169 ff. 

8a. Quincy Wright, "The Prevention of Aggression," American Journal of 
International Law, Vol. 50 (1956), p. 517: "collective security seeks stability 
through general observance of law, while balance-of-power politics seeks it 
through the curbing of excessive power." 

9. Ernest B. Haas, "Types of Collective Security : An Examination of Opera- 
tional Concepts." The American Political Science Review, Vol. XLIX (1955), 
pp. 40 ff., examines the question as to whether it is possible to maintain collective 
security by "balancing of influence and power." By this formula he understands 
the question whether it is possible to induce "the two chief antagonists to accept 
compromise solutions to tension-laden problems." (Loc. cit., pp. 54 f.) This 
is a political question, which may be raised from the point of view of that "delib- 
erately non-normative approach to the issue of peace," which Haas applies in 
his essay. It has nothing to do with the problem of collective security. 

10. Cf. Morgenthau, op. cit., pp. 84, 175, 388 ff. Cf. also Kenneth W. Thomp- 
son, "Collective Security Reexamined," The American Political Science Review, 
Vol. XLVII (1953), pp. 770 ff. 

11. Collective Security, p. 178. 

12. Op. cit., p. 179. 

13. Op. cit., pp. 144 ff. 

14. Cf. Morgenthau, op. cit., p. 391. Cf. also Howard C. Johnson and Gerhart 
Niemeyer, "Collective Security : The Validity of an Ideal," International Organi- 
zation, Vol. VIII (1954), p. 35: "The following findings, therefore, seem to be 
justified: (a) In the present international order of armed states great powers, 
according to their pattern of behavior, cannot be expected to accept clearly defined 
legal commitments of universal collective security. (6) Judging from the actual 
behavior of states in response to general principles of collective security the poli- 
cies of states cannot be expected to measure up to what, according to the concept, 
would be necessary if universal collective security were to become a working 
reality, (c) As far as our present experience goes, there do not appear to be 
habit-forming effects from attempts to invoke collective security or permanent 
advances in the attitudes and policies of governments toward the ideal standards 
of collective security, (d) Collective security, conceived in universal terms, is not 
actually considered by the great powers as a remedy for the basic insecurity of the 
present international system. 

From these findings, we would venture to draw these conclusions: It is (and 
has been) a mistake to work for an improvement of international relations by 
starting from universal concepts and seeking to impose them, intellectually or 
otherwise, on national policies. Collective security, in the definition here em- 
ployed, is such a concept; its elements (world-wide obligation, a global common 



52 

interest, a community of nations, world law, world security, aggression conceived 
as a universal crime, indivisibility of peace, world solidarity against aggression) 
represent universal standards and fail to allow for the particular situations that 
make up the reality of international politics. Collective security has actually 
been possible in certain historical instances when those universal concepts and 
standards happened so to coincide with configurations of the political forces that 
some concrete action required in the interests of a number of nations could be 
taken in the name of the universal principle. We should in soberness be aware of 
the concrete conditions that govern the use and action of national power ; we 
should continue to employ national power, in the concrete setting of political 
forces, for the promotion of those human values for the sake of which governments 
enjoy allegiance. Any further contribution that international organization may 
make to the problem of security on a global scale will have to stem from new and 
deeper insights into the problem of causation in international politics, and the 
ways in which common values and interests relevant to the use of force could 
actually take global shape. This would suggest the importance of providing the 
United Nations with a new conceptual foundation if it is to develop its greatest 
potential under present conditions as well as under more auspicious circumstances 
which it is hoped history will provide in the future." The authors do not define 
this "new conceptual foundation." 

15. This is the essence of Walter Lippmann's objection against the idea of 
collective security. He w r rote in his column of January 15, 1951 (quoted in: 
Frederick L. Schuman, The Commonwealth of Man, New York 1952, p. 406) : 
"The trouble with collective security is . . . that when the issue is less than the 
survival of the great nations, the method of collective security will not be used 
because it is just as terrifying to the policeman as it is to the lawbreaker. It 
punishes the law-enforcing states, at least until they have paid the awful price 
of victory, as much as the law-breaking states. Therefore it cannot be used as 
a method of ordinary and continuing enforcement. . . ." 

16. Frederick L. Schuman, op. cit., p. 345, says that the formula of collective 
security "is based on false premises and has never worked in practice ;" it "can- 
not conceivably work in the very nature of our system of states." "That this 
formula is futile and indeed productive of more, rather than less anarchy and 
violence has been experimentally demonstrated beyond reasonable doubt in the 
mind of reasonable men" (p. 369). The starting point of this pessimistic evalua- 
tion of collective security is the identification of this concept with the "now 
long familiar notion that peace among sovereignties can best be preserved by 
having all sovereigns solemnly compact to wage war against any sovereign who 
might take the sword" (p. 345). This, however, is not a definition of collective 
security, but only of a very low degree of it. Schuman does not deny the possi- 
bility of establishing by international agreement permanent peace, the very 
goal of collective security. He says : " 'Permanent' peace is possible only through 
a permanent termination of the game of power among rival sovereignties. . . . 
This goal is attainable only through the subjugation of all sovereignties by one, 
with a World-State emerging out of victory — or through the voluntary merging 
of sovereignties in a global policy, with a World-State emerging out of agree- 
ment. The first solution ... is unattainable in our own [time] . . . The second 
solution has never been attained. Yet it deserves to be regarded (unlike 'collec- 
tive security') as within the realm of the humanly possible" (pp. 419 f.). This 
second solution must not be opposed to collective security, for it is only a higher 
degree of this very principle. 



53 

2. COLLECTIVE SECURITY UNDER PARTICULAR 
INTERNATIONAL LAW 

(a) Defining the Use of Force To Be Prohibited 

Since collective security in international relations means primarily 
protection against that use of armed force which is called war, and 
since general international law does not prohibit war, if the helium 
justum principle is not considered to be part of it, international secur- 
ity can be established only by treaties imposing upon the contracting 
states the obligation to refrain from resorting to war. In an ideal case, 
war would be prohibited under all conditions with the exception of war 
as a sanction — that is, with the exception of war as a reaction 
against a violation of the law in general and the treaty con- 
stituting the international security organization in particular. If 
war is exceptionally permitted as a sanction, it is also permitted in the 
exercise of self-defense, for self-defense is a reaction against an illegal 
use of armed force. However, a constituent treaty may permit war not 
only as a sanction (including its use in self-defense) but also for other 
purposes, or, what amounts to the same thing, a constituent treaty may 
prohibit war only under definite conditions. For example, the con- 
tracting parties may assume only the obligation not to resort to war 
against each other without having previously submitted their conflict 
to a special agency competent to make recommendations for a peaceful 
settlement and not before a certain period of time after the decision of 
this agency has expired. If these conditions are fulfilled, a war 
resorted to by one of the parties is not illegal. 1 

Even if war is prohibited under all conditions (with the exception 
of war as a sanction against an illegal resort to war), international 
security is not satisfactorily established. Acts involving the use of 
armed force but not having the character of acts of war — as, for exam- 
ple, so-called pacific blockades — are left outside the system of collective 
security — that is, they are not under the specific sanctions provided 
for by the treaty constituting this system as reactions against the use 
of force prohibited by it. If a member of the security organization is 
a victim of the use of armed force short of war, the treaty constituting 
the security system does not apply. Only general international law 
applies, under which the use of armed force short of war is permitted 
only as a reprisal — that is, only as a reaction against a violation of the 
law. However, reprisals are the only sanctions which may be taken 
by the members of a security organization against such an illegal use 
of force short of war if a resort to war is permitted only as a reaction 
against an illegal resort to war. Moreover, the use of armed force is 
an objectively ascertainable fact. However, there is no objective cri- 



54 

terion by which an act of war can be distinguished from an act involv- 
ing the use of armed force which is not to be considered as an act of 
war. An act is an act of war if the state performing the act does not 
intend to restrict its action against the other state to this act, if its 
intention is an unlimited interference by the use of armed force in the 
sphere of interests of the other state. If only acts of war are prohib- 
ited, the application of the specific sanctions, and this means the oper- 
ation of the security system, depends on the answer to the question 
concerning the intentions of the state concerned. In many cases, it 
is impossible to answer this question immediately after the act has 
been performed but only after this act is followed by other acts of 
armed force which have done irreparable damage to the victim. 2 There 
can be no doubt that if a security organization is intended to be effec- 
tive, at least to a certain extent, not only the resort to war but every 
use of armed force must be prohibited by the constituent treaty — that 
is, the specific sanctions of the security system must apply not only 
in case of a resort to war but in case of any use of armed force. Any 
use of armed force may be considered to be a breach of the peace, and 
the very purpose of a system of international security is to guarantee 
peace. 

However, there is a certain tendency not to agree with such a far- 
going prohibition of any use of armed force. This tendency is based 
on the opinion that an unconditional renunciation of the use of armed 
force by an individual state in its relations with other states is not an 
essential element of a system of international security and that preven- 
tive measures, such as procedures for the peaceful settlement of con- 
flicts and measures for the removal of the causes of war, are more 
important. 3 This opinion is not very different from that advocated 
by those who are opposed in principle to the idea of international 
security. As we shall see later, an obligation imposed upon states 
to settle their conflicts by peaceful means is, so to speak, like a blank 
cartridge, if it is not combined with an obligation to refrain from the 
use of any kind of armed force. Furthermore, as has been noted, if 
they are applicable at all, measures for removing the causes of war have 
a rather limited effect. 

If a treaty constituting a system of collective security prohibits not 
only the resort to war but also the use of armed force short of war, 
it parallels general international law as far as the second prohibition 
is concerned. In this respect, the only difference between the situation 
under the security treaty and that under general international law 
is that the special sanctions provided for by the treaty as reactions 
against an enforcement action short of war are more effective than 
those provided for by general international law. In addition, a se- 



55 

curity treaty may also place under its specific sanctions violations of 
general international law other than the use of armed force short 
of war, e. g., the violation of the rules concerning the treatment of 
aliens or of the rule pacta stmt servanda. It may attach its specific 
sanctions to all violations of international law, as it exists at the 
moment the treaty enters into force, committed by members of the 
security organization, and even to a conduct which was not a delict 
under general international law as it existed prior to the treaty, e. g., 
to conduct which constitutes a mere threat to the peace, such as a 
concentration of troops or an armament exceeding the limits prescribed 
by the treaty. In other words, in addition to the obligation not to 
resort to war and the obligation to participate in the execution of 
sanctions, a security treaty may impose other obligations not estab- 
lished by general international law upon the members of a security 
organization. This means that under such a security system a greater 
sphere of interests of the state may be legally protected than under 
general international law. It stands to reason that the further a 
system of international security goes in this direction, the more re- 
stricted the freedom of action of the member states, and the greater 
the resistance of all those who insist on the sovereignty of the state. 
As has been noted, 4 an extension of a security system from the protec- 
tion of interests only against their violation by the use of armed force 
to the protection of interests against their violation in any way includ- 
ing a way other than by the use of armed force, goes hand in hand 
with an extension of the concept of force. "Force" is meant to in- 
clude not only armed force, but any illegal action of one state which 
violates the legally protected interests of another and which is under- 
taken against the will of this other state. Hence, enforcement actions 
involving the use of armed force are distinguished from enforcement 
actions not involving the use of armed force. 5 This change in the 
meaning of the concept of force implies a change in the meaning of 
the concept of aggression. This latter concept is an essential element 
of a system of international security insofar as the purpose of such 
a system is protection against aggression. 

NOTES 

1. This was the case under the Covenant of the League of Nations which 
declared in its preamble that a purpose of the organization was : . . . "inter- 
national peace and security by the acceptance of obligations not to resort to 
war . . ." It imposed upon the members not an unconditional obligation not to 
resort to war but only the obligation not to resort to war under the particular 
conditions set forth in the following Articles of the Covenant : 

Akticle 12. — 1. The Members of the League agree that, if there should arise 
between them any dispute likely to lead to a rupture, they will submit the matter 



56 

either to arbitration or judicial settlement or to inquiry by the Council, and they 
agree in no case to resort to war until three months after the award by the 
arbitrators or the judicial decision, or the report by the Council. 2. In any case 
under this Article the award of the arbitrators or the judicial decision shall be 
made within a reasonable time, and the report of the Council shall be made 
within six months after the submission of the dispute. 

Article 13. — 1. The Members of the League agree that, whenever any dis- 
pute shall arise between them which they recognize to be suitable for submission 
to arbitration or judicial settlement, and which can not be satisfactorily settled 
by diplomacy, they will submit the whole subject-matter to arbitration or judicial 
settlement." ... 4. The Members of the League agree that they will carry out 
in full good faith any award or decision that may be rendered, and that they 
will not resort to war against a Member of the League which complies therewith. 
In the event of any failure to carry out such an award or decision, the Council 
shall propose what steps should be taken to give effect thereto. 

Article 15. — 1. If there should arise between Members of the League any 
dispute likely to lead to a rupture, which is not submitted to arbitration or judicial 
settlement in accordance with Article 13, the Members of the League agree that 
they will submit the matter to the Council. Any party to the dispute may effect 
such submission by giving notice of the existence of the dispute to the Secretary- 
General, who will make all necessary arrangements for a full investigation and 
consideration thereof. 2. For this purpose the parties to the dispute will com- 
municate to the Secretary-General, as promptly as possible, statements of their 
case with all the relevant facts and papers, and the Council may forthwith direct 
the publication thereof. 3. The Council shall endeavour to effect a settlement of 
the dispute, and, if such efforts are successful, a statement shall be made public 
giving such facts and explanations regarding the dispute and the terms of settle- 
ment thereof as the Council may deem appropriate. 4. If the dispute is not thus 
settled, the Council either unanimously or by a majority vote shall make and 
publish a report containing a statement of the facts of the dispute and the recom- 
menations which are deemed just and proper in regard thereto. 5. Any Member 
of the League represented on the Council may make public a statement of the facts 
of the dispute and of its conclusions regarding the same. 6. If a report by the 
Council is unanimously agreed to by the Members thereof other than the Repre- 
sentatives of one or more of the parties to the dispute, the Members of the League 
agree that they will not go to war with any party to the dispute which complies 
with the recommendations of the report. 7. If the Council fails to reach a report 
which is unanimously agreed to by the Members thereof, other than the Represent- 
atives of one or more of the parties to the dispute, the Members of the League 
reserve to themselves the right to take such action as they shall consider necessary 
for the maintenance of right and justice. 8. If the dispute between the parties 
is claimed by one of them, and is found by the Council, to arise out of a matter 
which by international law is solely within the domestic jurisdiction of that party, 
the Council shall so report, and shall make no recommendation as to its settlement. 
9. The Council may in any case under this Article refer the dispute to the Assem- 
bly. The dispute shall be so referred at the request of either party to the dispute, 
provided that such request be made within 14 days after the submission of the 
dispute to the Council. 10. In any case referred to the Assembly, all the provi- 
sions of this Article and of Article 12 relating to the action and powers of the 
Council shall apply to the action and powers of the Assembly, provided that a 
report made by the Assembly, if concurred in by the Representatives of those 



57 

Members of the League represented on the Council and of a majority of the other 
Members of the League, exclusive in each case of the Representatives of the 
parties to the dispute, shall have the same force as a report by the Council con- 
curred in by all Members thereof other than the Representatives of one or more 
of the parties to the dispute." 

2. Professor Bourquin, op. cit., p. 481, correctly asserted that if the differentia- 
tion between acts of war and acts involving the use of armed force not having 
the character of acts of war, so-called "pacific measures of coercion," were in- 
troduced in a system of collective security, it would endanger the fundamental 
principle of this system which he defined as the prohibition of violence exerted 
for the purpose of imposing one's own will on others. He referred to the fact 
that "actually there is no external difference between an act of armed force 
and an act of war. The materiality of the facts is exactly the same in both 
cases; it is only the intention of the Parties which makes the difference. In 
order to remain within the limits of pacific measures of coercion the two states 
concerned must have the willingness not to allow a state of war to be born 
among them." He went on to say : "To authorize armed coercive measures means 
to permit the states to apply certain forms of coercion which may or may not 
be war according to circumstances not yet ascertained at the moment the event 
takes place." 

Professor Bourquin seems to ignore the fact that even if enforcement actions 
short of war are not prohibited by the treaty constituting a system of collective 
security, they are prohibited by general international law and are permitted 
only exceptionally as reprisals. 

3. Cf. Collective Security, p. 10. 

4. Cf. p. 11. 

5. Article 2, paragraph 4 of the Charter of the United Nations imposes upon 
the members the obligation to "refrain in their international relations from 
the threat or use of force against the territorial integrity or political independ- 
ence of any state, or in any other manner inconsistent with the Purposes of the 
United Nations." The wording of this Article can be interpreted to mean that 
members are obliged to refrain from not only the use of armed force but the 
use of any kind of force. A distinction between armed force and other kinds 
of force necessarily follows from the provisions of Articles 39, 41, 42 and 50, 
concerning the measures to be taken by the Security Council for the mainte- 
nance of international peace and security. According to the provisions of 
Articles 41 and 42, two kinds of measures are to be distinguished, and accord- 
ing to Article 50 both are to be considered as "enforcement measures" : measures 
"not involving the use of armed force" (Article 41), and measures involving the 
use of armed force (Article 42). If there are "enforcement" measures involving 
the use of armed force and "enforcement" measures not involving the use of 
armed force, armed force — that is, force exercised by the use of arms — must be 
distinguished from force exercised in another way — that is, force not exercised 
by the use of arms. There are two kinds of force not exercised by the use of 
arms: (1) an action of a state directed against another state which constitutes 
a violation of international law but which is not performed by the use of arms ; 
(2) a reprisal which does not involve the use of armed force. Article 2, para- 
graph 4, refers to the "use of force." It therefore prohibits both kinds of force. 
Hence, not only is the use of armed force prohibited but any action of a member 
state illegal under general international law which is directed against another 
state is prohibited by the Charter, and the member states are forbidden to resort 
not only to war but also to reprisals. 



58 

The application of sanctions is reserved to the Organization. However, the 
provisions of the Charter concerning sanctions are not very clear. The definition 
of an action against which the Security Council may take enforcement measures 
is not quite consistent with the provision of Article 2, paragraph 4. According 
to Article 39, the Security Council may take the enforcement measures referred 
to in Articles 41 and 42 in case of a "threat to the peace, breach of the peace, or 
act of aggression," whereas Article 2, paragraph 4, prohibits "the threat or use 
of force." The use of non-armed force may be considered by the Security Council 
to be a "threat to the peace" and may then constitute the condition of an enforce- 
ment measure to be taken by this organ as a sanction. However, if the violation 
of international law is not committed by the use of armed force and hence is not 
a breach of the peace or an act of aggression, and if it is not considered by the 
Security Council to be a "threat to the peace," a sanction as an enforcement action 
in conformity with Articles 39, 41 or 42 cannot be taken. It is true that the sanc- 
tion stipulated in Article 6, the expulsion from the Organization of a member who 
has violated the Principles of the Charter, is applicable in case of a use of force 
as referred to in Article 2, paragraph 4, the term force used in the wider sense 
comprising the use not only of armed force but of any kind of force. However, 
Article 6 applies only if the Principles of the Charter are "persistently" violated 
by a member, not if a member violates international law in a single case. If, as 
the wording of Article 2, paragraph 4, seems to indicate, the Charter prohibits 
any violation of international law on the part of the members and reserves the 
application of sanctions to the Organization, the Charter should have provided 
for sanctions to be applied by the Organization in case of any violation of inter- 
national law. Since this is not the case, in contradiction to its wording, Article 2, 
paragraph 4, may be interpreted as prohibiting only the use of armed force and 
not as forbidding reprisals to be taken by member states. 

(b) The Problem of Aggression 

(aa) The military concept of aggression and the legal concept. 

The term "aggression" was originally a military-technical concept. 
It means a first attack. A state which is the first to perform an act of 
war against another state is an aggressor. The war to which this first 
state resorts is an aggressive war, or war of aggression, whereas, in 
resorting to a counter war to defend itself, the other state wages a de- 
fensive war or war of defense. This distinction assumes legal im- 
portance only when the resort to war is prohibited either conditionally 
or unconditionally. The concept of aggression and the concept of il- 
legal war are not identical. From a military-technical point of view, 
a war may be aggressive because it constitutes a first attack. However, 
this does not necessarily make it illegal. For example, the law pro- 
hibits the resort to war only under definite conditions. In conformity 
with these conditions, a war against a state which refuses to comply 
with the decision of an international tribunal is not forbidden. In 
this case the state which, in order to enforce the decision which the 
tribunal has issued in its* favor, is the first to use armed force against 
the recalcitrant state is, from a military-technical point of view, the 



59 

aggressor but the war to which it resorts is perfectly legal, while the 
counterwar to which the other state resorts, is a defensive war but must 
be regarded as illegal. The same is true with respect to a war which 
the members of an international security organization are obliged to 
wage against a member state which has resorted to war against another 
member state in violation of the constituent treaty. The war which the 
states who are not being attacked themselves wage against the delin- 
quent state is an aggressive war but is legal, while the counterwar to 
which the delinquent resorts is a defensive war but is illegal. 

However, in legal terminology, there is an outspoken tendency to 
identify the concept of aggression with that of an illegal war or even 
an illegal use of force, a tendency to substitute a specifically legal 
concept of aggression for the original military-technical concept. 
The tendency is to designate as "aggression" that conduct of a state 
which a treaty constituting an international security system prohibits 
by attaching to it the specific sanctions of this system. Consequently, 
the meaning of the term "aggression" changes with the scope of the 
types of conduct against which an international security organization 
tries to protect its members. Hence, if the constituent treaty prohibits 
war under definite conditions, only a war resorted to under these 
conditions is considered to be aggression, while, even if it constitutes a 
first attack, a war resorted to under other conditions is not so stigma- 
tized. Following the extent of the prohibition stipulated in the con- 
stituent treaty, any resort to war is regarded as aggression if the war 
is waged for a purpose other than that permitted by the constituent 
treaty, especially for a purpose other than the participation in the 
execution of the specific sanctions of the security system or the exercise 
of self-defense. 1 

(bb) Aggression and self-defense as a restriction of the prohibition of 
the use of armed force. 

As pointed out in a previous chapter, self-defense means the use 
of force by the victim of an act of aggression as a reaction against 
this aggression, i. e., as a reaction against an illegal use of force. 
Hence, the right of self-defense presupposes a legal order prohibiting 
in principle the use of force by the subjects of the order, so that the 
right of a subject to use force represents a restriction of this principle. 
If general international law does not prohibit the resort to war as 
the use of armed force, in other words if the helium justwn principle 
is not part of general international law, there can be no right of self- 
defense under this law because there can be no use of armed force as 
a reaction against an illegal use of armed force. There is no need to 
justify the use of armed force as self-defense, as a restriction of or 

370624—57 5 



60 

exception to a general prohibition of the use of armed force, if no 
such prohibition exists. If the use of armed force by an aggressor is 
as legal as the use of armed force by a defender, self-defense is a 
legally irrelevant concept. Just as under general international law, 
if it does not contain the bellum justnm principle, there is no collective 
security, there is no right of self-defense. There is a definite con- 
nection between the two legal phenomena. If general international 
law does not prohibit the use of armed force, an international right of 
self-defense — that is, the right of a state to use armed force as a 
reaction against an illegal use of armed force — can be recognized only 
under a treaty prohibiting the use of armed force and thus establish- 
ing a system of international security. 

Since the right of self-defense represents a restriction of the pro- 
hibition of the use of force, and since this restriction may be of wide or 
narrow scope, the right of self-defense should always be expressly 
defined in the legal order establishing the system of collective security 
in general and in the treaty constituting the system of international 
security in particular. From the point of view of legal positivism, 
the widespread idea that the international right of self-defense, as a 
consequence of the natural right of self-preservation, is always pre- 
supposed and hence does not need express stipulation, is without 
foundation and is the source of serious difficulty in interpreting the 
treaties prohibiting the use of armed force. la 

Within a system of international security, self-defense may be per- 
mitted only as a reaction against an illegal use of armed force, against 
an "attack** which has actually begun. Hence, self-defense would be 
"defense'' and the illegal use of armed force would be "aggression'' 
in the military-technical sense of these terms. However, self-defense 
may also be recognized as a reaction against an attack which has not 
yet actually begun but which may reasonably be expected imminently. 
In this case, from a military-technical point of view, the use of armed 
force in the exercise of self-defense is an act of aggression, while from 
a legal point of view, the state against which self-defense is exercised 
is the aggressor. If an attack is not considered to be imminent but 
only to be probable in the near future, a war resorted to in order to 
forestall the attack is a preventive war. As a rule, a preventive war 
is prohibited within a system of international security and hence 
must be regarded as aggression. lb Within a security organization, the 
use of physical force by the individual members is permitted to a 
certain extent because the coercive machinery of the organization 
cannot function at the same moment the attack starts or appears 
imminent and hence the procedure of putting into operation the 
special sanctions of the system requires time. However, if the attack 



61 

has not yet started or is not imminent but is only considered probable 
in the near future, and consequently if there is time to prepare the 
operation of the coercive machinery of the security organization, there 
is no reason to permit the exercise of self-defense. Since it is difficult, 
if not impossible, to distinguish an international situation in which 
an attack on one state by another is imminent from a situation in 
which such an attack is only probable in the near future, the exercise 
of the right of self-defense within a system of international security 
may be properly restricted to the case of an armed attack which has 
already begun. 

In conformity with the terminology of the Charter of the United 
Nations, a distinction must be made between individual and collective 
self-defense. Individual self-defense is the action exercised by a state 
which is the immediate victim of an armed attack. Collective self- 
defense is the action by other members of the security organization 
which, without being attacked themselves, come to the assistance of the 
victim. Hence, collective self-defense is not "self-defense but the 
defense of another, and if it consists of the use of armed force, it is 
defense and not aggression only from a legal point of view and not 
from a military-technical standpoint. 

So-called collective self-defense — that is, the right to come to the 
assistance of the victim of an illegal use of armed force — may be 
restricted to the case in which a state — member or non-member of the 
organization — uses its own armed forces against a state which is a 
contracting party to the treaty constituting the security organization. 
However, the treaty may authorize or oblige the members to come to the 
assistance not only of another member but also of any other state, 
and not only in case the state is the victim of an illegal use of 
armed force by another state but also in case another state directly or 
indirectly supports revolutionary forces within the former, or even in 
case of a revolution not supported by a foreign state. This means that 
the security organization may protect its members not only against 
external and direct aggression but also against internal and indirect 
aggression. 2 

Since within a more or less centralized system of international 
security the exercise of the right of individual and collective self- 
defense must be permitted because the central organ of the organiza- 
tion cannot interfere immediately after an illegal use of armed force 
has taken place, the question of whether or not the use of armed force 
which has actually taken place is illegal must be decided by the state 
which claims to be exercising the right of individual or collective self- 
defense. However, this is true only as long as the central organ of the 
security organization does not interfere. As soon as it does, this cen- 



62 

tral organ must decide that question, and it may decide that question 
in another way than the state which claims to be exercising its right of 
self-defense. The central organ may decide that no armed attack 
has taken place which would justify the exercise of the right of self- 
defense, and that consequently the state claiming to be a defender is, 
in truth, an aggressor. Consequently, a state can exercise the right 
of self-defense only at its own risk. 3 

(cc) Other exceptions to the prohibition of the use of armed force. 

The prohibition of the use of armed force may be restricted not 
only by permitting the use of armed force in executing the specific 
sanctions provided by the constituent treaty and in exercising self- 
defense, but also in case a state comes to the assistance of its own 
nationals abroad whose lives or property are seriously endangered. 

The use of armed force may be prohibited by the constituent treaty 
and may thus constitute aggression only if it has the definite purpose 
of imposing the will of the state exercising the armed force on the state 
against which this action is directed. A state may resort to war 
against another state not in order to force this state to accept a change 
of their relations which could be brought about legally only with the 
voluntary consent of this state, but, on the contrary, in order to prevent 
the latter from forcing its will upon the former. This is the case of a 
preventive war which has already been discussed. Without resorting 
to war, a state may also perform a single act of armed force, e. g., it 
may occupy a definite place in the territory of a more powerful state 
only for the purpose of securing its defense against an attack by this 
state expected immediately or in the near future. This case differs 
from the case of a preventive war, but the difference is irrelevant 
within a system of international security. Whatever its purpose, 
unless it is an act of self-defense against an armed attack or an act 
of participation in the execution of the specific sanctions of the system, 
any use of armed force is a breach of the peace. Hence, without regard 
to its purpose, the use of armed force should be prohibited by a treaty 
constituting an effective system of international security. However, 
security treaties frequently prohibit the use of armed force only inso- 
far is it may be directed against the territorial integrity or political 
independence (i. e., the sovereignty) of another state, 4 which means 
only if the purpose of the enforcement action is to violate the terri- 
torial integrity or political independence of another state. Since it is 
hardly possible to use armed force against another state without 
violating its territorial integrity or political independence, this restric- 
tion does not really impair the effectiveness of the security system. 



63 

The purpose of an act of armed force performed by a state — to im- 
pose its will upon another state — is sometimes designated as the 
"aggressive intention." 5 The question as to whether or not an act 
of armed force is performed with such an intention or for this pur- 
pose must be distinguished from the question as to whether or not an 
act of armed force is performed deliberately, or because of negligence, 
error or accident. Whether or not a treaty constituting an inter- 
national security organization should prohibit, and thus qualify as 
aggression, only acts of armed force deliberately performed, is not a 
particular problem of collective security but a general problem of the 
legal technique of international law. It is really the problem of the 
responsibility of the states, the question of whether responsibility 
based on fault or whether absolute responsibility should be established 
by international agreements. There is a general tendency in favor 
of restricting the responsibility of a state to cases of deliberate viola- 
tions of international law, although other cases establishing the abso- 
lute responsibility of a state are not completely excluded. 

Another general problem which is not particular to collective secu- 
rity but which may be considered to be relevant to it is the question 
of whether a state should be made responsible only for acts violating 
international law performed by the government, or by subordinate 
organs at the command, or with the authorization of the government, 
or also for acts performed by subordinate organs without the com- 
mand or authorization of the government. If the principle is ac- 
cepted that a state is to be made responsible for violations of inter- 
national law committed by subordinate organs without command or 
authorization by the government if the act constituting the violation is 
performed in connection with the normal function of this organ, then 
such acts may also be regarded as aggression if they consist of an 
illegal use of armed force. A typical case is the invasion of the terri- 
tory of a state by a part of the armed forces of another state under- 
taken by a comanding officer on his own initiative. 

(dd) Aggression as conduct not including the use of armed force,' 
indirect aggression. 

International security is not satisfactorily guaranteed if the ti eaty 
constituting the security system provides its specific sanctions as a 
reaction only against an actual use of armed force — that is, if it pro- 
tects the members of the security organization against violations of 
their interests only by the use of armed force, or, what amounts to 
the same thing, if aggression is constituted only by the actual use of 
armed force. Hence, there is a tendency to extend the security system 
so that it protects its members against a violation of interests com- 
mitted in a way other than by the actual use of armed force, and to 



64 

qualify also a conduct not constituting the actual use of armed force 
as aggression. The constituent treaty ma} 7 prohibit as acts of aggres- 
sion not only the use but also the threat of armed force — its prepara- 
tion by military or economic mobilization, or even its planning or 
initiating. The extension of the prohibition, stipulated in the con- 
stituent treaty, to an indirect use of armed force, which is the basis of 
the concept of indirect aggression, 6 is of the greatest importance. In 
indirect aggression a state does not use its own armed forces but op- 
erates through armed persons performing hostile acts against another 
state, seemingly on their own initiative. The following actions are 
examples of indirect aggression: the supporting by a state of the 
revolutionary forces righting against the legitimate government of 
another state, the arming by a state of organized bands for offensive 
purposes against another state, the sending by a state of so-called 
"volunteers*' to engage in hostilities against another state, the non- 
prevention by a neutral state of its own nationals from participating 
as volunteers in a civil or international war against another state (an 
action not forbidden by general international law), the undertaking 
or encouragement by a state of terrorist activities in another state or 
the toleration by a state of organized activities calculated to result 
in terrorist acts in another state. 6a 

An international security system may even protect the governments 
of the contracting states against internal aggression by providing for 
repressive measures to be taken either by the individual states who 
are members of the security organization or by a central organ against 
revolutionary movements within a member state not supported, di- 
rectly or indirectly, by external forces. Such a system guarantees the 
political and economic regimes of the members of the security organi- 
zation which exist at the time the security treaty is concluded. Hence, 
this system goes far beyond general international law which does not 
guarantee the internal organization of states. If the enforcement 
measures taken by the organs of the security organization against the 
insurgents are considered to be sanctions, revolution against the legiti- 
mate government constitutes not only a violation of national law but 
also an international delict. 

Revolution understood to be internal aggression involves the use 
of armed force. However, an undertaking of a state may be prohib- 
ited as aggression even if the use of arms is not involved at all, as, for 
example, in poisoning a stream rising in a state's territory but flowing 
through a neighboring country, or in altering its course and thus 
depriving the inhabitants of the neighboring state of a vital means 
of subsistence, or in using life-destroying rays against the population 
of another state. 7 



65 

If the security treaty imposes upon the contracting parties the 
obligation to settle their disputes by peaceful procedures, the refusal 
to submit a dispute to such procedures or to comply with the decision 
of an organ competent to bring about its peaceful settlement or with 
a provisional measure, e. g., a call to discontinue military operations, 
may constitute a conduct against which the specific sanctions of the 
security system are directed. In that case, such conduct may be con- 
sidered to be aggression. 7a 

One case of aggression in which the use of armed force is not 
involved is so-called ideological aggression. It consists of hostile 
propaganda organized or permitted by one state against another. 
It is supposed to be an appeal to the inhabitants of the other state. 
It may be disseminated by the press or by radio broadcasts, which 
may be controlled by the government, or be effected by the dispatch 
of pamphlets and the like. The propaganda may consist of impart- 
ing information or ideas or in discrediting a government. If it 
violates the honor of another state or if its evident purpose is to insti- 
gate a revolutionary movement, it is illegal under general interna- 
tional law. 8 

It has been suggested that any intervention in the internal or exter- 
nal affairs of another state should be prohibited as aggression in the 
treaty constituting an international security organization by having 
attached to it the specific sanctions of the security system. It has also 
been suggested that there is no reason why this security system should 
not be extended to include protection against all violations of interna- 
tional law, as it existed at the time the treaty constituting the security 
organization came into force. As has been pointed out, the security 
treaty may prohibit a conduct, which was not illegal under interna- 
tional law prior to its coming into force. Provided the helium justwm 
principle is not considered to be part of general international law, this 
is the case with respect to the most essential element of any security 
system : the prohibition of war. It is certainly the case if the inter- 
national security organization tries to protect its members against 
so-called economic aggression. 9 Economic aggression has been de- 
fined as the conduct of a state which deprives another state of the eco- 
nomic resources derived from the fair practice of international trade 
or which endangers its basic economy. Such conduct does not involve 
the use of armed force and may be in complete conformity with inter- 
national law as it existed prior to the treaty prohibiting it as aggres- 
sion. There can be little doubt that such a security treaty es- 
tablishes a remarkable restriction on the freedom of action of the 
contracting parties and confers extraordinary power on the organ 



66 

competent to decide in a concrete case whether or not an act of 
economic aggression has been committed. 

If the treaty constituting the international security system places 
under the specific sanctions of this system not only the violations of 
the particular obligations stipulated by this treaty but also all viola- 
tions of general international law, the concept of aggression and the 
concept of international illegality may coincide. 9a It may then be 
advisable to distinguish not only between direct and indirect, but also 
between major and minor aggression. A major aggression is a viola- 
tion of international law constituted by an enforcement action involv- 
ing the use of armed force, while a minor aggression means any other 
violation which may also be characterized as an enforcement action, in 
that it is taken against the will of the state which is the victim of the 
action, although this action does not involve the use of armed force. 

(ee) The defintion of aggression. 

It follows from the foregoing considerations, that the concept of 
aggression may be defined in different ways, and that the definition 
depends on what kind of conduct the treaty constituting an interna- 
tional security system does or should prohibit by attaching to it the 
specific sanctions of this system. Hence, it is quite understandable 
that the definition of aggression plays an important part in the dis- 
cussion of the problem of international security, for defining aggres- 
sion amounts to determining the scope of the security system de lege 
lata or de lege ferenda. De lege lata, from the point of view of an 
established law, that is a treaty concluded for the purpose of granting 
collective security to the contracting parties, it is a theoretical prob- 
lem, the problem of describing by a general formula the acts which 
the treaty prohibits by attaching to them the specific sanctions of the 
security system. However, the treaty itself may contain such a 
formula which would then have the character of a legal definition, 
just as a penal code may contain a definition of theft. De lege ferenda, 
from the point of view of a law to be established — that is, of a treaty 
to be concluded — the definition of aggression is a practical-political, 
legislative problem, the problem of determining the conduct of states 
which should be prohibited, and especially of determining the condi- 
tions under which the use of armed force should be forbidden and 
under what exceptional conditions it should be permitted. However, 
strange as it may seem, the question concerned is usually formulated 
as whether or not aggression should be defined. 10 The representatives 
of many governments and some outstanding writers advocate the 
opinion that aggression should not be defined, that a definition is not 
desirable and is even dangerous, and that even if it should be defined 



67 

the task is almost overwhelmingly difficult. There is also a school 
of thought which maintains that aggresion cannot be defined, 11 that 
it is a concept which by its very nature is not susceptible of definition. 
There is even a doctrine which holds that it is both possible and desir- 
able to eliminate the problem of aggression from the organization of 
international security altogether. However, the opposite views have 
also been defended that the problem of aggression cannot be avoided, 
and that aggression can and should be defined. It has also been held 
that it can be defined but should not be because no politically satis- 
factory definition could be achieved, or that even if such a definition 
could be achieved it would be superfluous, or that aggression can and 
should be defined although the difficulties of defining it should not 
be ignored. 

(ff ) The attempt to eliminate the problem of aggression. 

The view that it is both possible and desirable to eliminate the prob- 
lem of aggression is advocated by those who suggest directing the 
collective measures to be provided by the treaty constituting an inter- 
national security organization not against the state guilty of an act 
of aggression but against any state which has resorted, or is about to 
resort, to war or to the use of armed force, without deciding the ques- 
tion of which state is the actual or potential aggressor. They contend 
that a security system should react against the fact of war as such and 
not against a specific act of aggression committed by only one state. 
The advantage of such a method is that it would avoid the violation 
of national honor inevitably involved in stigmatizing a state as an 
aggressor. 12 This doctrine can easily be refuted. The problem of 
aggression cannot be avoided within a system of international security. 

If the member states of an international security organization are 
obliged to apply only economic sanctions, as was the case under the 
Covenant of the League of Nations, the equal application of these 
sanctions to both states involved in a war may result in the defeat of 
the economically weaker state by the economically stronger state, 
which would be less affected by these sanctions. If one state is not 
economically superior to the other, and hence both are affected equally 
by economic sanctions, the militarily weaker state would be defeated. 
Hence, if an economically or militarily weaker state were the victim 
of an aggression, such a system is just the contrary of a security system. 
It affords no protection against aggression and does not have the effect 
of stopping or preventing war. 

It may be that within a system of international security, for one 
reason or another, it is not possible to determine the aggressor. Then 
it may be inevitable to direct repressive measures against both states, 



68 

the unidentified aggressor as well as the likewise unidentified de- 
fender. 13 However, such measures, especially those involving the use 
of armed force, can hardly be taken without a so-called provisional 
measure, a previous call to the belligerents to cease hostilities. In case 
only one state is ready to comply with this call, the application of mili- 
tary measures to this state would not only be considered as unjust, it 
would also be completely superfluous, and the state which refused to 
comply with the call to cease hostilities should be considered to be 
the aggressor. It is in just such a case that a definition of aggression 
which includes not only the use of armed force but also the non-compli- 
ance with a provisional measure is appropriate. Only if both bellig- 
erents refuse to comply with a call to cease hostilities is the application 
of military measures against both of them justified. However, in this 
case the actions of both fall within this definition of aggression. 

Within an organization constituted by a treaty providing for eco- 
nomic and military sanctions to be directed against both states involved 
in a war, no right of self-defense is recognized, even though the coercive 
machinery of the organization, the main purpose of which is to stop 
the war, cannot go into effect immediately after the outbreak of war. 
This is highly objectionable, for if a state which is a victim of aggres- 
sion does not offer resistance by the use of its armed force, in compli- 
ance with the prohibition not to resort to war, it will probably suffer 
irreparable damage. If in the case of a war between two states the 
question is not decided which of them is the aggressor, an obligation to 
repair the damage caused by the war can be imposed only upon both 
or upon none of the belligerents. In either case gross injustice is 
inflicted upon the state which is not the aggressor. 

An effective system of international security must provide for sanc- 
tions not only in case of an actual breach of the peace by an act of 
aggression but also in case of a threat to the peace. If there is not 
an actual war between two states but only a danger of war because 
two states have started to mobilize or have concentrated troops on 
their frontiers, the central organ of the security organization must 
be able to apply preventive measures. It must therefore be able to 
call upon both states to stop their mobilization, or to withdraw their 
troops from their frontiers, and to submit their conflict to pacific 
procedures to be conducted by this organ or another organ of the 
security organization or an organ to be established for this purpose by 
the states in conflict. If one of the two states refuses to comply with 
the call, or if one of them refuses to comply with the decision of the 
organ competent to bring about a pacific settlement of the conflict, 
then repressive measures — that is, sanctions — would be directed 



69 

against this state. It stands to reason that it would be foolish to 
direct repressive measures against the state which complies with the 
call of the organ of the security organization or the decision of the 
organ to which the conflict has been submitted. Such measures would 
not have the character of sanctions. They could reasonably be applied 
only to the state which refuses to comply with the call to stop mobili- 
zation, or to withdraw its troops from the frontier, or to submit the 
conflict to a pacific procedure, or to comply with the decision of the 
organ competent to bring about a pacific settlement of the conflict. 
However, this state would be an aggressor according to the definition 
of aggression referred to above. As far as repressive measures are 
concerned, and repressive measures are indispensable to an effective 
security system, such measures can reasonably be applied only as 
reactions against aggression. However, by aggression not only the 
use of armed force but also other illegal conduct, especially non- 
compliance with preventive measures taken by the (direct or indirect) 
agencies of a security organization, may be understood. Consequently, 
the problem of aggression must be included in a consideration of the 
organization of international security. 14 

(gg) Is the concept of aggression not susceptible to definition? 

As to the doctrine that aggression is a concept which is not sus- 
ceptible to definition, 15 it should be remembered that "definition" is a 
term which may designate different things. "Definition" may mean 
a statement determining the meaning of a term. Defining a concept 
consists of determining the qualities belonging to this concept. Inso- 
far as a "concept" is the result of a definition, a concept which cannot 
be defined is a contradiction in terms. One of the purposes of a 
definition is to enable us to distinguish one object from another simi- 
lar object. However, a definition may have to employ a term desig- 
nating an object which exists in different degrees such as size, tem- 
perature, density, and the like. Then it is inevitable that there are con- 
crete cases in which it is not certain whether the definition applies to 
concrete objects of which it is doubted whether they fall under the defi- 
nition, as, for instance, whether or not a man is a giant, this concept be- 
ing defined as a man of extraordinary size. To maintain that such a 
definition is not a definition, is as much a fallacy as to maintain that 
there is no difference when there is only a difference in degree and not 
in kind, or, what amounts to the same thing, only a relative but not an 
absolute difference (the so-called black or white fallacy). This is the 
fallacy implied in the statement that aggression cannot be defined, if 
this statement is based on the fact that there is no absolute difference 



70 

but only a relative one between a conduct which may and a conduct 
which may not be regarded as aggression and that there are intermedi- 
ate states between these two kinds of conduct. However, aggression is 
not this kind of a concept, and it can be defined in a way that never 
makes it doubtful whether a concrete conduct, provided it is known, 
does or does not constitute aggression. 15 If aggression could not be 
defined, it would be impossible in a concrete case to apply the general 
norm attaching a sanction to an act of aggression. Hence, it would 
be impossible to determine an aggressor. The law-applying organ, 
whether it be the government of an individual state or an international 
agency such as a council or a court, can apply this norm to a concrete 
case and thus determine the aggressor only if it is able to ascertain 
that a concrete conduct of a state constitutes aggression, which means 
that this conduct must exhibit all the essential qualities of the concept 
concerned. This presupposes that the law-applying organ has a 
definition of aggression in mind. If this organ does not find the 
definition included within the general norm to be applied, it must 
construct this definition itself. Furthermore, if the general norm 
does not contain a definition of aggression, it must authorize the law- 
applying organ to define that conduct which the general norm pro- 
hibits by attaching to it a specific sanction, just as a penal law pro- 
hibiting murder by attaching capital punishment to this conduct must 
define it or leave the definition to the court competent to apply the 
law in a concrete case of murder. If this were not done, the court 
would be unable to ascertain the fact that a definite individual had 
committed murder and to inflict the prescribed punishment on the 
murderer. 

(hh) The two ?nethods of defining aggression. 

In regard to defining aggression, the only legitimate question is 
whether the definition of aggression should be inserted into the general 
norm attaching a specific sanction to aggression or whether this defi- 
nition should be left to the organ competent to apply this norm in a 
concrete case of aggression and thus competent to determine 
the aggressor. It is essential to a system of international security 
that it contain such a general norm. The question of defining 
aggression is not a question of the possibility and advisability of 
defining it, as the question is usually presented, but rather of deter- 
mining at what stage of the legal process the definition should be 
established. The question is whether within a system of international 
security the organ competent to ascertain that a concrete act of aggres- 
sion has occurred and thus to determine an aggressor should be bound 
by a pre-established definition of aggression or whether it should be 



71 

authorized to construct this definition itself. The question of defining 
aggression is implied in the general problem of the rule-of-law prin- 
ciple within a system of international security. As has been noted, 
this is the principle which, as far as possible binds the law-applying 
organs to pre-established general norms, and leaves these organs as 
little discretion as possible in exercising their functions in order to 
render their decisions calculable and thus reduce the uncertainty with 
respect to these decisions and increase the so-called legal security as far 
as possible. It is evident that if the definition of aggression is left 
to the organs competent to apply the treaty constituting an interna- 
tional security system, the definition adopted in one case may differ 
from that adopted in another. Consequently, the states which are 
members of an international security organization cannot foresee 
what conduct will be regarded by the competent organ as aggression 
and thus as illegal. As has been pointed out, this situation certainly 
does not correspond to the ideal of international security. Of course, 
this does not mean that an attempt to maintain the rule-of-law prin- 
ciple within a system of international security does not encounter 
certain difficulties or that the realization of this principle does not 
have certain disadvantages. In addition, it is understandable that 
there should be some doubt as to which of the two methods is pref- 
erable : to bind the law-applying organs to the definition of aggression 
pre-established in the constituent treaty, or to leave this definition to 
the law-applying organs. The choice between these two methods is a 
difficult one, and it is quite possible and understandable that the gov- 
ernment of a state would favor one method under certain political 
circumstances and another under other circumstances. In the Sixth 
Committee of the United Nations General Assembly, in explaining 
his country's past and present position with regard to the question of 
denning aggression, the representative of the United States declared : 

"A number of delegations had said the United States had 
in 1945 argued the view which was now that of the Soviet 
Union. That was quite true, and the United States did not 
in any way pretend that it was not. In 1945, the United 
States had been in favour of a definition of aggression because 
at that time there had been every reason to believe that the 
term 'international co-operation' would have a real connota- 
tion. Unfortunately, the state of international relations had 
become such as to convince the United States that a definition 
of aggression had become not only undesirable but even dan- 
gerous. The United States delegation had not obeyed a 
whim; it had adopted a position which was diametrically 
opposed to the stand it had taken in 1945 and had done so in 
view of international developments." 16 



72 

There are good reasons for preferring one or the other method. 
However, in order to make a reasonable choice, it is necessary to 
formulate the two methods correctly. Hence, it is not the choice 
between denning and not defining aggression that must be made, 
because aggression must be defined anyway; nor is the choice to be 
made the choice between a method of defining aggression and a method 
of determining an aggressor, as it is sometimes formulated, 17 for an 
aggressor can be determined only on the basis of a definition of 
aggression, whether the definition is pre-established or left to the organ 
competent to determine an aggressor. 18 No matter how important it 
may be, the difference between these two methods is only relative and 
not absolute. Even if the constituent treaty contains a very detailed 
definition of the prohibited aggression, the law-applying organ is not 
completely bound in determining an aggressor, for no definition can 
determine its object, and no general norm can bind the law-applying 
organ completely. Every definition contains elements, i. e., employs 
terms, which themselves require definition. It is therefore not justifi- 
able to object to a definition of aggression if it employs such terms. 
For example, if in a penal law, murder is defined as bringing about the 
death of another human being intentionally, each term of this defini- 
tion is open to interpretation. This means that each term has to be 
defined by the court in each concrete case. Every application of a 
general norm in a concrete case requires interpretation and so do the 
definitions of the terms used in the general norm. Consequently, a 
certain degree of discretion is always left to the law-applying organ. 

On the other hand, if the constituent treaty prohibits aggression 
without defining this concept, the discretion of the law- applying organ 
in defining the concept is not unlimited. If a word like "aggression" 
has any meaning at all, there is always a minimum of general under- 
standing, and it is only to achieve a maximum of understanding that a 
determination of the meaning by definition is required. The meaning 
of a word is a sphere with a relatively solid center, like the stone of 
a fruit, and a more or less liquid, i. e., vague, periphery. Hence, even 
if "aggression" is prohibited without being defined in advance, not 
every conduct of a state can be regarded by the law-applying organ 
as aggression. The difference between the two methods consists only 
of the fact that much less discretion is left to the law-applying organ 
in the case where aggression is defined in advance than in the case 
where aggression must be defined together with the determination of 
the aggressor. The difference is sometimes assumed incorrectly to be 
that the former method is "automatic," 19 while the latter is not, which 
means that if aggression is defined in advance, the determination of 
the aggressor is, so to speak, self-acting because it does not depend 



73 

on the will of the organ determining the aggressor, while in case 
there is no pre-established definition, the determination of the aggres- 
sor cannot be performed without a conscious and deliberate action of 
a competent organ morally responsible for this action. Such action 
is necessary in both cases. 

No general norm can be applied automatically in a concrete case, 
because such an application always requires the creative function of 
a law-applying organ. The procedure by which a general norm pro- 
hibiting aggression by attaching a sanction to this conduct is applied 
in a concrete case can never be the automatic consequence of this norm, 
even if the norm contains the most detailed definition of aggression. 
The execution of a sanction prescribed in the general norm is not pos- 
sible without the ascertainment of a fact that occurs only after the 
general norm has been established: an act of aggression performed 
by a definite state at a definite time and at a definite place. This as- 
certainment, as a function of the law-applying organ, is necessary 
whether the general norm does or does not contain a definition of 
aggression, and it requires a conscious and deliberate action constitut- 
ing the responsibility of the acting organ, whether its liberty of 
action in determining an aggressor is more or less limited. It is true 
that it is always limited, but only to a certain extent, since a certain 
degree of discretion is always left to the law-applying organ. 20 How- 
ever, it must be admitted that the moral responsibility of the organ 
determining the aggressor is much greater if this organ must define 
aggression itself than if the definition is pre-established and the dis- 
cretion the organ may exercise in determining the aggressor is very 
limited. 

(ii) The arguments against a pre-established definition of aggression. 

Among the arguments set forth against a pre-established definition 
of aggression are some which can easily be refuted. One is that no 
definition of aggression will discourage "major" aggressors whose 
motives are military and political. 21 While this may be true, it is not 
an argument against a particular method of organizing international 
security but a pessimistic evaluation of the possible effectiveness of 
any international security organization. The other argument was 
presented in the famous statement made on 26 November 1927 by 
Sir Austen Chamberlain in the House of Commons in which he said 
that a definition of aggression (especially by enumerating the acts 
of aggression) "will be a trap for the innocent and a sign-post fo*' 
the guilty." The possibility that a state may accomplish a plan most 
harmful to another state and yet evade the most carefully formu- 
lated definition of aggression can certainly not be denied. However. 



74 

neither can it be denied that this possibility may be restricted to a 
certain extent if potential aggressors are informed in advance which 
of their acts will probably lead to a most undesirable reaction on the 
part of the security organization. Consequently, potential aggressors 
may make some effort to alter their aggressive actions in order to avoid 
these reactions. There is no legal prohibition which cannot be eluded 
in some way, but this is certainly not sufficent reason to renounce a legal 
regulation of human relations. During the discussion of the Report 
of the Special Committee on the question of defining aggression in 
the Sixth Committee, the representative of the United Kingdom justi- 
fied his rejection of a pre-established definition also by the statement: 
"The real safeguard against aggression lay not in definition, but in 
disarmament." 22 It stands to reason that a definition in itself has no 
effect. The effect is expected from the application of a legal rule 
attaching a sanction to an act which, in accordance with a definition 
contained in this rule, has been declared by the law-applying organ to 
be an act of aggression. It cannot be denied that a legal rule which 
precisely determines the act prohibited by it, may have a greater effect 
than a rule which does not answer the question as to what exactly is 
prohibited. 

The arguments which may reasonably be set forth for or against a 
pre-established definition of aggression are, in principle, the same as 
those which may be advanced for or against the rule-of-law principle. 
The most important argument in favor of inserting into the treaty 
constituting an international security organization a definition of 
aggression, provided that this term is used in the treaty, or what 
amounts to the same thing, the main reason why the constituent treaty 
should determine as precisely as feasible the conduct of states against 
which the sanctions stipulated by the treaty are to be directed, is that 
all the members of a security organization have a legitimate right to 
know in advance what conduct is prohibited. It cannot be denied 
that a legal order is most unsatisfactory if it leaves its subjects in 
complete uncertainty about the content of their obligations. 23 This 
is especially true if the sanctions provided for by a legal order have 
the character of punishment, if the law is penal law, if the constituent 
treaty establishes individual criminal responsibility for all or even 
some of its violations. 24 If such a treaty does not define the crimes 
which constitute aggression, for the commission of which individuals 
may be punished, but leaves the definition of these crimes to the law- 
applying organ, such crimes may very well be regarded, if not formally 
at least substantially, as so-called crimen sine lege, and the punish- 
ment inflicted by the organ upon a person found guilty of such a 
crime may very well be considered to be poena sine lege. This means 
that establishing individual criminal responsibility for crimes con- 



75 

stituting aggression without denning these crimes in advance implies 
the violation of a fundamental principle generally recognized in the 
field of criminal law : nullum crimen et nulla poena sine lege, no crime 
and no punishment without a pre-established general norm defining, 
as precisely as possible, the crime as well as the punishment. This is 
the application of the rule-of-law principle to criminal law. 25 

If the opposite principle of leaving the definition of aggression to 
the law-applying organ is adopted in a security system, it is usually 
justified by the argument that it guarantees the flexibility of the legal 
order. 26 There can be no doubt that lawmakers in general, and those 
who on behalf of their states conclude a treaty constituting an inter- 
national security system in particular, cannot foresee all the possible 
circumstances under which a pre-established general norm has to be 
applied and cannot provide for unforeseen circumstances in which an 
application of the norm may lead to unsatisfactory results. However, 
this problem is not particular to a system of international security, 
but applies to any legal order. The disadvantage involved is a con- 
sequence of the rule-of-law principle and may be considered to be out- 
weighed or at least compensated for by the advantages of this prin- 
ciple. In regard to this rule-of-law principle, it may be added that 
the greater the discretion left to the law-applying organ, the greater 
the possibility of its decisions being influenced by motives other than 
the sincere intention of realizing the main purpose of a security system 
which is to react against an aggressor, or, as it is usually formulated, 
the greater the possibility of being influenced by political considera- 
tions. An organ competent to determine the aggressor, especially if 
this function is left to the individual states, will hesitate to apply the 
constituent treaty in conformity with its spirit if the state against 
which the sanctions provided for by the treaty are to be directed is 
very powerful or is united with the state competent to determine the 
aggressor by a common interest other than an interest in the collective 
security for which the international organization is established. If 
the answer to the question of which state is the aggressor depends on 
a definition of aggression by the law-applying organ, the state acting 
as an organ of the security organization will naturally find justifica- 
tion for an attitude determined by its political interests. 

(jj) Is aggression a political concept and not a legal one? 

It is because of this possibility that the method of defining aggres- 
sion in advance is sometimes opposed. This opposition is frequently 
justified by a doctrine which holds that aggression is not a legal con- 
cept, or not an exclusively legal concept, but a political concept or a 
partially political concept. The conclusion this doctrine reaches is 

370624—57 6 



76 

that only legal, and not political, concepts can or should be defined in 
advance ; or, that as far as the problem of collective security in general 
or the concept of aggression in particular are concerned, legal func- 
tions cannot be separated from political considerations; or, assuming 
that juridical considerations cannot be divorced from political fac- 
tors, 27 that the treaty constituting an international security organiza- 
tion is not a legal but a political instrument and consequently has to be 
formulated and interpreted in a political way and not from a strictly 
juridical standpoint. 

In the opinion of the author these views are theoretically untenable. 
A concept is legal if its object is a set of legal norms or social relation- 
ships constituted by legal norms, and a concept is political if its 
object is a set of norms other than legal norms or the social relation- 
ships constituted by such norms. There is no reason to assume that 
political concepts are less definable than legal concepts or that only 
legal concepts must be more or less precisely defined. The question 
of whether or not a concept is definable and if it is, to what extent it 
is definable, is a logical question which has nothing to do with the 
legal or political character of a concept. It cannot be maintained 
that concepts employed in political norms, in contradistinction to 
concepts employed in legal norms, should not be defined in advance 
in order to allow the organ applying the political norms the greatest 
possible liberty of action, because a pre-established definition of a 
legal concept may be rejected for the same reason. It is a peculiarity 
of the law that it regulates its own creation and application. However, 
the creation and application of the law are always determined not 
only by legal norms but also by non-legal, political norms, or, as it is 
usually formulated, by political considerations. This is not particular 
to a legal system of international security. The establishment of the 
historically first constitution of a legal community, a state, for ex- 
ample, is determined exclusively by political norms. The creation 
of statutes under a constitution is determined by the legal norms of 
the constitution but usually only insofar as the legislative procedure 
in which the statutes are to be created is concerned. The content of 
statutes is determined only by non-legal, i. e., political norms. The 
application of statutes by courts and other law-applying organs is 
determined to a much greater extent by legal norms (by the statutes 
themselves) and to a much lesser extent by non-legal, political norms 
than the creation of statutes. If discretion is left to an organ com- 
petent to create or to apply the law, in fulfilling its function the 
organ may be influenced by other than legal norms — that is, by 
political norms or, as it is usually formulated, by political considera- 
tions. However, the influence of political norms or political con- 



77 

siderations must take place only within the framework of the legal 
norms determining the function of the organ. Since the function of 
either a law-creating or a law-applying organ can never be determined 
completely by legal norms, the legal function really cannot be sepa- 
rated from political considerations, except in the sense that political 
considerations cannot be eliminated in that area of an organ's function 
that is not determined by legal norms. In this sense, political con- 
siderations cannot be divorced from the function of a law-applying 
organ within a system of international security, whether the con- 
stituent treaty prohibiting aggression does or does not contain a 
definition of this concept. However, there is more room for political 
considerations if the treaty does not contain such a definition. Since 
the treaty is a legal instrument, stipulating legal obligations and legal 
rights of the contracting parties on the basis of general international 
law, the concept of aggression employed in the treaty is a legal concept. 
However, in defining the concept of aggression, the lawmakers — that 
is, the contracting parties — are directed not by general international 
law, if this law does not prohibit aggression, but by political principles. 
Insofar as the concept of aggression is both a legal and a political 
concept, just as the treaty itself is both a legal and a political instru- 
ment, the same is true if the definition of aggression is left to the 
law-applying organ. This is a consequence of the fact that the legal 
functions of creating and applying the law are always determined 
not only by legal but also by non-legal, political norms. 

As far as the interpretation of the constituent treaty, or the inter- 
pretation of any legal instrument, is concerned, it is neither legal nor 
political because no interpretation is specifically legal or specifically 
political; all possible methods of interpretation are applicable to all 
possible objects of interpretation. A constitution, a treaty, or a politi- 
cal agreement which has no legal character at all can be interpreted 
in the same way as the Bible or Shakespeare's Hamlet. 

It follows from this analysis that the above mentioned view which 
rejects a pre-established definition of aggression by referring to the 
political character of the concept, or of the constituent treaty employ- 
ing this concept, is open to argument. However, it does not follow 
that a pre-established definition of aggression cannot be rejected. 
What does follow is that such a rejection must be justified in another 
way and can best be justified by arguments in favor of a high degree 
of flexibility of a security system which, as pointed out, can be achieved 
only at the expense of the degree of security. However, a reasonable 
degree of flexibility of this system can be established without abandon- 
ing the attempt to define aggression in the treaty constituting the 
international security organization. 



78 

(kk) General or enwmerative definition of aggression. 

Aggression may be defined in a constitutent treaty either by a gen- 
eral formula (a so-called general definition), by specifying the partic- 
ular actions which constitute aggression (a so-called enumerative 
definition), or by a general formula illustrated by the specifications 
of certain actions which fall within the scope of the general defini- 
tion (mixed definition). 28 

A typical example of a general formula defining aggression is the 
statement : aggression is any use of armed force by one state against 
another for purposes other than self-defense or the execution of a 
sanction stipulated by the treaty constituting a security organization. 29 
It makes no difference whether the treaty contains an express state- 
ment defining aggression in this way, or whether it simply prohibits 
any use of armed force by attaching specific sanctions including en- 
forcement measures involving the use of armed force to it, excluding 
the application of these sanctions in the case of self-defense. It 
stands to reason that if a constituent treaty includes a general norm 
of this content, it need not employ the term "aggression" at all, and 
it would be superfluous to insert an express statement defining this 
term into the treaty. The definition of aggression is implied in the 
general norm and may be deduced from it by interpretation. Hence, 
the fact that a definition is superfluous in this case cannot be used, 
as it actually has been used, as an argument against a pre-established 
definition of aggression; nor can such an argument be based on the 
fact that a general definition, which is either implied in the general 
norm or is expressly formulated, could not achieve the main object of 
indicating precisely the cases in which aggression could be said to 
have occurred, and that in spite of such a definition it would be im- 
possible to say in advance whether or not a given act was an aggressive 
act. 30 The main object of a general definition is not to enable one to 
indicate precisely and in advance all possible acts of aggression. At 
any rate, such a prediction is impossible. However, without doubt, 
there is a greater probability of foreseeing which acts will be declared 
acts of aggression by law- applying organs if there is a general defini- 
tion of aggression inserted in the constituent treaty than if the treaty 
forbids aggression without any express or implied definition of this 
concept. 31 

Because the general norm formulated above or an express definition 
corresponding to such a norm does not allow a precise indication of 
all possible acts which are to be recognized as acts of aggression, a 
security system of this type has a relatively high degree of flexibility. 
It is flexible although it is not the definition of aggression, but the 



79 

definition of a term used in the definition of aggression, the term 
"armed force," which is left to the law-applying organ. There is no 
doubt that this term can be defined in very different ways and that 
a remarkable amount of discretion in defining the term is conferred 
upon the law-applying organ competent to decide whether a concrete 
act does or does not constitute a use of armed force. 

A characteristic example of a so-called enumerative definition is 
the definition of agression contained in the proposal of the USSR 
Delegation submitted to the General Commission of the Disarmament 
Conference (1932-1933) on 6 February 1933. The proposal did not 
present a definition of aggression but a definition of the aggressor 
which ran as follows (Doc. 1933. IX., 10, p. 237) : 

"1. The aggressor in an international conflict shall be con- 
sidered that State which is the first to take any of the follow- 
ing actions : 

(a) Declaration of war against another State; 

(b) The invasion by its armed forces of the territory 
of another State without declaration of war ; 

(c) Bombarding the territory of another State by its 
land, naval or air forces or knowingly attacking the naval or 
air forces of another State ; 

(d) The landing in, or introduction within the frontiers 
of, another State of land, naval or air forces without the per- 
mission of the Government of such a State, or the infringe- 
ment of the conditions of such permission, particularly as 
regards the duration of sojourn or extension of area ; 

(e) The establishment of a naval blockade of the coast 
or ports of another State." 

To this enumeration of acts of aggression, intended to be considered 
as exhaustive, the following provision was added : 

"No considerations whatsoever of a political, strategical, or 
economic nature, including the desire to exploit natural riches 
or to obtain any sort of advantages or privileges on the terri- 
tory of another State, no references to considerable capital 
investments or other special interests in a given State, or to 
the alleged absence of certain attributes of State organiza- 
tion in the case of a given country, shall be accepted as justi- 
fication of aggression as defined in Clause 1." 

There followed an enumeration of particular facts on which a justi- 
fication for attack could not be based. Since the enumeration of the 
acts of aggression in Clause 1 was exhaustive, the provision of Clause 
2 as well as the enumeration of facts on which a justification of attack 
could not be based, was superfluous from the point of view of correct 
legal technique. 32 



80 

The USSR proposal was discussed by the General Commission and 
after discussion submitted to the Committee on Security Questions, 
which presented to the General Commission a report containing the 
following Articles (Doc. 1935. IX. 4, p. 683) : 

"Article 1. — The aggressor in an international conflict shall, 
subject to the agreements in force between the parties to the dispute, 
be considered to be that State which is the first to commit any of the 
following actions: 

(1) Declaration of war upon another State; 

(2) Invasion by its armed forces, with or without a declaration 
of war, of the territory of another State ; 

(3) Attack by its land, naval or air forces, with or without a 
declaration of war, on the territory, vessels or aircraft of another 
State; 

(4) Naval blockade of the coasts or ports of another State ; 

(5) Provision of support to armed bands formed in its terri- 
tory which have invaded the territory of another State, or refusal, 
notwithstanding the request of the invaded State, to take in its own 
territory all the measures in its power to deprive those bands of all 
assistance or protection. 

Article 2. — No political, military, economic or other considera- 
tions may serve as an excuse or justification for the aggression referred 
to in Article 1." 

The most important difference between the USSR definition and 
the definition by the Committee on Security Questions is found in the 
latters point 5 which added acts of indirect aggression. 32a 

In 1953 the USSR submitted to the Special Committee on the Ques- 
tion of Defining Aggression the following draft resolution (A/AC- 
66/L.2/Rev.l) : 

The General Assembly, considering it necessary to formu- 
late directives with a view to determining which party is 
guilty of aggression, declares that : 

1. In an international conflict that State shall be declared 
the attacker which first commits one of the following acts: 
(a) declaration of war against another State; (b) invasion 
by its armed forces, even without a declaration of war, of the 
territory of another State; (c) bombardment by its land, sea 
or air forces of the territory of another State or the carrying 
out of a deliberate attack on the ships or aircraft of the latter ; 
(d) the landing or leading of its land, sea or air forces inside 
the boundaries of another State without the permission of the 
government of the latter, or the violation of the conditions of 
such permission, particularly as regards the length of their 
stay or the extent of the area in which they may stay; (e) 
naval blockade of the coasts or ports of another State; (f) 



81 



support of armed bands organized in its own territory which 
invade the territory of another State, or refusal, on being 
requested by the invaded State, to take in its own territory 
any action within its power to deny such bands any aid or 
protection. 

2. That State shall be declared to have committed an act 
of indirect aggression which: (a) encourages subversive 
activity against another State (acts of terrorism, diversion, 
etc.) ; (b) promotes the outbreak of civil war within another 
State; (c) promotes an internal upheaval in another State or 
a reversal of policy in favour of the aggressor. 

3. That State shall be declared to have committed an act 
of economic aggression which first commits one of the follow- 
ing acts: (a) takes against another State measures of eco- 
nomic pressure violating its sovereignty and economic inde- 
pendence and threatening the bases of its economic life; (b) 
takes against another State measures preventing it from ex- 
ploiting or nationalizing its own natural riches; (c) sub- 
jects another State to an economic blockade. 

4. That State shall be declared to have committed an 
act of ideological aggression which: (a) encourages war 
propaganda; (b) encourages propaganda in favour of using 
atomic, bacterial, chemical and other weapons of mass de- 
struction; (c) promotes the propagation of fascist-nazi views 
of racial and national exclusiveness, and of hatred and con- 
tempt for other peoples. 

5. An act other than those listed in the preceding para- 
graphs may when committed by a State be deemed to con- 
stitute aggression if declared by resolution of the Security 
Council m a particular case to be an attack or an act of eco- 
nomic, ideological or indirect aggression. 

6. Attacks such as those referred to in paragraph 1 and 
acts of economic, ideological and indirect aggression such as 
those referred to in paragraphs 2, 3, and 4 may not be justified 
by any arguments of a political, strategic or economic nature, 
or by the desire to exploit natural riches in the territory of the 
State attacked or to derive any other kind of advantages or 
privileges, or by reference to the amount of capital invested 
in the State attacked or to any other particular interests in 
its territory, or by the affirmation that the State attacked 
lacks the distinguishing marks of statehood. — In particular, 
the following may not be used as justifications : 

A. The internal position of any State, as for example : 
(a) the backwardness of any nation politically, economically 
or culturally ; (b) alleged shortcomings of its administration ; 
(c) any danger which may threaten the life or property of 
aliens; (d) any revolutionary or counter-revolutionary 
movement, civil war, disorders, or strikes; (e) the estab- 
lishment or maintenance in any State of any political, 
economic or social system. 

B. Any acts, legislation or orders of any State, as for 
example: (a) the violation of international treaties; (b) the 



82 

violation of rights and interests in the sphere of trade, con- 
cessions or any other kind of economic activity acquired by 
another State or its citizens; (c) the rupture of diplomatic 
or economic relations; (d) measures in connexion with an 
economic or financial boycott; (e) repudiation of debts; 
(f) prohibition or restriction of immigration or modification 
of the status of foreigners; (g) the violation of privileges 
granted to the official representatives of another State; 
(h) refusal to allow the passage of armed forces proceeding 
to the territory of a third State; (i) measures of a religious 
or anti-religious nature; (j) frontier incidents. 

7. In the event of the mobilization or concentration by 
another State of considerable armed forces near its frontier, 
the State which is threatened by such action shall have the 
right of recourse to diplomatic or other means of securing 
a peaceful settlement of international disputes. It may also 
in the meantime adopt requisite measures of a military 
nature similar to those described above, without, however, 
crossing the frontier. 

The enumerative definition formulated in this draft resolution is 
characterized by the fact that it includes not only acts of indirect 
but also of economic and ideological aggression. 33 

It is evident that an enumerative definition of aggression (or the 
aggressor) such as the one quoted above, restricts the {freedom of 
action of the organ competent to apply the treaty containing such a 
definition to a much greater extent, and thus renders the security 
system less flexible, than the general definition mentioned above. 
However, neither a general nor an enumerative definition of aggres- 
sion inserted into the constituent treaty attaching specific sanctions 
to acts of aggression necessarily leads to an application of these 
sanctions in all cases which, in the opinion of the law-applying organ, 
fall within the scope of the definition, or, as it is usually but in- 
correctly formulated, to the "automatic" operation of the coercive 
machinery of the security system. The law laid down in the con- 
stituent treaty may authorize the law-applying organ not to proceed 
immediately to the determination of the aggressor but first to call 
upon the parties to the conflict to cease hostilities and conform to 
certain measures of conservation, such as the withdrawal of troops 
beyond a certain line, or the acceptance of an investigation on the 
spot by impartial authorities. The law may also authorize the law- 
applying organ, once it has ascertained the existence of an act of 
aggression, to apply peaceful measures to settle the conflict before 
applying sanctions. The law-applying organ may even be author- 
ized to abstain altogether from applying sanctions under particular 
circumstances to be determined by this organ. However, in this 
latter case the fact must be considered that, if a definite conduct is not 



83 

made the condition of a sanction, it is not illegal, and hence it is not 
"aggression" in the sense of an action prohibited by the security 
treaty. 

A mixed definition of aggression is the one proposed by the repre- 
sentative of Panama at the 406th meeting of the Sixth Committee 
on 20 October 1954 34 , which runs as follows : 

1. Aggression means any use of armed force by one State 
against another State for any purpose other than individual 
or collective self-defence, or in pursuance of a decision or 
recommendation of a competent organ of the United Nations ; 

2. In addition to any other acts that the competent organs 
of the United Nations may declare to constitute aggression, 
the acts enumerated below are specific acts of aggression if 
committed for purposes other than those stated in the pre- 
ceding paragraph: (a) invasion of the territory of a State 
by the armed forces of another State; (b) armed attack 
against the territory, population or land, naval or air forces 
of one State by the land, naval or air forces of another State ; 
(c) blockade of the coast, ports, or any other part of the 
territory of a State by the land or naval forces of another 
State; (d) the organization, or the encouragement of the 
organization, by the authorities of a State, of armed bands 
within its territory or any other territory for incursions into 
the territory of another State, or the toleration of the organi- 
zation of such bands in its own territory, or the toleration of 
the use by such armed bands of its territory as a base of opera- 
tions or as a point of departure for incursions into the terri- 
tory of another State, as well as direct participation in or 
support of such incursions; (e) the annexation by the au- 
thorities of one State or territory belonging to another State 
by means of acts contrary to international law. 

3. It shall rest with the General Assembly in the exercise 
of its general powers or with the Security Council in the 
exercise of the special power vested in it by Article 39 of 
the United Nations Charter to declare, at such time as it may 
deem appropriate, that the State that has directly or in- 
directly employed force in any of the ways set forth in 
paragraphs 1 and 2 of this resolution is guilty of aggression. 

(11) The difficulties in defining aggression and in determining the 
aggressor. 

It can certainly not be denied that defining aggression is difficult. 
However, to overcome the difficulties concerned, it is necessary to have 
a clear idea of their nature. First of all, it is necessary to avoid a 
confusion which almost always affects the discussion of the definition 
of aggression: the confusion between the difficulties which exist in 
defining "aggression" and those which exist in ascertaining that a 
concrete act is an act of aggression or, what amounts to the same 



84 

thing, in determining the aggressor in a concrete case in conformity 
with the definition of aggression. That this confusion actually occurs 
may be explained by the fact that if, and to the extent that, a definition 
of aggression is not pre-established in a constituent treaty but left to 
the law-applying organ, this function and that of determining the 
aggressor are both performed by the same individual or individuals, 
and hence the distinction between the two functions is not very clear 
in their minds. As a result, the difficulties involved in determining 
a concrete aggressor are mistaken for the difficulties involved in defin- 
ing aggression, and vice versa. 

From the foregoing it follows that the main difficulties which every 
attempt to define aggression encounters are caused by the decision 
concerning the scope of the definition — that is, by the answer to the 
question of how far the security system should go in prohibiting a 
definite conduct of states by attaching specific sanctions to it. As 
far as a pre-established definition is concerned, the difficulty consists 
of the fact that under particular circumstances which are not and 
cannot be foreseen, a certain action which does not fall under the 
definition may be, and an action which does fall under the definition 
may not be, an appropriate condition for a sanction. In other words, 
the difficulty is that the definition may prove to be too narrow or too 
broad. "We have dealt with this problem which, as has been pointed 
out, is a problem of all legislation, as the formulation of general norms. 
The difficulty in an enumerative definition of aggression is that no ex- 
haustive enumeration can be complete, especially in view of the modern 
technique of warfare, and if an enumeration is not exhaustive but only 
illustrative, the acts enumerated being only examples of aggression, 
the enumeration is not a definition at all. 

Totally different from the difficulties in defining aggression are the 
difficulties in ascertaining that an act is an act of aggression, or, what 
amounts to the same thing, in determining the aggressor, in con- 
formity with a definition, whether the definition is established in 
advance or is to be established by the law-applying organ competent 
to determine the aggressor. These difficulties are exactly the same as 
those encountered in any legal procedure for the ascertainment of a 
fact to which the law attaches certain consequences. They are the 
typical difficulties involved in gathering, examining and evaluating 
evidence whether the question is which of the states involved in a 
conflict was the first to use force, whether it is the intention of this 
state, or whether it is any other question to be answered in connection 
with the application of the general norm of the security system pro- 
hibiting aggression in a concrete case. 



85 

In the procedure by which the treaty constituting the security 
organization is to be applied, there are, as in any law-applying 
procedure, two different methods of regulating the procedure for 
ascertaining the legally relevant facts : one consists of leaving the law- 
applying organ completely free in this respect, the other of establish- 
ing definite rules concerning the means of evidence and their evalua- 
tion. To adopt the first method within a system of international 
security means to confer an extraordinary power upon the organ 
competent to determine an aggressor. In this case, the position of 
this organ is not very different from that which results from leaving 
the definition of aggression to this organ. The restrictions imposed 
upon the law-applying organ by a pre-established definition may be 
outweighed by the organ's liberty in adjudging evidence. Attempts 
may be made to restrict this liberty or, to look at the problem from 
another angle, to facilitate the function of the organ. For this pur- 
pose, certain actions, indicated in the constituent treaty, may allow 
the presumption that aggression has taken place, e. g., the invasion 
of the territory of one state by the troops of another, or an attack on 
a considerable scale launched by one state against the frontier of 
another. It is especially difficult to ascertain that an act is an act of 
aggression if a definite intention of the state, which is to be stigmatized 
an aggressor, is an element of this concept. Hence, it may be con- 
sidered advisable to insert into the constituent treaty an enumeration 
of certain objective facts as symptoms of such an intention, e. g., 
economic or military mobilization, presence of the armed forces of 
one state in the territory of another, or the refusal to submit the 
conflict to a pacific procedure. These facts would allow the law- 
applying organ to presume that the intention exists. The presump- 
tion may or may not be conclusive — that is, the inference as to the 
existence of aggression or aggressive intention may or may not be 
made peremptory by the existence of the indicated facts. If the pre- 
sumption is conclusive, it cannot be reversed by any proof to the 
contrary, however strong the proof may be. It is irrebuttable, a 
presumptio juris et de jure. The enumeration of facts as irrebuttable 
evidence of the existence of aggression is equivalent to an enumerative 
definition of aggression. 35 If the presumption is not irrebuttable, 
(a presiiiriptio juris but not de jure), it can be rejected by a decision 
of the law-applying organ. The Geneva Protocol, a draft treaty 
adopted by the Assembly of the League of Nations on 2 October 1924 
but abandoned the following year, contains a series of presumptions 
by which an aggressor may be determined "in the event hostilities 
having broken out," but provides that these presumptions may be 
rejected by a unanimous decision of the Council. 36 



86 

(mm) The problem of provocation. 

Finally, it should be mentioned that there is a certain tendency to 
restrict the prohibition of the use of armed force and hence the con- 
cept of aggression to an unprovoked attack, so that a provoked use of 
armed force would be permitted and could be justified as self-defense. 
Provocation may consist of the use of armed force, or of the violation 
of international law not involving the use of armed force, or of an 
unfriendly attitude of a state towards another state which does not 
constitute any violation of international law. If a system of inter- 
national security is to eliminate the principle of self-help as far as 
possible, only a provocation which consists of the use of armed force 
by one state against another can justify the use of armed force by the 
state attacked — that is, only if provoked by the use of armed force by 
another state, would a state be justified in using armed force itself. 
In this case, self-defense would be permitted only as a reaction against 
the use of armed force, and any use of armed force which is not self- 
defense (or the execution of a specific sanction of the security system) 
would be aggression. If any violation of international law, and not 
only the use of armed force, is recognized as a provocation justifying 
the use of armed force by a single state — that is, if the states are 
authorized to resort to the use of armed force as a reaction against any 
violation of their rights — the principle of self-help prevails together 
with the bellwn justvmi principle. This means that the lowest possible 
degree of international security exists. In this case, the concept of 
self-defense — that is, the use of armed force as a reaction against an 
illegal use of armed force — is of little importance, since the use of 
armed force is legal as a reaction against any violation of the law. 
Hence, the concept of self-defense may be extended to include the re- 
action of a state against any violation of its rights, and the concept 
of aggression may be restricted to the use of armed force which is not 
a reaction against a violation of the law. If even the unfriendly atti- 
tude of a state, which does not constitute a violation of the law, is 
recognized as a provocation which justifies the use of armed force, and 
if a state may thus resort to the use of armed force as a reaction against 
the conduct of another state which is not illegal, even the principle of 
bellum justum does not prevail, and no international security whatso- 
ever exists. In this case, the concept of aggression is not applicable 
at all, since the use of armed force is not illegal, and the concept of 
self-defense has no legal meaning. 



87 

NOTES 

1. The International Law Commission, established in pursuance of General 
Assembly Resolution 174 (II) of 21 November, 1947, adopted in its third 
session ( 16 May-27 July 1951 ) as a basis of discussion the following definition of 
aggression : "Aggression is the threat or use of force by a State or government 
against another State, in any manner, whatever the weapons employed and 
whether openly or otherwise, for any reason or for any purpose other than 
individual or collective self-defence or in pursuance of a decision or recommenda- 
tion by a competent organ of the United Nations." However, when submitted to 
the final vote the definition was rejected. Report of the International Law 
Commission covering the work of its third session 16 May-27 July 1951. General 
Assembly, Official Records: Sixth Session, Suppl. No. 9 (A/1858), pp. 9, 10. 

la. Because the Kellogg-Briand Pact did not contain an express clause stipu- 
lating the right of self-defense, the contracting parties had to make reservations 
concerning their right to resort to war in the exercise of self-defense. It was 
generally assumed that the right of self-defense was presupposed by the Pact. 
However, the extent to which this right could be exercised under the Pact 
remained an open question which was answered in different ways by the various 
signatories. Thus in a note of June 23, 1928, the United States Government 
declared that the proposed treaty did not restrict or impair the right of self- 
defense; but it justified this reservation by the doctrine that the right of self- 
defense is established by natural law and hence does not need positive stipula- 
tion. "That right is inherent in every sovereign state and is implicit in every 
treaty. Every nation is free at all times and regardless of treaty provisions to 
defend its territory from attack or invasion and it alone is competent to decide 
whether circumstances require recourse to war in self-defense." Treaty for the 
Renunciation of War, Department of State Publication No. 468 (1933), p. 57. 
Cf. Philip C. Jessup, A Modern Law of Nations, New York 1948, p. 163. The state- 
ment that every nation "alone is competent to decide whether circumstances 
require recourse to war in self-defense" is hardly compatible with Articles 51 
and 39 of the Charter of the United Nations. Cf. infra, note 3. 

lb. Article 51 of the Charter runs as follows : "Nothing in the present Charter 
shall impair the inherent right of individual or collective self-defense if an 
armed attack occurs against a Member of the United Nations, until the Security 
Council has taken the measures necessary to maintain international peace and 
security. Measures taken by Members in the exercise of this right of self- 
defense shall be immediately reported to the Security Council and shall not in 
any way affect the authority and responsibility of the Security Council under 
the present Charter to take at any time such action as it deems necessary in 
order to maintain or restore international peace and security." 

The wording of this provision presupposes a natural right of self-defense 
existing independently of the Charter and declares only that it is not in conflict 
with this right : "Nothing in the present Charter shall impair the inherent right 
of individual and collective self-defense if an armed attack occurs against a 
Member of the United Nations . . ." (In the French text the term "droit 
naturel de legitime defense" is used.) However, in truth, the Charter does 
not merely respect an already existing right but establishes a right and must 
establish it as an express restriction to the provision of Article 2, paragraph 4, 
which imposes upon the members the obligation to refrain in their international 
relations from the use of force. Since under Article 51 of the Charter the right 



88 

of self-defense may be exercised only "if an armed attack occurs," that means : 
if such an attack actually takes place, a preventive war on the part of a member 
state is illegal. 

2. According to the wording of Article 51, the exercise of the right of self- 
defense is justified only in case of an armed attack "against a Member of the 
United Nations." However, according to an almost generally accepted inter- 
pretation of Article 51, the right of collective self-defense may also be exercised 
in case of an armed attack against a non-member state. Cf. supra, p. 61. Since 
the Charter of the United Nations does not define the term "armed attack" 
used in Article 51, the members of the United Nations in exercising their right 
of individual or collective self-defense may interpret "armed attack" to mean 
not only an action in which a state uses its own armed force but also a revolu- 
tionary movement which takes place in one state but which is initiated or 
supported by another state. In this case, the members could come to the 
assistance of the legitimate government against which the revolutionary move- 
ment is directed. 

Such an interpretation would be consistent with the fact that, according to 
the wording of Article 39, in case the Security Council considers such a revolu- 
tionary movement to be a threat to or breach of the peace, it may take enforce- 
ment measures against the revolutionary forces as well as against the state 
which has initiated or supported this movement, to assist the attacked govern- 
ment. Article 39 authorizes the Security Council to take measures "to maintain 
or restore international peace and security." It says nothing about the party 
against which these measures are to be taken. 

3. According to Article 51 of the Charter of the United Nations, the right 
of individual or collective self-defense may be exercised only "until the Security 
Council has taken the measures necessary to maintain international peace and 
security." According to Article 39, the Security Council "shall determine the 
existence of any threat to the peace, breach of the peace, or act of aggression." 
Hence as soon as the Security Council intervenes, it must decide which state 
is the aggressor and which is the defender. However, according to the wording 
of Articles 39 and 51, the Security Council is not bound to take enforcement 
measures only against the state which it considers to be the aggressor — that is, 
only against the state it considers to be guilty of an "armed attack." The Coun- 
cil may take any measures which it considers necessary to restore peace. 

4. For instance, Article 10 of the Covenant of the League of Nations stipu- 
lated : "The Members of the League undertake to respect and preserve as against 
external aggression the territorial integrity and existing political independence 
of all Members of the League. In case of any such aggression or in case of any 
threat or danger of such aggression the Council shall advise upon the means 
by which this obligation shall be fulfilled." Cf. Article 2, paragraph 4, of the 
Charter of the United Nations. 

5. The question as to whether aggressive intent should be considered as an 
essential element of the concept of aggression has been discussed in the Special 
Committee on the Question of Defining Aggression, established by Resolution 688 
(VII) adopted by the General Assembly in its 408th plenary meeting on 20 Decem- 
ber 1952. Cf. the Report of this Committee: General Assembly, Official Records: 
Ninth Session, Supplement No. 11 (A/2638), p. 8. 

6. Cf. the Report of the Secretary-General of the United Nations entitled : 
Question of Defining Aggression. United Nations General Assembly. Seventh 
Session. Document A/2211, 3 October 1952, p. 55 (hereafter referred to as: 
Doc. A/2211 ) . 



89 

6a. The International Law Commission, in its Report Doc. A/1858, p. 9, de- 
clared itself in favor of including indirect aggression in the definition of aggres- 
sion. The report speaks of "indirect forms of aggression such as the fomenting 
of civil strife by one State in another, the arming by a State of organized bands 
for offensive purposes directed against another State, and the sending of 'volun- 
teers' to engage in hostilities against another State." The report refers to 
Resolution 380 (V) of 17 November 1950, in which the General Assembly 
"Solemnly reaffirms that, whatever the weapons used, any aggression, whether 
committed openly, or by fomenting civil strife in the interest of a foreign Power, 
or otherwise, is the gravest of all crimes against peace and security throughout 
the world." 

7. Cf. Document A/2211, p. 48. 

7a. The Draft Treaty of Disarmament and Security prepared by an American 
Group (Declaration outlawing Aggressive War) stipulated: "Article 1. The 
High Contracting Parties solemnly declare that aggressive war is an inter- 
national crime. They severally undertake not to be guilty of its commission. 
Article 2. A State engaging in war for other than purposes of defence commits 
the international crime described in Article 1. Article 3. The Permanent Court 
of International Justice shall have jurisdiction, on the complaint of any Signa- 
tory, to make a judgment to the effect that the international crime described in 
Article 1 has or has not in any given case been committed. Article 4. The High 
Contracting Parties solemnly declare that acts of aggression, even when not 
amounting to a state of war, and preparations for such acts of aggression, are 
hereafter to be deemed forbidden by international law. Article 5. In the 
absence of a state of war, measures of force by land, by sea or in the air taken 
by one State against another and not taken for the purpose of defence against 
aggression or for the protection of human life shall be deemed to be acts of 
aggression. General or partial mobilization may be deemed to be preparation 
for an act of aggression. Any Signatory which claims that another Signatory 
has violated any of the terms of this Declaration shall submit its case to the 
Permanent Court of International Justice. A Signatory refusing to accept the 
jurisdiction of the Court in any such case shall be deemed an aggressor within 
the terms of this Declaration. Failure to accept the jurisdiction of the Court 
within four days after notification of submission of a claim of violation of 
this Declaration shall be deemed a refusal to accept the jurisdiction." League 
of Nations. Official Journal. Special Supplement No. 26 (1924), p. 169. 

8. Cf. Doc. A/2211, p. 57. The International Convention concerning the Use 
of Broadcasting in the Cause of Peace, signed at Geneva on 23 September 1936, 
imposes upon the contracting parties the obligations to refrain from broadcast- 
ing within their respective territories matter of "such a character as to incite 
the population of any territory to acts incompatible with the internal order or 
the security of a territory of a High Contracting Party" (Article 1), and to 
ensure that transmissions "shall not constitute an incitement either to war 
against another High Contracting Party or to acts likely to lead thereto" 

(Article 2). In its Resolution 424 (V) adopted 14 December 1950, the General 
Assembly "invites all Governments to refrain from radio broadcasts that would 
mean unfair attacks or slanders against other peoples anywhere and in so 
doing to conform strictly to an ethical conduct in the interest of world peace 
by reporting facts truly and objectively." Cf. also infra, pp. 210 f. 

In the Nuremberg Trial "aggressive acts" were proved to have been com- 
mitted against Austria and Czechoslovakia, although the Nazi-Government had 



90 

reached its goal without the use of armed force, by internal subversive actions 
and the threat of violence. Cf. Pompe, op cit., p. 21. 

9. Cf. Doc. A/2211, p. 58. 

9a. Poinpe, op. cit., p. 53, distinguishes four categories of aggression "depend- 
ing whether or not aggression is seen in direct conection with war and whether 
or not aggression is considered as an exclusively military action. The first, 
original concept indicates the military beginning of a war, the second includes 
an aggressive policy which causes a war. A further extension of 'aggression' 
comprises, in principle, every (illicit) use of armed force against another 
State, including the threat of armed force. And finally there is the last category, 
since at one time or another all sorts of either illegal, or merely unfriendly acts 
harmful to other States have in the course of the last years been named 
'aggression.' " 

10. Cf. Doc. A/2211, p. 36. 

11. In his report on the Project of a Treaty of Mutual Assistance (Projet de 
Traite d' Assistance Mutuelle) presented at the Fourth Assembly of the League 
of Nations, Document A 111, 1923, IX (1st part), Mr. Benes declared: "Under 
the conditions of modern warfare it would seem impossible to decide even in 
theory what constitutes an act of aggression." 

12. In a Memorandum on "The System of Sanctions of Article 16 of the 
Covenant and the Future Role of Neutrality," presented to the International 
Studies Conference on Collective Security (1934-1935), Dr. G. Cohn of the Danish 
Institute of History and Economics stated : "The system of sanctions should be 
directed against war as such, as a fact, without regard to its psychological basis. 
From this point of view defensive war must be included as well as offensive war, 
so that the states not involved in the conflict may not be obliged to make a choice 
which would at the same time necessitate the moral condemnation of one of the 
Powers, but may simply be confronted with the state of war as a fact which 
must be prevented and combated, in the common interest of all the nations. It 
is of little importance to determine who, from a purely formal standpoint, is 
playing the part of the aggressor. War is forbidden in all cases and for all 
parties, and it cannot provide any kind of advantage, whether economic, political 
or legal . . . The Council should decide when sanctions are to be applied and 
when they are to cease, so that the different Powers may not have on this point 
any individual responsibility, and so that it may thus be quite clear that they are 
not seeking an individual advantage and are not letting themselves be guided by 
selfish sympathies, but are acting solely in the general interest of the League of 
Nations as a whole. The decision of the Council should be binding on all, and 
should be reached by a modified majority — of three-fourths, for example — and 
under such conditions that the representatives on the Council of the belligerent 
States (both the aggressor and the State which has been attacked) would not 
have the right to vote. All dispositions, whether economic, political or military, 
should proceed from the League of Nations as such, and not from its individual 
members." Collective Security, pp. 402 f. In his book : Neo-Neutrality, New 
York, 1939, Dr. Cohn dealt with neutrality as a part of the system of war-preven- 
tion. As such, he asserted that it "is essentially different from traditional neu- 
trality. The latter was based on an equal evaluation of the belligerents, with 
consequent impartiality toward both under detailed rules for war and neutrality. 
Traditional neutrality took a dependent and passive attitude toward war. It 
was oriented by war. Neo-neutrality, on the other hand, is based on an equal 
devaluation of the war in all cases ; it does not seek its own raison d'etre in re- 
flections as to whether it has in one situation or another a moral or legal claim 



91 

to assert its nonparticipation as a right; it takes an exception in principle to 
participation in war in any form. It does not recognize the supremacy of the law 
of war ; it replaces it instead with a system of combined sanctions and neutrality 
which centers about an effort to suppress and prevent war of every kind. The 
neo-neutral states are in reality those states which, without becoming a party to 
war, are participants in the system of sanctions designed to prevent war. They 
do not participate, and under no circumstances will participate, in war. More- 
over, they do not recognize war as a legal situation, they recognize no obligation 
of impartiality, and they are willing to apply any means to prevent or to stop 
the war to the limit of their ability without themselves participating in it." Op. 
cit., pp. 253-4. Consequently a security system must provide only for economic 
but not for military sanctions. Neo-neutrality asks in all cases of war "that the 
peaceful sanctions which are available to the League be extended and made 
sufficiently severe to compel cessation of the war." Op. cit., pp. 29-30. How- 
ever, it is very doubtful that economic sanctions can be made "sufficiently severe." 
Dr. Cohn did not go so far as to deny the right of self-defense within a system of 
neo-neutrality. He said : "To Neo-neutrality, it is of interest only to state the 
limits of what constitutes self-defense in international law. These limits are 
to be determined by a study of the analogous situation of the limits of the concept 
of self-defense in municipal penal law and have nothing to do with the traditional 
rules of war or neutrality." Op. cit., p. 331. He thought that the right of self- 
defense under international law was totally different from the right of self-de- 
fense under national law. He asserted that self-defense under national law, i. e. 
"the right to use force for protection against an attack {vim vi defendere) , is 
subject to quite definite legal restrictions (depending upon the purposes) for 
which there is no exact analogy nor application with respect to defensive war. 
The right of self-defense presumes the preexistence of a certain relation between 
the object of the attack and the means of defense which can be used. These 
limitations upon the right of self-defense naturally vary somewhat in different 
penal codes ; nonetheless a common thought pervades them, which clearly indi- 
cates the distinct difference between this right and that of defensive war . . . 
But defensive war recognizes no limitations of this nature." Op. cit., pp. 196-7. 

The international right of self-defense may be limited within an international 
security system and thus be assimilated to the right of self-defense as estab- 
lished under national law, but it cannot be eliminated. If it exists, the distinction 
between a permitted defensive war and a prohibited aggressive war is inevitable, 
and then it is impossible to direct sanctions "against both belligerents," as the 
principle of neo-neutrality requires. Op. cit., p. 282. 

Cohn opposes his doctrine of neo-neutrality to the theory of aggression not 
only because he wants to avoid the politically undesirable moral condemnation 
of a state as an aggressor, but also because the theory of aggression makes con- 
cepts of criminal law such as "crime" and "guilt" the basis of a system of interna- 
tional security, and — as he assumes — there is no room for concepts of criminal 
law in international relations. He says: "The theory of aggression makes the 
penal concepts of private law the basis of an international system of war- 
prevention. Aggression is counted a crime, to be punished by the application 
of sanctions ... It should be remarked, however, that no system of war-pre- 
vention can be founded upon the guilt of the individual leading statesmen in 
the aggressor state nor upon the collective guilt of an entire people. The con- 
ception of guilt between nations cannot be built upon analogies in municipal 
penal law. All the requisite conditions for a criminal arraignment of the aggres- 

370624—57 7 



92 

sor as in municipal law, are lacking . . . Neo-neutrality, on the other hand, 
excludes in principle the question of guilt and of penal law concepts in the 
suppression of war." Op. cit., pp. 332-3. The fundamental concept of criminal 
law is that of punishment; the concept of crime is of secondary nature, for a 
human conduct is a crime if it is the condition of a punishment. Punishment is — 
as pointed out — a reaction against a violation of the law, that is to say, it is a 
sanction. The characteristic of this sanction is that its purpose is prevention by 
deterrence, in contradistinction to a sanction the purpose of which is to repair the 
damage caused by the violation of the law. The concept of "guilt" (intention, 
negligence) is neither essential to nor specific of criminal law. There exists crim- 
inal responsibility not based on guilt, so-called absolute criminal responsibility ; 
and there are rules of civil as well as international law which refer to intention or 
negligence as conditions of sanctions. Besides, Cohn admits "the fact that crim- 
inal blame or responsibility may be connected with the outbreak of war." (Op. 
cit., p. 333.) Since the sanctions established by general international law as 
well as those stipulated in a system of international security are reactions against 
violations of the law with the purpose of prevention by deterrence, there is no 
essential difference between criminal and international law. Cohn defines neo- 
neutrality as a specific system of sanctions designed to prevent war as an illegal 
action. Hence his theory does not exclude penal law concepts in the suppression 
of war. 

The term "neo-neutrality" is misleading, for it designates a system of collective 
security which tries to prevent war by means short of war and within which 
neutrality in the traditional sense — that is, implying the obligation of im- 
partiality — is abandoned. 

13. At the Eighth International Studies Conference, London, 1935, Professor 
Jessup suggested a way to terminate a war which has already broken out and to 
prevent future wars : "... a united neutral front against two unidentified 
aggressors or against two belligerents where judgment has not been reached as 
to which is the guilty party." Collective Security, p. 426. He sought of economic 
sanctions especially economic boycott of the belligerents by the neutral states. 
He referred to the action of the League of Nations in the Chaco affair where at 
least at the earlier stages an embargo was imposed upon both belligerents prior 
to a judgment as to which party was at fault, and to the Argentine anti-war pact 
of 1933 which provided for "a common and solidary attitude" of the neutrals 
towards the belligerents without imposing upon the former the obligation to 
take military measures against the latter. In his study A Modern Law of 
Nations (New York 1948), pp. 197 ff., Professor Jessup discusses a hypothetical 
situation, in which the Security Council in case of a military conflict between 
two states cannot get immediately the information necessary to determine 
the aggressor. He suggests that the Security Council in the meantime should 
announce the existence of a state of emergency and establish a blockade by 
land, sea and air, applied impartially to the area where the conflict is located and 
to both parties. He admits that this measure "would be hard on the state which 
is actually fighting in self-defense. But until there has been time for determi- 
nation of the right and wrong of the case, no alternative is possible." Thus the 
purpose of the suggested procedure is not to avoid the determination of the 
aggressor. 

14. In an article on "The Problem of Aggression and the Prevention of War," 
American Journal of International Law, vol. 31 (1937), pp. 244 ff., Mr. L. 
Kopelmanas came to the conclusion "that in case of war or threat of war, 
international society must possess an organ analogous to the internal police 






93 

for the purpose of acting against acts of war, without raising the question as 
to which of the belligerents is at fault. It should not be forgotten that the 
absence of discrimination between the aggressor and the victim would be of a 
nature to facilitate the action against war through avoiding the wounding of 
national susceptibilities." (p. 255). By "police" actions, Kopelmanas meant 
injunctions directed at both states involved in a war or both states whose 
attitudes constitute a threat of war. He also meant the enforcement of these 
injunctions against the state which does not comply with them. In this case, 
he said : "the aggressive intent of a state may be indicated by its refusal to obey 
the injunctions of the police, and the action can be directed against it alone. 
But it must be remembered that the problem of aggression, as it is construed 
in positive law, is not in question. The police acts against the eventual 
aggressor . . ." 

If repressive measures are to be taken against a state responsible for a 
conduct which shows an intention to commit aggression, the problem of aggres- 
sion is indeed involved. If the law provides for repressive measures to be 
directed against a state which does not comply with the injunction of a com- 
petent organ, the conduct of this state is a violation of the law and the 
repressive measures are sanctions, whether or not the organ is called the 
"police" and its action a "police" action. To regard illegal conduct as evidence 
of "aggressive intent" amounts to the same thing as regarding one's conduct 
as an act of aggression, the concept of aggression used in the wider sense as 
it is actually used in the theory and practice of international law. 

Kopelmanas' doctrine is based on the erroneous idea that there is an essential 
difference between the function of the police and the function of penal repression 
of disorder. He said: "The penal judge intervenes only after order has been 
re-established" by the police, whose task is "maintaining good order and security 
in a given society." (p. 253). However, the "good order" and security maintained 
by the police is exactly the same good order maintained by the penal judge, 
namely, the law and the security guaranteed by this law. Furthermore, the 
penal judge does not intervene until after order has been re-established by the 
police. Is order re-established before the murderer or thief is punished? Is 
order re-established after an individual has been arrested by the police as a 
suspected murderer or thief but has later been acquitted by the judge as inno- 
cent? The preventive measures taken by a "police" organ may also be taken 
by a judge, especially by an international judge in case of war or threat of war, 
and the question as to whether or not in this case the judge acts as a "police" 
organ is simply a terminological question of minor importance. The repressive 
measures taken by the police are either reactions against non-compliance with 
its injunction and hence a sanction in exactly the same sense as a punishment 
inflicted in a judicial procedure on a person for having violated the penal law, 
or actions the purpose of which is to prepare and secure such judicial procedure. 
15. The view that aggression is a concept not susceptible to definition has 
been advocated most characteristically in a report entitled : "The Possibility and 
Desirability of a Definition of Aggression," presented by Mr. Spiropoulos to 
the International Law Commission in its Third Session 16 May-27 July 1951. 
(Doc. General Assembly, Official Records, Sixth Session, Supplement No. 9, 
A/1858). In this report (Document A/CN. 4/44), the author came to the con- 
clusion that the concept of aggression is a "notion per se" which "is not 
susceptible of definition." He seems to have had the idea that there are two 
kinds of concepts, those which are and those which are not definable. However, 
he did not maintain this view, for he evidently presupposed the possibility of 



94 

a definition when he stated that "whenever Governments are called upon to 
decide on the existence or non-existence of aggression under international law 
they base their judgment on criteria derived from the 'natural', so to speak, 
notion of aggression . . . and not on legal considerations." 

This means that a government can decide whether aggression exists or does 
not exist only on the basis of definite criteria, and these criteria constitute the 
definition of the concept of aggression. In the first place, why can this deter- 
mination be made only by a government. Why not by any law-applying organ, 
e. g., an international agency, a court, and the like? Secondly, how can this 
concept be a "natural" concept. It can be only a legal concept, the concept 
of aggression referred to in the law to be applied, the definition of which has 
been left to the government, or, more exactly, to the law-applying organ. 

The author of the report then proceeded to an analysis of this allegedly 
"natural" concept of aggression — that is, he tried to construct a definition of 
this undefinable concept. He said that the notion of aggression is composed 
of both objective and subjective elements, namely, the fact that a state commits 
an act of violence and is the first to do so, and the fact that this violence is 
committed with aggressive intent (animus aggressionis) . Hence, his definition 
of aggression is: an act of violence performed by the state which is the first 
to do so with aggressive intent. 

This is a logically objectionable definition, because in part it constituted a 
so-called idem per idem — the element to be defined, aggression, appears in the 
definition. Howevpr, this defect could easily be avoided by restating the defini- 
tion as follows : agression is an act of violence performed by one state with the 
intention of imposing its own will on another state. The author went on to state 
that the kind of violence, direct or indirect, or the degree of violence which 
constitutes aggression cannot be determined a priori but depends on the circum- 
stances of the particular case. This means that he added two other elements to 
his definition: (1) the violence must have certain degrees, and (2) it may be 
direct or indirect. The definition which he tacitly presupposed then runs as 
follows: aggression is a direct or indirect act of violence, of a certain degree, 
performed by the state which is the first to do so with aggressive intent (mean- 
ing with the intention of imposing its will on the other state). That the kind 
of violence and its degree cannot be determined a priori does not mean that it 
cannot be determined at all. If it could not be determined, the government 
could not decide that aggression does or does not exist. What is meant is only 
that the determination of these elements is left to the law-applying organ. 

16. Official Records of the General Assembly, Sixth Session, Sixth Committee, 
286th meeting, paragraph 36. 

17. Cf. Doc. A/2211, p. 12. 

18. At its 408th plenary meeting on 20 December 1952, the General Assembly 
adopted Resolution 688 (VII) which reads as follows : 

The General Assembly, having regard to its resolution 599 (VI) of 
31 January 1952, considering that the discussion of the question of de- 
fining aggression at the sixth and and seventh sessions of the General 
Assembly and in the International Law Commission has revealed the 
complexity of this question and the need for a detailed study of: 
(a) the various forms of aggression, (b) the connexion between a 
definition of aggression and the maintenance of international peace and 
security, (c) the problems raised by the inclusion of a definition of 
aggression in the Code of Offences against the Peace and Security of 



95 

Mankind and by its application within the framework of international 
criminal jurisdiction, (d) the effect of a definition of aggression on the 
exercise of the jurisdiction of the various organs of the United Nations, 
(e) any other problem which might be raised by a definition of aggres- 
sion, considering that continued and joint efforts shall be made to 
formulate a generally acceptable definition of aggression, with a view 
to promoting international peace and security and to developing 
international law, 

1. Decides to establish a Special Committee of fifteen members, each 
representing one of the following Member States : Bolivia, Brazil, 
China, Dominican Republic, France, Iran, Mexico, Netherlands, Norway, 
Pakistan, Poland, Syria, Union of Soviet Socialist Republics, United 
Kingdom of Great Britain and Northern Ireland, United States of 
America, to meet at the Headquarters of the United Nations in 1953; 

2. Requests the said Special Committee: (a) to submit to the Gen- 
eral Assembly at its ninth session draft definitions of aggression or 
draft statements of the notion of aggression; (b) to study all the 
problems referred to above on the assumption of a definition being 
adopted by a resolution of the General Assembly ; 

3. Requests the Secretary-General to communicate the Special 
Committee's report to Member States for their comments and to place 
the question on the provisional agenda of the ninth session of the 
General Assembly. 

This resolution seems, in the author's opinion, to presuppose the view that a 
pre-established definition of aggression is possible and desirable. This was also 
the opinion of many members of the Special Committee established by the 
Resolution, but others held that the resolution "did not compel the Committee 
necessarily to adopt one or more specific draft definitions of aggression or one 
or more draft statements of the notion of aggression, but left it entirely free 
to choose between several courses." Report of the Special Committee on the 
Question of Defining Aggression (A/2638), pp. 2 f. During the discussion of 
this Report in the Sixth Committee, the representative of the United States 
declared at the 404th meeting, on 15 October 1954, after having referred to 
the fact that previous attempts to define aggression have failed : "the failure 
of the various attempts made in the past showed that it was impossible to 
reach agreement on an a priori definition of aggression. That had also been 
the conclusion of the authors of the Charter. There were obvious dangers in 
a priori definitions. A general definition would leave important concepts, like 
self-defence, unelaborated, while a list of examples, even if it did not claim 
to be all-inclusive, would have the disadvantage of singling out certain kinds of 
aggression for special emphasis. A combination of the two types of definition 
would run the risk of suffering from the defects of both. — The United States 
delegation also had a certain distrust of establishing a priori categories for 
future situations. Rather, the law should develop empirically out of actual 
cases. Aggression was not simply a combination of predefined elements ; in fact, 
in order to determine whether aggression had occurred, it was necessary to 
weigh a whole set of complex facts and circumstances. That was why paper 
definitions had been avoided and the organs of the United Nations, particularly 
the Security Council, by virtue of Article 39 of the Charter, and also the General 
Assembly, under the Charter — as indicated by Resolution 377 (V) entitled 
'Uniting for peace' had been given responsibilities for deciding what constituted 



96 

an act of aggression or a threat to peace to adopt a paper definition 

might jeopardize the efforts of the General Assembly and the Security Council 
to maintain international peace and security. In the absence of a definition, 
there could be no doubt, as the General Assembly had noted at its sixth session, 
that the existence of the crime of aggression might be inferred from the circum- 
stances peculiar to each particular case. . . . The United States believed that 
the history of efforts to define aggression and the various considerations already 
referred to pointed to the conclusion that no constructive purpose would be 
served at this time by the preparation of a formula. The General Assembly 
should now consider that it had explored to the limits of usefulness the possi- 
bilities of defining aggression by a word formula prepared today for possible 
applications in the future." United Nations. General Assembly. Ninth Session. 
Official Records, Sixth Committee (A/C.6/SR. 404) p. 37. 

The Special Committee did not suggest a definition of aggression ; and the 
Sixth Committee in its Report of 2 December 1954 (Doc. A/2806) recommended 
to the General Assembly to establish a new special committee. Following the sug- 
gestion, the General Assembly adopted on 4 December 1954 Resolution 895 (IX), 
in which it established a Special Committee comprising representatives of 19 
states, and requested the Committee "to submit to the General Assembly at its 
eleventh session a detailed report followed by a draft definition of aggression . . ." 
This report is not yet published. 

The Charter of the United Nations does not contain a definition of aggression. 
Article 1, paragraph 1 declares as a Purpose of the Organization "to take 
effective collective measures for the suppression of acts of aggression" ; and 
Article 39 authorizes the Security Council to "determine the existence of any 
. . . act of aggression" and then to make recommendations, or decide what 
measures shall be taken as a reaction against such acts. That means that the 
Charter leaves it to the Security Council to define in each case the concept of 
aggression. Only by an amendment could a definition be inserted into the 
text of the Charter. Such definition would certainly restrict the freedom of 
action of the Security Council. This was the reason why some members of the 
Sixth Committee were against a definition of aggression. Cf. the Official Records, 
especially of the 408th meeting on 25 October 1954, p. 58. 

19. Cf. Doc. A/2211, p. 37. 

20. In a memorandum presented to the International Studies Conference 
(1934-1935), Mr. Arnold Forster (of the British Coordinating Committee for 
International Studies) declared: "A definition [of aggression] ... is of value, 
but should not be regarded either as an all-inclusive formula or as an automatic 
test which can always be relied upon to cut with precision through a tangled 
political situation. It may be of very substantial value as a means of crystal- 
lising and extending the new social ethic as to the use of national force, and 
it should help in the process of curtailing the anarchic liberties too often 
claimed by imperial Powers; but it will not work by itself automatically. It 
must be used by an international authority; it must be treated as a guide — 
normally a decisive guide — but not as an immutable law ; and in case of doubt, 
the international authority should be empowered to impose obligatory peace- 
conserving measures, including an armistice." Collective Security, p. 308. 

21. Cf. Doc. A/2211, p. 40. 

22. Sixth Committee, 406th meeting (A/C.6/SR. 406) p. 47. 

23. This is the case under the Charter of the United Nations. Article 39 
authorizes the Security Council to take enforcement measures in case of a 
"threat to the peace, breach of the peace or act of aggression," but does not 



97 

define these concepts, so that the Security Council has discretion in deciding 
in each concrete case whether or not the conduct of a state constitutes a threat 
to the peace, breach of the peace or act of aggression. This regulation is par- 
ticularly objectionable with respect to what the Charter calls a "threat to the 
peace." A state cannot foresee what the Security Council may consider to be 
a "threat to the peace," and consequently cannot adapt its conduct to the norm, 
implied in Article 39, of refraining from acts which constitute a threat to the 
peace. 

24. Cf. infra pp. 122 ff. 

25. Cf. the statement of the representative of Cuba at the 403rd meeting of 
the Sixth Committee on 14 October 1954 (A/C.6/SR. 403, p. 35) and of the 
representative of the Netherlands at the 410th meeting on 28 October 1954 
(A/C.6/SR. 410) p. 72. 

26. The principle of flexibility is sometimes opposed to the principle of law. 
In his History of the Peace Conference of Paris (London 1920, Vol. VI, p. 441), 
H. W. V. Temperley says with respect to the antagonism between the French 
and the Anglo-American view of international security: "The real divergence 
lay between the adherents of the rigid, the definite, the logical, in other words 
the juridical point of view, and those who preferred the flexible, the indefinite, 
the experimental, the diplomatic ; between those who feared human nature and 
wished to bind the future, and those who believed in human nature and were 
content to trust the future ; between those who desired written guarantees, and 
those who desire moral obligations only; to be cynical, between those who 
expected to receive under the Covenant, and those who expected to give; in a 
word, betweeen the continental point of view and the Anglo-Saxon." There is, 
however, no opposition between the juridical and the flexible point of view, for 
the antagonism between rigidity and flexibility exists within the law. They 
are two different methods of formulating a legal order ; nor is the identification 
of the logical with the juridical point of view correct. A "flexible" legal order 
must not be illogical. It has to be as logical as a rigid one. Besides, the 
application of a general legal norm — whether formulated in a flexible or in a 
rigid way — to a concrete case is not a purely logical operation. Moral-political 
considerations are always more or less involved. 

27. Cf. Doc. A/2211, p. 38. 

28. Cf. Ibid. pp. 43 fif., and the Report of the Special Committee on the Question 
of Defining Aggression (A/2638) , pp. 4 f. 

29. In the Draft Convention on Rights and Duties of States in Case of Aggres- 
sion, published by the Harvard Research in International Law, American Journal 
of International Law, Vol. 33 (1939) Supplement, pp. 823 ff., aggression is 
defined as "a resort to armed force by a State when such resort has been duly 
determined, by a means which that State is bound to accept, to constitute a viola- 
tion of an obligation." 

In its observations on the Draft Code of Offences against the Peace and 
Security of Mankind and on the Question of Defining Aggression, the Netherlands 
Government proposed that the concept of aggression should be defined as follows : 
"Aggression is the threat or use of force by a State or government against the 
territorial integrity or political independence of another State or against a 
territory under international regime in any manner, whatever the weapons 
employed and whether openly or otherwise, for any reason or for any purpose 
other than individual or collective self-defence against such a threat or use of 
force or in pursuance of a decision or recommendation by a competent organ of 
the United Nations." Official Records of the General Assembly. Seventh Session, 



98 

Annexes, agenda item 54, documents A/2162 and Add. 1. Cf. also Report of the 
Special Committee on the Question of Defining Aggression (A/2638), p. 12. 

30. Cf. Doc. A/2211, p. 40. 

31. In the Special Committee on the Question of Defining Aggression a general 
definition was criticized by some members. The representative of Poland main- 
tained "that such a definition would serve no purpose as it would not refer to 
the elements constituting the crime. Its vagueness would open the way for 
dangerous polemics on the nature of a given act ; the aggressor could challenge 
the description given of his act and take advantage of the necessarily lengthy 
discussions arising out of a definition which was lacking in clarity and precision 
to continue his aggressive activity. Moreover, that type of definition could not 
help effectively to combat the many types of aggression." The representative 
of the USSR stated "that a so-called general definition of aggression was inade- 
quate, as could be seen from the specific proposals for such a definition. For 
example, aggression had been defined as an international crime, which, in effect, 
was rather like saying that aggression was aggression. Naturally, such an 
approach would not help that Committee to carry out the task before it." Report 
of the Special Committee on the Question of Defining Aggression (A/2638), p. 4. 

32. In his criticism of the USSR definition, Professor Bourquin, op. cit., p. 510, 
said : "Should the social reaction which ensues from the determination of the 
aggressor be possible if public opinion, without the support of which such reaction 
could not be understood, turned against the result of the operation, refusing to 
associate itself with the injustice involved in it? Within a realm of this kind 
[i. e., international relations] the algebra of formulas, even if passed by a con- 
vention, has little chance of offering resistance to the feeling of the people." 

To which people does Professor Bourquin refer? Does he mean the people of 
the state against which the sanctions are directed? There will always be feeling 
against an action which imposes suffering on people, even if the action involves 
no injustice at all. The feeling of the people who are to be protected by the 
reaction of a security organization will certainly not turn against this reaction 
if it is directed against an aggressor in conformity with the USSR definition. 
The argument of public opinion is highly problematical, because it presupposes 
only one public opinion, whereas in reality there are almost always at least two 
public opinions, often in opposition to one another. Professor Bourquin's criticism 
of the USSR proposal could be used against any system of collective security 
which prohibits aggression by attaching sanctions to it. 

32a. The definition of the Committee on Security Questions was followed in 
the Convention Defining Aggression between the Soviet Union and Afghanistan, 
Estonia, Latvia, Persia, Poland, Rumania, Turkey, signed at London on 3 July 
1933. The territorial element plays a decisive part in this definition. Cf. W. 
Komarnicki, La Definition de V Agresseur dans le Droit International Modcrne. 
Academie de Droit International. Recueil des Cours. 1949, II., Vol. 75, p. 50. 

33. In the Special Committee on the Question of Defining Aggression the repre- 
sentative of Poland stated that "an enumerative definition had the advantages 
of setting forth the elements which constituted the crime, indicating unequivocally 
the type of acts to be condemned, and placing the burden of proof upon the 
aggressor instead of requiring the victim to prove that the action complained of 
was aggression. In his opinion, the Soviet draft, from this point of view, was a 
perfect solution of the problem. In the opinion of other representatives, such a 
definition would be dangerous. It would necessarily be incomplete and would 
thereby inevitably imply that acts not enumerated did not constitute aggression. 
That in turn would enable a State to commit aggression by circumventing the defi- 



99 

nition. The decisions of international organs would be rendered automatic and 
the re-establishment of peace would thus be made more difficult." The representa- 
tive of China "expressed the opinion that an enumeration could not be regarded 
as a true definition. It would not be sufficiently scientific and could not serve 
as guidance either for the organs of the United Nations responsible for the main- 
tenance of peace and security, nor for the courts which might be set up to judge 
the perpetrators of crimes against humanity. The generally accepted sense of 
the word 'define' showed that enumeration could not achieve the purpose sought 
which was to make clear the essential nature of a concept. From a purely prac- 
tical standpoint, an enumeration of crimes could only cause criminals to change 
their methods. Moreover, on the one hand, the competent political or legal 
organs would tend to study the methods of aggression rather than the act 
itself, and on the other, they would not have the proper perspective for judging 
each individual case, and that was absolutely necessary to prevent the act or 
to punish the author." 

The representative of the United Kingdom emphasized that enumerative defi- 
nitions "were the most deceiving. They were not so much definitions as incom- 
plete catalogues of acts constituting aggression. Thus paragraphs 2, 3 and 4 
not to mention the all-embracing provision of paragraph 5 had had to be added 
to the original text of the USSR proposal (A/AC.66/L.2/Rev.l). He questioned 
the value of a definition which, after listing various acts constituting aggression, 
stated that any other act declared to be aggression by the Security Council would 
also come into that category. Either the matter should be left to the Council, 
in which case there was no need for a catalogue, or the catalogue was effective 
in itself, in which case a list such as that proposed by the USSR delegation 
(A/AC.66/L.2/Rev.l) went too far. If applied literally, it would result in acts 
being wrongly declared as constituting aggression, and governments might argue 
that any act not covered in the text did not constitute aggression notwithstanding 
any decision to the contrary by the Security Council." 

"Some members of the Committee had been in favour of a mixed definition that 
would start with a text in very general terms describing the characteristics of 
aggressive activity. This general text would be followed by an enumeration 
of specific acts, but the enumeration would be neither limitative nor exhaustive. 
It would not be obligatory but would simply be a series of examples. The ad- 
vantage of a mixed definition was that it combined the merits and the positive 
aspects of the general and enumerative definitions. A mixed definition should 
therefore start with a generic concept including elements specific in their sig- 
nificance and be followed by an enumeration of the types of acts of aggression . . ." 
This type of definition had been criticized by other members of the Committee 
as embodying the defects of the two other types. The representative of the 
United States said "that instead of trying to establish a general formula which 
would probably be incomplete, it would be better to offer the competent organs 
of the United Nations, and in the first place the Security Council, a list of factors 
to be taken into account in deciding a given case. Some other members of the 
Committee thought this idea constructive and worth examining." Report of the 
Special Committee on the Question of Defining Aggression (A/2638), pp. 4 f. 

Some members of the Committee decidedly rejected the inclusion of indirect and 
especially of economic and ideological aggression in the definition of aggression. 
Cf. op. cit., pp. 8 ff. 

34. United Nations. General Assemoly. Ninth Session. Official Records, 
Sixth Committee, 406th meeting (A/C.6/SR. 406), pp. 45 f. 



100 

35. In his memorandum presented to the Committee on Arbitration and Secu- 
rity, established on 30 November 1924, by the Preparatory Commission for the 
Disarmament Conference, Mr. Rutgers (Netherlands) rejected the principle of 
defining the concept of aggression in advance. However, he considered that "it 
would be . . . practical to enumerate some of the facts which, according to cir- 
cumstances, may serve as evidence that aggression has taken place." He distin- 
guished between acts which "constitute acts of aggression," such as the invasion 
of the territory of one state by the troops of another or an attack on a consider- 
able scale launched by one state on the frontiers of another, and "factors which 
may serve as basis in determining the aggressor: (a) Actual industrial and 
economic mobilization carried out by a State either in its own territory or by 
persons or societies on foreign territory, (b) Secret military mobilization by 
the formation and employment of irregular troops or by a declaration of a state 
of danger of war which would serve as a pretext for commencing hostilities. 

(c) Air, chemical, or naval attack carried out by one party against another. 

(d) The presence of the armed forces of one party in the territory of another. 

(e) Refusal of either of the parties to withdraw its armed forces behind a line 
or lines indicated by the Council, (f ) A definitely aggressive policy by one of 
the parties towards the other, and the consequent refusal of that party to submit 
the subject in dispute to the recommendations of the Council or to the decision 
of the Permanent Court of International Justice and to accept the recommenda- 
tion or decision when given." Series of League of Nations Publications IX. 
Disarmament 1928. IX, 6, pp. 142 ff. 

36. League of Nations. Records of the Fifth Assembly, Minutes of the First 
Committee (Official Journal, Special Supplement No. 24), p. 138 ff. Article 10 
of the Protocol ran as follows : 

"Every State which resorts to war in violation of the undertakings contained 
in the Covenant or in the present Protocol is an aggressor. Violation of the 
rules laid down for a demilitarized zone shall be held equivalent to resort to 
war. In the event of hostilities having broken out, any State shall be presumed 
to be an aggressor, unless a decision of the Council, which must be taken 
unanimously, shall otherwise declare : 

1. If it has refused to submit the dispute to the procedure of pacific settle- 
ment provided by Articles 13 and 15 of the Covenant as amplified by the present 
Protocol, or to comply with a judicial sentence or arbitral award or with a 
unanimous recommendation of the Council, or has disregarded a unanimous 
report of the Council, a judicial sentence or an arbitral award recognizing that 
the dispute between it and the other belligerent States arises out of a matter 
which by international law is solely within the domestic jurisdiction of the 
latter State ; nevertheless, in the last case the State shall only be presumed to be 
an aggressor if it has not previously submitted the question to the Council or 
the Assembly, in accordance with Article 11 of the Covenant. 

2. If it has violated provisional measures enjoined by the Council for the 
period while the proceedings are in progress as contemplated by Article 7 of 
the present Protocol. 

Apart from the cases dealt with in paragraphs 1 and 2 of the present 
Article, if the Council does not at once succeed in determining the aggressor, 
it shall be bound to enjoin upon the belligerents an armistice, and shall fix the 
terms, acting, if need be, by a two-thirds majority and shall supervise its execu- 
tion. 

Any belligerent which has refused to accept the armistice or has violated 
its terms shall be deemed an aggressor. 



101 

The Council shall call upon the signatory States to apply forthwith 

against the aggressor the sanctions provided by Article 11 of the present 

Protocol and any signatory State thus called upon shall thereupon be entitled 
to exercise the rights of a belligerent." 

(c) Sanctions 

(aa) The concept of sanctions. 

As pointed out in a previous chapter, a social order guaranteeing 
collective security is by its very nature a legal order, and a legal 
order is a system of norms providing for sanctions. Hence, the or- 
ganization of sanctions is one of the most important problems, if not 
the most important problem, of collective security. 

The term "sanction" can have different meanings. In its widest 
sense, it means any measure taken in support of a social order regu- 
lating human behavior. The purpose of a sanction is to bring about 
that behavior which, according to the opinion of the social authority, 
is useful to society and hence is considered to be in conformity with 
the social order ; and to prevent that behavior which, according to the 
opinion of the social authority, is harmful to society and hence is 
considered to be contrary to the social order. This purpose may be 
achieved in two different ways: with the use of force or without it. 
It is the essence of a legal order that it tries to bring about lawful 
and to prevent unlawful behavior by coercive measures — that is, by 
the forcible deprivation of life, freedom, property or other values as 
a reaction against a violation of the order. The coercive character 
of the measures concerned is established by the fact that they are 
applied without or even against the will of the person against whom 
they are directed and that physical force may be used in case of 
resistance. In this sense, legal sanctions are coercive reactions against 
a violation of the law. A violation or a delict may be already com- 
mitted and ascertained in a legal procedure, as in the case of a punish- 
ment which is inflicted upon a criminal by a penal court. Alterna- 
tively, a delict may be only suspected, and coercive actions taken as 
provisional measures in order to prepare and secure the procedure for 
the ascertainment of a violation of the law and the execution of a 
sanction, as, for instance, in the case of arrest of a person by the police. 
A coercive measure may even be taken in order to prevent a violation 
of the law which, with a certain degree of probability, is expected in 
the future by the person against whom the measure is directed, e. g., 
the confinement of insane persons in an asylum, or the forcible intern- 
ment of citizens of an enemy state in time of war in order to prevent 
them from committing delicts against the state at war with their 



102 

home state. In the widest sense, legal sanctions are coercive reactions 
against an actual violation of the law or against a possible violation, 
"possible" meaning suspected or expected. 

The coercive reaction against a violation of the law may have no 
other purpose than to inflict an evil on the delinquent in order to 
deter him and others from committing similar delicts in the future. 
Such a sanction is called a punishment. The usual punishments of 
national law are capital punishment, imprisonment and fine, but the 
punishment may also consist of the forfeiture of political rights, dis- 
charge from office, and the like. It may even be restricted to the ascer- 
tainment of the fact that a person has violated the law. In this case 
one speaks of a "moral" sanction because its immediate purpose is to 
bring about moral disapprobation of the delinquent in the opinion of 
the public, although this measure may be a reaction provided for by 
the law and hence a legal sanction. It may not be the primary pur- 
pose, or even the purpose at all, of a coercive reaction against a viola- 
tion of the law to deter others from similar violations of the law. The 
purpose may be to restore the situation which existed prior to a viola- 
tion of the law, especially to repair the damage caused by the violation 
of the law. This is characteristic of the specific sanction of civil law, 
the so-called civil execution, which consists of forcibly depriving the 
violator of the law of part of his property, and which differs from the 
fine as a punishment of penal law in that the seized property or the 
result of its forced sale does not go to the public treasury, as a fine 
would, but to the damaged person. However, although this is not its 
main purpose, civil execution, the forcible deprivation of property, is 
aimed at deterring persons from similar violations of the law. Hence, 
it has a certain punitive character. The distinction between punish- 
ment and other sanctions is only relative. Sanctions, as evils forcibly 
inflicted upon men, always have the function of preventing further 
violations of the law and hence have a punitive character. However, 
this character may be more or less emphasized. 

There are also coercive measures provided by the law which have 
no relation to an actual or possible violation of the law, such as the 
forcible destruction of buildings or other property in order to prevent 
the extension of a fire, or the forcible internment of persons inflicted 
by a contagious disease in order to prevent or restrict an epidemic. 
These coercive measures are not sanctions because they are not re- 
actions against an actual or potential violation of the law. However, 
they are applied only under conditions and by persons precisely deter- 
mined by the law. In this sense, the use of force constituted by these 
measures, like the use of force constituted by sanctions, is reserved to 
the legal community. 



103 

Like the sanctions of national law, the specific sanctions of inter- 
national law, reprisals and war, consist of forcibly depriving the in- 
dividuals who are subjects of the state against which a sanction is di- 
rected of life, freedom, property or other values. The sanctions of 
international law differ from the sanctions of national law in their 
collective character. They are not directed against a definite individ- 
ual, like the sanctions of national law, but against a group of individ- 
uals, the individuals belonging to a state, who are subjected to the 
legal order constituting this state. This means that, in contradis- 
tinction to national law which establishes individual responsibility, 
international law, as a rule, establishes collective responsibility for 
its violations. However, in exceptional cases, individual responsi- 
bility for violations of international law is established by general as 
well as by particular international law which provides for punishment 
or civil execution of definite individuals as a reaction against acts con- 
stituting a violation of international law. Although the term "re- 
prisals" in its specific and original sense means only enforcement 
actions directed against states — that is, actions constituting collective 
responsibility — it is sometimes used in a wider sense to cover also 
sanctions constituting individual responsibility. 

A disputed question which plays a certain part in the discussion of 
international security is whether reprisals and war, as international 
sanctions, do or do not have a punitive character. The answer de- 
pends on the definition of punishment, and punishment can hardly be 
characterized by any other criterion than by its function of deterrence. 
Punishment is that reaction against a violation of the law which con- 
sists of forcibly depriving a person of certain values for the purpose 
of deterring him and other persons from similar violations of the law. 
If this definition is accepted, it cannot be denied that reprisals and 
war, as sanctions of international law, have a punitive character. The 
punitive character, which means the deterrent function, of a War 
waged as a sanction is obvious. The same is true with respect to re- 
prisals taken in time of war. If a belligerent reacts against the illegal 
use of poison gas on the part of another belligerent by applying the 
same measure, he does so in order to prevent his opponent from using 
this illegal weapon again. Only in regard to reprisals taken in time 
of peace as a reaction against a violation of international law, is the 
purpose of inducing a violator of the law to repair the damage caused 
by a violation primary, as in the case of the civil execution of national 
law. However, the function of preventing future violations of the 
law by deterrence is not excluded. 

The rejection of the punitive character of international sanctions 
in general and of the sanctions provided for in a system of inter- 



104 

national security in particular may be explained by the fact that 
under national law punishment has a certain defamatory connotation 
and some penalties are actually combined with defamatory conse- 
quences such as the forfeiture of political rights. However, neither 
this connotation nor these consequences are essential to the concept of 
punishment. Consequently, the view that the sanctions of interna- 
tional law do not have, or that the sanctions of an international secu- 
rity system should not have, a punitive character is without founda- 
tion. Nor is the requirement that the sanctions of an international 
security system must not be vindictive of any practical importance. 
They are vindictive if they are taken by the victim of aggression with 
the intention of taking revenge on an aggressor. As an objectively 
ascertainable action, revenge is a reaction against a wrong suffered 
and hence is not distinguishable from a sanction. As a subjective 
motive, revenge may be characterized by a feeling of resentment or 
hatred, but such a feeling is legally irrelevant as long as its expres- 
sion in an enforcement action directed against an aggressor remains 
within the limits of a sanction. It is not the uncontrollable motive 
of a reaction against an aggressor but the objectively ascertainable 
reaction and its conformity or non-conformity with the law which 
counts. 

If within a system of international security not only war but any 
use of armed force is prohibited in principle and exceptionally per- 
mitted only as a sanction, the two types of international sanctions 
must be designated as enforcement measures involving the use of armed 
force and those not involving it, or as military and non-military sanc- 
tions, but not as war and reprisals. By non-military sanctions, eco- 
nomic, financial and diplomatic sanctions are usually meant. However, 
sometimes the term "economic" sanctions covers all non-military sanc- 
tions and includes financial and diplomatic sanctions. 1 

(bb) The execution of sanctions within an international security 
system. 

The execution of the sanctions may be left to the individual mem- 
bers of the international organization and these members may — just 
as under general international law — be only authorized to fulfill this 
function. However, within a system of international security which 
prohibits the use of armed force, at least the execution of the non- 
military, or so-called economic sanctions, should be obligatory. 2 A 
higher degree of security is achieved if a central organ endowed with 
a certain competence regarding the execution of sanctions is estab- 
lished. 3 This organ may be composed of representatives of all the 
members of the organization, usually called an assembly, or of only 



105 

some of them, elected by the assembly for a certain period of time, 
usually called a council. 4 Some members, especially the great powers, 
may have a permanent seat in the council, so that only the other mem- 
bers of the council are elected. The central organ may adopt its deci- 
sions either by a unanimous vote or by a majority vote. The majority 
may have to include the affirmative votes of all the permanent mem- 
bers of the council so that each of the permanent members could have 
a so-called veto right. The decisions of the organ may have the 
character of mere recommendations or they may be legally binding 
upon the members of the organization. The central organ may be a 
committee of ambassadors, so that political considerations may pre- 
vail in adopting its recommendations or decisions, or the decision to 
apply sanctions may be conferred upon an independent court and 
only the execution of these decisions left to the assembly or council. 
The possible relationships between such a court and the executive 
organ will be discussed later. It stands to reason that international 
security is guaranteed to a higher degree if the central organ is com- 
posed only of some and not of all the members of the organization, 
if it may adopt its decisions by a majority vote and not unanimously, 
if there is no veto right of permanent members, and if its decisions are 
not mere recommendations but are legally binding upon the members. 
It makes an important difference whether the central organ does or 
does not have the means by which sanctions are to be executed at its 
direct disposal. If these means are not at the direct disposal of the 
central organ, sanctions can be executed only by the member states of 
the security organization in conformity with the recommendations or 
binding decisions of the central organ. Then there is no essential 
difference between an enforcement action taken as a sanction by the 
security organization and the exercise of individual or collective self- 
defense, especially if the question as to whether or not an illegal act 
of aggression has been committed and if so which state is the aggressor, 
is to be decided by the members executing the sanctions. The differ- 
ence consists only in the fact that in case of self-defense no central 
organ of the security organization interferes ; and even this difference 
is reduced to a minimum if the central organ has only the power to 
make recommendations. On the other hand, the exercise of individual 
and, especially, of collective self-defense itself has the character of a 
sanction, insofar as it is a legally authorized reaction against a viola- 
tion of the law. It is, as pointed out, a decentralized execution of 
sanctions, the states exercising self-defense acting as organs of the 
security organization. This is particularly evident if collective self- 
defense is, under the treaty constituting the security organization, 
not merely a right but an obligation of the members, that is to say, 



106 

if the member states are obliged to come to the assistance of the 
victim of an illegal aggression. 5 

If the central organ of the security organization has not at its 
direct disposal the means by which the sanctions are to be executed, 
the execution of the sanctions — and this means the operation of the 
security system — depends in the last analysis on the good will of the 
member states. Hence, the execution of the sanctions may be seriously 
endangered by the political considerations of the various governments, 
especially the governments of great powers, if — rightly or wrongly — 
they consider that the interests of their own state are not compatible 
with their obligations under the security system. The situation is 
different if the means by which the sanctions are to be executed are 
at the direct disposal of the central organ and the execution of the 
sanctions independent of the will of the individual members. 

In this respect there is a certain difference between military and 
non-military sanctions. Armed forces, the specific means by which 
military sanctions are executed, may very well be placed at the direct 
disposal of the central organ, without depriving the members of the 
security organization of their character as sovereign states. However, 
non-military, especially financial and economic sanctions, can be 
directly applied only by the government of a state, because only a 
state government controls the means by which these sanctions may be 
executed, and if such control is conferred on the central organ of a 
security organization, this organization comes near to that of a 
super-state. This is a consequence of the nature of non-military, 
especially financial and economic, sanctions. 

If the international security organization is not universal and, con- 
sequently, there are states which are not members of the organization 
and hence are not bound by the provisions of the treaty constituting 
the organization concerning the application of sanctions, these states 
may support the organization without joining it by assuming the 
obligation or expressing the willingness to refrain from any action 
tending to defeat the execution of a sanction taken by or on behalf 
of the organization. 6 

(cc) Non-military sanctions. 

As far as so-called diplomatic sanctions are concerned, it may appear 
that an international organization may apply these measures directly, 
that is to say, not through the governments of the member states, 
without losing its international character. The diplomatic means 
which may be employed are : a protest against an illegal conduct of a 
state, the withdrawal of the head of the embassy, the severing of all 



107 

diplomatic relations, and also of all consular relations ; the non-recog- 
nition of a situation established by an illegal action. 7 With the 
exception of cutting off consular representation, all these diplomatic 
means may be applied by an international organization which ex- 
changes diplomatic representatives both with states which are mem- 
bers of the organization and states which are not. However, these 
diplomatic means have no effect if they are not applied also by the 
member states in conformity with a recommendation or binding 
decision of the central organ of the security organization. 

Financial sanctions consist of denying all financial assistance to a 
state guilty of aggression and its nationals, cutting off long-term 
loans, suspending short-term banking credits, and the like. Only an 
authority which is competent to impose legal obligations upon public 
and private banking institutions, which therefore can exercise legisla- 
tive and executive power directly over individuals, can apply such 
measures. To confer such powers upon a security organization would 
hardly be compatible with its international character. 8 Financial 
sanctions are less effective than other economic sanctions and conse- 
quently should be combined with them. These sanctions also pre- 
suppose legislative and executive powers which are characteristic of a 
state government. 

Economic sanctions may be applied in different degrees. The most 
important economic sanction consists of prohibiting the commerce 
in arms, ammunition and the raw materials essential to the production 
of arms and ammunition and to the prosecution of hostilities between 
the member states of the security organization and the aggressor. 
Among these prohibitions an oil embargo is of particular importance. 
The refusal to accept exports from a state is an economic sanction 
which may have a remarkable effect on the state against which it is 
applied. The highest possible degree of an economic sanction is 
achieved by prohibiting all commerce, which includes prohibiting the 
nationals of the member states from entering the territory of the 
aggressor, prohibiting the nationals of the aggressor state from en- 
tering the territory of the member states, controlling all transport 
and international exchanges of goods, and interrupting the diplomatic 
and consular relations between the member states and the aggressor. 
This is a complete international boycott of the aggressor. 9 It stands 
to reason that the economic measures taken against the aggressor 
should be accompanied by economic measures, especially those of a 
financial nature, taken in favor of the victim, and that in this respect 
every possible assistance should be given to the state which is the 
victim of the aggression. 

370624 — 57 8 



108 

There can be little doubt that economic sanctions are not very 
effective if the boycotted state has strong economic resources, if it 
is more or less self-sufficient, and especially if it is in possession of 
the raw materials essential to the production of arms and ammunition 
and has a prosperous armament-producing industry. A serious diffi- 
culty in executing economic, and especially financial, sanctions is the 
possibility of retaliatory economic measures which may be taken by 
the boycotted state against a boycotting state. Economically weak 
states may be affected seriously by such measures. Consequently, 
economic sanctions directed against an aggressor should be comple- 
mented by mutual economic assistance to boycotting states. 10 States 
which are the immediate neighbors of the boycotted state are par- 
ticularly exposed to retaliatory measures by the latter, and the eco- 
nomic sanctions taken against a state may have undesirable effects 
on its neighbors. Hence it may be necessary to exempt these neigh- 
boring states from the obligation of participating in the execution of 
economic sanctions, which consequently cannot be universal. How- 
ever, if economic sanctions are not applied by all states, or at least 
by all the members of a security organization comprising the over- 
whelming majority of states, their value becomes highly problemati- 
cal. Furthermore, even if the organization is universal, it is hardly 
possible to guarantee the effective cooperation of all members in the 
execution of economic sanctions. From what has been said before, 
it appears that the effective execution of a sanction depends on the 
centralization of this function. Within an international security 
organization, economic sanctions can be centralized only to a very 
limited extent. Since the organization must remain "international," 
it cannot have the means by which economic sanctions are applied 
at its direct disposal. Hence, the execution of economic sanctions 
must be left to the individual members of the organization. They 
may be obliged to execute the economic sanction decided upon by the 
central organ under the direction of this organ. However, as has 
been pointed out, this organ cannot rely on the strict fulfillment of 
these obligations. 

Another insufficiency of economic sanctions is that they cannot 
have an immediate effect on the aggressor, and consequently this state 
may inflict irreparable damage on its victim before economic sanctions 
force it to stop its aggression. There can be little doubt that economic 
sanctions alone cannot guarantee international security in a way 
which could be considered satisfactory, even from the point of view 
of a very modest expectation. Within the League of Nations, the 
stubborn resistance to the establishment and application of military 
sanctions and the attempt to realize the purpose of the security 



109 

organization by the application of economic sanctions only led to 
the breakdown of this organization. Besides, in order to be effective, 
economic sanctions cannot be isolated from military enforcement 
measures. A complete economic boycott of an aggressor who has 
a seacoast is hardly possible without a blockade which has to be 
established by men-of-war and which consequently constitutes a use 
of armed force. 

As has been pointed out in a previous chapter, 11 the treaty con- 
stituting an international security organization may protect the 
members not only against aggression (in the wider sense of the term) 
on the part of a member state but also against aggression by a non- 
member state by providing that the sanctions stipulated in the treaty 
are to be directed against any state which commits an act of aggression 
against a member state. 12 In this respect, there is a difference between 
sanctions which constitute enforcement measures short of war and 
enforcement measures which have the character of war. Under gen- 
eral international law, enforcement measures short of war are per- 
missible only as reprisals. That is, if they constitute the violation 
of a right of the state against which they are directed, they are legal 
only as a reaction against a violation of the law committed by this 
state. If under a security treaty all members of the organization are 
obliged to take enforcement measures short of war against a non- 
member state which has committed an act of aggression against only 
one of them without violating a right of the others, the action of the 
members whose rights are not violated by this act of aggression of the 
non-member state is illegal under general international law if their 
action constitutes a violation of a right of the non-member state. 
Some of the non-military sanctions provided for by a security treaty, 
for instance diplomatic sanctions, may not violate any right of the 
non-member state against which they are directed. However, eco- 
nomic sanctions may do so if, for example, they can be applied only 
in violation of a treaty concluded between the non-member state and 
a member state which is not a victim of the aggression. The blockade 
of the coasts of a non-member state is certainly illegal under general 
international law if it is not a reaction against a violation by the 
blockaded state of a right of the blockading state not a victim of the 
aggression. If an act of aggression, against which a security treaty 
provides for enforcement measures short of war, does not constitute 
a violation of general international law, for example, if military 
mobilization or the refusal to submit a conflict to peaceful settlement 
is considered to be an act of aggression, and if the members of the 
security organization are obliged to take enforcement measures short 
of war against a non-member state which has committed such an act 



110 

of aggression, the enforcement measures taken by the members are 
illegal under general international law if they constitute the violation 
of a right of the non-member state. In both cases, an opposite 
opinion can be maintained only under the problematic presupposition 
that the security treaty is also binding upon states which are not 
contracting parties to it. 

On the other hand, if they have the character of war, military sanc- 
tions stipulated by a security treaty may be directed against a non- 
member state without constituting a violation of general international 
law by members which are not victims of the aggression and by all 
members if the act of aggression for which the non-member state is 
made responsible is illegal only under the security treaty to which 
this state is not a contracting party. This is the paradoxical conse- 
quence of the view that the oellwn justum principle is not part of 
general international law, and hence that any state may resort to war 
against any other state for any reason whatsoever. 

(dd) Military sanctions. 

(A) THE OPPOSITION TO MILITARY SANCTIONS 

Any use of armed force as a reaction against a violation of inter- 
national law is a military sanction, and if armed force is used for this 
purpose to an extent characteristic of war, a military sanction has the 
character of war. The fact that armed force is used as a sanction does 
not deprive this use of armed force of its legal character of war. 
Hence the rules of international law regulating the conduct of war 
apply to it. 12a 

The opposition to providing military sanctions in a treaty consti- 
tuting an international security organization is based on two kinds of 
reasons: political and moral. Governments are averse to imposing 
the sacrifices involved in a military action upon their subjects if this 
action cannot be justified as necessary for self-defense, and they are 
disinclined to resort to or participate in a war which, from a purely 
military point of view, is aggressive, if its outcome is doubtful. How- 
ever, as we shall see, a reasonable degree of certainty that a military 
sanction will achieve its purpose and that those who execute this 
sanction will be able to impose their will on the delinquent state, exists 
only in case this sanction is highly centralized, and, for political 
reasons, it is just this centralization which encounters the strongest 
resistance on the part of governments defending the so-called 
sovereignty of their states. 

The moral arguments against military sanctions are partly the 
same as those set forth against capital punishment : human life should 



Ill 

never be destroyed, not even as a sanction. However, capital punish- 
ment can be replaced by a sanction which is only a little less effective, 
namely, imprisonment and especially imprisonment for life, whereas 
the only sanctions which can be substituted for military sanctions are 
economic sanctions which are far less effective. The most impressive 
argument against military sanctions is the undeniable fact that, even 
if their destructive effect is restricted to the members of the armed 
forces of an aggressor and even more if such restriction is impossible 
as in the case of aerial bombardment, military sanctions bring about 
the death and suffering of many individual human beings who by their 
own voluntary acts did not commit the violation of the law against 
which the sanction is a reaction. However, this is an inevitable conse- 
quence of the collective responsibility which exists not only in 
the military but also in the economic sanctions of international law. 
This consequence cannot be avoided by renouncing military sanctions 
and by restricting the reaction of the security organization against 
aggression to economic sanctions. In order to avoid the morally 
undesirable consequences of collective responsibility, military and 
economic sanctions both must be abandoned, and only those sanctions 
provided for which can be imposed upon the individual persons who 
by their own voluntarily performed acts committed the international 
delicts which impaired international security. These sanctions will 
be discussed later. 13 

(B) THE ORGANIZATION OF MILITARY SANCTIONS 

Different ways of organizing military sanctions may be distin- 
guished according to the degree of centralization. Military action 
against an aggressor may be left completely to the individual member 
states which may not be obliged but only authorized to take such 
action through their own armed forces without any interference on 
the part of a central organ of the security organization. However, a 
treaty constituting the security organization may establish a central 
organ competent to make recommendations concerning the military 
action of the member states 14 or to oblige them to execute the military 
sanction decided upon by the central organ in conformity with its 
directions. 15 

If the constituent treaty stipulates such an obligation, the central 
organ may entrust the execution of the sanction to one single state or to 
some states, the territories of which are nearer to that of the aggressor 
than the territories of the other members, or which have a particular 
interest in maintaining and restoring peace within the area where the 
aggression has taken place. In all these cases there is no armed force 
at the direct disposal of the central organ of the security organization. 



112 

The armed forces through which the military sanction is to be 
executed remain under the command of their national governments, 
and consequently the coordination of their operations is very difficult, 
if not impossible, to achieve. As in the case of the analogous organi- 
zation of economic sanctions, the working of the coercive machinery 
of the security system depends, in the last analysis, on the readiness 
of the respective governments to exercise their rights or to fulfill their 
obligations to take military action against the aggressor. 

In order to place an armed force at the direct disposal of the security 
organization the members may be obliged to make contingents or 
"quotas" of their armed forces available to the central organ, and in 
case it decides to take military action, this organ would be authorized 
to call upon members to provide the armed forces in conformity with 
their obligations and to use these forces in the military action against 
the aggressor. The numerical strength, composition, armament and 
location of the contingents may be determined in advance by the con- 
stituent treaty or by special agreements to be concluded between the 
individual members on the one hand and the organization on the other. 
As long as they are not made available to the central organ for the 
purpose of a military action of the organization, the contingents of the 
armed forces of the member states remain under the exclusive control 
of their national governments. Only if they are actually placed at 
the disposal of the central organ are they unified under the military 
command of the central organ or of a commander in chief appointed 
by this organ, and assisted by a military staff as an auxiliary organ. 16 
The financial problems of this system are relatively simple. Each 
member state has to bear the costs of its contingent in time of peace 
and possibly also in case of a military action of the organization in 
which its contingent takes part. However, the expenses for this 
action may be paid out of the funds at the disposal of the organization 
established by the financial contributions of the member states. 17 

The difference between the contingent or quota system and a system 
in which there is no armed force at the direct disposal of the interna- 
tional organization is not as great as it may first seem. It is true 
that, if placed within a unified command, the cooperation of the dif- 
ferent contingents would be much easier to achieve than if the armed 
forces of the member states each operated under its own national 
command. 18 However, it should not be ignored that, even if superior 
in numerical strength and armament, an armed force composed of 
contingents of the armed forces of different nations is always handi- 
capped in a fight against a homogeneous armed force of an aggressor 
state. Although legally parts of an international force, the contin- 
gents would retain their national spirit. Their readiness to fight an 



113 

opponent which is not a particular enemy of their country could leave 
much to be desired. 19 Since a many-headed international agency can- 
not satisfactorily fulfill the functions of military command, the ap- 
pointment of a commander in chief is indispensable. For understand- 
able reasons, this appointment is a very difficult task especially if the 
commander in chief is not appointed only for a particular military 
action but as a permanent organ of the international community. 

A still greater difficulty consists in concluding the agreements con- 
cerning the strength and composition of the contingent each member 
state has to place at the disposal of the organization. 20 Even if this 
difficulty is surmounted, the operation of the quota system would de- 
pend on the willingness of the member states to fulfill their main 
obligation : to respond to the call of the central organ by placing their 
contingents at its disposal. The same political considerations which 
could prevent the government of a member state from resorting to 
war against a state which has attacked another state, could prevent a 
government from placing the contingent of its armed forces at the 
disposal of the security organization. Hence, the central organ might 
never know in advance which armed forces would be at its disposal, 
and consequently the organ would not be in a position to base its mili- 
tary operations on a prearranged plan which is an essential condition 
of quick and effective action. 21 

Since the armed forces at the disposal of the organization must be 
superior in numerical strength and armament to the armed forces 
of any potential aggressor, universality or at least quasi-universality of 
the organization is an essential condition of the effectiveness of the 
quota system. In addition, the treaty constituting the security organ- 
ization must not stipulate expulsion from the organization as a sanc- 
tion and not allow withdrawal from the organization. However, even 
if the treaty does not contain a clause authorizing the members to 
withdraw under certain conditions, or even if it does contain a pro- 
hibition expressly forbidding a member state to denounce the treaty 
by a unilateral act, actual withdrawal of a member state and hence 
loss of its contingent can hardly be prevented. 22 

(C) THE INTERNATIONAL POLICE FORCE ORGANIZED AS A PERMA- 
NENT AND SEPARATE ARMED FORCE AT THE DIRECT DISPOSAL OF 
THE SECURITY ORGANIZATION 

Most of the difficulties and insufficiencies involved in the organiza- 
tion of military sanctions discussed in the previous sections could be 
avoided by placing at the direct disposal of the security organization 
an international armed force which is not established on an ad hoc 
basis, as under the quota system. In other words, the international 



114 

armed force would not be available only in case of a particular mili- 
tary action of the organization, but would be permanent and com- 
pletely separate from and independent of the national armed forces of 
the member states, a separate armed force belonging exclusively to the 
security organization and not an armed force composed of parts of 
the armed forces of the member states. 

It is usual to designate such a permanent and separate armed force 
at the direct disposal of a security organization as a true "inter- 
national" armed force in contradistinction to the merely "joint" or 
"collective" force which exists under the quota system. This termi- 
nology is not quite correct. An armed force composed of contingents 
of the armed forces of member states is as "international" as a per- 
manent and separate armed force of a security organization. There 
is even an international armed force under a constituent treaty which 
does not provide for contingents of the armed forces of member states 
but only obliges or simply authorizes member states to take military 
action through their own armed forces against the aggressor. In the 
first place, the international character of an armed force depends on 
the law under w T hich the force is used. If this law is international 
law, the armed force is an international force. Hence, if used in the 
execution of a sanction provided for by international law, even the 
national armed force of a state would have an international char- 
acter. In the second place, this character depends on the international 
character of the authority under the control of which the armed force 
is operated, and this authority is "international" if it is established on 
the basis of international law or if its functions are determined by 
international law. Hence an armed force composed of the armed forces 
of member states, but operated by the organ of a security organization 
constituted by a treaty, is certainly an international force, and, if in 
exercising a right conferred upon it or in fulfilling an obligation im- 
posed upon it by international law, a state uses its armed force to 
execute a sanction provided for by international law, this state may 
very well be considered to be an international organ. Hence the 
armed forces which execute sanctions provided for by any system of 
international security, however organized, may be considered to be 
international forces. 

Another terminology, the correctness of which is doubtful, is to 
designate as an international "police" force only a permanent and 
separate armed force at the direct disposal of the central organ of 
an international security community. A police force is an armed force 
used in the performance of a police action. A police action is any 
enforcement action performed by an organ of a community for the 
welfare of its members, their health, morals, prosperity and, espe- 



115 

cially, their security. However, it is not a sanitary police force or 
a police force for the purpose of morals or economics, but a security 
police force with which an international security organization is con- 
cerned. The specific functions of a security police force are to prepare 
and secure by enforcement actions the judicial or quasi-judicial pro- 
cedure for ascertaining a violation of the law, and to execute the 
sanction ordered by the judicial or quasi-judicial organ. There is a 
difference between the so-called police force of a state and its "armed 
force," the term designating its army, navy and air force. The former 
is used to maintain order within the state, whereas the purpose of the 
latter is to defend the state against external aggression. Hence the 
armament of the two forces is not the same. Neither artillery nor 
bombers are necessary to maintain order within a state as long as the 
disturbance of the internal order does not assume the character of a 
revolutionary movement. If it does, however, the army, navy, and 
air force may be used, and if used for the maintenance of internal 
order their function is a police function. The difference between a 
"police force" for the maintenance of internal order and an "armed 
force" for defense against external aggression is irrelevant within 
an international security organization. The aggression against which 
the armed force of this organization is used is always external ag- 
gression from the point of view of the state which is its victim and 
internal aggression from the point of view of the international com- 
munity, if this community is universal. If it is not universal, the 
aggression is external aggression also from the point of view of the 
security organization if the aggressor is a non-member state and if 
the constituent treaty also provides for enforcement action in this 
case. It is true that the constituent treaty may also provide for en- 
forcement action in case an internal aggression takes place within a 
member state — that is, in case a revolution is directed against the 
legitimate government. However, as has been pointed out, in this 
case the attacked government must use its armed forces itself, and 
if it is assisted by the armed forces of the security organization, both 
actions are police actions, insofar as they are taken to maintain or 
restore the internal order of the state, although they are taken by 
forces which are "armed forces" with respect to their armament. Con- 
sequently, any enforcement action taken in conformity with the legal 
order constituting an international security system is a police action, 
whether it is performed by the armed force of an individual state, 
or by an armed force composed of contingents of the armed forces of 
the member states, or by a permanent and separate armed force under 
the direct control of a security organization. There is no cogent reason 



116 

why the term "police force" should be restricted to an armed force of 
this latter type. 

There are some characteristic problems involved in organizing a 
permanent and separate armed force at the direct disposal of a security 
organization. First of all, there is the question of recruitment. 23 

In regard to recruitment, there are two possibilities. A security 
organization may have the right to recruit directly with its own 
organs in the territories of member states. Such a right requires the 
corresponding obligation imposed on the member states by the con- 
stituent treaty to allow, and if necessary to support with their own 
organs, the recruitment procedure. Of the two methods of recruit- 
ment, compulsory conscription and voluntary enlistment on the basis 
of free contract, only the latter is a practical consideration. The 
former is not excluded, but direct recruitment presupposes the power 
of the security organization to impose by legislative acts the obliga- 
tion upon the citizens of the member states to do military service in 
the armed force of the organization. Hence, this direct recruitment 
is not compatible with the international character of a security or- 
ganization. Legislative power exercised directly over individuals 
brings a security organization very near to being a super-state. 

The other possibility is indirect recruitment. The recruitment of 
the members of the international armed force may be left to the gov- 
ernments of the member states acting on behalf of the security organi- 
zation and obliged to place at the disposal of the organization a certain 
number of recruits, determined by agreement or by a binding decision 
of the central organ of the organization. In the case of indirect re- 
cruitment, compulsory conscription is more feasible and practical than 
it is in the case of direct recruitment. If a state has the power to im- 
pose by national law upon its subjects the obligation to do military 
service in its own armed force, it also has the power to impose in 
this way upon its subjects the obligation to do military service in the 
armed force of an international organization of which this state is a 
member. However, voluntary enlistment on the basis of free contract 
is in both cases preferable to compulsory conscription, for the length 
of time of military service in a separate and independent armed force 
of an international security organization must be much longer than 
that of military service in a national armed force. In contradistinc- 
tion to the latter, the former can hardly have effective reserves at its 
disposal. If a member of a separate and independent armed force 
of an international security organization returns to civil life, he ceases 
to be under the control of the international organization and hence 
is not liable to call, unless this function is also performed by the gov- 
ernments of the member states on behalf of the international organi- 



117 

zation. 24 For the same reason, in order to make the terms of enlistment 
sufficiently attractive, the wages paid to the members of the armed 
force of an international security organization must be much higher 
than the small pay to which the enlisted men below the rank of com- 
missioned and non-commissioned officers are entitled in a national 
armed force. If an international security organization is so centralized 
that it assumes the character of a federal state, its armed force may 
be recruited in the same way as that of a national state. 

Another problem of a permanent and separate armed force of an 
international security organization is the personal legal status of its 
members. Since they owe allegiance only to an international organi- 
zation, they should not be citizens of a particular state. They should 
be released from their nationality during the time of their service in 
the armed forces of the organization, 25 and their status of belonging 
legally to the international community constituted by the security 
treaty, a legal status analogous to that of national citizenship, should 
be recognized by the member states and certified by appropriate docu- 
ments, such as passports. This problem is not particular to the organi- 
zation of a permanent and separate armed force but applies to all 
organs of an international security organization. 28 In order to guar- 
antee complete independence of the governments of the member states, 
the members of the armed forces should be exempt from the jurisdic- 
tion of the member states and should be subject to the exclusive juris- 
diction of the international organization which should be endowed 
with special organs competent to exercise this jurisdiction. 27 

A most delicate problem is the location of the armed forces. The 
inconvenience of stationing the armed force of an international secu- 
rity organization in the territory of a member state is obvious, and 
stationing the force in the territory of a non-member, even if per- 
manently neutralized, like Switzerland, is out of the question. Be- 
sides, as we shall see later, the institution of neutrality and especially 
of permanent neutralization is not compatible with a universal or 
quasi-universal security organization. The only satisfactory solution 
of this problem is to locate the armed forces and the main organs of 
the security organization in a territory which is under the direct 
sovereignty of the organization and not under the sovereignty of an 
individual state. This internationalized territory may be of relatively 
small size, like that placed under the sovereignty of the Pope, the terri- 
tory of the state of the Vatican City. However, for purely strategic 
reasons, military bases at different points all over the surface of the 
earth would be needed. Hence, it would be necessary to have not one 
but several internationalized territories. Such territories could be ac- 
quired only with the agreement of the states in possession of them. 



118 

This, of course, implies an almost insurmountable difficulty. 

The independence of the armed force of the international security 
organization may be seriously endangered by the fact that both the 
manufacturing of armaments and the raw material necessary for the 
execution of a military action would remain under the control of the 
national governments. The transfer of this control to the inter- 
national organization would imply a restriction of the sovereignty of 
member states and consequently constitutes another difficulty. 

The question of the composition of the international armed f orce — 
that is, whether it should comprehend all three arms of the service, 
land, sea and air forces, or whether there should be a preponderance of 
one, especially of the air force, over the others — is a purely military- 
technical problem. More important from the point of view of this 
study is the financial question. There can be no doubt that the cost 
of a permanent and separate armed force is very high. This cost 
must be covered by contributions from member states as long as an 
organization does not have the power of direct taxation, a power 
incompatible with its international character. However, the contribu- 
tion of a state would not be larger than the cost to a state of its own 
armament, and the establishment of a permanent and separate armed 
force of a security organization allows, and even imperatively requires, 
a radical reduction of the armament of the member states. This is 
an advantage which this method of organizing military sanctions 
shares with no other. Because they are not exposed to the danger of 
being weakened by the withdrawal of a member state and its armed 
forces from the organization, enforcement measures taken by a sepa- 
rate and permanent armed force may really achieve the ideal purpose 
of a sanction: to prevent the violation of the law against which it 
is provided. As the danger of aggression is reduced, to the extent 
that this is possible at all, the right of self-defense can be restricted 
to a degree which makes its misuse very difficult. Only individual 
and not collective self-defense may be permitted, and permitted only 
against external aggression actually carried out by the armed forces 
of another state. 

If the international security organization has a permanent and 
separate armed force at its disposal far superior to the armed forces 
of the member states which are reduced to the minimum necessary 
to maintain internal order and to offer initial resistance to external 
aggression, the danger of intervention by the organization in the 
domestic affairs of the members must not be underestimated. Certain 
institutions protecting the member states against such intervention 
should be established in the constituent treaty, e. g., the opportunity 
of invoking an international court competent to decide the question 



119 

of whether or not an action of the organization constitutes such inter* 
vention and to order the organization to cancel it if the action is de- 
clared illegal. However, it must be admitted that within such a 
system there is no absolutely effective guarantee for maintaining the 
distribution of competence between the organization and its members 
laid down in the constituent treaty. As has been said before, this 
system appears to imply a strong tendency of becoming transformed 
into a super-state. The central organ which is in control of the 
permanent and separate armed force has a character not very different 
from that of a state government, for the concentration of the means 
of force in the hands of a central organ has, more than anything else, 
the effect of conferring on this organ the power of a government in 
the specific sense of the term. 

If the central organ of a security organization has the character 
of a government or quasi-government, the question of the form of 
government, the dilemma: democracy or autocracy, becomes para- 
mount. This question is of little or no importance as long as the 
central organ of a security organization has no real governmental 
power. If an international community is supposed to be organized 
on a democratic basis, the problem of the representation of the member 
states in the organs and especially in the main organ of the security 
organization arises. The democratic principle of equal representation 
can be applied in two quite different ways: on the basis of the 
equality of states, or on the basis of the equality of the individuals 
who are subjects of the states. If the equality of states is accepted 
as the basic principle, the vote of each state, regardless of the number 
of its subjects, must have the same weight as that of any other state. 
If the equality of the individual subjects is accepted as the basic 
principle, the vote of each state must be in proportion to the number 
of its subjects. The application of both principles implies grave 
inconveniences, and the choice as well as the attempt to find an accept- 
able compromise between them involves difficulties which seem to be 
insurmountable in view of the circumstances that exist at present and 
probably will exist in the foreseeable future. 

It is therefore understandable that even the most enthusiastic de- 
fenders of an international police force do not dare to suggest a 
radically centralized armed-force monopoly of the security organiza- 
tion, which means that a permanent and separate armed force be at 
the direct disposal of the organization and that there be complete 
disarmament of the member states. What can be suggested as a 
politically possible scheme is combining the quota system with a 
relatively small permanent and separate armed force of a security 
organization. The main function of the latter would be to come to 



120 

the immediate assistance of a victim of aggression. In the course of 
military operations the armed force of the security organization would 
be supported by the contingents of the armed forces of the mem- 
ber states which had been placed at the disposal of the security 
organization. 28 

It stands to reason that under such a system no complete disarma- 
ment of the member states and not even a considerable reduction of 
national armament, could be achieved. However, it has been sug- 
gested that this scheme be based on the principle of differentiation of 
armament. 29 The most destructive and most mobile arms would be 
reserved for the use of the permanent and separate armed force of 
the security organization, the less destructive and less mobile arms 
left to the armed forces of the member states. The most destructive 
and, at the same time, most mobile weapons are those used by the air 
force. Hence, an air-force monopoly of the security organization 
becomes a consideration. In view of the fact that civil aircraft can 
easily be adapted to military purposes, such a monopoly is hardly 
possible without the internationalization of civil aviation. 30 It is more 
than doubtful that this internationalization of civil aviation is politi- 
cally feasible on a universal basis. If restricted to a regional security 
organization, a combination of the quota system and a permanent 
and separate armed force of the organization may be nearer to political 
reality than a completely centralized armed-force monopoly of a 
universal or even regional security organization. However, it must 
be admitted that this combination combines the difficulties of both 
with the disadvantages of the quota system. 31 

(D) THE PROCEDURE PRECEDING THE EXECUTION OF SANCTIONS 

The execution of a sanction must be preceded by a procedure to 
ascertain the delict, i. e., to ascertain the violation of the law against 
which a sanction is provided as a reaction. This is especially true if 
the delict is an act of aggression. The procedure is then referred to as 
determining the aggressor. The execution of a sanction to be directeed 
against the aggressor may also be preceded by a procedure to put into 
operation certain provisional measures to prevent the aggravation of 
the situation created by the delict, especially if this delict is an act of 
aggression, actually committed or expected. 

Under a relatively primitive system of international security, the 
ascertainment of the act of aggression and hence the determination of 
the aggressor is left to the states who are members of the security 
organization and who are authorized or obliged to apply the non- 
military or military sanctions provided for by the constituent treaty 
without any interference on the part of a central organ. 32 The dis- 



121 

advantages of such a decentralization of the legal function have been 
discussed in a previous chapter of this study. 33 

One of the fundamental conditions of an effective system of inter- 
national security consists of conferring upon a central organ the ascer- 
tainment of the act of aggression against which a sanction in the 
constituent treaty is provided. This may be the same executive organ 
as that competent to apply the sanctions, an organ composed of repre- 
sentatives of some or all of the states who are members of the organi- 
zation, whereby these representatives are bound by the instructions 
of their respective governments. 34 However, this central organ may 
also be an international court composed of individuals who are not 
representatives of any state but are independent judges. In view of 
the fact that the ascertainment of the delict is a specifically legal func- 
tion, the fulfillment of which in strict conformity with the law estab- 
lished by the constituent treaty is essential to the security to be 
achieved by the international organization, an independent court 
would seem to be the most appropriate organ. If the ascertainment 
of the delict, and especially of the act of aggression, is conferred upon 
a court, in applying sanctions the executive organ must conform to 
the decisions of the court. 

This solution of the problem is strongly opposed by governments as 
well as by writers on international law, especially with respect to the 
determination of the aggressor. In the main, their arguments are 
that the political interests involved in this function do not allow 
decisions to be based only on legal considerations, and that a judicial 
procedure is too slow if, as in case of an act of aggression, immediate 
action is necessary. The first argument may be rejected by referring 
to the fact that, as pointed out in another connection, political con- 
siderations are not excluded from the procedure in which an inter- 
national court decides that an act of aggression has taken place. Of 
course this is not so as far as the finding of facts is concerned. In 
this respect the truth and nothing but the truth must be disclosed, and 
it can hardly be denied that in this respect an independent and im- 
partial court is more reliable than an agency which is exclusively 
influenced by political motives. However, in qualifying the facts as 
aggression, in deciding that the facts constitute aggression as deter- 
mined by the law to be applied, the discretion left to a court by the 
law may be very wide, and within the limits of this discretion political 
considerations may legitimately be introduced and actually are intro- 
duced in all judicial decisions. Hence, it is probably not the possi- 
bility of introducing political considerations in general which is behind 
the argument against a court as the organ competent to determine 
the aggressor, but the wish to protect definite political interests of 



122 

particular governments having decisive influence within the inter- 
national organization. Indeed, these interests can be defended only 
by the representatives of these governments as members of the organ 
competent to determine the aggressor and not by independent judges. 
However, this is not a legitimate argument as far as an organization 
is concerned which has to guarantee security equally for all its 
members. 

The second argument concerning the slowness of the judicial pro- 
cedure is more serious. However, it is possible to solve this problem 
by authorizing the executive organ to act without waiting for a judicial 
decision in case of a prima facie aggression and at the same time 
obliging this organ to submit the case to the court immediately after 
action has been taken and to cancel the action if the court so decides. 
This is the only way to guarantee the legality of the execution of 
sanctions. 

Provisional measures, as, for instance, a call to cease hostilities, may 
be taken prior to or after the determination of the aggressor, and 
they may be taken by a court as well as by an executive organ. If the 
act of the central organ has the character of a decision legally binding 
on the parties, non-compliance with this decision constitutes a delict 
entailing a reaction on the part of the security organization. 3 



35 



<E) SANCTIONS CONSTITUTING INDIVIDUAL RESPONSIBILITY FOR 
VIOLATIONS OF INTERNATIONAL LAW 

As pointed out in a previous chapter, the economic and military 
sanctions usually established within an international security system 
are directed against a state as such and thus constitute collective re- 
sponsibility. This means that the forcible deprivation of life, free- 
dom, property and other values, implied in these sanctions, in the last 
instance affects individual human beings who by their own voluntary 
acts have not committed the delicts against which the sanctions are 
directed. This is one of the main objections to military sanctions in 
general. However, as has been pointed out, this objection could also 
be raised against economic sanctions. The only way to avoid 
the injustice of making individuals responsible for a delict which they 
have not committed is to provide for sanctions which, unlike economic 
and military sanctions, are not directed against a certain group of 
individuals, namely, individuals belonging to the state the organ of 
which has committed the delict, but only and exclusively against a 
definite individual, especially against that individual who in his ca- 
pacity as the organ of a state or as a private person has committed 
the delict. Such sanctions, capital punishment, imprisonment and 
fine, for example, are usually provided for in national law, especially 



123 

in the penal law of modern states. If the sanction provided for as a 
reaction against a delict is punishment, the delict may be called a 
crime. The crimes which an international security organization tries 
to prevent are crimes against international peace, or, what amounts to 
the same thing, crimes against international security. There can be 
no doubt that the main crime against security, the illegal use of armed 
force by one state against another, can be committed only at the order 
or with the authorization of the supreme organs of the state, the head 
of the state or other members of the government, for only these 
individuals have the legal power to make use of the armed forces of the 
state. If individual responsibility for a crime against international 
security is to be established, the treaty constituting the international 
security organization must provide for punishment of the individuals 
who, in their capacity as organs of a state and in violation of the 
treaty, have ordered or authorized the armed forces of a state to take 
action against another state, or have ordered or authorized or per- 
sonally performed any act which must be considered as aggression, 
especially the act of threatening with the use of armed force. For 
this purpose, the constituent treaty must confer upon an international 
court the power to try the individuals accused of a crime against 
security and, if they are found guilty, to inflict a definite punishment 
on them. This means a considerable deviation from the prin- 
ciple of traditional international law which holds that only states and 
not individuals can be parties to a case before an international court. 36 
To comply with the generally recognized principle of penal law that 
no crime should be punished unless the punishment is determined by 
a pre-established law, the constituent treaty should specify the penal- 
ties which the court is authorized to inflict upon guilty individuals. 
Acts performed, ordered or authorized by the government are acts 
of state. According to a principle of general international law, a 
state can exercise jurisdiction over another state through its courts, 
and this means jurisdiction over acts of another state, and thus make 
the organ of another state individually responsible for a violation of 
international law, only with the consent of this state. Insofar as an 
international court is a common court of the states which are con- 
tracting parties to the treaty by which a court or its jurisdiction is 
established, an international court can try individuals for having 
violated international law by acts of state, and this means in their 
capacity as organs of a state, only with the consent of this state. In 
other words, the state over whose acts an international court exercises 
jurisdiction by inflicting punishment upon the individuals who have 
performed these acts, must be a contracting party to the treaty estab- 
lishing the jurisdiction of the court or must express its consent to 

370624—57 9 



124 

this jurisdiction in some other way. If such a court is established only 
after aggression has taken place, it stands to reason that only the 
government of a state defeated in the war which was the consequence 
of the aggression, will consent to the prosecution of former members 
of its government. 37 Hence, individual criminal responsibility for 
crimes against international security should be pre-established in the 
treaty constituting the security organization. If the organization is 
universal, there is no difficulty in applying the provision concerned. 
However, if the organization is not universal and a non-member state 
is the aggressor, the prosecution of organs of this state for having 
committed the act of aggression is legally possibly only if the govern- 
ment of the non-member state consents. It should be noted, however, 
that according to an opinion advocated by some authorities, the rule 
of general international law requiring the consent of a state to the 
prosecution of an individual who in his capacity as an organ of this 
state has violated international law by committing a crime against 
international security, has been abrogated by the practice of states, 
especially by the Agreement signed on 8 August 1945 in London for 
the prosecution of the major war criminals of the European Axis. 38 

Whether individual criminal responsibility for violations of inter- 
national law, and especially for crimes against international security, 
should be extended to acts performed at superior order, is a delicate 
question. If this question is answered in the affirmative, not only the 
member or members of the government who ordered the illegal use of 
armed force, but all members of the armed force who executed the 
order, would be punishable. This, of course, is absurd. Hence, the 
principle of excluding the plea of superior order should be restricted 
with respect to the crimes to which it may be applied, as well as with 
respect to the conditions under which a crime committed at superior 
order should be considered punishable. 39 

Although individual criminal responsibility for violations of inter- 
national law by acts of state is certainly a very effective means of 
preventing these violations and especially of preventing the illegal 
use of armed force, it is evident that the sanctions constituting this 
responsibility do not suffice if, in spite of such responsibility established 
by the constituent treaty, an act of aggression has actually taken place 
and a military action is necessary to stop the aggression and save the 
victim, to the extent that this is possible. 

Individual criminal responsibility for violations of international 
law by acts of state is not a consideration in case of internal aggression 
constituted by a revolutionary movement within a member state, for 
revolutionary acts are not acts of state and violate only national law 
and not international law. The situation is different if a security 



125 

treaty provides for enforcement action against a revolutionary move- 
ment within a member state and if the insurgents are recognized as 
a belligerent power. The internal aggression constituted by the revo- 
lutionary movement is then analogous to aggression by a non-member 
state against a member state, for the government of the insurgents 
cannot be considered to be a contracting party to the security treaty. 
Consequently, the provisions of the treaty concerning individual 
criminal responsibility for acts of aggression are not applicable to 
the members of the revolutionary government. Only the collective 
responsibility implied in the enforcement action taken against the 
revolutionary movement applies. It should not be ignored that even 
within the national law of modern states the principle of collective 
responsibility cannot be completely replaced by that of individual 
responsibility. There are cases where only the former is applicable. 

(F) SANCTIONS CONSISTING OF THE FORFEITURE OF RIGHTS 

As pointed out in a previous chapter, sanctions may consist of the 
forcible deprivation of rights. The expulsion of a member state from 
a security organization is such a sanction. It implies the forfeiture 
of all the rights a state has in its capacity as a member of the organi- 
zation. However, the consequence of expulsion is that the state 
concerned is also released from the obligations imposed upon it by 
the constituent treaty. 40 For this reason, expulsion is not an appro- 
priate sanction within a security organization which intends to be 
universal. More appropriate is a forefeiture of rights not accom- 
panied by a release from obligations, especially the forfeiture of 
specific rights, e. g., the right to participate in the voting of a 
collegiate organ in which the state is represented. 4 



41 



NOTES 

1. Cf. the excellent study : International Sanctions. A Report of a Group of 
Members of the Royal Institute of International Affairs. Oxford University 
Press, London, New York, Toronto, 1938. Quoted in the following as : Interna- 
tional Sanctions. 

2. This was the case under the Covenant of the League of Nations which 
in Article 16, paragraph 1 (cf. infra, p. 134) imposed upon the members only an 
obligation to take economic sanctions. As far as military sanctions were 
concerned, the members were under no obligation ; they were only authorized 
to take such action. 

3. According to Article 16, paragraph 2, of the Covenant of the League of 
Nations, the Council had the power to make recommendations concerning the 
execution of the military sanctions. Under this Article the Council had no 
competence with respect to the execution of the economic sanctions by the 
members. However, Article 10 provided : "The Members of the League under- 
take to respect and preserve against external aggression the territorial integrity 
and existing political independence of all Members of the League. In case of 



126 

any such aggression or in case of any threat or danger of such aggression the 
Council shall advise upon the means by which this obligation shall be fulfilled." 
In so far as the "means" referred to in this Article had the character of economic 
sanctions in the sense of Article 16, paragraph 1, the Council was competent 
to make recommendations also concerning the execution of these measures. 
Under the Charter of the United Nations the execution of the sanctions — military 
as well as non-military — is reserved to the Security Council, and the members 
are obliged to carry out the decisions of the Council. Article 39 provides : 
''The Security Council shall determine the existence of any threat to the peace, 
breach of the peace, or act of aggression and shall make recommendations, or 
decide what measures shall be taken in accordance with Articles 41 and 42, 
to maintain or restore international peace and security." Article 25 stipulates : 
"The Members of the United Nations agree to accept and carry out the decisions 
of the Security Council in accordance with the present Charter." In addition, 
Article 48 provides: "1. The action required to carry out the decisions of the 
Security Council for the maintenance of international peace and security shall 
be taken by all the Members of the United Nations or by some of them, as the 
Security Council may determine. 2. Such decisions shall be carried out by the 
Members of the United Nations directly and through their action in the appro- 
priate international agencies of which they are members." Decisions of the 
Security Council concerning enforcement measures involving or not involving 
the use of armed force as sanctions are to be taken according to Article 27, 
paragraph 3, by an affirmative vote of seven members including the concurring 
votes of the five permanent members. If, however, the Security Council, because 
of lack of unanimity of the permanent members, fails to exercise its responsi- 
bility with respect to execution of sanctions, the General Assembly is authorized 
by the Resolution "Uniting for Peace" (cf. p. 139) to recommend to the members 
collective measures including, in the case of a breach of the peace or act of 
aggression, the use of armed force. 

4. Article 4 of the Covenant of the League of Nations provided : "1. The Council 
shall consist of representatives of the Principal Allied and Associated Powers 
(United States of America, the British Empire, France, Italy and Japan), 
together with Representatives of four other Members of the League. These four 
Members of the League shall be selected by the Assembly from time to time 
in its discretion. Until the appointment of the Representatives of the four 
Members of the League first selected by the Assembly, Representatives of 
Belgium, Brazil, Greece and Spain shall be Members of the Council. 2. With 
the approval of the majority of the Assembly, the Council may name additional 
Members of the League, whose Representatives shall always be Members of the 
Council; the Council with like approval may increase the number of Members 
of the League to be selected by the Assembly for representation on the Council. 
3. bis. The Assembly shall fix by a two-thirds' majority the rules dealing with 
the election of the non-permanent Members of the Council, and particularly 
such regulations as relate to their term of office and the conditions of reeligi- 
bilityr 

Article 23 of the Charter of the United Nations reads as follows: "1. The 
Security Council shall consist of eleven Members of the United Nations. The 
Republic of China, France, the Union of Soviet Socialist Republics, the United 
Kingdom of Great Britain and Northern Ireland and the United States of 
America shall be permanent members of the Security Council. The General 
Assembly shall elect six other Members of the United Nations to be non-perma- 
nent members of the Security Council, due regard being specially paid, in the 



127 

first instance to the contribution of Members of the United Nations to the main- 
tenance of international peace and security and to the other purposes of the 
Organization, and also to equitable geographical distribution. 2. The non- 
permanent members of the Security Council shall be elected for a term of two 
years. In the first election of the non-permanent members, however, three shall 
be chosen for a term of one year. A retiring member shall not be eligible for 
immediate re-election. 3. Each member of the Security Council shall have one 
representative." 

5. It is significant that the Covenant of the League of Nations — in contra- 
distinction to the Charter of the United Nations — does not contain an express 
provision concerning self-defense. This right is presupposed as self-evident. 
The provisions of Article 16, paragraph 1, of the Covenant concerning economic 
sanctions only transform the right of so-called collective self-defense into an 
obligation, (the economic sanctions considered as a use of force not involving 
armed force) ; and the provisions of Article 16, paragraph 2, confer upon the 
Council only the power to make recommendations with respect to the exercise 
of the right of collective self-defense by military measures. 

The exercise of the right of individual and collective self-defense, expressly 
stipulated in Article 51 in the Charter of the United Nations, differs clearly from 
the execution of sanctions taken as enforcement measures by the central organ 
of the United Nations, the Security Council, under Articles 39-50. The right 
of individual and collective self-defense may be exercised only as long as the 
central organ of the United Nations, the Security Council, does not intervene 
("until the Security Council has taken the measures necessary to maintain 
international peace and security"). 

Under Article 51 so-called collective self-defense is a right of the mem- 
bers. By an agreement of the members, this right may be transformed into 
an obligation. In this way regional security organizations may be established 
within the framework of the relatively universal security organization of the 
United Nations. (As to the question of whether or not these organizations are 
"regional arrangements" within the meaning of Chapter VIII of the Charter, c/. 
infra, p. 252). They constitute important implementations of Article 51 of the 
Charter. Such an agreement is the Inter-American Treaty of Reciprocal Assist- 
ance signed at the Inter-American Conference for the Maintenance of Conti- 
nental Peace and Security at Rio de Janeiro on 2 September 1947. Article 3, 
paragraph 1, of this treaty stipulates: "The High Contracting Parties agree 
that an armed attack by any state against an American State shall be considered 
as an attack against all the American States and, consequently, each one of 
the said Contracting Parties undertakes to assist in meeting the attack in the 
exercise of the inherent right of individual or collective self-defense recognized 
by Article 51 of the Charter of the United Nations." Another agreement imple- 
menting Article 51 of the Charter is the treaty signed by Belgium, France, Luxem- 
bourg, the Netherlands and Great Britain at Brussels on 17 March 1948. Article 
4 of this treaty provides : "If any of the High Contracting Parties should be 
the object of an armed attack in Europe, the other High Contracting Parties will, 
in accordance with the provisions of Article 51 of the Charter of the United 
Nations, afford the Party so attacked all the military and other aid and assistance 
in their power." The most important treaty for the organization of collective 
self-defense is the so-called North Atlantic Treaty signed at Washington on 4 
April 1949 by Belgium, Canada, Denmark, France, Iceland, Italy, Luxembourg, 
Netherlands, Norway, Portugal, United Kingdom, United States of America, 
and adhered to by Greece and Turkey. Article 3 of the Treaty stipulates : "In 



128 

order more effectively to achieve the objectives of this Treaty, the Parties, 
separately and jointly, by means of continuous and effective self-help and mutual 
aid, will maintain and develop their individual and collective capacity to resist 
armed attack." Article 5 of the treaty runs as follows: "The Parties agree 
that an armed attack against one or more of them in Europe or North America 
shall be considered an attack against them all ; and consequently they agree that, 
if such an armed attack occurs, each of them, in exercise of the right of individual 
or collective self-defence recognized by Article 51 of the Charter of the United 
Nations, will assist the Party or Parties so attacked by taking forthwith, indi- 
vidually and in concert with the other Parties, such action as it deems necessary, 
including the use of armed force, to restore and maintain the Security of the North 
Atlantic area. Any such armed attack and all measures taken as a result thereof 
shall immediately be reported to the Security Council. Such measures shall be 
terminated when the Security Council has taken the measures necessary to 
restore and maintain international peace and security." Article 9 provides: 
"The Parties hereby establish a council, on which each of them shall be repre- 
sented, to consider matters concerning the implementation of this Treaty. The 
council shall be so organized as to be able to meet promptly at any time. The 
council shall set up such subsidiary bodies as may be necessary ; in particular it 
shall establish immediately a defense committee which shall recommend 
measures for the implementation of Articles 3 and 5." It is important to note 
that some of the contracting parties were, at the time the treay was concluded, 
not members of the United Nations : Italy and Portugal. 

In conformity with Article 3 of the North Atlantic Treaty, the United States of 
America concluded on the basis of the Mutual Defense Assistance Act of 1949 
various Defense Assistance Agreements. The Agrement concluded with France 
on 27 January 1950 contains in its Preamble the following statements: "The 
Governments of the United States of America and the Republic of France .... 
Taking into consideration the support that the Government of the United States of 
America has brought to these principles by enacting the Mutual Defense Assistance 
Act of 1949 which provides for the furnishing of military assistance to nations 
which have joined with it in collective security arrangements ; desiring to set 
forth the understandings which will govern the transfer of such assistance ; have 
agreed as follows : Article I. 1. Each Government, consistently with the principle 
that economic recovery is essential to international peace and security and must 
be given clear priority, will make or continue to make available to the other, and 
to such other governments as the parties hereto may in each case agree upon, 
such equipment, materials, services, or other military assistance as the govern- 
ment furnishing such assistance may authorize and in accordance with such 
terms and conditions as may be agreed. The furnishing of any such assistance 
as may be authorized by either party hereto shall be consistent with the Charter 
of the United Nations and with the obligations under Article 3 of the North 
Atlantic Treaty. Such assistance shall be so designed as to promote an inte- 
grated defense of the North Atlantic area and to facilitate the development of, 
or be in accordance with, defense plans under Article 9 of the North Atlantic 

Treaty approved by each Government Article II. In conformity with the 

principle of mutual aid, the Goverment of the Republic of France agrees to facili- 
tate the production and transfer to the Government of the United States of 
America, for such period of time, in such quantities and upon such terms and con- 
ditions as may be agreed upon, of raw and semiprocessed materials required by the 
United States as a result of deficiencies or potential deficiencies in its own re- 
sources, and which may be available in France or dependent territories under its 



129 

administration. Arrangements for such transfers shall give due regard to 
requirements for domestic use and commercial export of France." "Article VI. 
1. The two Governments will, upon the request of either of them, consult regarding 
any matter relating to the application of this Agreement or to operations or ar- 
rangements carried out pursuant to this Agreement. 2. Each Government agrees 
to receive personnel of the other Government who will discharge in its territory the 
responsibilities of the other Government under this Agreement and who will be 
accorded facilities to observe the progress of assistance furnished pursuant to this 
Agreement. Such personnel who are nationals of that other country, including 
personnel temporarily assigned, will, in their relations with the Government of the 
country to which they are assigned, operate as a part of the Embassy under the 
direction and control of the Chief of the Diplomatic Mission of the Government of 
such country." 

On the basis of the Mutual Defense Assistance Act of 1949, as amended, and 
the Mutual Security Act of 1951, the United States concluded with Yugoslavia an 
Agreement, signed at Belgrade on 14 November 1951, which contains among others 
the following provisions: "The Governments of the United States of America 
and the Federal People's Republic of Yugoslavia ; Desiring the foster international 
peace and security within the framework of the Charter of the United Nations 
through measures which will further the ability of nations dedicated to the 
purposes and principles of the Charter to participate effectively in arrangements 
for individual and collective self-defense in support of those purposes and 
principles .... have agreed as follows : Article I. 1. The Government of the 
United States of America will make or continue to make available to the Gov- 
ernment of the Federal People's Republic of Yugoslavia equipment, materials, 
services or other assistance in accordance with such terms and conditions as may 
be agreed. The furnishing of such assistance shall be consistent with the Charter 
of the United Nations. Such assistance will be furnished under the provisions, 
and subject to all of the terms, conditions and termination provisions, of the 
Mutual Defense Assistance Act of 1949 and the Mutual Security Act of 1951, acts 
amendatory and supplementary thereto and appropriation acts thereunder. 
The two Governments will, from time to time, negotiate detailed arrangements 
necessary to carry out the provisions of this paragraph. 2. The Government 
of the Federal People's Republic of Yugoslavia will use the assistance exclusively 
in furtherance of the purposes of the Charter of the United Nations for the 
promotion of international peace and security and for strengthening the 
defenses of the Federal People's Republic of Yugoslavia against aggression. 3. The 
Government of the Federal People's Republic of Yugoslavia undertakes not to 
transfer to any person not an officer or agent of that Government, or to any other 
nation, title to or possession of any equipment, materials, information, or services, 
received on a grant basis, without the prior consent of the Government of the 
United States of America. 4. The Government of the Federal People's Republic of 
Yugoslavia will provide the United States of America with reciprocal assistance by 
continuing to facilitate the production and transfer to the United States of 
America in such quantities and upon such terms and conditions as may be agreed 
on, of raw and semiprocessed materials required by the United States of America 
as a result of deficiencies or potential deficiencies in its own resources, and which 
may be available in Yugoslavia. Arrangements for such transfers shall give due 
regards to requirements of Yugoslavia for domestic use and commercial export. 
.... Article V. The Government of the Federal People's Republic of Yugoslavia 
agrees to receive personnel of the Government of the United States of America 
who will discharge in its territory the responsibilities of the Government of the 



130 

United States of America under this Agreement and who will be accorded facilities 
to observe the progress of the assistance furnished pursuant to this Agreement. It 
is understood between the two Governments that the number of such personnel 
will be kept as low as possible. Such personnel who are United States nationals, 
including personnel temporarily assigned, will, in their relations with the Gov- 
ernment of the Federal People's Republic of Yugoslavia, operate as a part of the 
Embassy of the United States of America under the direction and control of the 
Chief of the Diplomatic Mission, and will have the same status as that of other 
personnel with corresponding rank of the Embassy of the United States of 
America who are United States nationals. Upon appropriate notification by the 
Government of the United States of America full diplomatic status will be granted 
to an agreed number of the personnel assigned thereto." 

Mutual defense treaties analogous to the North Atlantic Treaty were concluded 
between the United States and Far Eastern countries, as, for instance, the Treaty 
concluded on 2 December 1954 with the so-called nationalist government of the 
Republic of China (having its seat on Formosa) whose Article V provides : "Each 
Party recognizes that an armed attack in the West Pacific Area directed against 
the territories of either of the Parties would be dangerous to its own peace and 
safety and declares that it would act to meet the common danger in accordance 
with its constitutional processes. Any such armed attack and all measures 
taken as a result thereof shall be immediately reported to the Security Council 
of the United Nations. Such measures shall be terminated when the Security 
Council has taken the measures necessary to restore and maintain international 
peace and security." 

Another treaty concluded for the purpose of collective defense is the Southeast 
Asia Collective Defense Treaty, signed on 8 September 1954 by France, New 
Zealand, Pakistan, the Republic of the Philippines, the Kingdom of Thailand, 
the United Kingdom of Great Britain and Northern Ireland, and the United 
States. (Text in: Disarmament and Security. A Collection of Documents 
1919-1955. Subcommittee on Disarmament. Pursuant to Senate Resolution 93, 
and continued by Senate Resolution 185, Eighty-fourth Congress. United States 
Government Printing Office, Washington 1956 [thereafter quoted: Disarmament 
and Security,] pp. 611 ff ) . 

On 24 February 1955, at Baghdad, a Pact of Mutual Cooperation was con- 
cluded between Iraq and Turkey, to which Pakistan on 23 September 1955, the 
United Kingdom on 5 April 1955, and Iran on 3 November 1955 adhered. The 
Pact refers in its Preamble to the responsibilities borne by the contracting parties 
"in their capacity as members of the United Nations concerned with the main- 
tenance of peace and security in the Middle East region. . . ." It contains among 
others the following provisions : "Article I. Consistent with Article 51 of the 
United Nations Charter the High Contracting Parties will cooperate for their 
security and defence. Such measures as they agree to take to give effect to this 
cooperation may form the subject of special agreements with each other." "Ar- 
ticle II. In order to ensure the realization and effect application of the coop- 
eration provided for in Article I above, the competent authorities of the High 
Contracting Parties will determine the measures to be taken as soon as the present 
Pact enters into force. These measures will become operative as soon as they 
have been approved by the Governments of the High Contracting Parties." 
"Article V. This Pact shall be open for accession to any member of the Arab 
League or any other state actively concerned with the security and peace in this 
region and which is fully recognized by both of the High Contracting Par- 
ties. . . ." "Article VI. A Permanent Council at Ministerial level will be set 






131 

up to function within the framework of the purposes of this Pact when at least 
four Powers become parties to the Pact. The Council will draw up its own rules 
of procedure." 

On 14 May 1955, at Warsaw, a Treaty of Friendship, Cooperation and Mutual 
Assistance was concluded between the Soviet Union and Albania, Bulgaria, 
Hungarian People's Republic, German Democratic Republic, Polish People's 
Republic, Rumanian People's Republic, Czechoslovak Republic. In the Preamble 
the contracting parties express "their desire for the establishment of European 
collective security based on the participation of all European states irrespective 
of their social and political systems, which would make it possible to unite their 
efforts in safeguarding the peace of Europe" ; and declare to be "guided by the 
objects and principles of the Charter of the United Nations Organization." 
Article 1 stipulates: "The Contracting Parties undertake, in accordance with 
the Charter of the United Nations Organization, to refrain in their international 
relations from the threat or use of force, and to settle their international disputes 
peacefully and in such manner as will not jeopardize international peace and 
security." Article 4: "In the event of armed attack in Europe on one or more 
of the Parties to the Treaty by any state or group of states, each of the Parties 
to the Treaty, in the exercise of its right to individual or collective self-defence 
in accordance with Article 51 of the Charter of the United Nations Organiza- 
tion, shall immediately, either individually or in agreement with other Parties 
to the Treaty, come to the assistance of the state or states attacked with all 
such means as it deems necessary, including armed force. The Parties to the 
Treaty shall immediately consult concerning the necessary measures to be taken 
by them jointly in order to restore and maintain international peace and security. 
Measures taken on the basis of this Article shall be reported to the Security 
Council in conformity with the provisions of the Charter of the United Nations 
Organization. These measures shall be discontinued immediately the Security 
Council adopts the necessary measures to restore and maintain international 
peace and security." Article 5 : "The Contracting Parties have agreed to establish 
a Joint Command of the armed forces that by agreement among the Parties shall 
be assigned to the Command, which shall function on the basis of jointly estab- 
lished principles. They shall likewise adopt other agreed measures necessary 
to strengthen their defensive power, in order to protcet the peaceful labours of 
their peoples, guarantee the inviolability of their frontiers and territories, and 
provide defence against possible aggression." 

Prior to the coming into force of the United Nations Charter, on 22 March 
1945, a pact between the Syrian Republic, Transjordan, Iraq, Saudi Arabia, the 
Lebanese Republic, Egypt, and Yemen, constituting the Arab League, was 
concluded. It provides for a Council composed of the representatives of the 
member states (Article 3) and stipulates in Article 5: "Any resort to force in 
order to resolve disputes arising between two or more member states of the 
League is prohibited. If there should arise among them a difference which does 
not concern a state's independence, sovereignty, or territorial integrity, and if 
the parties to the dispute have recourse to the Council for the settlement of this 
difference, the decision of the Council shall then be enforceable and obligatory. 
In such a case, the states between whom the difference has arisen shall not 
participate in the deliberations and decisions of the Council. The Council shall 
mediate in all differences which threaten to lead to war between two member 
states, or a member state and a third state, with a view to bringing about their 
reconciliation. Decisions of arbitration and mediation shall be taken by majority 
vote." Article 6 runs as follows : "In case of aggression or threat of aggression 



132 

by one state against a member state, the state which has been attacked or 
threatened with aggression may demand the immediate convocation of the 
Council. The Council shall, by unanimous decision, determine the measures 
necessary to repulse the aggression. If the aggressor is a member state, his vote 
shall not be counted in determining unanimity. If, as a result of the attack, 
the government of the state attacked finds itself unable to communicate with the 
Council, that state's representative in the Council shall have the right to request 
the convocation of the Council for the purpose indicated in the foregoing para- 
graph. In the event that this representative is unable to communicate with the 
Council, any member state of the League shall have the right to request the 
convocation of the Council." 

On 13 April 1950 the members of the Arab League signed a Joint Defense and 
Economic Cooperation Treaty, which provides in Article 2 : "The contracting 
States consider any (act of) armed aggression made against any one or more 
of them or their armed forces, to be directed against them all. Therefore, in 
accordance with the right of self-defense, individually and collectively they 
undertake to go without delay to the aid of the State or States against which 
such an act of aggression is made, and immediately to take, individually and 
collectively, all steps available, including the use of armed force, to repel the 
aggression and restore security and peace. In conformity with Article 6 of 
the Arab League Pact and Article 51 of the United Nations Charter, the Arab 
League Council and U. N. Security Council shall be notified of such act of 
aggression and the means and procedure taken to check it." (Full text in 
Disarmament and Security, pp. 622 f f . ) 

Article 51 of the Charter has been implemented also by Resolution 378 (V) : 
Duties of States in the Event of the Outbreak of Hostilities, adopted by the 
General Assembly on 17 November 1950, recommending: "(a) That if a State 
becomes engaged in armed conflict with another State or States, it takes all 
steps practicable in the circumstances and compatible with the right of self- 
defence to bring the armed conflict to an end at the earliest possible moment ; 
(b) In particular, that such State shall immediately, and in any case not later 
than twenty-four hours after the outbreak of the hostilities, make a public state- 
ment wherein it will proclaim its readiness, provided that the States with which 
it is in conflict will do the same, to discontinue all military operations and 
withdraw all its military forces which have invaded the territory or territorial 
water of another State or crosses a demarcation line, either on terms agreed 
by the parties to the conflict or under conditions to be indicated to the parties 
by the appropriate organs of the United Nations; (c) That such State immedi- 
ately notify the Secretary-General, for communication to the Security Council 
and to the Members of the United Nations, of the statement made in accordance 
with the preceding subparagraph and of the circumstances in which the conflict 
has arisen; (d) That such State, in its notification to the Secretary-General, 
invite the appropriate organs of the United Nations to dispatch the Peace 
Observation Commission to the area in which the conflict has arisen, if the 
Commission is not already functioning there; (e) That the conduct of the States 
concerned in relation to the matters covered by the foregoing recommendations 
be taken into account in any determination of responsibility for the breach of 
the peace or act of aggression in the case under consideration and in all other 
relevant proceedings before the appropriate organs of the United Nations." 

6. Cf. the declaration made by the representative of the United States of 
America on 22 May 1933, at the League of Nations Disarmament Conference, 
infra, p. 175. 



133 

7. The principle of not recognizing an illegally established situation is known 
as the Stimson Doctrine, named after the U. S. Secretary of State Stimson and 
formulated in an identical note to Japan and China of January 7, 1932 in which 
the Government of the United States declared that it ". . . cannot admit the 
legality of any situation de facto nor does it intend to recognize any treaty or 
agreement entered into between those Governments, or agents thereof, which 
may impair the treaty rights of the United States or its citizens in China, in- 
cluding those which relate to the sovereignty, the independence, or the territorial 
and administrative integrity of the Republic of China, or to the international 
policy relative to China, commonly known as the open-door policy ; and that it 
does not intend to recognize any situation, treaty, or agreement, which may be 
brought about by means contrary to the covenants and obligations of the Pact 
of Paris of August 27, 1928, to which treaty both China and Japan, as well as 
the United States, are parties." The principle of non-recognition has been con- 
firmed by a resolution of the Assembly of the League of Nations on 11 March 
1932 which contained the following statement : "It is incumbent upon the 
Members of the League of Nations not to recognize any situation, treaty, or 
agreement, which may be brought about by means contrary to the Covenant of 
the League of Nations or to the Pact of Paris." 

The Draft Convention on Rights and Duties of States in Case of Aggression, 
published by the Harvard Research in International Law, lays down the principle 
that an aggressor does not acquire rights or relieve itself of duties by becoming 
an aggressor (Article 2) ; Articles 3, 4, and 5 contain specific applications of 
this principle. 

8. An interesting suggestion concerning the centralization of financial sanctions 
was made by M. Busch in two articles published on 22 and 23 September 1915 
in the Neue Zuricher Zeitung, later presented by Camille Gorge, Une nouvelle 
sanction du droit international. Le Pro jet Busch (1926), and Schiicking, Run- 
land, Bohmert, "Die Organisation der Volkerbundsexekution gegen den 
Angreifer." Zeitschrift filr Volkerrecht, 1932, pp. 560 ff. The essential idea 
of the suggestion (as formulated in the last mentioned article) was that each 
member of a security organization would deposit a certain amount of gold, deter- 
mined in proportion to the number of its inhabitants and its economic resources, 
at the disposal of the central organ of the organization. Each member state 
would then have the right to circulate bank notes which would have to be 
covered by this amount of gold on deposit. In case a state were declared to be 
an aggressor by the competent organ of the organization, its gold would be 
confiscated and, if necessary, transferred to the victim of the aggression. This 
confiscation of gold would then probably lead to the breakdown of the monetary 
system of the aggressor state. Cf. also F. N. Keen, The World in Alliance, p. 58 
(quoted by John A. Hobson, Towards International Government, London 1915, 
pp. 94 f) : "The States comprised in the international scheme might be required 
to keep deposited with, or under, the control of, the International Council sums 
of money, proportioned in some way to their relative populations or financial 
resources which might be made available to answer international obligations, 
and an international bank might be organized which would facilitate the giving 
of security by states to the International Council for the performance of their 
obligations and the enforcement of payments between one state and another 
(as well as probably assisting in the creation of an international currency and 
discharging other useful international functions)." 

9. Cf. International Sanctions, pp. 24 ff., 60 ff., 76 ff., 91 ff., 106 ff. According to 
this study, a complete international boycott involves: "(a) the complete closing 



134 

of land frontiers, even to mails, in either direction; (b) the severance of tele- 
graphic, telephonic, and radio communication; (c) exclusion of the shipping and 
aircraft of the boycotted state from the harbours and airports of all other states ; 
(d) the prohibition and prevention of the shipping of all other states from enter- 
ing the harbours of the boycotted state ; (e) the prevention of all illicit communi- 
cations, by land, sea, or air ; (f ) the internment or the repatriation of all nations 
of the boycotted state resident in other countries ; (g) the withdrawal of all 
diplomatic and consular officers on both sides." Op. cit., p. 109. The economic 
sanctions stipulated in Article 16, paragraph 1, of the Covenant of the League of 
Nations constituted a complete boycott. The provisions ran as follows : "Should 
any Member of the League resort to war in disregard of its covenants under 
Articles 12, 13 or 15, it shall ipso facto be deemed to have committed an act of war 
against all other Members of the League, which hereby undertake immediately to 
subject it to the severance of all trade or financial relations, the prohibition of all 
intercourse between their nationals and the nationals of the covenant-breaking 
State, and the prevention of all financial, commercial or personal intercourse 
between the nationals of the covenant-breaking State and the nationals of any 
other State, whether a Member of the League or not." An analogous provision is 
Article 41 of the Charter of the United Nations which runs as follows : "The 
Security Council may decide what measures not involving the use of armed force 
are to be employed to give effect to its decisions, and it may call upon the Members 
of the United Nations to apply such measures. These may include complete or 
partial interruption of economic relations and of rail, sea, air, postal, telegraphic, 
radio, and other means of communication, and the severance of diplomatic 
relations." 

10. Article 16, paragraph 3, of the Covenant of the League of Nations provided : 
"The Members of the League agree, further, that they will mutually support one 
another in the financial and economic measures which are taken under this 
Article, in order to minimize the loss and inconvenience resulting from the above 
measures, and that they will mutually support one another in resisting any special 
measures aimed at one of their number by the covenant-breaking State . . ." 
Article 50 of the Charter of the United Nations stipulates: "If preventive or 
enforcement measures against any state are taken by the Security Council, any 
other state, whether a Member of the United Nations or not, which finds itself 
confronted with special economic problems arising from the carrying out of those 
measures shall have the right to consult the Security Council with regard to a 
solution of those problems." 

11. Cf. p. 61. 

12. According to Article 39 of the Charter of the United Nations, the enforce- 
ment measures to be taken by the Security Council in case of a threat to or 
breach of the peace may be directed not only against a member but also against 
a non-member state, and according to Article 51 the exercise of the right of 
individual and collective self-defense is justified not only in case of an armed 
attack launched by a member but also in case of an armed attack by a non- 
member state. 

12a. Article 14 of the Draft Convention on Rights and Duties of States in Case 
of Aggression stipulates : "Nothing in this Convention shall be deemed to excuse 
any State for a violation of the humanitarian rules concerning the conduct of 
hostilities, prescribed by international law or by a treaty to which it is a party." 
This applies also to the conduct of hostilities against an aggressor. 

13. Cf., pp. 122 ff. 



135 

14. This system of military sanctions was adopted by the Covenant of the 
League of Nations, which in Article 16, paragraph 2, provided: "It shall be 
the duty of the Council in such case [if a Member of the League resorts to war 
in violation of the Covenant] to recommend to the several governments con- 
cerned what effective military, naval or air force the Members of the League 
shall severally contribute to the armed forces to be used to protect the 
covenants of the League." The words "to contribute to the armed forces to be 
used . . ." are misleading. There were no armed forces other than those of 
the members. 

15. This is the case under the Charter of the United Nations. Cf Note 16. 

16. The first attempt to organize military sanctions on the basis of the con- 
tingent system was made in a proposal submitted by the representative of France 
to the League of Nations Commission of the Peace Conference following the first 
World War. This proposal contained the following provisions : 

"III: MILITARY SANCTIONS 

(i.) International Forces 

The execution of the military sanctions on land or at sea shall be entrusted 
either to an international force, or to one or more Powers members of the League 
of Nations, to whom a mandate in that behalf shall have been given. 

The International Body shall have at its disposal a military force supplied 
by the various member States of sufficient strength : — 

(1.) To secure the execution of its decisions and those of the International 
Tribunal ; 

(2.) to overcome, in case of need, any forces which may be opposed to the 
League of Nations in the event of armed conflict. 

(ii.) Strength of International Contingents 

The International Body shall determine the strength of the international 
force and fix the contingents which must be held at its disposal. 

Each of the member States shall be free to settle as it deems best the conditions 
under which its contingent shall be recruited. 

The question of the limitation of armaments in each of the member States 
will be dealt with elsewhere. 

(iii.) Permanent Staff 

A permanent international Staff shall investigate all military questions affect- 
ing the League of Nations. Each State shall appoint the officer or officers who 
shall represent it in a proportion to be determined later. 

The Chief and Deputy Chiefs of Staff shall be appointed for a period of three 
years by the International Body, from a list submitted by the member States. 

(iv.) Functions of the Permanent Staff 

It shall be the duty of the permanent international Staff to deal, under the 
supervision of the International Body, with everything relating to the organisa- 
tion of the joint forces and the eventual conduct of military operations. 
It will in particular be charged with the task of inspecting international forces 
and armaments in agreement with the military authorities of each State, and 
of proposing any improvements it may deem necessary, either in the interna- 



136 

tional military organisation or in the constitution, composition, and methods 
of recruiting of the forces of each State. 

The Staff shall report the result of its inspection, either as a matter of routine 
or at the request of the International Body. Military instruction shall be given 
in each member State in accordance with rules designed to procure, as far as 
possible, uniformity in the armaments and training of the troops destined to 
act in concert. 

The International Body shall be entitled, at any time, to require that the mem- 
ber States introduce any alteration into their national system of recruiting 
which the Staff may report to be necessary. 

(v.) Commander-in-Chief and Chief of General Staff 

When circumstances shall so require, the International Body shall appoint, 
for the duration of the operations to be undertaken, a Commander-in-chief 
of the international forces. 

Upon his appointment, the Commander-in-chief shall nominate his chief of 
General Staff and the officers who are to assist him. 

The powers of the Commander-in-chief and his Chief of General Staff shall 
cease when circumstances become such that an armed conflict is no longer 
to be feared, or when the object of the military operations has been attained. 

In either case, the date at which the powers of the Commander-in-chief and 
the General Staff shall cease shall be fixed by a decision of the International 
Body." 

On 5 February 1932, at the Conference for the Reduction and Limitation of 
Armament, the French delegation submitted a set of proposals which contained 
a plan for the establishment of an international armed force organized according 
to the contingent system. The object of this plan was to set up on behalf of the 
League of Nations: "(1) an International police force to prevent war; (2) a 
first contingent of coercionary forces to repress war and to bring immediate 
assistance to any State victim of aggression, (a) The police force will be 
permanently available with complete freedom of passage to occupy in times of 
emergency areas where a threat of war has arisen, and to assist the action of 
commissioners of the League of Nations on the spot, and also to contribute to 
all conservatory measures within the scope of the Convention to improve the 
Means of Preventing War and of Article 11 of the League Covenant. This 
police force will be made up of contingents furnished by each of the contracting 
parties in a proportion to be determined. France is prepared to contribute a 
mixed brigade, a light naval division and a mixed group of reconnaissance and 
fighter aircraft. The League of Nations will arrange for the command of the 
international police force and will be entitled to inspect its component elements, 
(b) The first contingent of coercionary forces would in conformity with the 
undertakings to be assumed by contracting parties, be made up of elements of 
strength varying according to the regions concerned. These undertakings 
entered into by States towards the League of Nations would oblige them to come 
to the help of any State victim of aggression with forces of definite strength 
constantly available. The contracting parties would have the option of increas- 
ing this contribution on the recommendation of the Council of the League 
(Paragraph 2 of Article 16 of the Covenant) or, in the event of aggression, 
with a view to applying regional conventions of mutual assistance coming 
within the scope of the Covenant. The undertakings of the various States 



137 

would differ according to the place of the conflict — a conflict concerning another 
continent from that to which the State belongs; a conflict concerning the con- 
tinent to which the State belongs ; a conflict in which the aggressor has a common 
frontier with the contracting State. France is prepared to undertake the 
following contributions : In the case of a conflict outside Europe, a mixed brigade, 
a light naval division, a mixed group of aircraft, material for land warfare 
without personnel, and munitions ; for a conflict in Europe : a division of all 
arms, a naval division, a mixed group of aircraft, material for land warfare 
with personnel, and munitions ; for a conflict in Europe in which the aggressor 
has a common frontier with France the contingents provided for in the pre- 
ceding paragraph and, in addition, forces, the strength of which would be decided 
in each case in agreement with the League. As far as material for land warfare 
is concerned, the contracting parties which possess tanks or similar armoured 
implements, as well as heavy field artillery, undertake to contribute from them 
to the forces which will be placed at the disposal of the League under the 
conditions mentioned above. In these various eventualities the undertakings! 
of each State would only become operative if the forces thus placed at any 
moment at the disposal of the League reached a minimum total to be determined, 
and if there were equitable proportion between the contributions of the principal 
States." Series of League of Nations Publications, IX. Disarmament, 1932. 
IX. 63 ; Vol. I, p. 115. 

A special subcommittee on international organization, appointed in 1943 by 
Secretary of State Hull, prepared a Draft Constitution of International Organi- 
zation which in its Article 10 contained the following provisions : "1. Any menace 
to the peace of nations, wherever it arises, is a matter of vital concern to all 
states. The International Organization through its Executive Committee [com- 
posed of representatives of the United States of America, the United Kingdom, 
the Union of Soviet Socialist Republics, and China] or Council [composed of 
eleven representatives, including one representative designated by the United 
States of America, one by the United Kingdom, one by the Union of Soviet So- 
cialist Republics, one by China, two by the group of European states, two by 
the group of American states, one by the group of Far Eastern states, one by 
the states of the Near and Middle East, and one by the British Dominion] shall 
take any action necessary to safeguard or restore peace. 2. In the event of a 
breach, or imminently threatened breach, of the peace between nations, the 
Chairman of the Council, on consultation with such members of the Executive 
Committee as may be available, shall request the parties to desist from any 
action which would further aggravate the situation and shall forthwith summon 
a meeting of the Council. The Council shall request the parties to restore or 
maintain the position existing before the breach or threatened breach of the 
peace and to accept procedures of peaceful settlement. The state or states fail- 
ing to comply with this request within the time specified shall be presumed to 
intend a violation of the peace of nations and the Executive Committee or the 
Council shall apply all the measures necessary to restore or maintain the peace. 
3. Members of the International Organization undertake in no case to give a 
state, declared by the Council to be threatening or committing a violation of the 
peace, assistance of a character which in the opinion of the Council would aggra- 
vate the dispute. 4. Members of the International Organization agree to make 
available for action taken under paragraph 2 to restore or maintain peace such 
armaments, facilities, installations, strategic areas and contingents of armed 
forces, and to afford such freedom of passage through their territories, as the 
Council or the Executive Committee, advised by the General Security and Arma- 



138 

ments Commission, may determine to be necessary for this purpose, having regard 
for the geographical position, regional or special obligations, and relative re- 
sources of member states. All national forces and facilities shall operate under 
their national authorities subject to the general control of the Executive Com- 
mittee and the technical coordination of operations provided by the General 
Security and Armaments Commission. ... 8. Any action by the Council under 
this Article shall require a two-thirds majority vote including three-fourths of 
the states members of the Executive Committee." Postwar Foreign Policy 
Preparation 1939-1945. Dept. of State Publication 3580. General Foreign Policy 
Series 15. Released February 1950. Washington, D. C, 1949, p. 478. 

The contingent system is adopted by the Charter of the United Nations which 
provides : "Article 43. 1. All Members of the United Nations, in order to con- 
tribute to the maintenance of international peace and security, undertake to 
make available to the Security Council, on its call and in accordance with a 
special agreement or agreements, armed forces, assistance, and facilities, includ- 
ing rights of passage, necessary for the purpose of maintaining international 
peace and security. 2. Such agreement or agreements shall govern the numbers 
and types of forces, their degree of readiness and general location, and the nature 
of the facilities and assistance to be provided. 3. The agreement or agreements 
shall be negotiated as soon as possible on the initiative of the Security Council. 
They shall be concluded between the Security Council and Members or between 
the Security Council and groups of Members and shall be subject to ratification 
by the signatory states in accordance with their respective constitutional proc- 
esses. Article 44. When the Security Council has decided to use force it shall, 
before calling upon a Member not represented on it to provide armed forces in 
fulfillment of the obligations assumed under Article 43, invite that Member, if 
the Member so desires, to participate in the decisions of the Security Council 
concerning the employment of contingents of that Member's armed forces. 
Article 45. In order to enable the United Nations to take urgent military 
measures, Members shall hold immediately available national air-force con- 
tingents for combined international enforcement action. The strength and 
degree of readiness of these contingents and plans for their combined action 
shall be determined, within the limits laid down in the special agreement or 
agreements referred to in Article 43, by the Security Council with the assistance 
of the Military Staff Committee. Article 46. Plans for the application of armed 
force shall be made by the Security Council with the assistance of the Military 
Staff Committee. Article 47. 1. There shall be established a Military Staff 
Committee to advise and assist the Security Council on all questions relating 
to the Security Council's military requirements for the maintenance of inter- 
national peace and security, the employment and command of forces placed at 
its disposal, the regulation of armaments, and possible disarmament. 2. The 
Military Staff Committee shall consist of the Chiefs of Staff of the permanent 
members of the Security Council or their representatives. Any Member of the 
United Nations not permanently represented on the Committee shall be invited 
by the Committee to be associated with it when the efficient discharge of the 
Committee's responsibilities requires the participation of that Member in its 
work. 3. The Military Staff Committee shall be responsible under the Security 
Council for the strategic direction of any armed forces placed at the disposal 
of the Security Council. Questions relating to the command of such forces 
shall be worked out subsequently. 4. The Military Staff Committee, with the 
authorization of the Security Council and after consultation with appropriate 
regional agencies, may establish regional subcommittees. Article 48. 1. The 



139 

action required to carry out the decisions of the Security Council for the main- 
tenance of international peace and security shall be taken by all the Members 
of the United Nations or by some of them, as the Security Council may deter- 
mine. 2. Such decisions shall be carried out by the Members of the United 
Nations directly and through their action in the appropriate international agen- 
cies of which they are members. Article 49. The Members of the United Nations 
shall join in affording mutual assistance in carrying out the measures decided 
upon by the Security Council." 

The Resolution 377 (V) A, entitled "Uniting for Peace," adopted by the 
General Assembly on 3 November 1950, provides "that if the Security Council, 
because of lack of unanimity of the permanent members, fails to exercise its 
primary responsibility for the maintenance of international peace and security 
in any case where there appears to be a threat to the peace, breach of the 
peace, or act of aggression, the General Assembly shall consider the matter 
immediately with a view to making appropriate recommendations to Members 
for collective measures, including in the case of a breach of the peace or act 
of aggression the use of armed force when necessary, to maintain or restore 
international peace and security. If not in session at the time, the General 
Assembly may meet in emergency special session within twenty-four hours of 
the request therefor. Such emergency special session shall be called if requested 
by the Security Council on the vote of any seven members, or by a majority of 
the Members of the United Nations." The Resolution provides for the estab- 
lishment by the General Assembly of a Peace Observation Commission composed 
of 14 member states "which could observe and report on the situation in any 
area where there exists international tension the continuance of which is likely 
to endanger the maintenance of international peace and security"; and of a 
Collective Measures Committee consisting of 14 member states. This com- 
mittee is directed to study and make a report "in consultation with the 
Secretary-General and with such Member States as the Committee finds ap- 
propriate" on methods "which might be used to maintain and strengthen inter- 
national peace and security in accordance with the Purposes and Principles 
of the Charter, taking account of collective self-defence and regional arrange- 
ments (Articles 51 and 52 of the Charter)." The Resolution "invites each 
Member of the United Nations to survey its resources in order to determine 
the nature and scope of the assistance it may be in a position to render in 
support of any recommendations of the Security Council or of the General 
Assembly for the restoration of international peace and security" ; and "recom- 
mends to the States Members of the United Nations that each Member maintain 
within its national armed forces elements so trained, organized and equipped 
that they could promptly be made available, in accordance with its constitutional 
processes, for service as a United Nations unit or units, upon recommendation 
by the Security Council or the General Assembly, without prejudice to the use of 
such elements in exercise of the rights of individual or collective self-defence 
recognized in Article 51 of the Charter." 

Prior to the adoption of the Resolution "Uniting for Peace" by the General 
Assembly of the United Nations, a resolution (the Thomas-Douglas Resolution 
S. Con. Res. 52, 81st Cong., 1st sess.) was submitted, on July 8, 1949, to the 
U. S. Senate. It contained the provisions : ". . . be it Resolved by the Senate 
(the House of Representatives concurring), (I) That the Congress reaffirm its 
faith in the United Nations as the cornerstone of the international policy of 
the United States and as an institution which can progressively be made more 

370624—57 10 



140 

adequate to assure the security of its members; (II) That to this end the 
Congress pledges its support to a supplementary agreement under Article 51 
of the Charter open to all members of the United Nations, by which the signatories 
agree, if the Security Council is prevented from fulfilling its duties, to come 
to the aid of the victim of attack if requested to do so by a two-thirds vote of 
the General Assembly, including three of the permanent members of the Se- 
curity Council; (III) That such an agreement should specify the forces that 
each signatory agrees to maintain, under the spirit of paragraphs 1 and 2 of 
Article 43, for immediate use of the United Nations — (a) upon call of the 
Security Council, or (b) upon call of the General Assembly by a two-thirds 
vote, including at least three of the permanent members of the Security Council, 
and (IV) That such an agreement should specify that if a matter pertaining 
to a threat to or breach of the peace, or act of aggression, is on the agenda 
of the Security Council, and the Security Council is prevented from fulfilling its 
duties, the signatories who are members of the Security Council will take such 
steps as may be required to remove it from the agenda of the Security Council ; 
and (V) That such an agreement should come into force when ratified by a 
majority of the United Nations including three of the permanent members of 
the Security Council. Sec. 2. Such an agreement shall not in any way impair 
the inherent right of the parties to engage in self-defense under Article 51 of 
the United Nations Charter, individually or through other collective arrange- 
ments consistent with their obligations under the United Nations Charter, or 
the North Atlantic Security Pact, or the Pact of Rio de Janeiro." 

The Collective Measures Committee suggested in its first report (General 
Assembly. Official Records: Sixth Session. Supple. No. 13 [A/1891,] New York, 
1951) that the United Nations, "whenever it determines upon the use of collective 
force," should appoint an "executive military authority" responsible for the 
direction and control of its military operations. This agency "should be em- 
powered to coordinate the efforts of individual States and to organize contribu- 
tions of forces, assistance and facilities in order to initiate effective military 
operations against the aggressor in the shortest possible time. Accordingly, upon 
the determination to adopt measures involving the use of United Nations armed 
force, the Organization should authorize a State or group of States to act on its 
behalf as executive military authority, within the framework of its policies and 
objectives as expressed through such resolutions as it may adopt at any stage 
of the collective action." As to the relationship between the executive military 
authority and the state victim of an aggression, the Report states : "In some 
cases, the victim State might itself be designated as the executive military au- 
thority, particularly when it is in a position to conduct its own defence with 
only limited assistance from the United Nations. More often, however, it might 
be appropriate for the executive military authority to consist of a group of States, 
of which the victim State would be one. Finally, the executive military authority 
might be a State or a group of States which would not include the victim State. 
Special consideration should also be given to the inclusion in the executive mili- 
tary authority of States situated in, or contiguous to, the area of hostilities, 
particularly when those States are participating in the United Nations action with 
their full military potential." "In the theatre of operations the executive mili- 
tary authority should have full responsibility for the coordination and strategic 
direction and control of the United Nations forces, within the framework of the 
policies and objectives as expressed through such resolutions as the United Na- 
tions may adopt at any stage of the collective action. ... In accordance with 
its responsibility, the executive military authority should be authorized to 



141 

designate the Commander-in-Chief of the United Nations forces and to replace 
him. Where the executive military authority consists of a group of States, the 
Commander-in-Chief should be designated by mutual agreement. The Com- 
mander-in-Chief's authority should be defined by the executive military authority, 
and he should receive instructions from that authority." As to the identification 
of the United Nations character of operations, the Report states : "In identifying 
military measures with the United Nations, the Security Council or the General 
Assembly and the executive military authority should take action of several 
types. First, the body deciding upon or recommending military measures should 
provide that the forces serving under the executive military authority will be 
known as the United Nations Forces. The Commander-in-Chief should initiate 
and conduct all operations as Commander of the United Nations Forces, and 
should issue all orders, reports and instructions, and carry on all relationships, 
in the name of the United Nations Command. The Security Council or the Gen- 
eral Assembly should authorize the use of the United Nations flag in the field, 
and the Commander-in-Chief should ensure that that flag, in addition to national 
flags, is used in United Nations operations. Arrangements should be made for the 
proper identification of personnel and property of the United Nations in the 
theatre of operations. Similarly, consideration should be given to providing a 
United Nations service medal for the forces engaged in future United Nations 
military action." 

The Secretary-General of the United Nations submitted to the Collective 
Measures Committee the proposal to create a "United Nations Volunteer Re- 
serve." In its second Report (General Assembly. Official Records: Seventh 
Session. Suppl. No. 17 [A/2215] New York 1952), the Collective Measures Com- 
mittee states : "The Secretary-General proposed the creation of an international 
organizational framework through which, in his opinion, some States would be 
further enabled to contribute combatant or ancillary units. In addition, under 
these proposals, in his estimation at least fifty or sixty thousand volunteers will- 
ing to serve the principles of the United Nations might well become available 
through a United Nations Volunteer Reserve. Such a reserve would constitute 
additional supplementary strength to other forces provided to a United Nations 
Executive Military Authority at the time such an Authority was appointed to 
resist aggression." "Volunteers to a United Nations Volunteer Reserve would be 
recruited on behalf of the United Nations through the existing national military 
establishments of States willing to participate in the proposal." They would be 
"trained in advance on a part time voluntary basis." 

17. The Charter of the United Nations provides in Article 17, paragraph 2, 
that "the expenses of the Organization shall be borne by the Members as appor- 
tioned by the General Assembly." It seems that the expenses of a military action 
taken by the Security Council are not to be considered as "expenses of the 
Organization." This may be inferred from Article 50 : "If preventive or enforce- 
ment measures against any state are taken by the Security Council, any other 
state, whether a Member of the United Nations or not, which finds itself con- 
fronted with special economic problems arising from the carrying out of those 
measures shall have the right to consult the Security Council with regard to a 
solution of those problems." This provision presupposes that each state must 
bear the expenses of its own armed force which carry out the measures taken by 
the Security Council. From Article 49, which stipulates that the members of the 
United Nations "shall join in affording mutual assistance in carrying out the 
measures decided upon by the Security Council," may follow the principle of an 



142 

equitable sharing of the burdens involved in collective measures. Cf. the Second 
Report of the Collective Measures Committee, p. 6. 

18. It is assumed that the difficulty of cordination in naval operations is not 
as pronounced as in land operations. International Sanctions contained the fol- 
lowing statement : "Division of effort between navies is more easily organized 
than between armies, particularly in the type of operations that are likely to be 
needed in common action against an aggressor state. Sea power is not the in- 
strument of an aggressor ; of itself it can do little against any Great Power. It is 
only when sea power is allied to land power that it has any strength for conquest ; 
intrinsically, it is rather the weapon of collective defence against aggression. 
Such naval operations as an aggressor undertakes are likely to be strictly local,, 
in support of, or ancillary to, his main effort by land, whereas the naval action 
taken against him may be widespread, and therefore easily apportioned between 
various Powers without such close contact as is likely to involve the difficulties 
of jealousy or divided command." Log. cit., p. 119. 

19. Cf. International Sanctions, p. 119. 

20. As a matter of fact, the special agreements which, according to Article 43 
of the Charter of the United Nations, are to be concluded between the United 
Nations, represented by the Security Council, and the member states for the 
purpose of determining the numbers and types of forces to be placed at the 
disposal of the Council, their degree of readiness and general location, and the 
nature of facilities and assistance to be provided, have not yet been concluded,, 
nor is it very likely that they will ever be concluded. 

Under Article 39 of the Charter, the Security Council, after having deter- 
mined the existence of a threat to the peace, breach of the peace, or act of 
aggression, may make "recommendations" or "decide" upon enforcement 
measures involving or not involving the use of armed force (Articles 42 and 41). 
The armed forces referred to in Article 42 are the armed forces to be placed at the 
disposal of the Security Council according to Article 43. As long as the special 
agreements referred to in Article 43 are not concluded, the Security Council is 
not in a position to "decide" to take enforcement measures involving the use of 
armed force. Consequently, when, on 25 June 1950, North Korean forces invaded 
South Korea and the Security Council in its Resolution of 25 June 1950 (UN 
Doc. S/1501) determined the existence of a breach of the peace, the Council did 
not adopt a decision legally binding upon the members of the United Nations but, 
in its Resolution of 27 June 1950 (UN Doc. S/1511), recommended "that the 
Members of the United Nations furnish such assistance to the Republic of Korea 
as may be necessary to repel the armed attack and to restore international peace 
and security in the area." Seventeen states actually contributed armed forces 
to the action recommended by the Security Council. On 7 July 1950, the Security 
Council adopted a Resolution (UN Doc. S/1588) in which the Council "1. Wel- 
comes the prompt and vigorous support which governments and peoples of the 
United Nations have given to its Resolutions of June 25 and 27, 1950, to assist 
the Republic of Korea in defending itself against armed attack and thus to 
restore international peace and security in the area ; 2. Notes that Members of 
the United Nations have transmitted to the United Nations offers of assistance 
for the Republic of Korea ; 3. Recommends that all Members providing military 
forces and other assistance pursuant to the aforesaid Security Council resolu- 
tions make such forces and other assistance available to a unified command under 
the United States; 4. Requests the United States to designate the commander 
of such forces; 5. Authorizes the unified command at its discretion to use the 
United Nations flag in the course of operations against North Korean forces con- 



143 

currently with the flags of the various nations participating; 6. Requests the 
United States to provide the Security Council with reports as appropriate on the 
course of action taken under the unified command." 

In spite of the fact that Article 42 of the Charter could not be applied, the 
action in Korea was a police action of the United Nations, the execution of a 
military sanction within the system of collective security established by the 
Charter of the United Nations. As to the legal standing of the action, cf. Hans 
Kelsen, The Law of the United Nations, London 1951, pp. 927 ff., and Stone, op 
dt., pp. 228 ff . 

21. Cf. the Observations on the Draft Treaty of Mutual Assistance submitted 
to the League of Nations by the British Government. League Document A. 35, 
1924, IX, p. 16, quoted in International Sanctions, p. 116. 

22. In this respect the Charter of the United Nations differs from the 
Covenant of the League of Nations. The latter provided in Article 1, paragraph 
3 : "Any Member of the League may, after two years' notice of its intention 
so to do, withdraw from the League, provided that all its international obliga- 
tions and all its obligations under this Covenant shall have been fulfilled at the 
time of its withdrawal," and in Article 26 : "1. Amendments to this Covenant 
will take effect when ratified by the Members of the League whose Representa- 
tives compose the Council and by a majority of the Members of the League 
whose Representatives compose the Assembly. 2. No such amendment shall bind 
any Member of the League which signifies its dissent therefrom, but in that 
case it shall cease to be a Member of the League." The Charter of the United 
Nations does not contain a provision concerning withdrawal from the organiza- 
tion. However, the Report of Commission I to the plenary session of the San 
Francisco Conference at which the Charter was signed contained the following 
commentary adopted by Committee 1/2 of the Conference: "The Committee 
adopts the view that the Charter should not make express provision either to 
permit or to prohibit withdrawal from the Organization. The Committee deems 
that the highest duty of the nations which will become Members is to continue 
their cooperation within the Organization for the preservation of international 
peace and security. If, however, a Member because of exceptional circumstances 
feels constrained to withdraw, and leave the burden of maintaining international 
peace and security on the other Members, it is not the purpose of the Organization 
to compel that Member to continue its cooperation in the Organization. It is 
obvious, particularly, that withdrawals or some other forms of dissolution of the 
Organization would become inevitable if, deceiving the hopes of humanity, the 
Organization was revealed to be unable to maintain peace or could do so only at 
the expense of law and justice. Nor would a Member be bound to remain in the 
Organization if its rights and obligations as such were changed by Charter 
amendment in which it has not concurred and which it finds itself unable to ac- 
cept, or if an amendment duly accepted by the necessary majority in the Assembly 
or in a general conference fails to secure the ratification necessary to bring such 
amendment into effect. It is for these considerations that the Committee has 
decided to abstain from recommending insertion in the Charter of a formal clause 
specifically forbidding or permitting withdrawal." 

23. Cf. Lord Davies, The Problem of the Twentieth Century, 1930, Second Ed., 
1934, pp. 425 ff., 441 ff., and International Sanctions, p. 121 ff. 

24. Cf. International Sanctions, p. 127. However, Davies, op. cit., pp. 446 f. 
suggested four categories of reserve formations. Recruits should be enlisted 
". . . at the age of seventeen for a minimum term of five years. At the end of this 
period a proportion of, let us say, three-quarters of the total force would be eligible 



144 

for reenlistment for a further term of five years. Their eligibility would be 
determined by their conduct, achievements and the results of examinations during 
the preceding period. The retiring contingent, representing twenty-five per cent 
of the total force, would be relegated to a distinct category of reserves. Similarly, 
another group would retire at the end of the second period of enlistment, a third 
and fourth at the conclusion of fifteen and twenty years' service. The minimum 
period would, therefore, be five years and the maximum period twenty years, 
whilst the ages of retirement would be twenty-two, twenty-seven, thirty-two and 
thirty-seven years respectively." However. Davies did not discuss the question 
of how the international organization might force the reservists to reenter the 
military service in the international armed force. 

25. Davies, op. cit., p. 441, suggested that each member of the international 
armed force ". . . swear his oath of allegiance to the international authority. 
From that moment until he is demobilized he becomes de-nationalized in the sense 
that his services belong exclusively to the authority and that he recognizes no 
other official claims upon his loyalty." 

26. The Charter of the United Nations does not provide for a denationalization 
of the members of the Secretariat. Article 100 stipulates only : "1. In the per- 
formance of their duties, the Secretary-General and the staff shall not seek or 
receive instructions from any government or from any other authority external 
to the Organization. They shall refrain from any action which might reflect on 
their position as international officials responsible only to the Organization. 2. 
Each Member of the United Nations undertakes to respect the exclusively inter- 
national character of the responsibilities of the Secretary-General and the staff 
and not to seek to influence them in the discharge of their responsibilities." 
This provision is implemented by Article I, Rules of the Staff Regulations, which 
runs as follows : "1.1. Members of the Secretariat are international civil 
servants. Their responsibilities are not national but exclusively international. 
By accepting appointment, they pledge themselves to discharge their functions 
and to regulate their conduct with the interests of the United Nations only in 
view. 1.2. Staff members are subject to the authority of the Secretary-General 
and to assignment by him to any of the activities or offices of the United Nations. 
They are responsible to him in the exercise of their functions. The whole time 
of staff members shall be at the disposal of the Secretary-General. The Secre- 
tary-General shall establish a normal working week. 1.3. In the performance 
of their duties members of the Secretariat shall neither seek nor accept in- 
structions from any government or from any other authority external to the 
Organization. 1.4. Members of the Secretariat shall conduct themselves at all 
times in a manner befitting their status as international civil servants. They 
shall not engage in any activity that is incompatible with the proper discharge 
of their duties with the United Nations. They shall avoid any action and in 
particular any kind of public pronouncement which may adversely reflect on 
their status. While they are not expected to give up their national sentiments 
or their political and religious convictions, they shall at all times bear in mind 
the reserve and tact incumbent upon them by reason of their international status. 
1.5. Staff members shall exercise the utmost discretion in regard to all matters 
of official business. They shall not communicate to any person any information 
known to them by reason of their official position which has not been made 
public, except in the course of their duties or by authorization of the Secretary- 
General. Nor shall they at any time use such information to private advantage. 
These obligations do not cease upon separation from the Secretariat. 1.6. No 
member of the Secretariat shall accept any honour, decoration, favour, gift or 



145 

fee from any government or from any other source external to the Organization 
during the period of his appointment, except for war service. 1.7. Any member 
of the Secretariat who becomes a candidate for a public office of a political 
character shall resign from the Secretariat. 1.8. The immunities and privileges 
attached to the United Nations by virtue of Article 105 of the Charter are con- 
ferred in the interests of the Organization. These privileges and immunities 
furnish no excuse to the staff members who enjoy them for non-performance of 
their private obligations or failure to observe laws and police regulations. In 
any case where these privileges and immunities arise, the staff member shall 
immediately report to the Secretary-General, with whom alone it rests to decide 
whether they shall be waived. 1.9. Members of the Secretariat shall subscribe 
to the following oath or declaration : 'I solemnly swear (undertake, affirm, prom- 
ise) to exercise in all loyalty, discretion and conscience the functions entrusted 
to me as an international civil servant of the United Nations, to discharge these 
functions and regulate my conduct with the interests of the United Nations only 
in view, and not to seek or accept instructions in regard to the performance of 
my duties from any government or other authority external to the Organization.' 
1.10. The oath or declaration shall be made orally by the Secretary-General and 
Assistant Secretaries-General at a public meeting of the General Assembly and 
by all other members of the Secretariat before the Secretary-General or his 
authorized deputy." 

27. The Charter of the United Nations does not impose upon the member states 
the obligation to grant complete exemption from their jurisdiction to the indi- 
viduals who are organs of the organization. It provides only: "Abticxe 104. 
The Organization shall enjoy in the territory of each of its Members such legal 
capacity as may be necessary for the exercise of its functions and the fulfillment 
of its purposes. Article 105. 1. The Organization shall enjoy in the territory of 
each of its Members such privileges and immunities as are necessary for the 
fulfillment of its purposes. 2. Representatives of the Members of the United 
Nations and officials of the Organization shall similarly enjoy such privileges and 
immunities as are necessary for the independent exercise of their functions in 
connection with the Organization. 3. The General Assembly may make recom- 
mendations with a view to determining the details of the application of para- 
graphs 1 and 2 of this Article or may propose conventions to the Members of the 
United Nations for this purpose." These provisions are implemented by a con- 
vention on privileges and immunities of the United Nations, prepared by the 
General Assembly in its Resolution of 13 February 1946 and the Headquarters 
Agreement between the United Nations and the United States of America (on the 
territory of which the Headquarters of the United Nations is established) of 26 
June 1947 approved by the General Assembly in its Resolution of 31 October 1947. 

28. Cf. International Sanctions, pp. 123 f., and Davies, op. cit., p. 376 ff. 

29. Davies, op. cit., pp. 376 ff . 

30. The Internationalization of European civil and military aviation together 
with the establishment of an international air-police for Europe was suggested by 
Rear Admiral R. N. Lawson in his pamphlet, A Plan for the Organization of a 
European Air Service. The New Commonwealth Institute Monographs. Series C, 
No. 2, 1936. 

31. The "United Nations Guard," proposed by the Secretary-General in his 
report to the General Assembly of 28 September 1948 (A/656), was originally 
intended to be a miniature police force organized to protect United Nations 
missions in the field in troubled areas without incurring the suspicion of 
partiality which the use of local police or national militia might engender. The 



146 

guard was to consist of 800 men. The nucleus of 300 men was to be located 
and trained either at United Nations Headquarters or at an appropriate place 
in Europe, and a volunteer reserve cadre of up to 500 men was to be recruited 
multinationally and held in reserve in their home states at the call of the 
Secretary-General as and when required. The General Assembly did not accept 
this proposal, but, in conformity with a revised suggestion of the Secretary- 
General, adopted a Resolution on 22 November 1949 (297 IV, A, B) in which it 
confirmed the power of the Secretary-General to establish the "United Nations 
Field Service" and authorized him to establish a "Panel of Field Observers." 
According to the revised suggestion of the Secretary-General, the Field Service 
was to consist of 300 persons who were to be part of the Secretariat and who were 
to provide the following services : providing land transport for missions and such 
incidental air transport as might be required ; maintaining radio communications 
for missions ; maintaining the security of United Nations premises and members 
of missions, safe custody of supplies, records and archives ; maintaining order 
during meetings, hearings and investigations ; performing guard duties at Head- 
quarters. The members of the Field Service were not to be regularly supplied 
with arms of any kind. The Field Reserve Panel was to be simply a list of 
names of qualified persons available for service only in response to a specific 
decision of the General Assembly, the Security Council or an organ authorized 
by them. Their task was to be to assist United Nations missions in the functions 
of observation and supervision. The two services were not designed to act as 
a military force or to enforce Security Council decisions. Cf. Yearbook of 
the U. N., 1948/49, pp. 419 ff. 

32. This was the situation under the Covenant of the League of Nations. 

33. Cf. pp. 12 ff. 

34. This is the solution of the problem by the Charter of the United Nations 
which provides in Article 39 : "The Security Council shall determine the exist- 
ence of any threat to the peace, breach of the peace, or act of aggression and 
shall make recommendations, or decide what measures shall be taken in, 
accordance with Articles 41 and 42, to maintain or restore international peace 
and security." The Security Council, not the individual members of the United 
Nations, must ascertain the facts against which the Charter provides for enforce- 
ment measures. Only as long as the Security Council does not interfere, are the 
member states, exercising the right of individual or collective self-defense in 
accordance with Article 51, authorized to determine the existence of an "armed 
attack." According to the Resolution of the General Assembly "Uniting for 
Peace" {cf. supra, p. 139), the General Assembly, too, is authorized to make, 
under certain conditions, determined in this resolution, recommendations to 
members for collective measures. In order to make these recommendations the 
General Assembly must determine the existence of a threat to the peace, breach 
of the peace, or act of aggression. 

35. The Charter of the United Nations provides in Article 40: "In order to 
prevent an aggravation of the situation, the Security Council may, before 
making the recommendations or deciding upon the measures provided for in 
Article 39, call upon the parties concerned to comply with such provisional 
measures as it deems necessary or desirable. Such provisional measures shall 
be without prejudice to the rights, claims or position of the parties concerned. 
The Security Council shall duly take account of failure to comply with such 
provisional measures." The provisional measures referred to in this Article may 
be taken before or after the Security Council has determined the existence 
of a threat to, or breach of, the peace, but before it has taken the enforcement 



147 

measures referred to in Article 39, which have the character of sanctions. How- 
ever, after the Security Council has determined the existence of a threat to, 
or breach of, the peace, it may not take these enforcement measures immedi- 
ately but may make "recommendations," which probably means recommendations 
for a peaceful settlement of the conflict. These recommendations may also be 
considered as provisional measures. 

36. This principle is maintained in the statute of the International Court of 
Justice, the principal judicial organ of the United Nations. Article 34, para- 
graph 1, of the Statute of the Court expressly stipulates : "Only states may be 
parties in cases before the Court." 

37. The Peace Treaty with Germany terminating the first World War con- 
tained the following provision in Article 231 : "The Allied and Associated 
Governments affirm and Germany accepts the responsibility of Germany and 
her allies for causing all the loss and damage to which the Allied and Associated 
Governments and their nationals have been subjected as a consequence of the war 
imposed upon them by the aggression of Germany and her allies." In ratifying 
this treaty, the Government of defeated Germany admitted that Germany had 
been the aggressor. Article 227 of the Peace Treaty established the individual 
criminal responsibility of the former head of the German state. It stipulated 
that the ex-Emperor, William II, should be brought before an international 
criminal court "for a supreme offence against international morality and the 
sanctity of treaties." The "offence" referred mainly to the act of aggression 
committed by Germany in violating her obligation to respect the neutrality of 
Belgium and Luxembourg which she had guaranteed. Article 227 stipulated 
further that it will be the duty of this tribunal "to fix the punishment which it 
considers should be imposed." Article 227 of the Peace Treaty was never applied. 

38. Cf. the following note. 

39. The principle of individual criminal responsibility for violations of inter- 
national law by acts of state was applied in the Agreement signed on 8 August 
1945, at London, which was the legal basis for the so-called Nuremberg trial. 
As stated in its Preamble, this treaty was concluded by the Government of the 
United Kingdom of Great Britain and Northern Ireland, the Government of 
the United States of America, the Provisional Government of the French 
Republic, and the Government of the Union of Soviet Socialist Republics and 
had as its purpose the prosecution and punishment of the major war criminals 
of the European Axis. The contracting parties were the states occupying the 
territory of Germany after its defeat in the second World War. They con- 
cluded the agreement not in their capacity as the joint government of Germany, 
but, as declared in the Preamble to the Agreement, "in the interest of all the 
United Nations." As a matter of fact, some of the United Nations adhered to 
the Agreement in conformity with Article 5 which provided that "any Govern- 
ment of the United Nations may adhere to this Agreement." (By "United 
Nations," those states which had signed the Declaration by United Nations of 
1 January 1942 were meant). Neither of the European Axis Powers, Germany 
and Italy, signed or adhered to the Agreement. 

Article 1 of the London Agreement instituted "an International Military 
Tribunal for the trial of war criminals whose offenses have no particular 
geographical location, whether they be accused individually or in their capacity 
as members of organizations or groups or in both capacities." According to 
Article 2, "The constitution, jurisdiction and functions of the International 
Military Tribunal shall be those set out in the Charter annexed to this Agree- 



148 

nient, which Charter shall form an integral part of this Agreement." According 
to Article 2 of the Charter, the International Military Tribunal was to consist 
of four members, each with an alternate. One member and one alternate were 
to be appointed by each of the signatories. According to Article 14, each signa- 
tory was to appoint a chief prosecutor for the investigation of the charges against 
and the prosecution of major war criminals. 

Article 6 of the Charter stipulated : "The Tribunal established by the agree- 
ment referred to in Article 1 hereof for the trial and punishment of the major 
war criminals of the European Axis countries shall have the power to try and 
punish persons who, acting in the interests of the European Axis countries, 
whether as individuals or as members of organizations, committed any of the 
following crimes. The following acts, or any of them, are crimes coming within 
the jurisdiction of the Tribunal for which there shall be individual responsibility : 

(A) Crimes against peace: namely, planning, preparation, initiation or 
waging of a war of aggression, or a war in violation of international treaties, 
agreements or assurances, or participation in a common plan or conspiracy 
for the accomplishment of any of the foregoing ; 

(B) War Crimes: namely, violations of the laws or customs of war. Such 
violations shall include, but not be limited to, murder, ill-treatment or deporta- 
tion to slave labor or for any other purpose of civilian population of, or in, 
occupied territory, murder or ill-treatment of prisoners of war or persons on 
the seas, killing of hostages, plunder of public or private property, wanton 
destruction of cities, towns, or villages, or devastation not justified by military 
necessity ; 

(C) Crimes against humanity: namely, murder, extermination, enslave- 
ment, deportation, and other inhumane acts committed against any civilian 
population, before or during the war; or persecutions on political, racial or 
religious grounds in execution of, or in connection with, any crime within the 
jurisdiction of the Tribunal, whether or not in violation of the domestic law 
of the country where perpetrated. Leaders, organizers, instigators and ac- 
complices participating in the formulation or execution of a common plan or 
conspiracy to commit any of the foregoing crimes are responsible for all acts 
performed by any persons in execution of such plan." 

Article 7 established individual responsibility for acts of state. It provided : 
"The official position of defendants, whether as Heads of State or responsible 
officials in Government Departments, shall not be considered as freeing them 
from responsibility or mitigating punishment." Article 8 excluded the plea 
of superior order : "The fact that the defendant acted pursuant to order of his 
Government, or of a superior shall not free him from responsibility, but may 
be considered in mitigation of punishment if the Tribunal determines that 
justice so requires." 

On the basis of the London Agreement, the International Military Tribunal 
established by this Agreement declared in its judgment : "The principle of inter- 
national law, which under certain circumstances, protects the representatives 
of a State, cannot be applied to acts which are condemned as criminal by inter- 
national law. The authors of these acts cannot shelter themselves behind their 
official position in order to be freed from punishment." As to the question of 
under what conditions a violation of international law was to be considered 
a punishable crime constituting individual responsibility, the International 
Military Trbunal assumed that a violation of international law might be con- 
sidered such a crime even if international law did not impose a penalty for 
an act constituting a violation of international law. This meant that the 



149 

question of whether or not an individual might be punished for having violated 
international law by an act performed in his capacity as an organ of a state, 
was to be decided within the discretion of the authority competent to apply 
the international law in this case. According to the London Agreement, as 
interpreted by the International Military Tribunal, this authority might be a 
national court of one of the belligerents, or an international court established 
without the participation of the state whose organ had violated international 
law and was to be punished therefor. The principle that a state has jurisdiction 
over acts of another state only with the consent of the latter was no longer 
recognized as a rule of general international law. 

In the trials of war criminals conducted by the military tribunals of the 
Allied and Associated Powers in connection with the second World War, the 
plea of superior order was raised by the defense more frequently than any other. 
(Cf. Law Reports of Trials of War Criminals, Selected and prepared by the 
United Nations War Crimes Commission [1949] XV, 157 ff.) In the practice 
of these tribunals the test was "whether an order, illegal under international 
law, on which an accused had acted was or must be presumed to have been 
known to him to be so illegal, or was obviously so illegal ('illegal on its face' 
to use the term employed by the Tribunal in the High Command Trial) or 
should have been recognized by him as being so illegal. The general upshot of 
a large number of decisions, and of the advice of Judge Advocates to British 
or Commonwealth courts, is that, if the order comes within one or more of 
these categories, then the accused cannot rely upon the plea of superior 
orders." 

In its Resolution of 21 November 1947 (177/11), the General Assembly of 
the United Nations directed the International Law Commission to "formulate 
the principles of international law recognized in the Charter of the Nuremberg 
Tribunal and in the judgment of the Tribunal." The International Law Com- 
mission formulated these principles as follows : "I. Any person who commits 
an act which constitutes a crime under international law is responsible therefor 
and liable to punishment. II. The fact that internal law does not impose 
a penalty for an act which constitutes a crime under international law does 
not relieve the person who committed the act from responsibility under inter- 
national law. III. The fact that a person who committed an act which consti- 
tutes a crime under international law acted as Head of State or responsible 
Government official does not relieve him from responsibility under international 
law. IV. The fact that a person acted pursuant to order of his Government or 
of a superior does not relieve him from responsibility under international law, 
provided a moral choice was in fact possible to him. V. Any person charged 
with a crime under international law has the right to a fair trial on the facts 
and law. VI. The crimes hereinafter set out are punishable as crimes under 
international law: a. Crimes against peace: (i) Planning, preparation, initia- 
tion or waging of a war of aggression or a war in violation of international 
treaties, agreements or assurances; (ii) Participation in a common plan or con- 
spiracy for the accomplishment of any of the acts mentioned under (i). b. 
War crimes: Violations of the laws or customs of war which include, but are 
not limited to, murder, ill-treatment or deportation to slave labour or for any 
other purpose of civilian population of or in occupied territory, murder or 
ill-treatment of prisoners of war or persons on the seas, killing of hostages, 
plunder of public or private property, wanton destruction of cities, towns, or 
villages, or devastation not justified by military necessity, c. Crimes against 
humanity : Murder, extermination, enslavement, deportation and other inhuman 



150 

acts done against any civilian population, or persecutions on political, racial 
or religious grounds, when such acts are done or such persecutions are carried 
on in execution of or in connection with any crime against peace or any war 
crime. VII. Complicity in the commission of a crime against peace, a war 
crime, or a crime against humanity, as set forth in Principle VI is a crime 
under international law." General Assembly Official Records. Fifth Session, 
Supplement No. 12 (A/1316) 

In its sixth session the International Law Commission adopted the following 
Draft Code of Offences against the Peace and Security of Mankind, in which 
the principle of individual criminal responsibility for violations of international 
law is applied: (General Assembly Official Records: Ninth Session. Supple- 
ment No. 9 [A/2693] New York, 1954) : 

Article 1 

Offences against the peace and security of mankind, as defined In this code, are 
crimes under international law, for which the responsible individuals shall be 
punished. 

Article 2 

The following acts are offences against the peace and security of mankind : 

(1) Any act of aggression, including the employment by the authorities of a 
State of armed force against another State for any purpose other than national 
or collective self-defence or in pursuance of a decision or recommendation of 
a competent organ of the United Nations. 

(2) Any threat by the authorities of a State to resort to an act of aggression 
against another State. 

(3) The preparation by the authorities of a State of the employment of armed 
force against another State for any purpose other than national or collective 
self-defence or in pursuance of a decision or recommendation of a competent 
organ of the United Nations. 

(4) The organization, or the encouragement of the organization, by the au- 
thorities of a State, of armed bands within its territory or any other territory 
for incursions into the territory of another State, or the toleration of the organ- 
ization of such bands in its own territory, or the toleration of the use by such 
armed bands of its territory as a base of operations or as a point of departure for 
incursions into the territory of another State, as well as direct participation in 
or support of such incursions. 

(5) The undertaking or encouragement by the authorities of a State of ac- 
tivities calculated to foment civil strife in another State, or the toleration by 
the authorities of a State of organized activities calculated to foment civil strife 
in another State. 

(6) The undertaking or encouragement by the authorities of a State of ter- 
rorist activities in another State, or the toleration by the authorities of a State 
of organized activities calculated to carry out terrorist acts in another State. 

(7) Acts by the authorities of a State in violation of its obligations under a 
treaty which is designed to ensure international peace and security by means 
of restrictions or limitations on armaments, or on military training, or on forti- 
fications, or of other restrictions of the same character. 

(8) The annexation by the authorities of a State of territory belonging to 
another State, by means of acts contrary to international law. 

(9) The intervention by the authorities of a State in the internal or external 
affairs of another State, by means of coercive measures of an economic or politi- 



151 

cal character in order to force its will and thereby obtain advantages of any kind. 

(10) Acts by the authorities of a State or by private individuals committed 
with intent to destroy, in whole or in part, a national, ethnic, racial or religious 
group as such, including : 

( i ) Killing members of the group ; 
( ii ) Causing serious bodily or mental harm to members of the group ; 
(iii) Deliberately inflicting on the group conditions of life calculated to 
bring about its physical destruction in whole or in part ; 

(iv) Imposing measures intended to prevent births within the group ; 
( v) Forcibly transferring children of the group to another group. 

(11) Inhuman acts such as murder, extermination, enslavement, deportation 
or persecutions, committed against any civilian population on social, political, 
racial, religious or cultural grounds by the authorities of a State or by private 
individuals acting at the instigation or with the toleration of such authorities. 

( 12 ) Acts in violation of the laws or customs of war. 

( 13 ) Acts which constitute : 

(i) Conspiracy to commit any of the offences defined in the preceding 
paragraphs of this article ; or 

(ii) Direct incitement to commit any of the offences defined in the preceding 
paragraphs of this article ; or 

(iii) Complicity in the commission of any of the offences defined in the 
preceding paragraphs of this article ; or 

(iv) Attempts to commit any of the offences defined in the preceding para- 
graphs of this article. 

Article S 

The fact that a person acted as Head of State or as responsible government 
official does not relieve him from responsibility for committing any of the offences 
defined in this code. 

Article 4 

The fact that a person charged with an offence defined in this code acted 
pursuant to an order of his Government or of a superior does not relieve him of 
responsibility in international law if, in the circumstances at the time, it was 
possible for him not to comply with that order. 

40. Article 16, paragraph 4, of the Covenant of the League of Nations stipu- 
lated : "Any Member of the League which has violated any covenant of the League 
may be declared to be no longer a Member of the League by a vote of the 
Council concurred in by the Representatives of all the other Members of the 
League represented thereon." Article 6 of the Charter of the United Nations 
provides : "A Member of the United Nations which has persistently violated the 
Principles contained in the present Charter may be expelled from the Organiza- 
tion by the General Assembly upon the recommendation of the Security Council." 

41. The Charter of the United Nations stipulates in Article 5 : "A Member of 
the United Nations against which preventive or enforcement action has been 
taken by the Security Council may be suspended from the exercise of the rights 
and privileges of membership by the General Assembly upon the recommenda- 
tion of the Security Council. The exercise of these rights and privileges may 
be restored by the Security Council." Suspension from the rights and privi- 
leges of membership is an additional sanction, insofar as the "preventive or 
enforcement action" taken against a member state already has the character 
of a sanction. Article 19 stipulates a special sanction for a special violation 
of the Charter. It runs as follows: "A Member of the United Nations which 
is in arrears in the payment of its financial contributions to the Organization 



152 

shall have no vote in the General Assembly if the amount of its arrears equals 
or exceeds the amount of the contributions due from it for the preceding two 
full years. The General Assembly may, nevertheless, permit such a Member 
to vote if it is satisfied that the failure to pay is due to conditions beyond the 
control of the Member." 

(d) Peace Treaties and Neutrality 

(aa) Peace treaties within a system of international security. 

The fact that within a system of international security the use of 
armed force, especially war, is, in principle, forbidden and is permitted 
only as a sanction, has important consequences with respect to the 
termination of this action and the obligations and rights of the states 
not involved in it. 

It is usual to terminate a war by a peace treaty concluded by the 
belligerents. The purpose of this treaty is expressed in a clause declar- 
ing that there shall be peace, or that the state of peace is established, or 
that the state of war is terminated between the belligerents. This 
clause implies that the contracting parties assume the obligation to 
abstain from further acts of war. Sometimes this obligation is ex- 
pressly stipulated. A peace treaty usually also contains other provi- 
sions, but the termination of the war by the stipulation of the obligation 
just mentioned is its essential function. If, in violation of a peace 
treaty, a belligerent continues hostilities, a war is not terminated. 
Hence it is not quite correct to assume that a war is terminated by a 
peace treaty. It is terminated by the fact that the belligerents defini- 
tively cease hostilities with the intention of terminating the war. This 
intention is usually, but not necessarily, expressed in the conclusion of a 
peace treaty. There are cases where no peace treaty can be concluded, 
for instance when, as an effect of a war, one of the belligerents ceases to 
exist as a subject of international law because its territory is annexed by 
the victorious belligerent or because it is dismembered and new states 
are established in its place. Treaties may be concluded regulating the 
relationships between these new states on the one hand and the state 
which was the opponent of the state succeeded by the new states estab- 
lished in its territory, on the other. However, these treaties are not 
really peace treaties, although they may be so termed. They are con- 
cluded after the war has been terminated. In these and in other cases 
the termination of a war may be ascertained by a unilateral declaration 
on the part of a belligerent. Without a peace treaty having been con- 
cluded, the Congress of the United States passed a resolution, approved 
by the President on 2 July 1921, to the effect that "the state of war 
declared to exist between the Imperial German Government and the 
United States of America by the joint resolution of Congress approved 



153 

April 6, 1917, is hereby declared at an end." This was an ascertain- 
ment of the fact that the war between the two states was terminated. 
The treaty between the United States and Germany signed afterward, 
on 25 August 1921, was not a peace treaty in the specific sense of the 
term — that is, it was not a treaty concluded for the purpose of termi- 
nating a war but a treaty concluded "to restore friendly relations exist- 
ing between the two nations prior to the outbreak of war." On 31 
December 1946, the President of the United States proclaimed "the 
cessation of hostilities of World War II," and in a statement explain- 
ing the proclamation said that the action did not have "the effect of 
terminating the state of war iself ." However, by a joint resolution of 
Congress, approved by the President on 19 October 1951, "the state of 
war" which had been declared to exist between the United States and 
Germany by the joint resolution of Congress approved on 11 December 
1941 was declared terminated. 

The practice of terminating a war, or, more exactly formulated, of 
expressing an intention to terminate a war by concluding a peace 
treaty — that is, a treaty imposing upon the belligerents the obligation 
to abstain from further acts of war — evidently presupposes that with- 
out assuming such an obligation the states concerned have the right 
to wage war against each other. Such a presupposition is possible 
under general international law if the helium justwn principle is not 
part of it. If this principle is recognized as a part of international 
law or if war is prohibited by a multilateral treaty, the conclusion of a 
peace treaty for the purpose of terminating a war which has broken 
out in violation of the helium justum principle or in violation of the 
treaty, may still be justified. The conclusion of a peace treaty is 
justified if the question as to which of the belligerents has violated its 
obligation not to resort to war — that is, the question as to which of the 
belligerents is the aggressor and which the defender — is not decided by 
an objective and impartial authority and consequently if both bellig- 
erents may claim to be exercising the right of self-defense. However, 
the situation is different under a treaty constituting an international 
security organization, which not only imposes upon the members the 
obligation not to resort to war against each other and which permits 
war only as a sanction to be directed against a member violating the 
treaty, but also confers upon a special organ the power to ascertain 
the fact that the treaty has been violated, or, to term it differently, 
gives the special organ the power to determine the aggressor. Within 
such an organization, a member state which has resorted to war in 
violation of the constituent treaty, as ascertained by the competent 
organ, cannot assume the obligation to abstain from further acts of war 
in a special treaty because this obligation is already implied in the 



154 

general obligation imposed upon it in the constituent treaty. Further- 
more, a state engaged in a war waged as a sanction against a legally 
determined aggressor cannot assume an obligation to abstain from acts 
of war against a delinquent state in a treaty concluded with the other 
state if it is its obligation to perform these acts. However, even if this 
state is not obliged, but only authorized, to resort to war against the 
legally ascertained violator of the constituent treaty, a peace treaty 
concluded between the state executing a sanction and the delinquent 
state is quite inappropriate because, unlike the same situation under 
general international law, the two belligerents are not on an equal 
legal footing, since the war of one is illegal and the counter war of the 
other legal, or vice versa. Such a peace treaty is particularly proble- 
matical in case the war against the delinquent state is the action of an 
international police force under the direction of the central organ of a 
security organization. To terminate such a war by concluding a peace 
treaty between the international organization enforcing the law and 
the delinquent state is just as absurd as terminating a punitive action 
taken by a court against a criminal by an agreement between the court 
and the criminal. If war is a sanction, it can properly be terminated 
only when it has achieved its purpose, and this may be ascertained by 
a unilateral declaration of the authority executing the sanction. 

(bb) Neutrality within a system, of international security. 

The question of to what extent, if at all, the legal institution of 
neutrality is compatible with a system of international security can 
be answered in an unambiguous manner only after the concept of 
neutrality has been clearly defined. The considerable confusion 
usually found in a discussion of this question is due to the fact that 
the term "neutrality" is used to mean different things. In the main, 
it indicates the status of a state which is not involved in a war be- 
tween other states. However, at the same time it is employed to 
denote the consequences which international law attaches to this status, 
the duties and rights a non-belligerent state has in relation to the 
belligerent states and especially the duty of the non-belligerent to 
observe an attitude of impartiality toward the belligerents, impar- 
tiality meaning the principle that a state not involved in a war between 
other states shall fulfill its obligations and exercise its rights toward 
all belligerents in an equal way. Sometimes neutrality means non- 
belligerency accompanied by impartiality, and there are writers who 
even identify neutrality with impartiality. An example of the differ- 
ent possible meanings of neutrality is the treatment of that concept 
in the two Hague Conventions which deal with neutrality. The term 
"neutral" in the expression "neutral Powers" (Articles 5, 6 and others 



155 

of Convention V) refers to the status of Powers not involved in a war, 
"neutral Powers" as opposed to "belligerent" Powers (Preamble of 
Convention XIII). The term "neutral" in this sense is expressly 
defined in Article 16 of Convention V : "The nationals of a State which 
is not taking part in the war are considered as neutrals." However, 
in Article 10 of Convention V neutrality evidently means the rights 
of a non-belligerent state and the corresponding duties of belligerents : 
"The fact of a neutral Power resisting even by force attempts to 
violate its neutrality cannot be regarded as a hostile act." Neutrality 
can be "violated" only if it is an obligation or a right. The status 
of not being involved in a war can be adopted or abandoned by a state 
but it cannot be violated. The two Conventions distinguish between 
neutrality and impartiality. Article 9 of Convention V provides: 
"Every measure of restriction or prohibition taken by a neutral Power 
in regard to the matters referred to in Articles 7 and 8 (that is : to pre- 
vent the export or transport of arms, munitions of war, or anything 
which can be of use to an army or fleet, and to forbid or restrict the use 
of telegraph or telephone cables or of wireless telegraphy apparatus) 
must be impartially applied by it to both belligerents." Here im- 
partiality is not at all identical with neutrality but is the manner in 
which a neutral state must exercise its right to take certain measures 
of restriction and prohibition. This term is used in the same sense 
in Article 9 of Convention XIII, and the Preamble of this Convention 
states : "that it is, for neutral Powers, an admitted duty to apply these 
rules [regulating the relations between neutral Powers and belligerent 
Powers] impartially to the several belligerents." Here impartiality 
characterizes the way in which a neutral Power must fulfill all its 
duties and exercise all its rights in relation to belligerent Powers. In 
accordance with this terminology, a neutral state may violate its 
duty to treat belligerents impartially without losing its status of 
neutrality. To quote a leading writer, Oppenheim 1 defined the con- 
cept of neutrality as follows: "Such states as do not take part in a 
war between other states are neutrals." This means that neutrality 
is the status of non-belligerency, i. e., the status of a state which does 
not take part in a war between other states. Such a status may or may 
not be accompanied by an attitude of impartiality on the part of a 
neutral state toward belligerents. In his preceding chapters, Oppen- 
heim analyzed the different types of neutrality which do not imply 
the impartiality of the neutral states or imply only a restricted im- 
partiality. He mentioned the fact that the impartiality demanded by 
the theory and practice of the eighteenth century was not at all strict, 
and that a state was considered not to have violated its obligations 
as a neutral if it furnished one of the belligerents with such limited 

370624 — 57 11 



156 

assistance as it had previously promised by treaty or if it allowed one 
of the belligerents to levy troops in its territory. 2 He referred to 
Grotius' concept of neutrality 3 which was not at all identical with his 
concept of impartiality. Grotius formulated two principles concern- 
ing neutrality. The first was that neutrals shall do nothing which may 
strengthen a belligerent whose cause is unjust or hinder the movement 
of a belligerent whose cause is just. This concept is certainly contrary 
to impartiality. Grotius' second principle concerning neutrality was 
that neutrals shall treat both belligerents alike only if there is doubt 
as to whose cause is just. However, immediately after defining 
neutrality as non-belligerency, Oppenheim said : "Neutrality may be 
defined as the attitude of impartiality adopted by third states towards 
belligerents and recognized by belligerents, such attitude creating 
rights and duties between the impartial states and the belligerents." 4 
Hence, neutrality is now identified with impartiality, but in discussing 
the end of neutrality Oppenheim stated: "Neutrality ends with the 
cessation of war, or through a hitherto neutral state beginning war 
against one of the belligerents, or through one of the belligerents 
commencing war against a hitherto neutral State." Neutrality which 
ends in this way can be only the status of not taking part in a war. 
It cannot be the attitude of impartiality. Oppenheim then empha- 
sized that "the ending of neutrality must not be confounded with 
mere violation of neutrality. A mere violation of neutrality does not 
ipso facto bring neutrality to an end." 5 In this statement, the term 
"neutrality" is used in both senses, as the "duty of impartiality" and 
as the "status of not taking part in a war." What this statement 
means is that the status of not taking part in a war must not be con- 
fused with the duty of impartiality. A mere violation of the duty 
does not ipso facto end the status. Under the heading "Violation of 
Neutrality," 6 Oppenheim distinguished between violations of neu- 
trality in the narrower and in the wider sense of the term. He stated : 
"It is necessary for obvious reasons to discuss, not only violations of 
the duty of impartiality of neutrals, but violations of all duties de- 
riving from neutrality, whether they are incumbent upon neutrals or 
upon belligerents." Here neutrality is far from being "the attitude 
of impartiality" for impartiality is only one of the duties which de- 
rive from neutrality. 

Another writer has stated that "the notion of neutrality as merely 
non-involvement in direct hostilities is inconsistent with the tradi- 
tional concept and if it should come to have this meaning, the concept 
would have been strikingly narrowed." 7 Nevertheless, the only way 
to avoid the confusion just illustrated is to understand neutrality as 
nothing else but the status of a state which is not involved in a war 



157 

between other states, and impartiality as the principle according to 
which a neutral state shall fulfill the obligation and exercise the rights, 
which a neutral state has under general international law, equally 
towards all belligerents. Of course, the theoretical suggestion that 
neutrality should be defined as the status of non-belligerency does not 
imply any political preference with respect to the desirable conse- 
quences of such a status for the neutral state. The question as to 
whether or not the status of neutrality entails the obligation of the 
neutral state to treat the belligerents impartially is a question of 
positive law and can be answered only by an analysis of this law. 

In regard to the general international law of our time, the answer is 
certainly in the affirmative. Under this law, a state is under no 
obligation to remain neutral in a war between other states but if a 
state is neutral, the relationships between this state and the belligerents 
are regulated by definite rules of general international law. The 
main obligations a neutral state has in relation to belligerents are : 8 
the obligation to refrain from giving assistance to one of the bel- 
ligerents which may be detrimental to the other; the obligation to 
refrain from inflicting injuries on one of the belligerents which may 
benefit the other ; the obligation to refrain from granting any facilities 
whatsoever for military operations of the belligerents (however, the 
neutral state is not obliged to prohibit its own nationals from supply- 
ing belligerents with such facilities) ; the obligation to prevent the 
fitting out or arming of any vessel within its jurisdiction which it has 
reason to believe is intended to cruise or engage in hostile operations 
against either belligerent; the obligation to prevent the departure 
from its jurisdiction of any vessel intended to cruise or engage in 
hostile operations which has been adapted entirely or partly within 
its jurisdiction for use in war; the obligation to prevent belligerents 
from making use of its neutral territory and its resources for military 
purposes during the war. The most important obligations of the 
belligerent are the obligation to refrain from making use of neutral 
territory for military purposes and from interfering with the legiti- 
mate intercourse of the neutral states with the other belligerents, and 
the obligation to refrain from appropriating neutral goods on enemy 
ships with the exception of contraband. Belligerents have the right 
to appropriate neutral merchant ships for breach of blockade and to 
appropriate contraband on a neutral vessel. 

It is evident that the legal institution of neutrality — that is, the 
duties and rights which general international law imposes or confers 
upon the states not involved in a war between other states in relation 
to the belligerents and upon the belligerents in relation to the neutral 
states, especially the principle of impartiality — presupposes that the 



158 

helium justum principle is not part of general international law ; that 
each state has the right to resort to war against any other state for 
any reason whatsoever; and, consequently, that if there is a war be- 
tween two states there is no legal question as to which of the bel- 
ligerents is wrong in using its armed force and which is right or 
which is an aggressor and which a defender. Even if two states have 
submitted their dispute to an international tribunal by a treaty and 
even if, in violation of the treaty, one state refuses to comply with the 
decision of the tribunal, and the other state consequently resorts to 
war against the former, the counterwar is not illegal. Only the non- 
compliance with the judicial decision is illegal. The rules of general 
international law concerning neutrality, and especially concerning the 
principle of impartiality, are justifiable only if in a war between two 
states both belligerents are equally right as far as the use of their 
armed forces is concerned. It is significant that Grotius who recog- 
nized the helium justum principle did not consider impartiality as an 
unconditional obligation of neutral states. 9 

General international law which, according to the traditional doc- 
trine, does not contain the helium justum principle, may be abrogated 
by treaties imposing upon the contracting parties the conditional or 
unconditional obligation not to resort to war. As treaties are in prin- 
ciple binding only upon the contracting states, a bilateral treaty in 
which the parties assume the obligation not to resort to war against 
each other, a so-called non- aggression pact, has no effect on third 
states which means it has no effect on neutral states. If, in violation 
of the treaty, one contracting party resorts to war against the other, 
and thus commits an act of aggression, and if the other party resorts 
to a counterwar, a war of defense, the relations between the neutral 
states and the belligerents remain under general international law. 
However, if the treaty imposing upon the contracting parties the 
obligation not to resort to war has a multilateral character and if in 
violation of its treaty obligation one party resorts to war against 
another contracting party and this latter party consequently resorts 
to a counterwar, the legal situation of the other contracting parties 
not involved in this war, which means the legal situation of the neu- 
tral contracting parties, is different from that of neutral states under 
general international law. By resorting to war in violation of the 
treaty, a contracting party not only infringes upon the right of that 
contracting party against which it uses its armed force, but also in- 
fringes upon the rights of all other contracting parties. Each con- 
tracting party assumes the obligation not to resort to war against any 
of the contracting parties in relation to all other contracting parties. 
According to general international law, a state whose right is violated 



159 

by another state is authorized to resort to reprisals — that is, to en- 
forcement measures short of war — against the state which has violated 
its right, but these reprisals may be taken only against this state. 
Hence the obligation of the neutral states, who are contracting parties 
to the treaty prohibiting the resort to war, to adopt an attitude of 
impartiality toward the belligerent contracting parties, is superseded 
by the right they have under general international law to resort to 
enforcement measures short of war against the violator of the treaty, 
the aggressor, and thus to assist the victim of the aggression. This 
means that without violating international law, the neutral states, con- 
tracting parties to the treaty, may take measures against an aggressor 
constituting violations of the rights this state has as a belligerent in 
relation to neutral states. Since these measures are taken as reprisals 
and hence are legal, the aggressor state is not entitled to react by 
retaliatory measures constituting violations of the obligations it has 
as a belligerent in relation to the neutral state. However, if a state 
violates its obligation not to resort to war, it will probably take re- 
taliatory measures against neutral states, even if these measures are 
illegal. 

The abrogation of the principle of impartiality is a legal effect 
which a multilateral treaty prohibiting the resort to war has under 
general international law. The right to take enforcement measures 
short of war as reprisals against a violator of the treaty is derived 
directly from general international law and exists even if not ex- 
pressly stipulated by the treaty. If the treaty stipulates an obliga- 
tion of the contracting parties to come to the assistance of the victim 
of an aggression with measures short of war, the contracting parties 
not involved in the war resulting from the aggression are not only 
entitled but are obliged to adopt an attitude which is not impartial 
towards the belligerents. The treaty may expressly stipulate that the 
prohibition of resorting to war does not apply to a war resorted to 
against a state which has resorted to war in violation of the treaty — 
that is, to a war resorted to against an aggressor. However, in this 
respect the situation of the neutral states contracting parties to the 
treaty does not differ from the situation of a neutral state under gen- 
eral international law which does not impose the obligation to remain 
neutral upon states. 10 It must be noted that the abrogation of the 
obligation of neutral states to adopt an attitude of impartiality to- 
wards the belligerents applies only to the relations among the states 
contracting parties to the multilateral treaty prohibiting the resort 
to war and not to the relation between neutral states which are not, 
and belligerents which are, contracting parties to the treaty. If a 
treaty prohibits the resort to war only under particular conditions, 



160 

an abrogation of the obligation also does not apply to a war the re- 
sort to which does not constitute a violation of the treaty. In all 
these cases, the rules of general international law concerning the 
obligations and rights of neutral states are not affected. 

A multilateral treaty may impose upon the contracting states not 
only the obligation not to resort to war against each other, but also 
the obligation not to resort to war against any other state except 
in the exercise of self-defense. This is a treaty in favor of third 
states. In case of an illegal resort to war by a contracting party 
against a non-contracting party, the legal situation of the neutral 
states which are contracting parties is the same as in the case of 
an illegal resort to war by a contracting party against another 
contracting party. The resort to war by a contracting party against 
a state not a contracting party is, like a resort to war by a contracting 
party against another contracting party, a violation of the rights 
of all other contracting parties. However, the obligation of neutral 
states which are not contracting parties to remain impartial is not 
affected by the treaty, since no right of these states is violated by 
a violation of the treaty to which they are not contracting parties. 
A multilateral treaty prohibiting the resort to war against any state 
may also claim to be binding upon states not contracting parties to 
the treaty. 11 

From the preceding analysis it follows that a system of inter- 
national security constituted by a multilateral treaty which imposes 
upon the contracting states the obligation not to resort to war or 
to any use of armed force in their mutual relations and the further 
obligation to take enforcement measures short of war, especially 
economic (but not military) sanctions against the aggressor, is 
incompatible with the principle of impartiality to be applied accord- 
ing to international law in the relations between neutral states and 
belligerents. The members of the security organization not involved 
in the war against the aggressor may remain neutral, but they cannot 
adopt an attitude of strict impartiality toward the belligerents. If 
the constituent treaty imposes upon the contracting states the obli- 
gation to resort to war against the aggressor or to participate with 
their armed forces in a military action of the security organization 
which has the character of war, the international organization is 
incompatible even with a neutrality which does not imply the principle 
of impartiality. 

The extent to which the neutrality or impartiality of neutrals in 
relation to the belligerents is excluded from, or is compatible with, a 
system of international security, is different according to the nature 
of the system. 



161 

1. Neutrality of the members of a security organization and 
their strict impartiality towards the belligerents in case of a war 
between other members or between a member and non-members can 
be maintained under any security organization as long as the ag- 
gressor has not been determined in accordance with the constituent 
treaty. If the determination of the aggressor is left to the individual 
members of the organization, even if obliged to resort to war against 
the aggressor, each member may remain neutral until the moment 
it decides which of the belligerents is the aggressor and which the 
defender, and during this time the neutral member has all the duties 
and rights of a neutral state under general international law. How- 
ever, it may surrender its status of neutrality by resorting to war. 
It may give up its attitude of impartiality, even if it remains neutral, 
if it takes measures short of war against that state which it con- 
siders to be the aggressor. Within such a system, the neutrality 
of member states and their obligation to adopt an attitude of im- 
partiality towards belligerents may still play an important part. 12 
The situation is different if the function of determining the aggressor 
is conferred upon a central organ of the security organization; but 
under such a security system it might take some time for this organ 
to fulfill its function and there may even be circumstances which 
prevent its fulfillment altogether. 13 If the constituent treaty estab- 
lishes not an obligation but a right of collective self-defense which 
may be exercised in case of an act of aggression, especially in case 
of an armed attack, as long as the central organ does not intervene, 
the members of the organization not involved in a war between other 
members or between members and non-members may remain neutral 
as long as they please, and during this time they are under the rules 
of general international law concerning neutrality. However, they 
may surrender their neutrality by resorting to war or give up their 
attitude of impartiality by taking measures short of war only against 
the state which they consider to be an aggressor. 14 If the constituent 
treaty establishes an obligation of collective self-defense, 15 the legal 
situation of the members of the organization not involved in the 
war following the act of aggression is not very different, for this 
obligation comes into actual existence for each member only if it 
arrives at the opinion that an act of aggression has taken place and 
decides the question as to which state is the aggressor. Hence, the 
answer to the question as to whether or not in a concrete case the 
obligation concerned exists depends on the very subject of this obli- 
gation. There is a real difference between the status of having an 
obligation to behave in a certain way and that of having a right to 



162 

behave in this way only if the answer to the above mentioned question 
does not depend on the subject of the obligation but on the decision 
of an objective authority (which is not the case when collective 
self-defense is exercised) . 

2. Neutrality of the members of a security organization and their 
strict impartiality towards the belligerents in case of a war between 
other members or between members and non-members can also be 
maintained under a security system constituted by a multilateral treaty 
in which the general prohibition of war is restricted not only insofar as 
war as a sanction is concerned (including war in self-defense) , but also 
insofar as war under other circumstances, determined by the treaty, is 
permitted. Under such a security system there are cases in which a 
war between members or between members and non-members is not 
illegal on the part of both belligerents. Consequently, the other mem- 
bers are under no obligation to resort to war or to take measures short 
of war against one of the belligerents. Their relation to the belliger- 
ents is regulated by the unaltered rules of general international law 
concerning neutrality. 16 

3. The neutrality of the members of a security organization not 
involved in a war between othe r members or between members and non- 
members, but not their obligat ion to adopt an attitude of strict impar- 
tiality, can be maintained under a security system constituted by a 
multilateral treaty which does not impose upon the members an obliga- 
tion to resort to war or to participate in a military action of the organi- 
zation but imposes only the obligation to apply measures short of war, 
especially economic sanctions, against the aggressor. 17 Under such a 
system, the members of the organization not involved in the war may 
remain neutral, but they are not allowed to observe an attitude of strict 
impartiality towards the belligerent. However, not all the members 
not involved in the war may be obliged to take measures short of war 
against the aggressor. For specific reasons or under definite circum- 
stances certain members may be exempt from this obligation and hence 
may observe strict impartiality toward belligerents. 18 Besides, the 
incompatibility of the security system and the principle of impartiality 
may be moderated by the fact that the constituent treaty may only 
restrict and not abrogate completely the principle of impartiality. 
With respect to the measures a neutral state must take under general 
international law to the equal disadvantage or to the equal advantage 
of both belligerents, a distinction may be made between military and 
non-military measures — that is, between measures which may and those 
which may not be advantageous or disadvantageous to the military 
operations of the belligerents as, for instance, preventing belligerents 



163 

from using the territory of a neutral state as a base for military opera- 
tions, or prohibiting the export and transport of arms and munitions 
to belligerents, and measures which do not affect, at least not directly, 
the military operations of belligerents, like merely economic measures. 
The constituent treaty may impose upon the neutral members of the 
organization or upon some of them no obligation which would prevent 
them from adopting an attitude of impartiality with respect to military 
measures, but would impose upon them only obligations to take non- 
military, especially economic, measures disadvantageous to the aggres- 
sor and advantageous to its victim. It has even been maintained that 
the obligation imposed by general international law upon neutral states 
to adopt an attitude of impartiality toward the belligerents refers only 
to military matters. 19 However, the validity of this doctrine is doubt- 
ful, and it is rather difficult to distinguish between measures taken by 
neutral states which affect the military operations of the belligerents 
and measures which do not. If the treaty constituting the security 
organization does not abrogate neutrality but only restricts or abol- 
ishes the obligation of impartiality neutral members would have under 
general international law, one may speak of their neutrality as quali- 
fied, imperfect, partial, or differential neutrality. 20 This terminology 
shows clearly that neutrality and impartiality are not identical, al- 
though it may be admitted that if a state not involved in a war between 
other states is called neutral even though it is not obliged to treat both 
belligerents impartially in every respect, the term "neutrality" is of 
little value. 

4. The status of neutrality and the obligation of neutral states to 
adopt an attitude of impartiality toward the belligerents are com- 
patible to a very restricted extent in the case of a security system con- 
stituted by a treaty prohibiting war under all circumstances (with the 
exception of war as a sanction, which includes war in the exercise of 
self-defense) and imposing upon the members of the security organi- 
zation the obligation to apply not only non-military but also military 
sanctions to the aggressor in conformity with the decisions of a central 
organ. In addition to the case mentioned under paragraph 1, the 
status of so-called qualified neutrality of all members not involved in 
a war between other members or between members and non-members 
can be maintained if the central organ orders them to apply only non- 
military sanctions to the aggressor and to come to the assistance of the 
victim only with economic and financial measures. If the central 
organ orders only some of the members, but not all of them, to take 
such action, the others are not excluded from preserving a neutrality 
which may even be a perfect neutrality. Since it is not very likely 



164 

that the central organ will order some of the members not involved 
in the war to apply military sanctions without ordering all of 
the members to take non-military sanctions, only a qualified neutrality 
of the members not participating in the military sanctions is possible. 
It should be noted that if a member participates in the execution of 
military sanctions, even if only with those contingents of its armed 
forces which are at the disposal of the central organ of the security 
organization, it cannot be considered to be neutral. Although the 
execution of the military sanction is an action of the organization, it 
is at the same time also an action of the member state whose contingents 
are involved. 21 Only if the security organization has a separate and 
permanent armed force at its disposal can military sanctions be exe- 
cuted without the status of neutrality of the member states being abol- 
ished. However, it will be only a status of so-called qualified neu- 
trality if the members are obliged to take non-military measures to 
the disadvantage of the aggressor and the advantage of its victim. 

NOTES 

1. Cf. Oppenheim, International Law, 7th Ed. Edited by H. Lauterpacht. Vol. 
II (1952), p. 653. 

2. Op. cit., p. 627. 

3. Op. cit., pp. 625-6. 

4. Op. cit., p. 653. 

5. Op. cit., pp. 671-2. 

6. Op. cit., pp. 751 f. 

7. Robert R. Wilson, " 'Non-belligerency' in Relation to the Terminology of 
Neutrality." The American Journal of International Law, Vol. 35 (1941), pp. 
122-3. 

8. Cf. Oppenheim, op. cit., pp. 653 ff. 

9. Grotius, De Jure Belli ac Pads, Book III, Chap. XVII, III : "It is the duty of 
those who keep out of a war to do nothing whereby he who supports a wicked cause 
may be rendered more powerful, or whereby the movements of him who wages a 
just war may be hampered. ... In a doubtful matter, however, those at peace 
should show themselves impartial to either side in permitting transit, in furnish- 
ing supplies to troops, and in not assisting those under siege." 

10. The General Treaty for the Renunciation of War, signed at Paris on 28 
August 1928 (the so-called Kellogg-Briand Pact, or Pact of Paris) to which almost 
all the states of the world were parties provided: "Article 1. The High Con- 
tracting Parties solemnly declare in the names of their respective peoples that 
they condemn recourse to war for the solution of international controversies, and 
renounce it as an instrument of national policy in their relations with one another. 
Article 2. The High Contracting Parties agree that the settlement or solution of 
all disputes or conflicts of whatever nature or whatever origin they may be, which 
may arise among them, shall never be sought except by pacific means." 

The Preamble stipulated that "any signatory Power which shall hereafter 
seek to promote its national interests by resort to war should be denied the benefits 
furnished by this treaty." This meant that the Treaty authorized the con- 
tracting parties to resort to war, as a sanction, against a violator of the treaty, 



165 

an aggressor. However, as pointed out above, the states, contracting parties 
to the treaty, which did not resort to war against an aggressor, could resort 
to reprisals against this state — that is, they could take enforcement measures 
short of war. This meant that under the Kellogg-Briand Pact the principle 
of impartiality in the relations between neutral states and belligerents did not 
apply. This was also the interpretation of the Pact in the 38th Report adopted 
by the Conferences of the International Law Association at Budapest in 1934. 
Article 4 of this report ran as follows : "In the event of a violation of the Pact 
by a resort to armed force or war by one signatory State against another, the 
other State may, without thereby committing a breach of the Pact or of any 
rule of international law, do all or any of the following things : 

(a) Refuse to admit the exercise by the State violating the Pact of bellig- 
erent rights, such as visit and search, blockade, etc. 

(b) Decline to observe towards the State violating the Pact the duties 
prescribed by international law, apart from the Pact, for a neutral in relation 
to a belligerent. 

(c) Supply the State attacked with financial or material assistance, includ- 
ing munitions of war. 

(d) Assist with armed forces the State attacked." 

Certain measures which the United States took during the second World War 
to the advantage of Great Britain and her allies and to the disadvantage of Ger- 
many might be justified as reprisals against the violation of the Kellogg-Briand 
Pact by Germany. The transfer of fifty over-age destroyers to Great Britain was 
such a measure. In a message to the Congress on 3 September 1940 the President 
declared : "I transmit herewith for the information of the Congress notes ex- 
changed between the British Ambassador at Washington and the Secretary of 
State on September 2, 1940, under which this Government has acquired the right 
to lease naval and air bases in Newfoundland, and in the islands of Bermuda, the 
Bahamas, Jamaica, St. Lucia, Trinidad, and Antigua, and in British Guiana ; also 
a copy of an opinion of the Attorney General dated August 27, 1940, regrding my 
authority to consummate this arrangement. The right to bases in Newfound- 
land and Bermuda are gifts — generously given and gladly received. The other 
bases mentioned have been acquired in exchange for fifty of our 'over-age 
destroyers. This is not inconsistent in any sense with our status of peace. 
Still less is it a threat against any nation. It is an epochal and far-reaching act 
of preparation for continental defense in the face of grave danger. Preparation 
for defense is an inalienable prerogative of a sovereign state. Under present 
circumstances this exercise of sovereign right is essential to the maintenance 
of our peace and safety. This is the most important action in the reinforce- 
ment of our national defense that has been taken since the Louisiana Purchase. 
Then as now, considerations of safety from overseas attack were fundamental. 
The value of the Western Hemisphere of these outposts of security is beyond 
calculation. Their need has long been recognized by our country, and especially 
by those primarily charged with the duty of charting and organizing our own 
naval and military defense. They are essential to the protection of the Panama 
Canal, Central America, the northern portion of South America, the Antilles, 
Canada, Mexico, and our own eastern and Gulf seaboards. Their consequent 
importance in hemispheric defense is obvious. For these reasons I have taken 
advantage of the present opportunity to acquire them." The American Journal 
of International Law, Vol. 34 (1940), Supplement, pp, 183 f. 

Other measures of this kind were certain provisions of the Act to Promote 
the Defense of the United States, approved 11 March 1941. {The American 



166 

Journal of International Law, Vol. 35 (1941), Supplement, pp. 75 ff.) Section 
3 of this Act stipulated : 

"(a) Notwithstanding the provisions of any other law, the President may, 
from time to time, when he deems it in the interest of national defense, authorize 
the Secretary of War, the Secretary of the Navy, or the head of any other 
department or agency of the Government — 

(1) To manufacture in arsenals, factories, and shipyards under their juris- 
diction, or otherwise procure, to the extent to which funds are made available 
therefor, or contracts are authorized from time to time by the Congress, or both, 
any defense article for the government of any country whose defense the 
President deems vital to the defense of the United States. (2) To sell, transfer 
title to, exchange, lease, lend, or otherwise dispose of, to any such government 
any defense article ... (3) To test, inspect, prove, repair, outfit, recondition, 
or otherwise to place in good working order, to the extent to which funds are 
made available therefor, or contracts are authorized from time to time by the 
Congress, or both, any defense article for any such government, or to procure 
any or all such services by private contract. (4) To communicate to any such 
government any defense information, pertaining to any defense article furnished 
to such government under paragraph (2) of this subsection. (5) to release for 
export any defense article disposed of in any way under this subsection to any 
such government." 

Section 2 provided : "As used in this Act — 

(a) The term 'defense article' means (1) Any weapon, munition, aircraft, 
vessel, or boat; (2) Any machinery, facility, tool, material, or supply necessary 
for the manufacture, production, processing, repair, servicing, or operation of 
any article described in this subsection; (3) Any component material or part 
of or equipment for any article described in this subsection; (4) Any agri- 
cultural, industrial or other commodity or article for defense. ... (b) The term 
'defense information' means any plan, specification, design, prototype, or infor- 
mation pertaining to any defenses article." 

In an address delivered on 27 May 1941, the President announced : 

"Our national policy today, therefore, is this: First, we shall actively resist 
wherever necessary, and with all our resources, every attempt by Hitler to 
extend his Nazi domination to the Western Hemisphere, or to threaten it. We 
shall actively resist his every attempt to gain control of the seas. We insist 
upon the vital importance of keeping Hitlerism away from any point in the 
world which could be used and would be used as a base of attack against the 
Americas. Second, from the point of view of strict naval and military necessity, 
we shall give every possible assistance to Britain and to all who, with Britain, 
are resisting Hitlerism or its equivalent with force of arms. Our patrols are 
helping now to insure delivery of the needed supplies to Britain. All additional 
measures necessary to deliver the goods will be taken. Any and all further 
methods or combination of methods, which can or should be utilized, are being 
devised by our military and naval technicians, who, with me, will work out 
and put into effect such new and additional safeguards as may be needed." 
Documents on American Foreign Relations, Vol. Ill, World Peace Foundation, 
1941, p. 55. 

In an address delivered on 11 September 1941, prompted by the attack on the 
United States destroyer Greer, the President stated : 

"In the waters which we deem necessary for our defense American naval 
vessels and American planes will no longer wait until Axis submarines lurking 
under the water, or Axis raiders on the surface of the sea, strike their deadly 



167 

blow — first. Upon our naval and air patrol — now operating in large numbers 
over a vast expanse of the Atlantic Ocean — falls the duty of maintaining the 
American policy of freedom of the seas — now. That means, very simply and 
clearly, that our patrolling vessels and planes will protect all merchant ships — 
not only American ships but ships of any flag — engaged in commerce in our 
defensive waters. They will protect them from submarines; they will protect 
them from surface raiders." Documents on American Foreign Relations, Vol. 
IV, 1942, p. 100. 

11. In this way Article 2, paragraph 6 of the Charter of the United Nations 
may be interpreted. 

12. This is one of the facts which justifies the view that neither the Kellogg- 
Briand Pact nor the Covenant of the League of Nations abolished entirely the 
legal institution of neutrality in the relations among the contracting parties, 
for under both treaties each contracting party was authorized to decide for 
itself whether or not a violation of the treaty had taken place. 

13. This may be the case under the Charter of the United Nations which 
confers upon the Security Council the function of determining the existence 
of a threat to or breach of the peace (Article 39) but at the same time gives 
each of the five permanent members of the Council a veto right, by the exercise 
of which the Council may be prevented from fulfilling this function. 

In this case, according to the resolution, "Uniting for Peace," the General 
Assembly, an organ of the United Nations within which no member state has 
a veto right, may assume the function not fulfilled by the Security Council 
and determine the existence of a threat to or breach of the peace. However, it 
is doubtful that a decision adopted by the General Assembly to this effect is 
binding upon the member states. The General Assembly can only make recom- 
mendations to the members to take enforcement measures against an aggressor. 
Since these recommendations are not legally binding, member states may remain 
neutral and then must adopt an attitude of impartiality towards belligerents. 

14. This is the case if Article 51 of the Charter of the United Nations con- 
cerning collective self-defense applies. This Article sets forth the right of the 
members of the United Nations to come to the assistance of a victim of an 
armed attack by taking enforcement measures involving or not involving the 
use of armed force against a state responsible for an armed attack. 

Since, according to Article 51, the right of collective self-defense exists "until 
the Security Council has taken the measures necessary to maintain international 
peace and security," the legal position of the members not involved in a war 
following an armed attack does not change if the General Assembly intervenes 
under the resolution "Uniting for Peace." The General Assembly can only 
make recommendations to the Members to take measures involving or not in- 
volving the use of armed force against a state which the General Assembly has 
determined to be an aggressor. These members may or may not comply with 
the recommendations and thus may or may not remain neutral, or, if they do 
remain neutral, they may give up their attitude of impartiality toward an 
aggressor by taking measures short of war against this state. It is even doubtful 
that the members not involved in a war following an armed attack are bound 
to share the opinion of the General Assembly that an armed attack has taken 
place and accept the finding of the General Assembly as to which state is the 
aggressor. 

15. The right of collective self-defense established by Article 51 of the Charter 
is transformed into an obligation by certain treaties implementing Article 51. 
Cf. Note 5, page 127. 



168 

16. The Security System established by the Covenant of the League of Nations 
was of this type. The Covenant did not prohibit resort to war under all cir- 
cumstances. It is significant that in the Preamble "the acceptance of obligations 
not to resort to war," not of the obligation not to resort to war was mentioned. 
According to Articles 12 and 15, the members were obliged to submit their 
disputes either to an international tribunal or to the Council. Submission to 
an international tribunal presupposed agreement of the parties to the dispute. 
The members were obliged to carry out the decision of the tribunal and not 
to resort to war against a member of the League which complied therewith. 
War against a state which, in violation of its obligation, did not comply with 
the decision of the tribunal was not excluded (Articles 12 and 13). In case 
agreement to submit a dispute to a tribunal could not be reached, each party 
was entitled to submit the case to the Council, which was authorized to proceed 
at the request of one party to the dispute. For this purpose no agreement was 
necessary. The Council was first to endeavor "to effect a settlement of the 
dispute" by bringing about an agreement between the parties. However, if a 
dispute could not be settled in this way, the Council was bound to settle a 
dispute by making a recommendation to the parties. Only a recommendation 
unanimously agreed to by those members of the Council who were not repre- 
sentatives of the parties to the dispute gave the recommendation of the Council 
a legal effect. This effect consisted of prohibiting war against a party which 
complied with the recommendation. War against a party which did not comply 
with the recommendation was not excluded, nor was war excluded in case none 
of the parties complied with the recommendation of the Council. In case a 
unanimous recommendation could not be reached by the Council, war was 
expressly permitted by the Covenant, but only "for the maintenance of right 
and justice" (Article 15, paragraph 7). Finally, war was not forbidden, or at 
least not expressly forbidden, in case a dispute arose from a matter of domestic 
jurisdiction. In all cases in which war was not forbidden, the parties were 
obliged not to resort to war until three months after a decision by an interna- 
tional tribunal or a report or recommendation of the Council (Article 12, 
paragraph 1). 

17. As the Covenant of the League of Nations in Article 16. 

18. According to an interpretation of Article 16 of the Covenant of the 
League of Nations adopted by resolution 9b of the Second Assembly of the 
League in 1921, the Council had the power to exempt a member state from 
participating in the sanctions taken against an aggressor, even if the member 
concerned shared with other members the view that an act of aggression had 
been committed by the state against which the sanctions were taken. Cf. Note 19. 

19. Cf. Paul Guggenheim, "La securite collective et le probleme de la neu- 
tralite." Annuaire Suisse de droit international. Vol. II (1945), pp. 9 ff, 
and J. F. Lalive, "International Organization and Neutrality." The British 
Yearbook of International Law. Vol. 24 (1947), p. 75. When Switzerland 
joined the League of Nations, the Council of the League declared in its resolution 
of 13 February 1920 that "the perpetual neutrality of Switzerland and the 
guarantee of the inviolability of her territory as incorporated in the law of 
nations, particularly in the treaties and in the Act of 1815, are justified by the 
interest of general peace, and as such are compatible with the Covenant." It 
was understood, however, that Switzerland, while refusing to participate in 
military action or to admit the passage of foreign troops, fully recognized the 
dntieg of the solidarity she was incurring as a member of the League, particularly 
the duty under Article 16 of participating in any economic action taken by 



169 

the League against a covenant-breaking state. However, by a resolution of the 
Council of the League of Nations adopted on 14 May 1938, Switzerland was 
freed of the obligation to take any sanctions, even economic sanctions, against 
the aggressor. To justify the attitude of Switzerland, Professor Schindler 
wrote in a memorandum presented to the International Studies Conference (cf. 
supra, p. 9) : "In entering the League of Nations, Switzerland did not abandon 
this political maxim, whose value has been proved to her satisfaction by an 
age-long experience. It is indispensable to her in both foreign and domestic 
policy. To participate in a war between other States means for Switzerland the 
almost certain prospect of seeing her entire territory turned into a battlefield. 
Surrounded by several very powerful States, Switzerland, if she were involved 
in a modern war, would risk, more than any other country in the world, com- 
plete annihilation. Even in the course of a long war, a large State can hardly 
be altogether destroyed." Collective Security, p. 420. The last argument is 
not quite correct. A great power, the Austrian-Hungarian Monarchy, was 
altogether destroyed in the course of a long war. In order to maintain its 
permanent neutrality, Switzerland did not join the United Nations. 

20. Cf. Collective Security, p. 26. 

21. The Charter of the United Nations forbids the use of armed force, and 
hence forbids war, under all circumstances with two exceptions — the exercise 
of self-defense and the execution of sanctions. In regard to members of the 
organization not involved in a war between other members or between mem- 
bers and non-members or between non-members only, the Charter imposes 
the obligation to resort to both military and non-military sanctions against 
the aggressor in accordance with the decisions of the Security Council 
(Article 39-50). Article 2, paragraph 5, provides: "All Members shall 
give the United Nations every assistance in any action it takes in accord- 
ance with the present Charter, and shall refrain from giving assistance to any 
state against which the United Nations is taking preventive or enforcement 
action." Article 25 stipulates: "The Members of the United Nations agree to 
accept and carry out the decisions of the Security Council in accordance with 
the present Charter." In view of these provisions, it follows that in case of 
a military action taken by the United Nations, constituting war between the 
Organization and a state, or in case of a war between two states in which the 
Organization intervenes by either a military or a non-military action, the status 
of neutrality, or the principle of impartiality, is excluded in principle. The 
Report of the Rapporteur of the Subcommittee to Committee 1/1 of the San 
Francisco Conference contains the following statement in reference to para- 
graphs 5 and 6 of Chapter II of the Dumbarton Oaks Proposals which correspond 
to Article 2, paragraph 5, of the Charter : "The French Delegation proposed to 
add to Paragraph 5 of Chapter II the following phrase which was conceived in 
the French text as follows : 'Sans qu'un Etat puisse, pour s'y soustraire, 
invoquer un statut de neutralite'. i The French Delegate explained that what 
he meant by 'statut de neutrality was that of permanent neutrality. From the 
discussion that ensued, it was understood in the subcommittee that the status 
of permanent neutrality is incompatible with the principles declared in para- 
graphs 5 and 6 of Chapter II, in that no state can avail itself of the statute of 
permanent neutrality to be freed from the obligations of the Charter. The 
subcommittee, on that understanding, tacitly accepted that the vote taken on 
paragraphs 5 and 6 covers the French amendment." Although as a rule the 
status of neutrality, or if not the status of neutrality at least the principle of 



170 

impartiality, is excluded, there are nevertheless certain cases in which the one or 
the other may be maintained. 

First of all, the fact must be considered that according to Article 48, paragraph 
1, of the Charter, the action of the Organization may be carried out by all the 
members of the United Nations or by some of them, the determination as to which 
members must carry out the Organization's decision is made by the Security 
Council. Hence, the Security Council may call upon only some members to make 
available to the Organization contingents of their armed forces to be employed in 
a military action taken against a state at war with another state or guilty of an 
act of aggression which does not consist of resorting to war, as in the case of a 
threat of force. The members not involved in the war between the aggressor 
and its victim or in the war between the Organization and another state may then 
remain neutral and may even adopt an attitude of strict impartiality towards the 
belligerents, provided that the Security Council does not order them to apply non- 
military sanctions to the state against which the military action of the organiza- 
tion is directed. If they must apply non-military sanctions, they can observe 
only a qualified neutrality. In case of a war between states, if the Security Coun- 
cil decides to take only measures short of war, especially measures not involving 
the use of armed force, and if the Security Council calls upon only some members 
to execute these measures, the other members which are not involved in this war 
may observe a perfect neutrality, although the members called upon to execute the 
decisions of the Security Council may observe only a qualified neutrality. This 
interpretation of the Charter presupposes that Article 2, paragraph 5, means that 
the members are obliged to give the United Nations only that assistance which 
they are ordered to give by the competent organ of the United Nations, and that 
members are obliged to refrain from giving that state against which the United 
Nations action is directed only that assistance which they are prohibited from 
giving by the competent organ. However, the wording of Article 2, paragraph 5, 
certainly allows another interpretation, one not quite consistent with Article 48, 
paragraph 1. According to this interpretation, members not called upon by the 
Security Council to make available contingents of their armed forces or to take 
measures short of war are obliged to take military or non-military measures 
against the state against which the United Nations action is directed. In this 
case, the choice of the appropriate means is left to the discretion of the individual 
states. Consequently, while these states may remain neutral, they cannot adopt 
an attitude of impartiality, that is to say, they may observe a so-called qualified 
neutrality. 

In view of the fact that the special agreements concerning the contingents of 
the armed forces which the members must place at the disposal of the Security 
Council have not yet been concluded, in case of a war the Security Council would 
not be in a position to take military measures by decisions binding upon the 
members. However, according to the wording of Article 39, it could recommend 
to members not involved in the war that they take such measures. Since these 
recommendations are not binding, the members concerned could choose whether 
they did or did not wish to remain neutral. If a military action taken by a 
member on the recommendation of the Security Council is considered to be an 
action of the United Nations, Article 2, paragraph 5, would apply. If it is inter- 
preted as imposing on each member the obligation to give the United Nations 
every assistance in any action taken by the Organization even if the member is 
not under an order issued by the Security Council in conformity with Article 48, 
a member which does not comply with a recommendation to take military action 
made by the Security Council in conformity with Article 39 would be obliged 



171 

to take such an action or enforcement measure not involving the use of armed 
force under Article 2, paragraph 5. This paradoxical consequence can be avoided 
if Article 2, paragraph 5, is interpreted to mean that the members are obliged 
to give the United Nations only that assistance which they are ordered to give 
by the Security Council in conformity with Article 48. 

For one reason or another, especially because of the lack of unanimity of its 
permanent members, the Security Council may be prevented from making such 
recommendations or deciding upon non-military measures. In this event, Article 
2, paragraph 5, would not apply. In case of a war, the members not involved in 
the war would be able to remain neutral and adopt an attitude of strict im- 
partiality towards the belligerents. However, in case of an armed attack, they are 
under Article 51, in the exercise of the right of collective self-defense, entitled — 
but not obliged — to resort to war or to take measures short of war against the 
state which they consider to be the aggressor, that is to say, to give up neutrality 
or to observe a so-called qualified neutrality towards the belligerents. In case 
of a war, if under Article 39 the Security Council determined the existence of 
a breach of the peace or act of aggression, and thus determined the aggressor 
but did not take any measures against this aggressor state, the members not 
involved in the war which exercised their right of collective self-defense would 
be bound by the decision of the Security Council insofar as they could no longer 
decide for themselves which state was the aggressor. 

Article 106 of the Charter stipulates : "Pending the coming into force of such 
special agreements referred to in Article 43 as in the opinion of the Security 
Council enable it to begin the exercise of its responsibilities under Article 42, the 
parties to the Four-Nation Declaration, signed at Moscow, October 30, 1943, and 
France, shall, in accordance with the provisions of paragraph 5 of that Declara- 
tion, consult with one another and as occasion requires with other Members of 
the United Nations with a view to such joint action on behalf of the Organization 
as may be necessary for the purpose of maintaining international peace and 
security." The states authorized to take joint action on behalf of the United 
Nations are the five permanent members of the Security Council. Consequently, 
it is not very likely that such action will ever be taken, since a "joint" action 
requires the unanimity of the five permanent members of the Security Council. 
However, if it should take place in case of a war, it would have to be considered 
a military action of the United Nations to which Article 2, paragraph 5, 
would apply. The question of the neutrality of the members of the United Na- 
tions not involved in the war would be answered according to which of the two 
interpretations of Article 2, paragraph 5, was accepted. 

(e) Preventive Measures 

(aa) Consultation. 

As pointed out in a previous chapter of this study, the distinction 
between repressive and preventive measures is not an absolute one. 
As reactions against a violation of the law already committed, repres- 
sive measures, and especially sanctions, always also have a preventive 
effect, and some measures which, in principle, have a preventive 
character may be applied after the delict has been perpetrated. 
Consultation is such a measure. 

370624—57 12 



172 

By consultation, any form of communication between governments 
may be understood. As a specific means to be applied within a system 
of international security, consultation is an exchange of views among 
governments for the purpose of preventing or terminating the use of 
armed force by one state against another. 1 Such consultation takes 
place among states which are not involved in the conflict, but the 
parties to the conflict may also participate in the discussion. The 
states concerned may consult each other in case of a mere threat to 
the peace in order to consider the means for its preservation. In this 
case, the consultation has a preventive character. On the other hand, 
consultation may take place in case of an actual breach of the peace. 
It then has a repressive character. 2 

Consultation may take place outside a security organization or 
within such an organization or between the organization and states 
not belonging to it. Consultation outside a security organization may 
be carried out either through the normal diplomatic channels or 
through the mechanism of an international conference. 3 Consultation 
within a security organization is an essential element of the procedure 
of the organs competent to apply preventive or repressive measures 
for the maintenance or restoration of peace. It necessarily precedes 
the decisions concerning the application of repressive measures, espe- 
cially the application of sanctions. If not all the members are 
represented in the organ, the member not represented may be invited 
to participate in the discussion of the matter affecting the interest 
of that member. 4 

If the security organization is not universal, consultation is advis- 
able between the organization on the one hand and the non-member 
involved in the conflict with which the organization is dealing on 
the other. 5 It is, however, not only consultation with a non-member 
involved in a conflict but also consultation with a disinterested, espe- 
cially a neutral, non-member which is of importance, especially if 
the non-member is a great power, for the cooperation of all third 
parties is essential to the effectiveness of consultation.* As the United 
States was not a member of the League of Nations, consultation of 
the United States with the League was a paramount political prob- 
lem. Since the United States is a member of the United Nations 
and a permanent member of the Security Council, consultation be- 
tween this organization and the United States is no longer a problem. 7 

There can be no doubt that consultation through the mechanism 
of an international security organization is preferable to that through 
diplomatic channels and conferences. This is true, first, because 
the latter, as Cooper 8 correctly points out, rest upon no recognized 
authority and hence are "always open to the charge of being unwar- 



173 

ranted and presumptuous." Another defect of consultation outside 
a security organization is the absence of an established procedure and 
the danger of conflicting with an action initiated by a security organ- 
ization. "The ideal method of consultation," says Cooper, "is one 
which includes all neutrals, which has an established and recognized 
authority and organization, and which will not conflict with any 
other peace machinery." 9 It is evident that a universal or quasi- 
universal security organization, such as the League or the United 
Nations, is the most adequate instrument of consultation. 10 

It is an essential characteristic of consultation that it has no legal 
effect. Consultation does not imply any legal obligation whatsoever, 
especially no obligation to take a definite action for the maintenance 
or restoration of peace. Its purpose is political rather than legal. A 
treaty imposing upon the contracting parties an obligation to consult 
together is of the same nature as a treaty imposing upon the contract- 
ing parties the obligation to enter into negotiations. Just as negotia- 
tions may or may not result in an agreement of the parties, consulta- 
tion may or may not lead to action for the maintenance or restoration 
of peace. 

It was always with a reservation that no commitment to take action 
was implied, that the government of the United States accepted the 
obligation of consultation. Nevertheless, the opposition against con- 
sultative pacts was very strong among politicians and others of a more 
or less isolationist conviction. When at the London Naval Conference 
of 1930, in a press release of the United States delegation on 26 March 
1930, the statement was made : ". . . that America had no objection to 
entering a consultative pact as such ; on the contrary, the United States 
is already a party to a number of treaties involving the obligation of 
consulting with other powers. It will not, however, enter into any 
treaty, whether consultative or otherwise, where there is danger of its 
obligation being misunderstood as involving a promise to render mili- 
tary assistance or guaranteeing protection by military force to another 
nation," 1X Senator Borah, the Chairman of the Foreign Relations 
Committee, declared: "A consultative pact is a security pact in dis- 
guise. In a security pact you state in the pact what you are going to do 
after you have consulted. In a consultative pact you conceal what you 
are going to do after you have consulted, but you will be forced by the 
logic of the hour to do precisely what you expressly agreed to do in the 
security pact. A consultative pact in which the parties would not go 
forward and do whatever would be necessary to be done in accordance 
with the realities of the situation would be a pious fraud — and a fraud 
which under the exigencies of the hour would be rejected ;" ** and Sena- 



174 

tor Shipstead stated : "To agree to consult is to agree to decide. To 
agree to decide is to agree to act. To agree to act is to agree that we are 
going into the next war. They call this the road to peace. That is 
what they called the Triple Alliance, and the Triple Entente, and the 
Quadruple Alliance." 13 When at the Disarmament Conference in 
Geneva, 1933. the question of the commitment of the United States was 
discussed, Professor John Bassett Moore wrote : "The commitment of 
the United States to such a 'consultative pact' as is desired at Geneva 
would, I believe, constitute the gravest danger to which the country has 
ever been exposed, a danger involving our very independence. ... It 
would destroy the last vestige of the power to control our own destiny 
that has heretofore been the most cherished part of our birthright. 
... Of all conceivable devices the 'consultative pact' is the most per- 
nicious. It operates both as an incentive and as a lure. While it 
encourages the co-partner to do what he might otherwise refrain from 
doing, it fails, by reason of its indefiniteness, to deter the co-partner's 
antagonist from doing what he might not otherwise attempt. Numer- 
ous examples might be adduced to show this." 14 

Within a universal or quasi-universal security organization mere 
consultation implying no obligation of any action for the maintenance 
or restoration of peace may be useful if it is able to crystallize world 
public opinion concerning an actual or potential aggression and the 
state responsible for it. However there is seldom, and almost never in 
a world split into two ideologically hostile camps, only one public 
opinion. There are almost always at least two opposite ones, and thus, 
under actual circumstances, the value of this means for the establish- 
ment of international security remains problematical. 

NOTES 

1. Cf. Russell M. Cooper, American Consultation in World Affairs for the 
Preservation of Peace, with an Introduction by Dr. James T. Shotwell (New 
York: The Macmillan Company, 1934), pp. VII, 23; and Philip C. Jessup, Inter- 
national Security. The American Role m Collective Action for Peace (New 
York : Council on Foreign Relations, Inc., 1935), p. 64. 

2. According to one interpretation, consultation was implied — although not ex- 
pressly stipulated — in the Kellogg-Briand Pact. Cf. David Hunter Miller, The 
Peace Pact of Paris, 1928, pp. 130-1 : "Inevitably the Government of the United 
States will be consulted, if not directly by Geneva, certainly by the Powers most 
influential at Geneva. Whether such consultation comes in the name of the League 
of Nations or whether it comes in the name of Members of the League of Nations 
as Parties with the United States to the Briand-Kellogg Treaty, is quite imma- 
terial ; it might take the form of discussions at Washington, or telegraphic ex- 
changes, or a representative of the United States might sit with the Council ; the 
consultation itself is certain and in any form it will be asked in fact by those 
Powers which are trying to preserve the peace. No Government of the United 
States could be indifferent to such an appeal ; any threatened breach of a treaty 



175 

obligation made to the United States must be a matter of grave concern, above 
all when peace is at stake ; of course there would be no legal duty on the part 
of the United States to intervene ; still less would there be any obligation on the 
part of the United States to use threats ; and I do not speak of sanctions because 
I am considering intervention before a breach and not afterwards ; but no Gov- 
ernment of the United States could refuse to use its influence in such a case in 
cooperation with the League of Nations to preserve peace and at the same time 
to preserve the sanctity of our own Treaty." 

In June, 1932, both the Republican and the Democratic Parties required in 
their respective platforms the implementation of the Kellogg-Briand Pact by pro- 
visions for consultation in case of a threatened violation of the Treaty. On 8 
August 1932 Secretary Stimson declared in an address before the Council on 
Foreign Relations: ". . . that consultation between the signatories of the Pact 
when faced with threat of its violation becomes inevitable. Any effective in- 
vocation of the power of world opinion postulates discussion and consultation. 
. . . That the Pact thus necessarily carries with it the implication of consulta- 
tion has perhaps not been fully appreciated by its well-wishers who have been 
so anxious that it be implemented by a formal provision for consultation. But 
with the clarification which has been given to its significance by the develop- 
ments of the last three years, and the vitality with which it has been imbued by 
the positive construction put upon it, the misgivings of those well-wishers should 
be put at rest. That the American people subscribe to this view is made clear 
by the fact that each of the platforms recently adopted by the two great party 
conventions at Chicago contains planks endorsing the principle of consultation." 
Henry L. Stimson, The Pact of Paris: Three Years of Development, Department 
of State, Publication No. 357, Washington, 1932, pp. 11-12. 

On 11 August 1932 President Hoover, in accepting the Republican nomination, 
stated : ". . . we have given leadership in transforming the Kellogg-Briand Pact 
from an inspiring outlawry of war to an organized instrument for peaceful settle- 
ments backed by definite mobilized world public opinion against aggression. We 
shall, under the spirit of that pact, consult with other nations in times of emer- 
gency to promote world peace. We shall enter no agreements committing us to 
any future course of action or which call for use of force in order to preserve 
peace." New York Times, 12 August 1932. 

And on 26 October, in a speech delivered at Pittsburgh, Secretary Stimson 
declared : "Whenever a breach of the treaty is threatened by approaching hos- 
tilities, it implies a duty of consultation among the other parties in order that 
public opinion may be mobilized against the impending disaster of war." Henry 
L. Stimson, The Work of the United States Government in the Promotion of 
Peace During the Past Three Years, Department of State, Publication No. 398, 
Washington, 1932, p. 11. 

On 22 May 1933 Mr. Norman Davis, in his capacity as the chairman of the 
American Delegation to the Disarmament Conference in Geneva, accepted a 
British plan for disarmament which contained a provision to the effect that "in 
the event of a breach or threat of breach of the Pact of Paris, a conference be- 
tween the High Contracting Parties shall at once meet at the request of any five 
of them, provided that at least one of the governments mentioned by name in 
Article 4 joins in that request." (Series of League of Nations Publications. 
IX Disarmament, 1933, IX, 2, Conference Document 157, p. 2.) He declared 
that the United States is : " . . . willing to consult with the other States in case of a 
threat to peace, with a view of averting conflict. Further than that, in the event 
that the States, in conference, determine that a State had been guilty of a breach 



176 

of the peace in violation of its international obligations and take measures 
against the violator, then, if the U. S. concurred in the judgment rendered as to 
the responsible and guilty party, it would refrain from any action tending to 
defeat such collective effort which the States might thus make to restore peace." 
Series of League of Nations Publications. IX Disarmament, 1933, IX, 10, p. 475. 

On 24 May the United Kingdom presented a revised text of its draft convention 
which contained the following provisions : "I. In the event of a breach or threat 
of breach of the Pact of Paris, either the Council or Assembly of the League of 
Nations or one of the parties to the present Convention who are not members 
of the League of Nations may propose immediate consultation between the 
Council or Assembly and any of the said parties to the present Convention. 
II. It shall be the object of such consultation, (a) in the event of a threat of a 
breach of the Pact to exchange views for the purpose of preserving the peace 
and averting a conflict; (b) in the event of a breach of the Pact to use good 
offices for the restoration of peace ; and (c) in the event that it proves impossible 
thus to restore the peace, then to determine which party or parties to the dispute 
are to be held responsible. III. The provisions of the above article do not in 
any way prejudice the rights and obligations of the members of the League, nor 
conflict with nor limit the powers and duties of the Assembly and Council under 
the Covenant." Records of the Conference for the Reduction and Limitation of 
Armaments. Series B. Minutes of the General Commission, Vol. II. Series of 
League of Nations Publications, IX, Disarmament, 1933, IX, 10, p. 494. 

Mr. Norman Davis also accepted the new British plan and declared on 24 May : 
"Recognizing that any breach or threat of breach of the Pact of Paris (the 
Briand-Kellogg Pact) is a matter of concern to all the signatories thereto, the 
Government of the United States of America declares that, in the event of a 
breach or threat of breach of this Pact, it will be prepared to confer with a view 
to the maintenance of peace in the event that consultation for such purpose 
is arranged pursuant to Articles . . . and ... of Part I of the Disarmament 
Convention. . . ." (Ibid., pp. 495-6.) The consultation referred to in the 
British draft convention and in the American declaration evidently had a 
preventive as well as repressive character in that it would take place not only 
in case of a threat of a breach but also in case of an actual breach of the Pact 
of Paris. 

The Argentine Anti-War Treaty of non-aggression signed at Rio de Janeiro 
10 October 1933, to which the United States was a contracting party, contained 
in Article 3 the following provision: "In case of noncompliance by any state 
engaged in a dispute, with the obligations contained in the foregoing articles, 
the contracting states undertake to make every effort for the maintenance of 
peace. To that end they will adopt in their character as neutrals a common and 
solidary attitude; they will exercise the political, juridical or economic means 
authorized by international law ; they will bring the influence of public opinion 
to bear but will in no case resort to intervention either diplomatic or armed ; 
subject to the attitude that may be incumbent on them by virtue of other collec- 
tive treaties to which such states are signatories." The first two Articles of the 
Treaty were similar to the first two Articles of the Kellogg-Briand Pact. Cf. 
Jessup, International Security, p. 76. 

3. Cf. Cooper, op. oit., pp. 348 ff. 

4. Article 4, paragraph 5, of the Covenant of the League of Nations expressly 
provided that any member of the League not represented on the Council should 
be invited to send a Representative to sit as a member at any meeting of the 
Council during the consideration of matters especially affecting the interests 



177 

of that member of the League. Thus, consultation among the disinterested 
members was secured along with consultation with the interested member. 
Article 31 of the Charter of the United Nations stipulates that any member of the 
United Nations which is not a member of the Security Council may participate, 
without vote, in the discussion of any question brought before the Security 
Council whenever the latter considers that the interests of that member are 
specially affected. Article 32 provides that any member of the United Nations 
which is not a member of the Security Council, if it is a party to a dispute under 
consideration by the Security Council, shall be invited to participate, without 
vote, in the discussion relating to the dispute. 

5. According to Article 32 of the Charter, a state which is not a member of 
the United Nations, if it is a party to a dispute under consideration by the 
Council, shall be invited to participate, without vote, in the discussion. 

6. Cf. Cooper, op. cit., p. 352. 

7. There are still a number of states not members of the United Nations, and, 
according to Article 2, paragraph 6, of the Charter, the Organization shall ensure 
that these states act in accordance with the Principles of the Charter so far 
as this may be necessary for the maintenance of international peace and security. 
As far as the principle of settling disputes by peaceful means is concerned, 
consultation with the non-member state involved in a dispute is secured by 
Article 32. With respect to enforcement measures to be directed against a 
non-member state in case of threat to or breach of the peace, no previous con- 
sultation with this state is provided for by the Charter ; nor is any consultation 
with a non-member state obligatory which, according to the principle laid down 
in Article 2, paragraph 5, is supposed to give the United Nations every assistance 
in any action the Organization takes in accordance with the Charter and to 
refrain from giving assistance to any state against which the United Nations 
is taking preventive or enforcement action. However, it may be assumed that 
consultation with the non-member state, especially in the latter case, is not 
excluded. 

8. Cooper, op. cit., p. 349. 

9. Ibid., p. 352. 

10. The first treaties by which the United States legally committed itself to con- 
sult with other states under certain conditions were the Four-Power Treaty, signed 
13 December 1921 by the United States, the British Empire, France and Japan 
concerning insular possessions in the Pacific and the Nine-Power Treaty, signed 
6 February 1922 by the United States, Belgium, the British Empire, China, 
France, Italy, Japan, the Netherlands and Portugal concerning the principles 
and policies to be followed in matters concerning China. Recently, the United 
States accepted special obligations of consultation in defense treaties such as 
the North Atlantic Treaty signed at Washington on 4 April 1949 which contains 
in Article 4 the following provision : "The Parties will consult together when- 
ever, in the opinion of any of them, the territorial integrity, political indepen- 
dence or security of any of the Parties is threatened"; the Security Treaty 
concluded by Australia, New Zealand, and the United States of America, signed 
at San Francisco on 1 September 1951, Article III of which stipulates: "The 
Parties will consult together whenever in the opinion of any of them the terri- 
torial integrity, political independence or security of any of the Parties is 
threatened in the Pacific" ; the South-East Asia Collective Defense Treaty, signed 
on 8 September 1954 by the United States, Great Britain, France, Australia, 
New Zealand, the Philippines, Thailand and Pakistan, which contains the 
following provisions : Article 4, paragraph 2 : "If, in the opinion of any of the 



178 

parties, the inviolability or the integrity of the territory or the sovereignty or 
political independence of any party in the treaty area or of any other state or 
territory to which the provisions of paragraph 1 of this Article from time to 
time apply is threatened in any way other than by armed attack or is affected 
or threatened by any fact or situation which might endanger the peace of the 
area, the parties shall consult immediately in order to agree on the measures 
which would be taken for the common defense." Article 5 : "The parties hereby 
establish a Council, on which each of them shall be represented, to consider 
matters concerning the implementation of this treaty. The Council shall provide 
for consultation with regard to military and any other planning as the situation 
obtaining in the treaty area may from time to time require. The Council shall 
be so organized as to be able to meet at any time" {Disarmament and Security, 
pp. 611 ff . ) ; and in the Treaties for Mutual Defense Assistance concluded on the 
basis of the Mutual Defense Assistance Act of 1949 (Public Law 329, 81st 
Congress; 63 Stat. 714). For instance, Article VI, paragraph 1, of the Mutual 
Defense Assistance Agreement between the United States of America and France, 
signed at Washington on 27 January 1950 (Department of State Publication 3769), 
stipulates: "The two Governments will, upon the request of either of them, 
consult regarding any matter relating to the application of this Agreement or 
to operations or arrangements carried out pursuant to this Agreement." Similar 
provisions are contained in other Mutual Defense Assistance Agreements. 

Consultation as a means for the preservation of peace has played an important 
part in the Pan-American movement. The Inter-American Conference for the 
Maintenance of Peace, Buenos Aires, 1936, recommended : "The procedure of 
mutual consultation in order to find means of peaceful cooperation in the event of 
war or threat of war between American countries," and recognized "that every 
act susceptible of disturbing the peace of America affects each and every one of 
the American Nations and justifies the initiation of the procedure of consultation." 
At the Eighth International Conference of American States, Lima, 1938, these 
states declared : "That in case the peace, security or territorial integrity of any 
American republic is threatened by acts of any nature that may impair them, they 
proclaim their common concern and their determination to make effective their 
solidarity, coordinating their respective sovereign will by means of the pro- 
cedure of consultation, using the measures which in each case the circumstances 
may make advisable." Declaration Fourth of the Act of Chapultepec, 8 March 
1945, reads as follows : "That in case that acts of aggression occur or there may be 
reasons to believe that an aggression is being prepared by any other State against 
the integrity or inviolability of the territory, or against the sovereignty or political 
independence of an American State, the states signatory to this declaration will 
consult amongst themselves in order to agree upon measures they think it may be 
advisable to take." The Inter- American Treaty of Reciprocal Assistance, Rio de 
Janeiro, 2 September 1947, to which the United States of America is a contracting 
party, stipulates : "Art. 7. In the case of the conflict between two or more Ameri- 
can States, without prejudice to the right of self-defense in conformity with 
Article 51 of the Charter of the United Nations, the High Contracting Parties, 
meeting in consultation shall call upon the contending States to suspend hostilities 
and restore matters to the status quo ante oellum, and shall take in addition all 
other measures necessary to re-establish or maintain inter-American peace and 
security and for the solution of the conflict by peaceful means. The rejection of 
the pacifying action will be considered in the determination of the aggressor and 
in the application of the measures which the consultative meeting may agree upon. 
Art. 8. For the purposes of this Treaty, the measures on which the Organ of 



179 

Consultation may agree will comprise one or more of the following: recall of 
chiefs of diplomatic missions ; breaking of diplomatic relations ; breaking of con- 
sular relations ; partial or complete interruption of economic relations or of rail, 
sea, air, postal, telegraphic, telephonic, and radio-telephonic or radio-telegraphic 
communications ; and use of armed force. Art 9. In addition to other acts which 
the Organ of Consultation may characterize as aggression, the following shall be 
considered as such : a. Unprovoked armed attack by a State against the territory, 
the people, or the land, sea or air forces of another State ; o. Invasion, by the 
armed forces of a State, or the territory of any American State, through the 
trespassing of boundaries demarcated in accordance with a treaty, judicial deci- 
sion, or arbitral award, or, in the absence of frontiers thus demarcated, invasion 
affecting a region which is under the effective jurisdiction of another State. 
Art. 10. None of the provisions of this Treaty shall be construed as impairing the 
rights and obligations of the High Contracting Parties under the Charter of the 
United Nations. Art. 11. The consultations to which this Treaty refers shall be 
carried out by means of the meetings of the Ministers of Foreign Affairs of the 
American Republics which have ratified the Treaty, or in the manner or by the 
Organ which in the future may be agreed upon. Art. 12. The Governing Board 
of the Pan American Union may act provisionally as an organ of consultation until 
the meeting of the Organ of Consultation referred to in the preceding Article takes 
place. Art. 18. The consultations shall be initiated at the request addressed to 
the Governing Board of the Pan American Union by any of the Signatory States 
which has ratified the Treaty. Art. 14. In the voting referred to in this Treaty 
only the representatives of the Signatory States which have ratified this Treaty 
may take part. Art. 15. The Governing Board of the Pan American Union shall 
act in all matters concerning this Treaty as an organ of liaison among the Signa- 
tory States which have ratified this Treaty and between these States and the 
United Nations. Art. 16. The decisions of the Governing Board of the Pan- 
American Union referred to in Articles 13 and 15 above shall be taken by an 
absolute majority of the members entitled to vote. Art. 17. The Organ of Consul- 
tation shall take its decisions by a vote of two-thirds of the Signatory States which 
have ratified the Treaty. Art. 18. In the case of a situation or dispute between 
American States, the parties directly interested shall be excluded from the voting 
referred to in the two preceding Articles. Art. 19. To constitute a quorum in all 
the meetings referred to in the previous Articles, it shall be necessary that the 
number of States represented, shall be at least equal to the number of votes neces- 
sary for the taking of the decision. Art. 20. Decisions which require the applica- 
tion of the measures specified in Article 8 shall be binding upon all the Signatory 
States which have ratified this Treaty, with the sole exception that no State shall 
be required to use armed force without its consent. Art. 21. The measures agreed 
upon by the Organ of Consultation shall be executed through the procedures and 
agencies now existing or those which may in the future be established." 

The Charter of the Organization of American States, Bogota, March 30-May 
2, 1948, contains the following provisions: "Chapter XI: The Meeting of Con- 
8ultation of Ministers of Foreign Affairs. Art. 39. The Meeting of Consultation 
of Ministers of Foreign Affairs shall be held in order to consider problems of 
an urgent nature and of common interest to the American States, and to serve 
as the Organ of Consultation. Art. 1^0. Any Member State may request that 
a Meeting of Consultation be called. The request shall be addressed to the 
Council of the Organization, which shall decide by an absolute majority whether 
a meeting should be held. Art 41. The program and regulations of the Meeting 
of Consultation shall be prepared by the Council of the Organization and sub- 



180 

mitred to the Member States for consideration. Art. 42. If, for exceptional 
reasons, a Minister of Foreign Affairs is unable to attend the meeting, he shall 
be represented by a special delegate. Art b8. In case of an armed attack within 
the territory of an American State or within the region of security delimited 
by treaties in force, a Meeting of Consultation shall be held without delay. 
Such Meeting shall be called immediately by the Chairman of the Council of 
the Organization, who shall at the same time call a meeting of the Council 
itself. Art. 44- An Advisory Defence Committee shall be established to advise 
the Organ of Consultation on problems of military cooperation that may arise 
in connection with the application of existing special treaties on collective 
security. Art. ^5. The Advisory Defence Committee shall be composed of the 
highest military authorities of the American States participating in the Meeting 
of Consultation. Under exceptional circumstances the Governments may appoint 
substitutes. Each State shall be entitled to one vote. Art. 46. The Advisory 
Defence Committee shall be convoked under the same conditions as the Organ 
of Consultation, when the latter deals with matters relating to defence against 
aggression. Art. 41. The Committee shall also meet when the Conference or 
the Meeting of Consultation or the Governments, by a two-thirds majority of 
the Member States, assign to it technical studies or reports on specific subjects." 
An obligation of consultation is imposed upon the contracting parties by the 
Treaty of Economic, Social and Cultural Collaboration and Collective Self- 
Defense, signed at Brussels on 17 March 1948 by Belgium, France, Luxembourg, 
the Netherlands and the British Empire, which contains the following provisions : 
"Art. 1. Convinced of the close community of their interests and of the necessity 
of uniting in order to promote the economic recovery of Europe, the High 
Contracting Parties will so organize and coordinate their economic activities as 
to produce the best possible results, by the elimination of conflict in their 
economic policies, the coordination of production and the development of com- 
mercial exchanges. — The cooperation provided for in the preceding paragraph, 
which will be effected through the Consultative Council referred to in Article 7 
as well as through other bodies, shall not involve any duplication of, or 
prejudice to, the work of other economic organizations in which the High 
Contracting Parties are or may be represented but shall on the contrary assist 
the work of those organizations. Art. 2. The High Contracting Parties will 
make every effort in common, both by direct consultation and in specialized 
agencies, to promote the attainment of a higher standard of living by their 
peoples and to develop on corresponding lines the social and other related 
services of their countries. The High Contracting Parties will consult with the 
object of achieving the earliest possible application of recommendations of 
immediate practical interest relating to social matters, adopted with their 
approval in the specialized agencies. They will endeavour to conclude as soon 
as possible conventions with each other in the sphere of social security." "Art. 7. 
For the purpose of consulting together on all the questions dealt with in 
the present Treaty, the High Contracting Parties will create a Consultative 
Council, which shall be so organized as to be able to exercise its functions 
continuously. The Council shall meet at such times as it shall deem fit. At the 
request of any of the High Contracting Parties, the Council shall be immediately 
convened in order to permit the High Contracting Parties to consult with regard 
to any situation which may constitute a threat to peace, in whatever area 
this threat should arise, with regard to the attitude to be adopted and the 
steps to be taken in case of a renewal by Germany of an aggressive policy ; or 
with regard to any situation constituting a danger to economic stability." 



181 

Other treaties concluded for the purpose of economic and cultural cooperation, 
also contain the obligation of consultation. An example is the Agreement estab- 
lishing the South Pacific Commission concluded by Australia, France, the Nether- 
lands, New Zealand, United Kingdom and the United States, Canberra, on 
6 February 1947 for cooperation in promoting the economic and social welfare 
advancement of the peoples of the non-self-governing territories in the South 
Pacific region administered by them. According to Article IV : "The Commis- 
sion shall be a consultative and advisory body to the participating Governments 
in matters affecting the economic and social development of the non-self-govern- 
ing territories within the scope of the Commission and the welfare and advance- 
ment of their peoples." 

11. London Naval Conference: Speeches and Press Statements by Members of 
the American Delegation, January 20-April 29, 1930 (Department of State Publi- 
•cation, Conference Series, No. 3) , p. 35. 

12. New York Times, 28 March 1930. 

13. Ibid. Cf. Jessup, International Security, p. 70. 

14. John Bassett Moore, "An Appeal to Reason," Foreign Affairs, Vol. 11 (July 
1933), pp. 571-2. 

(bb) The peaceful settlement of international disputes. 

An international dispute exists if one state claims that another state 
should behave in a certain way, and the latter rejects the claim of the 
former. 

Disputes between states, just as disputes between human beings, 1 
may be settled peacefully either by agreement of the parties to the 
dispute or by the decision of an agency which is binding upon the 
parties. 

The agreement may be brought about through direct negotiation by 
the states, parties to the dispute, or through the friendly intervention 
of a third state or some third states. This friendly intervention is 
called good offices or mediation. The purpose of both procedures is 
to bring about an agreement of the parties to the dispute. Some writ- 
ers speak of mediation, in contradistinction to good offices, if one or 
more third states try to bring about an agreement of the parties to 
the dispute on the basis of concrete proposals made by the mediator. 
In both cases the suggestions made to the parties to the dispute are not 
binding. 

If a dispute arises from a difference of opinion on points of fact it 
may be submitted to an international commission of inquiry estab- 
lished by a special agreement between the parties to the dispute. The 
function of the commission of inquiry is restricted to a statement of 
facts. The parties to the dispute may or may not accept this state- 
ment. 

If the commission is competent not only to ascertain disputed facts 
but also to make recommendations for the settlement of the dispute, 
one speaks of conciliation. The commission of conciliation may be 



182 

composed as follows: each party to the dispute appoints one or an 
equal number of members and, by agreement, these members appoint 
a chairman. 2 The commission may adopt its decision by majority 
vote, but settlement of the dispute is brought about only if the parties 
accept the recommendations of the commission, which implies that 
they have come to an agreement. 

Within a more or less universal security organization the function 
of conciliation is conferred by the constituent treaty upon a central 
agency of the organization composed of representatives of all, or 
only of some, of the members of the organization. The party to a 
concrete dispute, which is not a member of the agency, may be author- 
ized to send a representative to participate in the discussion of the 
case. The representatives of the parties may or may not be entitled 
to participate in the decision. 3 

The function of the agency has the character of conciliation if its 
decisions constitute only recommendations which are not legally bind- 
ing upon the parties. 4 If its decisions are binding upon the parties, 
the function has a quasi- judicial character and differs from that of 
a tribunal insofar as its members are not, as in the case of a tribunal, 
independent judges but representatives of the governments by which 
they are appointed and hence bound by instruction given to them by 
their governments. 

The constituent treaty of an international security organization 
may impose upon its members the obligation to submit their disputes — 
even disputes with non-members — to the conciliation procedure pro- 
vided for by the treaty. This means that if one party to a dispute 
submits a case to the competent organ the other party is obliged to 
recognize the jurisdiction of this organ. In other terms: the con- 
stituent treaty may establish compulsory jurisdiction of a special 
organ for the pacific settlement of disputes by conciliation. If the 
conciliation procedure does not lead to an agreement among the parties 
and hence to a settlement of the dispute, the constituent treaty may 
leave it to the parties to submit the case to an arbitral tribunal estab- 
lished by their agreement or to an international tribunal established 
by the constituent treaty itself as a judicial organ of the security 
organization organized as a permanent court. 5 The parties to the 
dispute may even be obliged to submit their disputes to the tribunal 
if the conciliation procedure fails ; or they may be obliged to submit 
only certain disputes, normally so-called legal disputes, to the judicial 
procedure either in case of the failure of a conciliation procedure or 
without such a procedure being necessary at all. 6 

The judicial organ of the security organization, 7 its permanent 
court, may be composed of members elected by the assembly or by 



183 

the council of the organization or by both. 8 Since these organs are 
composed of the representatives of the member- states appointed by 
the governments concerned, these governments have a considerable 
influence on the composition of the court, especially if the organs of 
the security organization have to elect the judges from a list of candi- 
dates nominated directly or indirectly by the governments of the 
member states. 9 If, in order to achieve the highest possible degree 
of independence for the judges, this influence is to be eliminated as 
far as possible, a procedure may be adopted in which the decisive 
function within the process of the appointment of the judges is not 
conferred on the governments of the states but on their supreme 
courts, law schools, or international scientific organizations for inter- 
national law and the like. 10 For the same purpose, the judges should 
be elected for life or until they reach a certain age limit but not for 
a limited period of time so that the question of a possible re-election 
does not arise. 11 Only the professional and moral qualification of the 
candidate should be required. The president of the court may be 
elected by its members or this office may be filled by rotation. 12 

As to the procedure of the court, it stands to reason that it must 
adopt its decision by majority vote. 13 Collective security is guaran- 
teed most effectively if its jurisdiction is compulsory. 14 That it is 
compulsory means that if one party to a dispute submits the case 
to the court the other party is obliged to recognize the court's 
jurisdiction, even if there is no previous agreement by the parties 
to the dispute concerning the jurisdiction of the court in this case. 
The constituent treaty may even authorize the court to proceed under 
certain circumstances and with respect to certain matters ex officio, 
on its own initiative without its jurisdiction being invoked by any 
party. The court should be open not only to states and international 
organizations but also to private individuals, not only as plaintiffs 
in case of a violation of their rights established by treaties, but also 
as defendants especially if they are accused of having committed 
punishable violation of international law; that is to say, the court 
should have criminal jurisdiction. 15 

Either the treaty constituting an international security organiza- 
tion or the statute of its permanent court may stipulate that in 
settling a dispute brought before it, this court must apply the rules 
of existing international law unless the parties to the dispute agree 
upon the application of principles of justice or equity. By such an 
agreement, the tribunal is authorized to create within its discretion 
new law for the case at hand. 16 However, the constituent treaty 
or the statute of the court may distinguish two categories of dis- 
putes — namely, legal and political disputes — and provide that, with- 



184 

out regard to the wishes of the parties, legal disputes shall be settled 
in accordance with positive law and political disputes in accordance 
with justice or equity. 17 

There are two ways to define the concept of legal disputes. One is 
the general definition adopted by the so-called Locarno Treaties — 
that is, the treaties of conciliation and arbitration signed by Germany 
on the one hand and b} 7 Belgium, Czechoslovakia, France and Poland 
on the other, in London on 1 December 1925. In Article 1 of these trea- 
ties, legal disputes are defined as disputes with regard to which the 
parties are in conflict as to their respective rights. This formula is 
not quite satisfactory, because it refers only to "rights," and "rights" 
may or may not be "legal" rights, and especially because it does not 
refer to legal obligations which are mainly involved. One state has 
a right only if the other has a corresponding obligation ; and there is 
a dispute only if one claims to have a right and the other denies being 
under a corresponding obligation. The legal character of a dispute 
depends on the attitude of the parties : whether one party justifies its 
claim and the other party rejects this claim by referring to existing 
international law, which implies that the parties agree to have their 
dispute settled by the application of existing international law. The 
other way consists in enumerating certain categories of disputes— 
namely, disputes concerning the interpretation of a treaty ; any ques- 
tion of international law; the existence of any fact which if estab- 
lished would constitute a breach of an international obligation; the 
nature or extent of the reparation to be made for the breach of an 
international obligation. This enumerative definition is adopted in 
Article 13, paragraph 2, of the Covenant of the League of Nations and 
in Article 36, paragraph 2, of the Statute of the International Court 
of Justice. 18 The enumeration is, logically, very problematical, since 
one of the enumerated matters, "any question of international law," 
covers the three others. Besides, the legal character of a dispute does 
not depend on its subject matter but on the norms to be applied to it. 
It is legal if it is to be settled by the application of the rules of exist- 
ing law. It is not legal (i. e., political) if it is to be settled by the 
application of other principles, such as justice or equity, or if, as a 
consequence of the attitude of the parties, it is not to be settled in a 
peaceful way at all. The political question as to whether or not a dis- 
pute should be settled as a legal dispute — that is, by the application of 
existing international law — must not be confused with the legal ques- 
tion as to whether or not a dispute can be settled by the application of 
existing international law — that is, whether a dispute is justiciable, or 
not justiciable. It has been pointed out in a previous connection 
that there are no disputes which, by their very nature, are not justici 



19 



185 

able — that is to say, which, as a consequence of the subject matter to 
which they refer, cannot be settled by the application of existing 
law because these subject matters are not regulated by the existing 
law or, what amounts to the same thing, because there are gaps in 
the existing law. It has been shown that there is no objective 
criterion at the basis of the distinction between legal and politi- 
cal, justiciable and non- justiciable disputes, and that the distinc- 
tion between disputes which are to be settled in accordance with 
existing law and disputes which are to be settled in accordance with 
justice or equity — that is, in accordance with new law to be created by 
the court for the concrete case — can be justified only if the application 
of the existing law, although legally possible, is, according to the opin- 
ion of the parties concerned or the competent tribunal, politically not 
satisfactory ; and that the flexibility of the legal system, which is evi- 
dently the purpose of such a distinction, can be achieved only at the 
expense of the security to be guaranteed by it. 

The doctrine that there are international conflicts which, by their 
very nature, cannot be settled by judicial means has recently been pre- 
sented in a new version. There are, this new version asserts, conflicts 
of such a nature that "they will generally be not even formulated in 
legal terms," 20 that is to say, in terms of concrete obligations and 
rights, and hence they will not be settled by international tribunals 
because a tribunal can settle a conflict only by deciding the question of 
whether or not a definite state has a concrete obligation and, conse- 
quently, whether or not another state has the corresponding right. 
Such "unformulated" conflicts are those which stand in relation to a 
general "tension" between two states, the issue of which is "the overall 
distribution of power" between them, the opposition between "the 
maintenance of the status quo and its overthrow." The situation 
which existed in the relation between Germany and Czechoslovakia 
in 1938 is an example of such a "tension." The real issue of the con- 
flict between these two states was not sovereignty over the Sudeten- 
land but Hitler's claim to the military and political domination of 
Central Europe. 

The conflicts in question are "unformulated" not because they 
cannot be formulated at all — in the example just given the "unformu- 
lated" conflict is precisely formulated — but because they cannot be 
formulated in legal terms. This simply means that a state which 
intends to overthrow the status quo of the distribution of power by 
extending its control over territories legally under the sovereignty 
of other states, or over an entire continent, or even over the whole 
world is not in a position to present its claim in conformity with exist- 
ing international law. If such a conflict were subjected to a judicial 



186 

procedure, the tribunal applying the existing law could come to no 
other conclusion but to reject the claim and to condemn any attempt 
to realize it by force as a violation of international law. This is 
the reason why a state will never submit such a claim to a judicial 
procedure. This is self-evident. But the statement that such "unfor- 
mulated conflicts," the issue of which is a "tension" — that is, the "politi- 
cal" conflicts of the new doctrine — "cannot be settled by judicial 
means," i. e., by the application of existing law, is incorrect if it means 
more than the truism that if there is no court with compulsory juris- 
diction such conflicts will actually not be settled by judicial means. 
It is just as incorrect as the analogous statement concerning political 
disputes within the meaning of the old doctrine. From a scientific 
point of view, the only statement that can be made with respect to 
"tension" conflicts is exactly the same as that which can be made with 
respect to political conflicts of the old doctrine. This is the state- 
ment that a judicial settlement of such conflicts, although legally 
possible, is politically not satisfactory to the state whose claim to 
overthrow the status quo of distribution of power creates the "tension." 

The "tension" theory of political conflicts does not contribute a new 
aspect to the problem of judicial settlement. It may be that a state 
which wishes to overthrow the existing status quo of the distribution of 
power will refuse to submit the "unformulated" conflict even to an 
international agency competent to apply principles other than those 
of existing international law, principles of justice or equity, because 
the state concerned cannot assume that its claim is justifiable even 
according to these principles, just as a band of gangsters who want 
to rob a bank will not "formulate" the conflict which exists between 
their interest and that of the bank and hence will not submit it to a 
tribunal of law or equity but will simply try to get what they want 
by force. Just as the function of a national legal order is to prevent 
the crime and, if this is not possible, to punish the criminals, the 
very purpose of an international security organization is to prevent 
a state which intends to overthrow the status quo by force from 
realizing its intention and, if prevention is not possible, to react 
against it by enforcement measures effective enough to restore the 
law. The "tension" doctrine of political conflicts may be correct as 
a mere description of international relations as they actually exist, 
but it is not correct as a justification of the thesis that these conflicts 
are not justiciable. 

If an international dispute is settled by the decision of an inter- 
national agency binding upon the parties, the latter are obliged 
to carry out the decision. If, in violation of its obligation, one party 
within an international security organization does not comply with 



187 

the decision, the enforcement of the decision should not be left to 
the other party but should be a function of the organization itself 
performed by its executive organ. This may be the same organ as 
the one which has settled the dispute by its decision so that both 
functions: the decision by which the dispute is settled and the en- 
forcement of this decision, are conferred upon one and the same organ 
of the organization, composed of representatives of the members. 
If, however, the dispute must be settled in conformity with existing 
law, the competent organ should have the character of a tribunal. 
An agency composed of representatives of states and not of inde- 
pendent judges always has the tendency to settle conflicts in accord- 
ance with political convenience rather than by applying the rules 
of existing law. If a dispute is settled by the court of an international 
security organization, the judgment may be enforced against the 
recalcitrant party by the executive agency of the organization on 
the request of the other party or of the court. Since non-compliance 
with the decision of the court is a violation of the constituent treaty, 
the action taken for the purpose of enforcing the decision has the 
character of a sanction. On the other hand, all enforcement measures 
of an international security organization, especially those involving 
the use of armed force, should, as a rule, be taken only as the execution 
of a judicial decision — that is, only as a reaction against a violation of 
the law ascertained in an objective and impartial procedure. The 
executive organ of the security organization should, as a rule, act 
only as the sheriff of the court. 21 The usual objection to this sugges- 
tion, that if enforcement measures are to be preceded by a judicial pro- 
cedure they may be too late to restore the law, especially in case 
of an armed attack, has been discussed in a previous chapter. 22 

NOTES 

1. Cf. pp. 15 ff. 

2. Article 14 of the Treaty signed by Germany and Switzerland at Berne on 
3 December 1921 is typical : "The contracting parties shall appoint one member 
each of their own choice, and nominate three other members by mutual agree- 
ment. These three members shall not be nationals of the contracting parties, 
nor shall they be domiciled on their territory, nor employed in their service. 
The contracting parties shall by mutual agreement elect the president from 
among these three members." 

3. Article 4, paragraph 5, of the Covenant of the League of Nations stipulated : 
"Any Member of the League not represented on the Council shall be invited to 
send a Representative to sit as a member at any meeting of the Council during 
the consideration of matters specially affecting the interests of that Member 
of the League." 

Article 32 of the Charter of the United Nations provides : "Any Member of 
the United Nations which is not a member of the Security Council or any state 
which is not a Member of the United Nations, if it is a party to a dispute under 

370624—57 13 



188 

consideration by the Security Council, shall be invited to participate, without 
vote, in the discussion relating to the dispute. The Security Council shall lay 
down such conditions as it deems just for the participation of a state which is 
not a Member of the United Nations." 

According to Article 27, paragraph 3, members of the Security Council which 
are parties to a dispute shall abstain from voting on a decision taken for the 
purpose of the pacific settlement of disputes under Chapter VI of the Charter. 

4. According to the Covenant of the League of Nations, the Council was com- 
petent to make only recommendations for the settlement of a dispute. However, 
a recommendation unanimously adopted by the Council had a certain legal effect. 
In this respect, Article 15, paragraph 6, provided : "If a report by the Council 
is unanimously agreed to by the Members thereof other than the Representatives 
of one or more of the parties to the dispute, the Members of the League agree 
that they will not go to war with any party to the dispute which complies with 
the recommendations of the report." 

According to the Charter, too, the Security Council is authorized to make only 
recommendations for the settlement of disputes. These recommendations 
may be adopted, according to Article 27, by an affirmative vote of seven 
(of the eleven) members including the concurring votes of the permanent mem- 
bers. It must, however, be taken into consideration that the Security Council, 
according to Article 39, may consider the non-compliance of a party with its 
recommendations as a threat to the peace and hence may take enforcement 
measures in order to maintain international peace. If these measures are to be 
considered as sanctions, the so-called recommendations of the Security Council 
have the character of a decision which may be binding upon the parties. 

5. Under the Covenant, the members had the choice of submitting their dispute 
to the conciliation procedure of the Council or to the decision of an international 
tribunal (tribunal of arbitration or the Permanent Court of International 
Justice). Article 12 stipulated : 

"1. The Members of the League agree that, if there should arise between them 
any dispute likely to lead to a rupture, they will submit the matter either to 
arbitration, or judicial settlement or to inquiry by the Council, and they agree 
in no case to resort to war until three months after the award by the arbitrators 
or the judicial decision, or the report by the Council. 2. In any case under this 
Article the award of the arbitrators or the judicial decision shall be made within 
a reasonable time, and the report of the Council shall be made within six months 
after the submission of the dispute." Article 15, paragraph 1 : "If there should 
arise between Members of the League any dispute likely to lead to a rupture, 
which is not submitted to arbitration or judicial settlement in accordance with 
Article 13, the Members of the League agree that they will submit the matter 
to the Council. Any party to the dispute may effect such submission by giving 
notice of the existence of the dispute to the Secretary-General, who will make 
all necessary arrangements for a full investigation and consideration thereof." 

The Charter provides in Article 33, paragraph 1 : "The parties to any dispute, 
the continuance of which is likely to endanger the maintenance of international 
peace and security, shall, first of all, seek a solution by negotiation, enquiry, 
mediation, conciliation, arbitration, judicial settlement, resort to regional agen- 
cies or arrangements, or other peaceful means of their own choice." 

Article 37, paragraph 1 : "Should the parties to a dispute of the nature re- 
ferred to in Article 33 fail to settle it by the means indicated in that Article, 
they shall refer it to the Security Council." 



189 

As far as settlement by judicial means is concerned, the members have the 
choice of submitting the dispute to the International Court of Justice or to an 
arbitral tribunal established by their agreement. Article 92 of the Charter 
provides: "The International Court of Justice shall be the principal judicial 
organ of the United Nations. It shall function in accordance with the annexed 
Statute, which is based upon the Statute of the Permanent Court of Inter- 
national Justice and forms an integral part of the present Charter." Article 95 : 
"Nothing in the present Charter shall prevent Members of the United Nations 
from entrusting the solution of their differences to other tribunals by virtue of 
agreements already in existence or which may be concluded in the future." 

6. The General Act for the Pacific Settlement of International Disputes adopted 
by the Ninth Assembly of the League of Nations on 26 September 1928 stipulated 
that legal disputes shall be submitted to arbitration or judicial settlement and 
that other disputes, provided that conciliation does not lead to an agreement of 
the parties, shall be submitted to an arbitral tribunal. The most important pro- 
visions of the General Act were : Article 1 : "Disputes of every kind between two 
or more Parties to the present General Act which it has not been possible to 
settle by diplomacy shall, subject to such reservations as may be made under 
Article 39, be submitted, under the conditions laid down in the present Chapter, 
to the procedure of conciliation." Article 2: "The disputes referred to in the 
preceding article shall be submitted to a permanent or special Conciliation Com- 
mission constituted by the parties to the dispute." Article 17 : "All disputes 
with regard to which the parties are in conflict as to their respective rights shall, 
subject to any reservations which may be made under Article 39, be submitted 
for decision to the Permanent Court of International Justice, unless the parties 
agree, in the manner hereinafter provided, to have resort to an arbitral tribunal. 
It is understood that the disputes referred to above include in particular those 
mentioned in Article 36 of the Statute of the Permanent Court of International 
Justice." Article 20, paragraph 1 : "Notwithstanding the provisions of Article 
1, disputes of the kind referred to in Article 17 arising between parties who have 
acceded to the obligations contained in the present Chapter shall only be subject 
to the procedure of conciliation if the parties so agree." Article 21 : "Any dis- 
pute not of the kind referred to in Article 17 which does not, within the month 
following the termination of the work of the Conciliation Commission provided 
for in Chapter I, form the object of an agreement between the parties, shall, sub- 
ject to such reservations as may be made under Article 39, be brought before an 
arbitral tribunal which, unless the parties otherwise agree, shall be constituted 
in the manner set out below." Article 28 : "If nothing is laid down in the special 
agreement or no special agreement has been made, the Tribunal shall apply the 
rules in regard to the substance of the dispute enumerated in Article 38 of the 
Statute of the Permanent Court of International Justice. In so far as there 
exists no such rule applicable to the dispute, the Tribunal shall decide ex aequo 
et bono." The last sentence of Article 28 presupposed that there were gaps in 
existing international law which could be filled by principles of equity. Cf. 
pp. 19 f., 32, 189. Article 39 of the General Act contained an extensive enumera- 
tion of the reservations which a state might make in acceding to the Act. By 
these reservations the following disputes might be excluded from the procedure 
described in the Act: "(a) Disputes arising out of facts prior to the accession 
either of the Party making the reservation or of any other Party with whom the 
said Party may have a dispute; (b) Disputes concerning questions which by in- 
ternational law are solely within the domestic jurisdiction of States; (c) Dis- 



190 

putes concerning particular cases or clearly specified subject-matters, such as 
territorial status, or disputes falling within clearly defined categories." 

The Resolution 268 (III) A (Restoration to the General Act of 26 September 
J 928, of its original efficacy) adopted by the General Assembly at its 199th 
Plenary Meeting on 28 April 1949, instructed the Secretary-General "to pre- 
pare a revised text of the General Act," including certain amendments men- 
tioned in the resolution, "and to hold it open to accession by States, under the 
title 'Revised General Act for the Pacific Settlement of International Disputes.' " 
The amendments mentioned in the resolution "will only apply as between States 
having acceded to the General Act as thus amended and, as a consequence, 
will not affect the rights of such States, parties to the Act as established on 
26 September 1928, as should claim to invoke it in so far as it might still be 
operative." 

Neither the Covenant nor the Charter imposes upon the members of the 
security organization an obligation to submit disputes to a judicial procedure. 
The Member states may do so by agreement, and they are free to submit the 
dispute either to the Permanent Court of the Organization or to an arbitral 
tribunal established by their agreement. 

7. The judicial organ of the League of Nations was the Permanent Court of 
International Justice established in accordance with Article 14 of the Covenant 
by the Protocol of Signature of the Statute of the Permanent Court of Interna- 
tional Justice of 16 December 1920. The judicial organ of the United Nations 
is the International Court of Justice established by the Charter. Its Statute 
forms an integral part of the Charter. It is not very different from that of 
the Permanent Court of International Justice. 

8. According to Article 2 of the Statute of the International Court of Justice, 
the Court is composed of a body of independent judges, elected regardless of 
their nationality from among persons of high moral character, who possess the 
qualifications required in their respective countries for appointment to the 
highest judicial offices, or who are jurisconsults of recognized competence in 
international law. According to Article 3, the Court consists of fifteen members, 
no two of whom may be nationals of the same state. According to Article 4, 
the members are elected by the General Assembly and by the Security Council 
from a list of persons nominated by the national groups in the Permanent Court 
of Arbitration. A "national group" is formed by the persons (four at most) 
selected by the contracting parties to the Hague Convention for the Pacific 
Settlement of International Disputes of 1907, according to Article 44 of this Con- 
vention. In the case of members of the United Nations not represented in the 
Permanent Court of Arbitration, candidates are nominated by national groups 
appointed for this purpose by their governments under the same conditions as 
those prescribed for members of the Permanent Court of Arbitration by Article 
44 of the Hague Convention of 1907. No national group may nominate more 
than four persons, not more than two of whom shall be of their own nationality 

(Article 5). Those candidates who obtain an absolute majority of votes in the 
'General Assembly and in the Security Council are considered as elected 

(Article 10). 

9. The members of the "national groups," competent to nominate the candi- 
dates which may be elected members of the International Court of Justice, are 
appointed by the governments concerned. 

10. Article 6 of the Statute of the International Court of Justice only rec- 
ommends that each national group should consult its highest court of justice, 
its legal faculties and schools of law, and its national academies and national 






191 

sections of international academies devoted to the study of law before making 
the nomination of candidates. 

11. According to Article 13 of the Statute, the members of the Court are 
elected for nine years and may be re-elected. Their independence and impartiality 
is guaranteed by the following provisions : no member of the Court may exercise 
any political or administrative function, or engage in any other occupation of 
a professional nature (Article 16, paragraph 1) ; no member of the Court may 
act as agent, counsel, or advocate in any case; no member may participate in 
the decision of any case in which he has previously taken part as agent, counsel, 
or advocate for one of the parties or as a member of a national or international 
court, or of a commission of enquiry or in any other capacity (Article 17, 
paragraphs 1 and 2) ; no member of the Court can be dismissed unless, in the 
unanimous opinion of the other members, he has ceased to fulfill the required 
conditions (Article 18, paragraph 1). The members of the Court, when en- 
gaged on the business of the Court, enjoy diplomatic privileges and immunities 
(Article 19) . Every member of the Court shall, before taking up its duties, make 
a solemn declaration in open court that he will exercise his powers impartially 
and conscientiously (Article 20). If, for some special reason, a member of the 
Court considers that he should not take part in the decision of a particular case, 
he shall so inform the President. If the President considers that for some 
special reason one of the members of the Court should not sit in a particular 
case, he shall give him notice accordingly. If in any such case the member of 
the Court and the President disagree, the matter shall be settled by the decision 
of the Court (Article 24). Judges who are of the nationality of the parties to 
the case before the Court are not excluded from sitting in the case. However, if 
"the Court includes upon the Bench a judge of the nationality of one of the 
parties, any other party may choose a person to sit as judge. Such person 
shall be chosen preferably from among those persons who have been nominated 
as candidates as provided in Articles 4 and 5. If the Court includes upon the 
Bench no judge of the nationality of the parties, each of these parties may 
proceed to choose a judge as provided in paragraph 2 of this Article" (Article 
31, paragraphs 2 and 3). This is the institution of "national judges." 

12. According to Article 21 of the Statute, the Court elects its President and 
Vice-President ; they may be re-elected. 

13. According to Article 55 of the Statute, all questions shall be decided by a 
majority of the judges present. In the event of an equality of votes, the Presi- 
dent or the judge who acts in his place shall have a casting vote. 

14. The International Court of Justice has no compulsory jurisdiction. As 
pointed out, the members of the United Nations, and other states which may 
become parties to the Statute on conditions to be determined (according to 
Article 93 of the Charter ) by the General Assembly upon recommendation of the 
Security Council, are not obliged to submit disputes to the Court. But they 
may do so. A case may be brought before the Court by a special agreement 
of the parties to the dispute. In this way any dispute whatsoever may be sub- 
mitted to the Court. Such a special agreement is not necessary and the case may 
be brought before the Court by a written application addressed by one party to 
the Court (Article 40, paragraph 1), if the parties to the dispute have previ- 
ously made a declaration determined in Article 36, paragraph 2, of the Statute, 
which provides : "The states parties to the present Statute may at any time de- 
clare that they recognize as compulsory ipso facto and without special agree- 
ment, in relation to any other state accepting the same obligation, the jurisdic- 
tion of the Court in all legal disputes concerning: a. the interpretation of a 



192 

treaty ; b. any question of international law ; c. the existence of any fact which, 
if established, would constitute a breach of an international obligation; d. the 
nature or extent of the reparation to be made for the breach of an international 
obligation". This declaration "may be made unconditionally or on condition 
of reciprocity on the part of several or certain states, or for a certain time" 
(Article 36, paragraph 3). 

The jurisdiction of the Court recognized by a declaration made under Article 
36, paragraph 2, of the Statute is not a true compulsory jurisdiction as it is called 
in this article, for if a state which has made such a declaration brings a dis- 
pute with another state before the Court by a unilateral application in con- 
formity with Article 40 of the Statute, the other party is obliged to recognize the 
jurisdiction of the Court only if it, too, has made the same declaration. This 
means that the jurisdiction of the Court in this case is based, not on a special 
agreement referring to this concrete case, but on a general agreement of the 
parties to the dispute constituted by their declarations made under Article 36, 
paragraph 2. Declarations under Article 36, paragraph 2, of the Statute have 
been made by several states, some of them under reservations which deprive 
them of almost all practical value. 

Thus, e. g., the United States recognized the jurisdiction of the Court in dis- 
putes concerning the matters enumerated in Article 36, paragraph 2, of the 
Statute "Provided, that this declaration shall not apply to (a) disputes the 
solution of which the parties shall entrust to other tribunals by virtue of agree- 
ments already in existence or which may be concluded in the future; or (b) dis- 
putes with regard to matters which are essentially within the domestic juris- 
diction of the United States of America as determined by the United States of 
America; or (c) disputes arising under a multilateral treaty, unless (1) all 
parties to the treaty affected by the decision are also parties to the case before 
the Court, or (2) the United States of America specially agrees to jurisdiction; 
and Provided further, that this declaration shall remain in force for a period 
of five years and thereafter until the expiration of six months after notice 
may be given to terminate this declaration." That the jurisdiction of a court 
recognized under these reservations is not "compulsory" is quite evident. 

15. According to Article 34, paragraph 1, of the Statute, only states may be 
parties before the International Court of Justice. 

16. Article 38 of the Statute of the International Court of Justice provides : 
"1. The Court, whose function is to decide in accordance with international 
law such disputes as are submitted to it, shall apply : a. international con- 
ventions, whether general or particular, establishing rules expressly recognized 
by the contesting states; b. international custom, as evidence of a general 
practice accepted as law ; c. the general principles of law recognized by civilized 
nations ; d. subject to the provisions of Article 59, judicial decision and the 
teachings of the most highly qualified publicists of the various nations, as sub- 
sidiary means for the determination of rules of law. 2. This provision shall 
not prejudice the power of the Court to decide a case ex aequo et bono, if the 
parties agree thereto." 

That the Court has to apply the existing conventional and customary law 
(clauses [a] and [b]) is self-evident and did not need to be stipulated. As to 
"the general principles of law recognized by civilized nations" (clause [c]), 
it is doubtful whether such principles common to the legal orders of the civilized 
nations exist at all, especially in view of the ideological antagonism which sep- 
arates the communist from the capitalist and the autocratic from the demo- 
cratic legal systems. If the Court assumes that a general principle of law 



193 

recognized by civilized nations exists, the question of under what conditions 
the Court is supposed to apply this principle to the case at hand arises. If 
there is a treaty to which the states involved in the dispute are contracting 
parties, and if the treaty refers to the dispute, the treaty is to be applied 
(Clause [a]). If there is no treaty, general customary international law is 
to be applied (clause [b]). This, as pointed out, is always possible, but clause 
(c) evidently presupposes the idea that there are gaps in international law. This 
means that the Court is authorized to apply a rule which the Court considers 
to be a general principle of law in case the Court deems the application of 
particular conventional or general customary international law not to be satis- 
factory, which implies an almost unlimited discretion on the part of the Court. 

It is, however, doubtful whether the framers of the Statute really intended 
to confer such an extraordinary power upon the Court. Article 38, paragraph 1, 
expressly stipulates that the function of the Court is "to decide in accordance 
with international law." 

Hence, it might be argued that "the general principles of law" are applicable 
only if they are part of international law, and that means part of the law 
referred to in clauses (a) and (b) of Article 38. Then, clause (c) is super- 
fluous. Clause (d) does not refer to rules of international law to be applied by 
the Court ; it establishes only a principle of interpretation. Article 59, to which 
clause (d) refers, stipulates that the decision of the Court has binding force 
only between the parties and only in respect to the particular case. Hence, a 
decision of the Court cannot have the character of a precedent. 

17. Cf. pp. 16, 31 f . The Charter of the United Nations, just as the Covenant of 
the League of Nations, only recommends to the members that they refer their 
legal disputes to a judicial procedure. Article 13 of the Covenant provided : 
"1. The Members of the League agree that, whenever any dispute shall arise 
between them which they recognize to be suitable for submission to arbitration 
or judicial settlement, and which can not be satisfactorily settled by diplomacy, 
they will submit the whole subject-matter to arbitration or judicial settlement. 

2. Disputes as to the interpretation of a treaty, as to any question of international 
law, as to the existence of any fact which, if established, would constitute 
a breach of any international obligation, or as to the extent and nature of the 
reparation to be made for any such breach, are declared to be among those 
which are generally suitable for submission to arbitration or judicial settlement. 

3. For the consideration of any such dispute, the court to which the case is re- 
ferred shall be the Permanent Court of International Justice, established in 
accordance with Article 14, or any tribunal agreed on by the parties to the dis- 
pute or stipulated in am,y convention existing between them. 4. The Members 
of the League agree that they will carry out in full good faith any award or 
decision that may be rendered, and that they will not resort to war against a 
Member of the League which complies therewith. In the event of any failure 
to carry out such an award or decision, the Council shall propose what steps 
should be taken to give effect thereto." 

Article 36 of the Charter stipulates : "1. The Security Council may, at any stage 
of a dispute of the nature referred to in Article 33 or of a situation of like nature, 
recommend appropriate procedures or methods of adjustment. 2. The Security 
Council should take into consideration any procedures for the settlement of the 
dispute which have already been adopted by the parties. 3. In making recom- 
mendations under this Article the Security Council should also take into con- 
sideration that legal disputes should as a general rule be referred by the parties 



194 

to the International Court of Justice in accordance with the provisions of the 
Statute of the Court" 

As to the definition of legal disputes, Article 36, paragraph 2, of the Statute 
(cf. p. 191) follows Article 13, paragraph 2, of the Covenant. 

18. Cf. p. 191. 

19. Cf. pp. 19 f. 

20. Cf., Morgenthau, op. cit., pp. 40CM.0. 

21. Under the Covenant of the League of Nations, the enforcement of judicial 
decisions against a recalcitrant party was left to the other party. The Council 
had the power only to make recommendations. Article 13, paragraph 4, stipu- 
lated : "The Members of the League agree that they will carry out in full good 
faith any award or decision that may be rendered, and that they will not resort to 
war against a Member of the League which complies therewith. In the event 
of any failure to carry out such an award or decision, the Council shall propose 
what steps should be taken to give effect thereto." Enforcement measures to be 
taken as reactions against violations of the Covenant (Article 16) were not to 
be preceded by a judicial decision. 

The Charter of the United Nations stipulates : "Article 94. 1. Each Member 
of the United Nations undertakes to comply with the decision of the Interna- 
tional Court of Justice in any case to which it is a party. 2. If any party to a 
case fails to perform the obligations incumbent upon it under a judgment rendered 
by the Court, the other party may have recourse to the Security Council, which 
may, if it deems necessary, make recommendations or decide upon measures to 
be taken to give effect to the judgment." 

The Security Council is only authorized, not obliged, to enforce the judgment 
of the Court. Instead of enforcing the judgment of the Court, the Council may 
even settle the dispute concerned by a recommendation made in accordance with 
principles of political convenience. As far as decisions of other tribunals are 
concerned (Article 95), the Security Council has no competence, but it may con- 
sider non-compliance with such a decision as a threat to the peace and take 
enforcement measures in conformity with Article 39. 

22. Cf. pp. 121 f. 

(cc) The peaceful change of legally established international 
relations. 

Closely connected to the problem of the peaceful settlement of inter- 
national disputes is a problem which is usually presented as the peace- 
ful change of legally established international relations. If the 
relations are established by international agreements, one speaks of 
the revision of treaties. It is a widespread view that, in order to pre- 
vent war, an international security organization should have institu- 
tions to alter situations which are so unbearable to one or the other 
state that they may endanger the peace. If the dangerous situation 
manifests itself in a concrete dispute between two states, the problem 
may be solved by settling the dispute in one of the ways just described. 
However, such a situation may exist without materializing as a con- 
crete dispute. The situation may have a more or less general charac- 
ter, with not only one or two but many states being involved in it as a 



195 

consequence of the actual status of general international law, although 
the situation becomes an imminent danger to the peace only in 
the relation between two definite states. In this event, the only 
radical solution of the problem lies in a change of the general 
rules of international law which are at the basis of the situation. 
This is possible under existing international law only by a gen- 
eral agreement, and to reach such an agreement is so difficult 
that it is practically out of the question. Only an international 
legislative organ competent to adopt general rules of law by a ma- 
jority vote decision could fulfil such a function. If only two states 
are involved in the situation, especially if the situation is constituted 
by a treaty concluded by these states, the problem is not the changing 
of a general rule of international law but the altering or abolishing 
of a concrete obligation of one state and the corresponding right of 
the other. This is possible under existing law only by an agreement 
of the states concerned, but it is just the fact that such an agreement 
cannot be reached that creates the danger to the peace. If the con- 
stituent treaty of a security organization should institute a legislative 
organ — that is, an agency composed of representatives of all or some 
of its members, competent to adopt by a majority vote decision general 
rules of law binding upon the members — the organization would 
assume the character of a super-state, and it is more than likely that 
for the time being most states, and particularly the great powers, 
would refuse to become parties to such a treaty. Only an organ with 
a power restricted to altering or abolishing the concrete obligation and 
the corresponding right of a definite state has a chance, and even then 
only a very modest chance, of being accepted as an institution of 
an international security organization. This organ may be the 
assembly of the organization, composed of representatives of all 
the members; or its council, composed only of representatives 
of some of them ; or it may be a special organ established for 
this particular purpose and composed in a way similar to the 
assembly or the council. The organ may act on its own initiative 
or only if it is requested to act by a party. The more impor- 
tant question is whether it may adopt its decision, binding upon the 
parties, by a majority vote or whether unanimity is required. It 
stands to reason that only in the former case can an effective function 
of the organ be expected. 1 There can be no doubt that the establish- 
ment of an international agency endowed with the power to deprive 
a state of a right acquired under existing law or to impose upon a 
state an obligation without its consent constitutes a considerable lim- 
itation of the sovereignty of this state, and that for this reason many 
states will be reluctant to submit their relations with other states to 



196 

the authority of such an international agency. However, they may 
be willing to confer this power on an international court in order to 
effect a peaceful change of established legal relations. Sovereignty 
is essentially the principle that a state can be legally bound only by, 
and not against, its own will, but international courts are — as a mat- 
ter of fact — the only organs the procedure of which is not subjected 
to this principle. States do not consider their submission to the 
decision of an international court to be incompatible with their sov- 
ereignty. This may be due to the fact that international courts — 
unless expressly authorized to decide ex aequo et bono — are bound 
to apply only existing international law and hence it is assumed 
that their decision has a declarative, rather than a constitutive, 
character. They cannot abolish or create obligations and rights but 
can only ascertain in an authoritative way which obligations or rights 
a state has under the existing law. As pointed out in a previous 
connection, 2 this assumption is an illusion. Even in applying a gen- 
eral norm of positive law, a court creates new law, an individual legal 
norm which did not exist prior to its decision. No application of a 
general norm is possible without interpretation, and there is no clear 
borderline between a mere interpretation and an alteration of the law. 
The history of law shows that the most remarkable changes of the 
existing law have been brought about by its interpretation. This is 
especially true if the law- applying organ is a court of last resort 
endowed with compulsory jurisdiction. There can be little doubt that 
a court with compulsory jurisdiction, established by the constitution of 
an international security organization, would serve not only as a most 
adequate organ for a peaceful settlement of disputes but would also 
fulfill the function of effecting a peaceful change of established legal 
relations. 

NOTES 

1. Article 19 of the Covenant of the League of Nations stipulated : "The 
Assembly may from time to time advise the reconsideration by Members of the 
League of treaties which have become inapplicable, and the consideration of 
international conditions whose continuance might endanger the peace of the 
world." This provision proved to be entirely inefficient, first, because the 
Assembly had the power only to "advise" and, secondly, because unanimity was 
required. In Article 14, the Charter of the United Nations authorizes the 
General Assembly to "recommend measures for the peaceful adjustment of any 
situation, regardless of origin, which it deems likely to impair the general 
welfare or friendly relations among nations, including situations resulting from 
a violation of the provisions of the present Charter setting forth the Purposes 
and Principles of the United Nations." A decision of the General Assembly 
under Article 14 may be made by a two-thirds majority of the members present 
and voting. However, the decision is not binding upon the members ; it is 
merely a recommendation. 

2. Cf. pp. 17 f. 



197 
(dd) Disarmament. 

DISARMAMENT AND SECURITY 

Disarmament is not an isolated problem. 1 It is essentially con- 
nected with the problem of international security. 2 It can be solved 
only within an effective international security organization. 3 Dur- 
ing the discussions of the reduction and limitation of armament which 
took place within the League of Nations and later within the United 
Nations, the relation between disarmament and security was generally 
recognized. In particular, the French government insisted and still 
insists on this aspect of the problem. 4 Resolution XIV adopted by 
the Assembly of the League of Nations in September, 1922, expressly 
ascertained the fact that "in the present state of the world many 
governments would be unable to accept the responsibility for a serious 
reduction of armaments unless they received in exchange a satisfac- 
tory guarantee of the safety of their country." This means that se- 
curity is a condition of disarmament and that there can be no dis- 
armament without security. However, on the other hand, it is no 
less true that there can be no perfect security without disarmament. 
Hence, Resolution XIV suggested the conclusion of a defensive treaty 
of mutual guarantee open to all states but provided that "previous 
consent" to a general reduction of armaments should be "the first 
condition for the Treaty," that is to say, the guarantee would apply 
only after the reduction of armaments had been carried out accord- 
ing to a general plan. 5 Article 1 of Lord Robert Cecil's Draft Treaty 
of Mutual Assistance submitted to the Permanent Advisory Com- 
mittee and included in the report of the Temporary Mixed Commis- 
sion of 30 August 1923 stated that if any one of the signatories was 
attacked, "all the others will forthwith take such action as they may 
respectively have agreed to take in accordance with this Treaty and 
any Treaty supplementary hereto, provided that this obligation shall 
be conditional upon the reduction of the military forces of the party 
attacked." 6 The Geneva Protocol 7 of 2 October 1924 (1) prohibited 
war in any circumstance; (2) established means for determining the 
aggressor whereby the aggressor should be presumed to be that state 
which refused to resort to arbitration, or to comply with an award, or 
refused to comply with the provisional measures prescribed by the 
Council; (3) made the applications of sanctions compulsory after 
the determination of the aggressor; (4) provided that all disputes 
should be terminated by a binding decision pronounced by the Per- 
manent Court of International Justice, the Council of the League or 
a board of arbitrators. It also contained in Article 21 the following 
clauses : "If within such period after the adoption of the plan for the 



198 

reduction of armaments as shall be fixed by the said Conference [In- 
ternational Conference for the Reduction of Armament, provided for 
in Article 17], the plan has not been carried out, the Council shall 
make a declaration to that effect. This declaration shall render the 
present Protocol null and void. ... A signatory State which, after 
the expiration of the period fixed by the Conference, fails to comply 
with the plan adopted by the Conference, shall not be admitted to 
benefit by the provisions of the present Protocol." The General As- 
sembly of the United Nations, too, recognized the relation between 
disarmament and security. Its Resolution 41 (I) concerning Regu- 
lation and Reduction of Armaments, adopted on 14 December 1946 
contains the following statements: "The General Assembly, regard- 
ing the problem of security as closely connected with that of disarma- 
ment, recommends the Security Council to accelerate as much as pos- 
sible the placing at its disposal of the armed forces mentioned in 
Article 43 of the Charter." 8 It must be noted that Article 43 of 
the Charter is still not implemented since it proved impossible to con- 
clude the special agreements determining the contingents of the 
armed forces which the members were to place at the disposal of the 
Security Council. Hence, the security system intended by the Char- 
ter is still a fragment. 

As is the case with the more general problem of international se- 
curity, the problem of disarmament has two different aspects: a po- 
litical aspect and a technical one. The political forces, respon- 
sible for the fact that the serious efforts during a quarter of a century 
to solve this problem have been without result, are well known and 
do not need to be discussed. The work of the League, continued by 
the United Nations, has shown that no insurmountable technical diffi- 
culties stand in the way of a satisfactory legal solution. With regard 
to the most difficult topic technically, that of the control of atomic 
energy, the Scientific and Technical Committee of the Atomic Energy 
Commission declared: "We do not find any basis in the available 
scientific facts for supposing the effective control [of atomic energy] 
is not technologically feasible." 9 

PHYSICAL DISARMAMENT 

It is usual to distinguish between physical disarmament — referring 
to the external means by which war is waged, such as men, material 
and money ; and moral disarmament — referring to the state of mind 
which tolerates and even leads to war. However, it is generally rec- 
ognized that there is no physical disarmament without moral disarma- 
ment and no moral disarmament without physical disarmament. 



199 

Direct and indirect disarmament. — Physical disarmament may be 
brought about indirectly or directly. The indirect method consists in 
attempting to remove the causes of war and thus to create a situation 
in which disarmament will take place, so to speak, by itself. 10 As 
pointed out in a previous connection, 11 this is a Utopian scheme. How- 
ever, there is a particular cause of war upon which disarmament has 
a direct bearing : armament itself. There can be no doubt that arma- 
ments, although certainly not the only cause, are one of the causes of 
war, especially if the manufacture of war materials is in the hands 
of private firms. 12 This view is evidently at the basis of Article 8, 
paragraph 5, of the Covenant of the League of Nations : "The Members 
of the League agree that the manufacture by private enterprise of 
munitions and implements of war is open to grave objections." It 
has been argued that the armaments of one country are caused by and 
hence directed against the armaments of a definite other country. 
They have the immanent tendency of increasing steadily and thus of 
imposing a financial burden upon the respective countries. When 
this burden becomes unbearable it may lead to the desperate attempt 
by one party to unburden itself by waging war against the other in the 
hope of disarming the opponent and forcing him to remain disarmed, 
thus removing, at least for a certain time, the main cause of the finan- 
cially disastrous armaments race. The principle of preventing war 
by armaments — the slogan generally opposed to disarmament, si vis 
pacem para helium — is in the author's opinion rather problematical. 
It cannot be denied that its application may in some cases have the 
desired effect ; but neither can it be denied that it may under certain 
circumstances bring about just the opposite result. 13 

If armaments are a possible cause of war, the direct method of dis- 
armament must be considered to be appropriate. It consists of bring- 
ing about the reduction, limitation and even prohibition and elimina- 
tion of armaments by an international convention imposing upon the 
contracting parties corresponding obligations the fulfillment of which 
is guaranteed by adequate measures of control and sanctions. 

The object of disarmament : armaments defined. — What is the mean- 
ing of the term "armaments" ? What are the facts, factors or elements 
constituting armaments? There are three: a personal, a material 
and a financial element: the men (effectives), the materials and 
establishments used by them, and the expenditures required. With 
respect to disarmament, the distinction between peacetime and war- 
time armaments is of importance in so far as reductions, limitations 
and prohibitions may be restricted to peacetime armaments, or those 
referring to wartime armaments may differ from those referring to 
peacetime armaments. In this respect, as far as the personal element 



200 

is concerned, it is necessary to distinguish between the forces in actual 
service in peacetime — that is, the permanently organized armed 
forces — and the forces prepared for wartime — namely, the trained 
reserves; and, as far as the material element is concerned, to distin- 
guish the war material and establishments actually used in peacetime 
from the material in reserve — that is, the stock of war material and 
preparations- of every description undertaken with a view to war. As 
to the trained reserves and the material in reserve, there are two oppo- 
site views. According to one, trained reserves and material in re- 
serve are to be considered as wartime armaments and hence not to be 
subject to restriction and limitation. According to the other view, 
they are to be considered as peacetime armaments and hence to be sub- 
ject to reduction and limitation. This divergence of opinion played 
an important role in the disarmament discussions within the League 
of Nations. 14 

In addition to the forces and material used in peacetime and pre- 
pared for wartime, those ultimate war forces must be considered 
which are created during hostilities by means of the general resources 
at the disposal of each country. These resources are not themselves 
armaments so-called. 16 The forces of a country which can be trans- 
ferred from peace to war aims are the elements which constitute the 
so-called war potential. In addition, there are other factors which 
must be taken into consideration in order to judge the war power of 
a nation, such as the size of the territory ; the number of inhabitants ; 
the military system — whether there is a voluntary and professional 
army or a conscript army based on obligatory military service; and 
certain imponderables such as patriotism, religious faith, internal 
cohesion, physical and moral courage, general and technical intelli- 
gence, tradition and strength of institutions and the like. 16 There is 
a strong tendency to restrict disarmament efforts to permanent peace 
armaments whether they are dealing with effectives, materials or ex- 
penditures, since only these factors are susceptible to effective control. 17 

The "trained reserves" may include all persons who receive mili- 
tary (naval, air) or pre-military training either under or not under 
the control of the government and so-called para-military forces, 
men in the service of the merchant marine and in civil aviation. Men 
in arms factories may also be considered as belonging to the armed 
forces. 18 

An important distinction is that between reducible and irreducible 
effectives. As "irreducible" effectives, the police force is considered 
to be necessary for the maintenance of internal order, 19 but the police 
force may be included in the total of effectives if it has one or more 
of the following characteristics: "(a) Arms other than individual 



201 

(machine-pistols, Lewis guns, machine-guns and weapons of accom- 
paniment, etc.) ; (b) Training of a military nature, other than 
close-order drill, physical training or technical training in the use 
of individual arms; (c) Transport, signalling or engineer equipment 
of a suitable nature and on a sufficient scale to enable it to be em- 
ployed by units in tactical operations." Cases which might appear 
to be doubtful may be decided by taking into account the following 
conditions: "(i) Quartering in barracks ; (ii) Training in groups of 
100 men or more; (iii) Organization on a military basis; (iv) Pre- 
vious military training; (v) The possession of the arms referred to 
in sub-paragraph (a) above in such number as to permit of the tacti- 
cal employment of the forces possessing them as military units." 20 

With respect to the stationing of armed forces, those stationed in 
the homeland may be distinguished from those stationed overseas and 
those stationed in foreign countries. 

War materials consist of arms (weapons), munitions and imple- 
ments of war, as well as the raw material from which they are manu- 
factured. There are three categories of arms and munitions: arms 
and munitions designed exclusively for land, sea and aerial warfare; 
arms and munitions capable of being used both for military and for 
other purposes ; and arms and munitions having no military value. It 
is usual to distinguish between conventional armaments in contradis- 
tinction to atomic armaments and other armaments adopted to mass 
destruction. 21 

At present, arms of mass destruction are in the foreground of dis- 
armament discussions. Arms of mass destruction are weapons "ca- 
pable of destroying at a single blow a total number of human lives 
greatly exceeding, by a ratio to be established, those which a single 
conventional armament could destroy, or those which render the 
enemy incapable of righting by means other than the effect of metals 
or of explosives." 22 In particular, disarmament discussions revolve 
around nuclear (atomic and hydrogen) weapons as well as the raw or 
source material necessary for their manufacture: uranium and tho- 
rium, whether containing or not containing other important constit- 
uents, and the nuclear fuel, whether produced for beneficial or destruc- 
tive purposes. Bacterial and chemical weapons and material also 
occupy an important place in contemporary disarmament proposals. 

In order to be effective, disarmament conventions must deal not 
only with the use of arms, munitions and implements of war, but 
also with their manufacture and trade as well as with the production 
of the raw material, especially the location, mining, milling and dump- 
ing of nuclear source material (uranium and thorium ores). 



202 

As war is waged on land, at sea and in the air, land, sea and air 
armaments may be distinguished from each other but their inter- 
dependence must not be ignored. Nevertheless, there are tendencies 
to restrict disarmament to one of them or to apply different principles 
to the three different types of armaments. 23 As a consequence of the 
differentiation between defensive and aggressive wars, armaments for 
defensive purposes may be distinguished from armaments for ag- 
gressive purposes. This distinction is of importance in so far as the 
aim of disarmament is considered to be to decrease the offensive power 
of arms, but to leave untouched the defensive power. 24 Thus, the 
problem arises as to how to establish a reliable method of ascertaining 
that a force is organized for aggression or for defense only and es- 
pecially how to find a criterion to distinguish between weapons whose 
character is offensive and those whose character is defensive, so that 
only the former can be prohibited and eliminated or reduced and 
limited. 26 However, it has been argued that weapons of aggression 
per se do not exist, and that only weapons of mass destruction, 
whether tactical or strategic, 26 should be defined and abolished. As 
to atomic weapons, there is a divergence of opinion. According to 
one view, atomic weapons are weapons of mass destruction but not 
weapons of aggression; they may be used for defensive purposes. 
According to the other, atomic weapons are not weapons of defense 
but weapons of aggression, for they are intended not for use in the 
defense of one's own territories, but in foreign territories; they are 
a threat not so much to armies in the field as to civilian populations. 27 

A more general aspect of the problem is the distinction between the 
quantity and the quality of armaments and, consequently, between 
quantitative and qualitative disarmament — that is, between reducing 
and limiting only the numerical strength of the armed forces and the 
quantity of war material on the one hand or reducing, limiting or even 
prohibiting certain categories of armaments (armed forces and war 
material) on the other. 28 

As far as the financial aspect of disarmament is concerned, it is 
generally recognized that there is a certain relation between the size 
of armaments and the armaments expenditure — that is, the sums spent 
on the personal and material element of armaments, the so-called na- 
tional defense expenditure or military budget. Reduction and limi- 
tation of expenditure are the most tangible proof of a reduction and 
limitation of armaments. This problem will be discussed later. 29 

THE AIM OF DISARMAMENT 

Total or partial disarmament. There is a fundamental conflict 
between the view that disarmament should include not only peacetime 



203 

but also wartime armaments and the view that disarmament efforts 
should be restricted to permanent peacetime armaments (effectives, 
material and expenditure) and not affect wartime armaments. 30 Re- 
striction to peacetime armaments has been justified by the assertion 
that only this kind of armament is capable of effective control. For 
this reason, trained reserves, to be considered as part of wartime arma- 
ments, should not be prohibited or limited, and the question of war 
potential should not be considered. 31 

Another difference of opinion concerns the question of whether dis- 
armament should refer to land, sea and air armaments or only to one 
or the other. 32 

The disarmament effort may aim at a complete abolition — that is, 
the prohibition and elimination — of all kinds of armaments. If suc- 
cessful, it would thus affect all states of the world. 33 The disarma- 
ment effort may aim only at a reduction and limitation of armaments. 34 
It would thus affect only states possessing substantial armaments. 
Reduction presupposes a final level of armaments and especially of 
armed forces. The aim of reduction is to bring armaments down to a 
minimum, recognized as necessary, representing the final military 
position of each state. Limitation means that, as of a certain date, no 
increase in armaments and especially no increase in armed forces is 
permitted, and total strength and total amount of equipment is frozen 
at a level determined by disclosure and verification. 35 

The reduction and limitation of armaments may be combined with 
the complete prohibition of certain types of armaments or of specific 
categories of arms and their use in warfare such as nuclear weapons 
and other weapons adaptable to mass destruction ; M chemical and 
bacterial weapons ; 37 submarines, 38 tanks and large mobile guns ; 39 
and aircraft, especially bombers. 40 

A kind of partial disarmament is so-called geographic disarma- 
ment — that is, the limitation or prohibition of armaments and armed 
forces in certain definite territorial areas or the establishment of 
demilitarized zones. 41 

There are two reasons why total disarmament is not considered 
to be possible: first, the need of each state to have at its disposal a 
certain armed force for the maintenance of internal order — that is 
to say, a national police force, a so-called irreducible component; 
second, the necessity of sanctions, especially enforcement measures 
involving the use of armed force as reactions against violations of 
the legal order constituting the security organization and in particu- 
lar as reactions against violations of the provisions concerning the 
reduction and limitation of armaments. 42 As long as these sanctions 
are to be executed by the members of the organization employing their 

370624—57 14 



204 

own national armed forces, no real disarmament is possible. The 
establishment of an international police force — that is, an armed 
force at the direct disposal of the international organization and 
different from, as well as independent of, the armed forces of the 
members — is an essential condition of an effective attempt to reduce 
and limit the latter. The only question is whether the abolition — 
that is, the prohibition and elimination — of certain types of arma- 
ments or categories of arms mentioned above, must be restricted to 
national or may be extended to international armed forces. If the 
abolition were extended, certain armaments- or arms, e. g., nuclear, 
chemical, bacterial weapons, and bombardment from the air, would be 
prohibited even in the execution of international sanctions. If the 
abolition were not extended, there would not be an absolute abolition 
but rather an internationalization of these types of armaments or of 
the production, possession, and use of such weapons. In this respect, 
the internationalization of military aviation plays an important part 
in the discussion of disarmament. 43 

Immediate, complete or gradual {progressive) disarmament. One 
of the most important conflicts of views in the discussion of the dis- 
armament problem is the conflict between immediate and complete 
disarmament and gradual (progressive) disarmament. It is under- 
standable that a state, and especially a great power, would be re- 
luctant to accept the obligation of immediate disarmament because it 
would be afraid to become the victim of another state, especially, a 
great power, which would not fulfil its obligation. Hence, a plan 
of gradual disarmament would have a far better chance of being suc- 
cessful. 44 In this respect, the question arises as to the relationship 
between the reduction of armaments and the establishment of an 
effective organization for its control. There is a divergence of opin- 
ion between those who suggest that a convention for the reduction 
and limitation, or even for the total or partial prohibition and elim- 
ination of armaments, should precede the organization of control, 
and those who prefer a reverse procedure because they think it a 
hopeless attempt to impose upon states the obligation to disarm 
without having previously established a legal system guaranteeing the 
fulfillment of this obligation. The question of the priority of con- 
trol plays a decisive role in the discussion of nuclear (atomic and 
hydrogen) disarmament. 45 A kind of compromise between these op- 
posite views is the proposal to put into force a convention for the re- 
duction and limitation of armaments and for the abolition of nuclear 
weapons, simultaneously with the establishment of an effective 
control machinery. 4 



46 



205 

Proportional or balanced disarmament. In contradistinction to 
proportional 47 reduction, the balanced reduction of armaments aims 
at avoiding the dangerous situation of disequilibrium between the 
different categories of armaments of one state and between the total 
armaments— and hence the war power — of different states. Only if 
this disequilibrium is avoided, it has been argued by the representa- 
tive of France in Committee 1 of the United Nations Disarmament 
Commission, might countries "pass from one stage to another without 
any danger to or even any lessening of their security. Each interme- 
diate step after the initial balance should be marked by increasing se- 
curity until a final balance was reached in which no state could menace 
the life of its neighbors. Balanced reduction was inconsistent with 
proportional reduction. The essential task was to render war im- 
possible. If peace was threatened by a disequilibrium between cer- 
tain armaments, it was not evident how proportional reduction could 
lead to security." 48 

GEOGRAPHICAL DISARMAMENT 

The term "geographical disarmament" has been suggested by J. H. 
Marshall- Cornwall 49 to designate "the restriction or prohibition of 
armaments and armed forces in certain definite territorial areas," that 
is to say, the demilitarization of particular zones of territory. There 
are two types of demilitarization: 1) the prohibition imposed upon 
states against erecting fortifications and stationing troops in certain 
zones of their territories in time of peace ; 2) the exclusion of a certain 
part of state territories from any military operations in time of war. 50 
The purpose of the first type of demilitarization is to prevent a future 
conflict by a regime maintained during time of peace. The purpose 
of the second is to restrict and localize hostilities once they have broken 
out. 51 This second type is sometimes termed the "neutralization" of a 
definite zone of territory (to be distinguished from the permanent 
neutralization of an entire state territory, such as the neutralization of 
Switzerland) or, to use a terminology suggested by Marshall-Corn- 
wall, the "immunization" of a definite zone of territory from war. 52 
Both types of demilitarization may be effected by international agree- 
ment or by the decision of the agency of an international security 
organization. 

Demilitarized zones are normally placed on the frontier between 
two states. 53 They may be restricted to the territory of one state 
only, as in the case of the unilateral demilitarization of the Rhine- 
land in the peace treaty of Versailles, 54 or they may be established 
on the territories of two neighboring states on both sides of their 
common frontier so that the demilitarized zone is determined, as 



206 

Marshall-Cornwall 55 formulates it, by three lines: the political fron- 
tier between the two states and, parallel to it and at a certain distance 
on either side, the boundaries of the demilitarized zone. "Although 
the zone boundaries are in principle parallel to and equidistant from 
the political frontier, they must in practice conform to the local topo- 
graphic, economic, and military circumstances and must be precisely 
demarcated on the ground." 56 

REDUCTION AND LIMITATION OF EXPENDITURES 

The reduction and limitation of armaments may be brought about 
not only directly by the reduction and limitation of effectives and 
war material but also indirectly by, the reduction and limitation 
of the sums to be spent on armaments — that is, by the reduction and 
limitation of the armaments expenditures or, as it is usually termed, 
the national defense expenditures. This term may be defined as 
"all expenditure necessitated or entailed by the creation, mainte- 
nance and training in time of peace of armed forces and formations 
organized on a military basis and by measures immediately con- 
nected with the preparation for national mobilization." 37 Although 
the reduction and limitation of expenditure are the most tangible 
proof of the reduction and limitation of armaments, there can be little 
doubt that the limitation of expenditure is not in itself an adequate 
measure of disarmament. Hence, a combination of the reduction 
and limitation of effectives and war material and a reduction and 
limitation of expenditure is advisable. 58 There may be a limitation 
of the total expenditure or limitation by categories — that is, by the 
separate limitation of expenditure for land, sea, air armaments or 
the separate limitation of expenditure for effectives as distinguished 
from expenditure for material, the expenses in manufacture, pur- 
chase, and upkeep of weapons and other war material. 59 As far 
as the distinction between peacetime and wartime armaments is con- 
cerned, it would seem that budgetary limitations can be effectively 
established only for peacetime armaments. 

Some writers hold that an essential condition for an effective 
limitation of expenditure is publishing the budget, either the mili- 
tary budget only or the total budget. Some governments which have 
not been in favor of budgetary limitations have wished to restrict 
budgetary regulations of a disarmament convention to publishing 
the budget. There is a divergence of opinion with respect to the 
question of whether budgetary limitations should be introduced im- 
mediately or should be preceded by a period of years during which 
only a system of budgetary publicity is established. The working 
of such a system would show to what extent budgetary limitation 



207 

is feasible. 60 The difficulties with which the establishment of budg- 
etary limitations is confronted are, in the main, the fluctuations in the 
purchasing power of currency and the differences in the budgetary 
systems of the different states. Consequently, unification of the mili- 
tary budget has been suggested. 61 

In connection with budgetary publicity and limitation, the abolition 
of secret funds has been suggested. 

On 29 August 1955, the French government submitted to the Sub- 
committee of the United Nations Disarmament Commission a draft 
agreement on the financial supervision of disarmament and the al- 
location for peaceful purposes of the funds made available. In this 
proposal reductions of military expenditures are combined with the 
allocation of the funds made available by these reductions for the 
improvement of levels of living and the development of under- 
developed areas. 62 

DEROGATIONS 

It is generally recognized that under certain circumstances a party 
to the disarmament convention may be permitted to go beyond the 
limits of armaments laid down in the convention. There is a ten- 
dency to restrict such permission to the case of an unprovoked aggres- 
sion. To provide derogation for any war without any qualification 
whatsoever makes any limitation of armaments illusory. Other cir- 
cumstances under which it has been suggested that derogation might 
take place are : a civil war, a threatened attack by another state, an un- 
foreseen circumstance such as a new weapon, a radical change in mili- 
tary laws, a radical change in the political organization of a neighbor- 
ing state, an alteration in the value of money. Such derogation may 
be possible only with the consent of the central organ of the security 
organization competent to decide the question as to whether these 
circumstances exist in the concrete case. 63 If the decision is left to 
the state concerned the provisions of the disarmament convention 
concerning the reduction and limitation of armaments can hardly be 
considered to be effective. 

CONTROL 

Another condition of an effective disarmament convention is an 
appropriate measure of control or supervision. In view of the close 
connection between control and sanctions it is understandable that 
the antagonism of opinions regarding the latter applies also to the 
former. There is a view that treaties rest on mutual confidence and 
that their fulfillment should not be supervised because any such at- 
tempt would only cause suspicion between states, while according 
to another view a disarmament convention which does not provide 



208 

for the establishment of a well organized control system is a blank 
cartridge. It does not guarantee that degree of security which is a 
necessary prerequisite for disarmament. 64 Control implies two func- 
tions: disclosure and verification. The international control agency 
must get all the necessary information concerning their armaments 
from the states concerned and must have the power to verify them 
by inspection and investigation in order to know not only the declared 
but also the clandestine activities of the states which are parties to 
the disarmament convention. The term "control," especially if ap- 
plied to atomic disarmament, is sometimes used in a wider sense mean- 
ing not only disclosure and verification by inspection but also certain 
measures constituting participation of the international control 
agency in the direction or management of the undertakings, especially 
international ownership of the material essential for the production 
of atomic energy. 65 

It stands to reason that full knowledge of all the facts relevant 
to the armaments or disarmament of states is an essential condition 
of all disarmament etForts. Hence, the states must be obliged to fur- 
nish the necessary information to the international control agency 
which may publish it. 66 This information can be verified effectiveh T 
only by an inspection carried out on the territory of the state whose 
armaments are to be investigated. The most important question in 
this respect is whether such investigations should have an obligatory 
character with the states which as parties to the disarmament conven- 
tion are obliged to allow on-the-spot inspection, or whether inspection 
by the international control agency should be possible only with the 
consent of the state concerned given in each concrete case. Inspection 
may be organized as a regular institution on a continuous basis, in- 
volving investigating at least once a year and whenever the control 
agency considers it necessary, or it may consist only of occasional in- 
vestigations conducted by the control agency in case of suspicion, 
especially at the request of one or more members of the security or- 
ganization and/or the suspected member itself. It may be con- 
ducted not only as a field inspection but also by aerial surveys and 
operated by a corps of technically qualified inspectors partly sta- 
tioned permanently in the countries adhering to the disarmament 
program. 67 

The reduction and limitation of armaments are not possible with- 
out the control of the manufacture of, and the trade in, arms, ammu- 
nition, and other war material. There are two different ways of or- 
ganizing this control: direct national control of manufacture and 
trade exercised by the government of each state within its country 
under the supervision of an international control agency— that is, 



209 

indirect international control; or direct international control of 
manufacture and trade without the interposition of direct national 
control. 

If the manufacture of arms and ammunition remains in the hands 
of private enterprise, it may be controlled by a system of licensing, 
with the licenses issued by the national government responsible for 
the strict handling of this system to an international control agency 
which must be kept informed by the national governments through 
detailed reports covering the production by value, number and 
weight of licensed private manufacture. The results of these re- 
ports should be published. Publishing the results of private 
manufacture is an essential element of this system. 

National control of the manufacture of arms and ammunition is 
perfect if private manufacture is abolished and a state monopoly 
of manufacture established. Publicizing state manufacture is a pre- 
requisite of its international control. The reports submitted to the 
international control agency may be verified by inspection on the 
spot, but the international control agency may be authorized to call 
for explanation only if it has reason to believe that the information 
is not reliable or, in case the national manufacture is limited by con- 
vention, that the imposed limits have been exceeded. 

National control of the trade in arms and ammunition may be exer- 
cised by a system of export and import licenses to be issued by the 
government. As to publishing and verifying these licenses, the same 
principles apply as in the case of manufacture. 

Direct international control of private manufacture may be exer- 
cised by a system of licenses to be issued not by the national govern- 
ments but by the international control agency. International control 
of this phase of the armaments process reaches its highest degree in the 
internationalization of the manufacture of arms and ammunition. Di- 
rect international control of the trade in arms and ammunition may be 
exercised by having the international control agency issue export and 
import licenses; by completely prohibiting the export and import of 
war material, except that states unable to manufacture the quantities 
allotted to them should be permitted to import the necessary quantities 
from abroad; by prohibiting the export and import of certain cate- 
gories of arms and ammunition, or the import to certain territories ; by 
prohibiting the export to private persons and permitting such export 
only to governments. In this case, the question of the recognition of 
government arises which, in case of a civil war, may be answered in 
different ways by different authorities. The principle of publicity 
applies also to a direct international control of the trade in arms and 
ammunition. In order to be effective, inspection on the spot is in- 
dispensable. 68 



210 

As far as the main organ competent to carry out the disarmament 
program is concerned, the first question is : should this organ be dif- 
ferent from the central organ of the international security organiza- 
tion, and, if so, what should be the relationship between them? In 
view of the fact that disarmament is an essential and probably the 
most important function of a security system, subordinating the dis- 
armament organ to the central security agency would seem to be ade- 
quate. If a special organ for the control of atomic energy is estab- 
lished, the same principle applies to the relationship between this 
organ and the disarmament agency. The composition of these organs 
may follow the patterns which have been indicated with respect to 
the composition of the central organ of a security organization. 69 

A highly disputed issue is that of the procedure in the disarmament 
agency. In particular, there is the question of whether or not the 
principle of the unanimity of the permanent members — the so-called 
veto right — should apply to the decisions of the atomic energy con- 
trol agency. It seems that, with the exception of the Soviet Union 
and of some other communist governments, most governments agree 
that the application of sanctions to be directed against a state which 
violates its obligations under the convention concerning control of 
atomic energy should not be prevented by the exercise of a veto right. 70 

MORAL DISARMAMENT 

Since in the course of the social evolution of civilized nations the 
almost general conviction has been formed that destroying human life 
is immoral, except as a sanction, it may be possible to bring the mass 
of the people to the belief that war, like murder, is a detestable crime. 
If this is achieved, the fundamental principle of the Charter of the 
United Nations may become not only the content of an international 
convention but also the content of the conscience of mankind. This 
is the ultimate goal of moral disarmament. 71 

As a means of achieving this goal, an international agreement might 
be concluded in which the contracting states would assume the obliga- 
tion to take certain legislative and administrative measures in the 
fields of social and especially political life — that is, in the fields of 
press, broadcasting, stage, cinema and, above all, education — for the 
purpose of influencing public opinion in favor of the maintenance of 
a durable peace. The most drastic measure in this agreement would 
be the application of penal law to certain acts dangerous to the peace. 
As punishable acts of this kind the following might be considered: 
undertakings calculated to disturb international relations, especially 
those whose purpose is incitment to war ; propaganda against peace ; 
agitation with a view to exerting pressure on the government in favor 



211 

of war while negotiations for the peaceful settlement of a conflict are 
in progress; founding or directing or even only belonging to an as- 
sociation whose aims are dangerous to the peace; publishing in the 
press false and tendentious reports on the international situation. In 
addition to a law providing for the punishment of those responsible 
for such reports, there would have to be legal provisions stipulating 
the right of having a reply to such reports published in the newspaper 
concerned or even authorizing the government to suppress the selling 
or spreading of the press products containing such reports. Gov- 
ernmental control of broadcasting, theatrical performances, and 
cinema shows with a view to preventing any abuse of these instru- 
ments of public opinion for the purpose of political propaganda in- 
compatible with the idea of moral disarmament would also be 
necessary. 

The most important means for effecting such disarmament is the 
organization of the education of youth and the training of teachers 
in a way that they may inspire the ideal of international peace and 
mutual respect between nations. In this connection, it would be neces- 
sary to control schoolbooks, especially those dealing with history, 
with a view to eliminating everything capable of arousing hatred of 
other peoples, and instruction in the basic principles of international 
law and in the organization and purposes of the United Nations would 
have to be compulsory. 72 

Some of these measures would constitute a radical restriction of the 
individual freedoms guaranteed by the constitutions of democratic 
states, especially the freedom of opinion and its expression. It may 
be very difficult to find a satisfactory compromise between this political 
ideal and that of moral disarmament. A still more serious difficulty 
confronting every intellectual movement directed against interna- 
tional war is the fact that, in almost all of the states of the world, 
there are political parties fostering a revolutionary ideology. As long 
as the actual circumstances of social life are such that a considerable 
part of the population considers, rightly or wrongly, civil war to be 
justifiable or even to be a necessary and inevitable means of improving 
their economic and political situation, the attempt to convince them 
that international war should be condemned under all circumstances 
remains problematical. 

NOTES 

1. Cf. Salvador De Madariaga, Disarmament (1929), pp. 217 ff. : "It is there- 
fore hopeless to try to solve the problem of armaments in isolation from the 
remaining problems of the world. . . . There is only one way of solving the 
problem of disarmament, and that is by considering it, in the admirable French 
saying, as the organization of peace" 



212 

2. Some modern writers in the field of international law and politics are rather 
sceptical about the possible effect of disarmament on international security. 
Stone, op. cit., p. 100, speaks ironically of "the slogan 'arbitration, security and 
disarmament'." He agrees with the opinion that this "slogan" was "one of the 
reactions to the messianic view that arbitration might be a specific against war. 
From this aspect the insistence of the slogan that all three elements were inter- 
dependent was a brilliant diplomatic device for shaking off tlie hounds of pacifist 
idealistic public opinion." Morgenthau, op. cit., pp. 383 ff., says : "At the founda- 
tion of the modern philosophy of disarmament there is the assumption that men 
fight because they have arms" ; but, so he objects, "Men do not fight because they 
have arms. They have arms because they deem it necessary to fight. . . . Reducing 
the quantity of weapons actually or potentially available at any particular time 
could have no influence upon the incidence of war; it could conceivably affect 
its conduct. Nations limited in the quantity of arms and men would concentrate 
all their energies upon the improvement of the quality of such arms and men 
as they possess. They would, furthermore, search for new weapons that might 
compensate them for the loss in quantity and assure them an advantage over 
their competitors. The elimination of certain types of weapons altogether would 
have a bearing upon the technology of warfare and, through it, upon the conduct 
of hostilities. It is hard to see how it could influence the frequency of war or 
do away with war altogether." This pessimistic evaluation of a policy aiming 
at disarmament starts from a wrong premise. Such a policy is not necessarily 
based on the illusion that disarmament will have the effect of making war im- 
possible. Its reasonable aim is to make war as a profitable enterprise more dif- 
ficult, and, as far as qualitative disarmament is concerned, to make the conduct 
of war more human. Disarmament is not the condition of peace but, as Marion 
W. Boggs (Attempts to Define and Limit "Aggressive" Armament in Diplomacy 
and Strategy. The University of Missouri Studies, Vol. XVI, no. 1, 1941, p. 104) 
states, "only one among the several indispensable conditions of peace." Mor- 
genthau admits : "Disarmament or at least regulation of armaments is an indis- 
pensable step in a general settlement of international conflicts. It can, however, 
not be the first step. Competition for armaments reflects, and is an instrument of, 
competition for power. So long as nations advance contradictory claims in the 
contest for power, they are forced by the very logic of the power contest to advance 
contradictory claims for armaments. Therefore, a mutually satisfactory settle- 
ment of the power contest is a precondition for disarmament. Once the nations 
concerned have agreed upon a mutually satisfactory distribution of power among 
themselves, they can then afford to reduce and limit their armaments. Disarma- 
ment, in turn, will contribute greatly to the general pacification." However, an 
agreement on "a mutually satisfactory distribution of power" necessarily implies 
an agreement concerning a mutually satisfactory "disarmament or at least regu- 
lation of armaments." For, as Morgenthau says (p. 27) : "In international 
politics . . . armed strength as a threat or a potentiality is the most important 
material factor making for the political power of a nation." His attempt to 
distinguish political power from military power is of no avail. He defines po- 
litical power as "the mutual relations of control among the holders of public 
authority" (p. 26) ; and by "control" he understands "a psychological relation 
between two minds" (p. 27). This relationship, he says, "is of the essence of 
political power." From this assumption he concludes that political power "must 
be distinguished from force in the sense of the actual exercise of physical vio- 
lence." But if — as he affirms — armed strength, that is military power, is essen- 
tial to political power, political power cannot be separated from military power. 



213 

On the other hand, even the "actual exercise of physical violence" implies "a 
psychological relation between two minds," that is, political power. Weapons, 
prisons, electric chairs are dead things. As instruments of military or police 
power they must be operated by men directed by the holders of public authority. 
If military power is an essential element of political power, the settlement of the 
power contest cannot be a precondition for disarmament, because the former is 
not possible without the latter. 

3. The idea that disarmament is an essential element of an effective system 
of international security was at the basis of the Covenant of the League of 
Nations in which the provisions concerning disarmament were placed imme- 
diately after those concerning the organization of the League and preceded 
those concerning the settlement of conflicts. They read as follows : 

"Article 8. 1. — The Members of the League recognize that the maintenance 
of peace requires the reduction of national armaments to the lowest point con- 
sistent with national safety and the enforcement by common action of inter- 
national obligations. 2. The Council, taking account of the geographical situa- 
tion and circumstances of each State, shall formulate plans for such reduc- 
tion for the consideration and action of the several Governments. 3. Such clans 
shall be subject to reconsideration and revision at least every 10 years. 4. After 
these plans shall have been adopted by the several Governments, the limits of 
armaments therein fixed shall not be exceeded without the concurrence of the 
Council. 5. The Members of the League agree that the manufacture by private 
enterprise of munitions and implements of war is open to grave objections. The 
Council shall advise how the evil effects attendant upon such manufacture can 
be prevented, due regard being had to the necessities of those Members of the 
League which are not able to manufacture the munitions and implements of 
war necessary for their safety. 6. The Members of the League undertake to 
interchange full and frank information as to the scale of their armaments, 
their military, naval and air programs and the condition of such of their indus- 
tries as are adaptable to warlike purposes. Article 9. A permanent Com- 
mission shall be constituted to advise the Council on the execution of the 
provisions of Articles 1 and 8 and on military, naval and air questions generally." 

In this respect there is a remarkable difference between the Covenant and 
the Charter of the United Nations. The Charter does not, as the Covenant did, 
recognize that the maintenance of peace requires disarmament. It contains, 
however, two Articles which deal with this problem. One is Article 11, para- 
graph 1, which authorizes the General Assembly to "consider the general prin- 
ciples of cooperation in the maintenance of international peace and security, 
including the principles governing disarmament and the regulation of arma- 
ments" and to "make recommendations with regard to such principles to the 
Members or to the Security Council or to both." The other is Article 26, which 
runs as follows : "In order to promote the establishment and maintenance of 
international peace and security with the least diversion for armaments of the 
world's human and economic resources, the Security Council shall be responsi- 
ble for formulating, with the assistance of the Military Staff Committee referred 
to in Article 47, plans to be submitted to the Members of the United Nations for 
the establishment of a system for the regulation of armaments." The Charter 
recognizes that a certain relationship exists between peace and disarmament, 
but only in so far as the maintenance of peace should be promoted with the 
"least diversion for armaments of the world's human and economic resources." 
Consequently, in the same sentences in which it refers to disarmament, it pro- 
vides for the establishment of principles or the formulation of plans for the 
regulation of armaments. 



214 

Nevertheless, an interpretation of the Charter is possible according to which 
the members of the United Nations may be subjected to much stricter obliga- 
tions with respect to their disarmament than were the members of the League. 
The latter could be obliged to disarm only under the "plan" formulated by 
the Council under Article 8, paragraphs 3 and 4, that is to say, the obligation 
of a member to reduce its own armaments could be established only with its 
consent. The same seems to be true with respect to Article 26 of the Charter. 
The "plans" formulated by the Security Council "for the establishment of a 
system for the regulation of armaments" may provide for reduction of arma- 
ments ; they must be "submitted to the Members of the United Nations." That 
means that they are binding upon the members only if accepted by them. The 
obligation is established by a treaty concluded by the Members with the Organi- 
zation. Unlike Article 8, paragraph 4, of the Covenant, Article 26 does not 
provide expressly for the "adoption" of the plan by the member, but if the 
plan of the Security Council is to be submitted to the members, it can be only 
for the purpose of being adopted by them. According to Article 26 — if inter- 
preted as an isolated provision of the Charter — the members are free to 
accept or not accept the plan formulated by the Security Council and submitted 
to them. The situation appears in a different light if Article 39 is taken into 
consideration. The fact that a member refuses to accept the plan providing for 
a reduction of its armament may, in the opinion of the Security Council, con- 
stitute a threat to the peace and consequently may lead directly or indirectly 
(through the intermediate stage of a non-accepted recommendation of the Se- 
curity Council) to an enforcement action. If this measure is interpreted as a 
sanction and if the obligation to behave in a certain way is considered to be 
constituted by a sanction to be executed in case of contrary behavior, the 
Security Council, in submitting the plan referred to in Article 26 to a member, 
may impose upon it the obligation to act in conformity with this plan; in 
other terms, the Security Council has the power to enforce its plans for the 
establishment of a system for the regulation of armaments which may provide 
for disarmament. 

The same interpretation may be applied to Article 11, paragraph 1. Accord- 
ing to the wording of this provision, the members are free to accept or not to 
accept the "recommendations" made to them by the General Assembly with re- 
gard to the principles governing disarmament and the regulations of armaments. 
However, under Article 39, the Security Council may determine that the refusal 
to accept the recommendation of the General Assembly is a threat to the peace 
and may enforce this "recommendation." Such enforcement of the disarma- 
ment plans of the Council was impossible under the Covenant. 

4. A memorandum on "French Opinion and the Problem of Collective Se- 
curity" by Georges Scelle and Ren6 Cassin [Collective Security, pp. 66 ff.] con- 
tains the statement that : "the French government upholds the formula : security 
first, then disarmament or at least disarmament in proportion to the degree of 
security obtained," and at the 32nd meeting of the First Committee of the 
General Assembly of the United Nations on 3 December 1946 the representative 
of France declared : "It must be recognized that disarmament is impossible 
without security organized along parallel lines. The French position on this 
point between the two World Wars was well known and had been justified by 
siibsequent events". Journal of the United 'Nations, No. 48, pp. 197-8. 

5. The full text of Resolution XIV runs as follows : 

"(a) The Assembly, having considered the report of the Temporary Mixed 
Commission on the question of a general Treaty of Mutual Guarantee, being of 



215 

opinion that this report can in no way affect the complete validity of all the 
Treaties of Peace or other agreements which are known to exist between States ; 
and considering that this report contains valuable suggestions as to the methods 
by which a Treaty of Mutual Guarantee could be made^ effective, is of the opinion 
that: 

1. No scheme for the reduction of armaments, within the meaning of 
Article 8 of the Covenant, can be fully successful unless it is general. 2. In 
the present state of the world many Governments would be unable to accept the 
responsibility for a serious reduction of armaments unless they received in 
exchange a satisfactory guarantee of the safety of their country. 3. Such a 
guarantee can be found in a defensive agreement which should be open to all 
countries, binding them to provide immediate and effective assistance in accord- 
ance with a prearranged plan in the event of one of them being attacked, pro- 
vided that the obligation to render assistance to a country attacked shall be 
limited in principle to those countries situated in the same part of the globe. 
In cases, however, where, for historical, geographical, or other reasons, a country 
is in special danger of attack, detailed arrangements should be made for its 
defense in accordance with the above-mentioned plan. 4. As a general reduc- 
tion of armaments is the object of the three preceding statements, and the Treaty 
of Mutual Guarantee the means of achieving that object, previous consent to 
this reduction is therefore the first condition for the Treaty. This reduction 
could be carried out either by means of a general Treaty, which is the most 
desirable plan, or by means of partial treaties designed to be extended and open 
to all countries. In the former case, the Treaty will carry with it a general 
reduction of armaments. In the latter case, the reduction should be propor- 
tionate to the guarantees afforded by the Treaty. The Council of the League, 
after having taken the advice of the Temporary Mixed Commission, which will 
examine how each of these two systems could be carried out, should further 
formulate and submit to the Governments for their consideration and sovereign 
decision the plan of the machinery, both political and military, necessary to 
bring them clearly into effect. 

(b) The Assembly requests the Council to submit to the various Govern- 
ments the above proposals for their observations, and requests the Temporary 
Mixed Commission to continue its investigations, and, in order to give precision 
to the above statements, to prepare a Draft Treaty embodying the principles 
contained therein." 

6. Cf. the Historical Survey of the Activities of the League of Nations regard- 
ing the Questions of Disarmament 1920-1937. United Nations, General As- 
sembly, Doc. A/AC.50/2, 18 June 1951 (hereafter referred to as Doc. A/AC.50/2), 
p. 27. 

7. Cf. pp. 85, 100. 

8. The full text of Resolution 41 (I) of the General Assembly runs as follows: 
"1. In pursuance of Article 11 of the Charter and with a view to strengthening 

international peace and security in conformity with the Purpose and Principles 
of the United Nations, 

The General Assembly, 

Recognizes the necessity of an early general regulation and reduction of 
armaments and armed forces. 
"2. Accordingly, 

The General Assembly, 

Recommends that the Security Council give prompt consideration to formu- 
lating the practical measures, according to their priority, which are essential to 



216 



provide for the general regulation and reduction of armaments and armed forces 
and to assure that such regulation and reduction of armaments and armed forces 
will be generally observed by all participants and not unilaterally by only some 
of the participants. The plans formulated by the Security Council shall be sub- 
mitted by the Secretary-General to the Members of the United Nations for con- 
sideration at a special session of the General Assembly. The treaties or conven- 
tions approved by the General Assembly shall be submitted to the signatory States 
for ratification in accordance with Article 26 of the Charter. 

"3. As an essential step toward the urgent objective of prohibiting and eliminat- 
ing from national armaments atomic and all other major weapons adaptable now 
and in the future to mass destruction, and the early establishment of international 
control of atomic energy and other modern scientific discoveries and technical 
developments to ensure their use only for peaceful purposes, 

The General Assembly, 

Urges the expeditious fulfilment by the Atomic Energy Commission of its 
terms of reference as set forth in section 5 of the General Assembly resolution of 
24 January 1946. 

"4. In order to ensure that the general prohibition, regulation and reduction of 
armaments are directed towards the major weapons of modern warfare and not 
merely towards the minor weapons, 

The General Assembly, 

Recommends that the Security Council expedite consideration of the reports 
which the Atomic Energy Commission will make to the Security Council and that 
it facilitate the work of that Commission, and also that the Security Council 
expedite consideration of a draft convention or conventions for the creation of 
an international system of control and inspection, these conventions to include 
the prohibition of atomic and all other major weapons adaptable now and in 
the future to mass destruction and the control of atomic energy to the extent 
necessary to ensure its use only for peaceful purposes. 
"5. The General Assembly, 

Further recognizes that essential to the general regulation and reduction 
of armaments and armed forces, is the provision of practical and effective safe- 
guards by way of inspection and other means to protect complying States against 
the hazards of violations and evasions. 

Accordingly, 

The General Assembly, 

Recommends to the Security Council that it give prompt consideration to 
the working out of proposals to provide such practical and effective safeguards in 
connection with the control of atomic energy and the general regulation and 
reduction of armaments. 

"6. To ensure the adoption of measures for the early general regulation and 
reduction of armaments and armed forces, for the prohibition of the use of atomic 
energy for military purposes and the elimination from national armaments of 
atomic and all other major weapons adaptable now or in the future to mass 
destruction, and for the control of atomic energy to the extent necessary to 
ensure its use only for peaceful purposes, 

There shall be established, within the framework of the Security Council, 
which bears the primary responsibility for the maintenance of international 
peace and security, an international system, as mentioned in paragraph 4, 
operating through special organs, which organs shall derive their powers and 
status from the convention or conventions under which they are established. 



217 

"7. The General Assembly, 

Regarding the problem of security as closely connected with that of dis- 
armament, 

Recommends the Security Council to accelerate as much as possible the 
placing at its disposal of the armed forces mentioned in Article 43 of the Charter ; 

Recommends the Members to undertake the progressive and balanced with- 
drawal, taking into account the needs of occupation, of their armed forces sta- 
tioned in ex-enemy territories, and the withdrawal without delay of their armed 
forces stationed in the territories of Members without their consent freely and 
publicly expressed in treaties or agreements consistent with the Charter and not 
contradicting international agreements ; 

Further recommends a corresponding reduction of national armed forces, 
and a general progressive and balanced reduction of national armed forces. 

"8. Nothing herein contained shall alter or limit the resolution of the General 
Assembly passed on 24 January 1946, creating the Atomic Energy Commission. 
"9. The General Assembly, 

Calls upon all Members of the United Nations to render every possible as- 
sistance to the Security Council and the Atomic Energy Commission in order 
to promote the establishment and maintenance of international peace and col- 
lective security with the least diversion for armaments of the world's human 
and economic resources." 

9. Atomic Energy Commission. Official Records. Special Supplement. Re- 
port to the Security Council (New York, 1946), p. 37. 

10. Cf. Madariaga, op. cit., p. 84. 

11. C/.p.23. 

12. Cf. Madariaga, op. cit., pp. 8 ff. 

13. Madariaga, op. cit., pp. 11 ff. says : " 'If you want peace, prepare for war.' 
That is, if you want something, get ready for the reverse of it. Such is the 
slogan generally opposed to disarmament efforts. Now, there was a time when 
circumstances may have given some practical justification to this theoretically 
untenable position. Nations small and sparsely distributed over unorganized 
territories, small armies, simple weapons, little or no international faith, un- 
stable compacts, personal influence on international policies, may have made the 
method of preparedness the cheapest, safest, and most practicable, nay, the 
only one available. To-day, the situation is the very reverse. The world has 
grown small for our power and resources. Only one opinion and only one 
market cover the face of the earth. Wars absorb the whole population of the 
countries which engage in them, exact all their resources and consume all the 
raw materials which human ingenuity has wrung from the recesses of the earth. 
In this condition, preparing for war means securing indefinite stocks of food 
and raw materials of all kinds and/or absolute control over the sources of sup- 
ply and communications. Short of that, preparing for war is a worthless slogan 
or a misleading falsehood. Preparedness leads therefore to the scramble for 
raw materials and territories, and thence to increasing causes of friction and 
possibilities of war." 

14. Doc. A/AC.50/2, p. 40. 

15. Cf.,ibid., p. 39. 

16. Cf., Madariaga, op. cit., pp. 42 ff. 

17. Cf. Doc. A/AC.50/2, p. 49. 

18. The Problem of pre-military training and military training given outside 
the army was considered by the Technical Committee of the League of Nations 



218 

Disarmament Conference in connection with the question of effectives. The 
Technical Committee gave the following definition of pre-military training : 

"Pre-military training shall be deemed to mean all kinds of training in- 
volving military instruction given in any form whatsoever (voluntary or com- 
pulsory) to young men aged 18 years at least, prior to their possible incorpora- 
tion in the armed forces." 

The Technical Committee defined military training elsewhere than in the 
army as being training having the following principal characteristics : 

"(1) Technical and tactical training in the use of individual and collective 
arms used in war ; 

(2) Training for field service in varied terrain. 
In addition, individual cases will have to be examined, taking into ac- 
count especially the following criteria : 

(1) Training of cadres in indoor (on the map) and outdoor exercises; 

(2) Use of military means of liaison and signalling." 
Doc. A/AC.50/2, p. 104. 

The Draft Convention adopted in the first reading by the General Commission 
of the League of Nations Disarmament Conference (Conf. D, 163 (1) Geneva, 
Sept. 22nd, 1933. Series of League of Nations Publications IX. Disarmament, 
1935, IX/4, pp. 600 ff. [hereafter referred to as Draft Convention] ), contained in 
Part II, Disarmament, Section I, Effectives, the following provision : "Article 9. 
It is understood that effectives consist of : (a) all officers, officer cadets, N. C. O.s, 
soldiers, sailors, airmen, reservists and all other persons (such as military 
officials of the administrative, sanitary or veterinary services or military agents) 
of equivalent status who perform a day's duty in the land, sea and air armed 
forces; (b) Persons who perform a day's duty in police forces or similar forma- 
tions under the conditions prescribed in Article 12; (c) All other persons of at 
least 18 years of age who receive military training under the control of the 
State. Military training is taken to mean any training given to persons of at 
least 18 years of age under the military regulations in force in each country or 
under regulations containing similar provisions, with a view to preparing those 
who receive it for performing military duty in the armed forces. The main 
characteristics of this training are as follows: (1) Technical and tactical train- 
ing in the use of individual and other than individual arms used in war; (2) 
training in field service over broken ground. Furthermore, in the examination 
of special cases, account will be taken, in particular, of the following criteria : 
(1) theoretical (by map) and field training of cadres; (2) use of military 
methods of communication and signalling. Physical and sports training in the 
strict sense of the term, for whatever purpose given, shall not be regarded as 
military training." As to Article 12, cf. p. 200 and note 20. 

19. According to a proposal made on 20 June 1932 by President Hoover to 
the General Commission of the Conference for the Reduction and Limitation 
of Armaments. Doc. A/AC.50/2, p. 88. 

20. According to the Draft Convention, Part II, Section I, Article 12. Article 
13 ran as follows: "The following naval effectives should be included among 
effectives of the land armed forces: (a) Effectives employed in land coast de- 
fense; (b) Marines who are normally in excess of those assigned to, or destined 
for, service afloat; (c) Effectives coming within the classification of similar 
formations (as defined in Article 12). Naval personnel serving ashore in the fleet 
services (training, administrative, etc.), as well as those assigned to, or destined 
for, service afloat, will be included in the effectives of the sea armed forces." 



219 

21. On 12 August 1948, the Commission for Conventional Armament resolved 
to advise the Security Council "1. that it considers that all armaments and 
armed forces, except atomic weapons and weapons of mass destruction, fall within 
its jurisdiction and that weapons of mass destruction should be defined to include 
atomic explosive weapons, radio-active material weapons, lethal chemical and 
biological weapons, and any weapons developed in the future which have char- 
acteristics comparable in destructive effect to those of the atomic bomb or other 
weapons mentioned above. 2. that it proposes to proceed with its work on the 
basis of the above definition." Doc. S/C.3/32/Rev. 1. 18 August 1948. 

22. This definition was formulated by the representatives of France in Com- 
mittee 1 of the United Nations Disarmament Commission on 4 April 1952. 
United Nations Disarmament Commision. Official Records. Special Supple- 
ment No. 1. Second Report of the Disarmament Commission (hereafter 
referred to as Second Report of the United Nations Disarmament Commission), 
pp. 49-50. 

23. Treaties on limitation of naval armaments are : the Treaty signed by the 
United States of America, Great Britain, France, Italy and Japan at Wash- 
ington on 6 February 1922 ; the Treaty signed by the same Parties at London on 22 
April 1930 ; the Treaty signed by the United States of America, France and Great 
Britain at London on 25 March 1936 ; the Agreement concerning Limitation 
of Naval Armament and the Exchange of Information concerning Naval Construc- 
tion between Great Britain and Germany, London, 17 July 1937 ; and the Agree- 
ment signed at the same date between Great Britain and the Soviet Union. 

24. Cf. Doc. A/AC.50/2, p. 68. 

25. Cf. Boggs, op. cit., passim and p. 99. 

26. Second Report of the United Nations Disarmament Commission, p. 50. 

27. Ibid., pp. 50, 59. 

28. Boggs, op. cit., pp. 13 f. : "When quantitative disarmament is applied, the 
absolute magnitude of the various categories of the armed forces is fixed at certain 
levels, all forces in excess of that limit being disbanded or destroyed, and their re- 
establishment prohibited. This involves at the outset definition of an armament 
ratio, or determination of the relative quantities of armaments permitted to 
various states after the entry into force of a disarmament convention." The 
qualitative principle "involves the abolition or reduction, or alternatively, the in- 
ternationalization in a world police force, of those classes of weapons and forms of 
military organization deemed 'aggressive,' or 'offensive,' or of greater utility to the 
attack than to the defense." 

29. Cf. pp. 206 f . 

30. In its report to the Assembly of the League of Nations on 7 September 
1922 the Temporary Mixed Commission established by the Council on 25 Febru- 
ary 1921 laid down the principle that limitation of armaments must be based 
on peacetime strength. Cf. Doc. A/AC.50/2, p. 16. 

31. Principles at the basis of the French Draft Convention submitted to the 
Preparatory Commission on 23 March 1927. Cf. Doc. A/AC.50/2, pp. 49-50; 
Cf. also loc. cit., p. 39. 

32. The first concrete proposal for disarmament considered by the Temporary 
Mixed Commission and submitted by Lord Esher (United Kingdom) suggested 
a definite scale of reduction of peace effectives to be adopted by the various 
governments of Europe and was based on a fixed ratio of standing military 
and air forces. It did not refer to sea armament. Cf. Madariaga, op. cit., 
p. 89, and Doc. A/AC.50/2, p. 16. 

370624—57 15 



220 

33. At the fourth session of the Preparatory Commission for the Disarma- 
ment Conference (established on 12 December 1925 by the Council of the League 
of Nations) which opened on 30 November 1927 the delegation of the U.S.S.R. 
proposed measures for the complete and immediate abolition of all land, naval 
and air forces along the following lines: "(a) The dissolution of all land, sea 
and air forces and the non-admittance of their existence in any concealed form 
whatsoever; (b) The destruction of all weapons, military supplies, means for 
chemical warfare and all other forms of armament and means of destruction 
In the possession of troops or in military or general stores; (c) The scrapping 
of all warships and military air vessels; (d) The discontinuance of calling 
up citizens for military training either in armies or public bodies; (e) Legis- 
lation for the abolition of military service, either compulsory, voluntary or 
recruited; (f) Legislation prohibiting the calling-up of trained reserves; (g) 
The destruction of fortresses and naval and air bases; (h) The scrapping 
of military plans and factories and of war industry equipment in general 
industrial works; (i) The discontinuance of assigning funds for military pur- 
poses both on State budgets and those of public bodies; (k) The abolition 
of military, naval and air ministeries, and the dissolution of general staffs and 
military administrations, departments and institutions of every kind; (1) The 
legislative prohibition of military propaganda and military training of the popu- 
lation and of military education both in State and public bodies; (m) The 
legislative prohibition of the patenting of all kinds of armaments and means 
of destruction with a view to the removal of incentives to the invention of 
the same; (n) Legislation making the infringement of any of the above 
stipulations a grave crime against the State; (o) The withdrawal or corres- 
ponding alteration of all legislative acts, both of national or international 
scope, infringing the above stipulations." Doc. A/AC.50/2, pp. 51-2. 

34. The President of the League of Nations Preparatory Commission, opening 
the general discussion of the problem of disarmament on 21 March 1927 declared 
that the Commission's task was to consider reduction of armaments and not 
"disarmament" which has a false ring, as in the present state of affairs it 
must be regarded as difficult of achievement. Doc. A/AC.50/2, p. 47. 

35. Second Report of the United Nations Disarmament Commission, p. 50. 

36. Resolution 1 (I) of the General Assembly concerning the establishment of 
the Atomic Energy Commission, adopted on 24 January 1946, provided : "The 
Commission shall proceed with the utmost despatch and enquire into all phases of 
the problem, and make such recommendations from time to time with respect to 
them as it finds possible. In particular, the Commission shall make specific pro- 
posals: (a) for extending between all nations the exchange of basic scientific 
information for peaceful ends; (b) for control of atomic energy to the extent 
necessary to ensure its use only for peaceful purposes; (c) for the elimination 
from national armaments of atomic weapons and of all other major weapons 
adaptable to mass destruction ; (d) for effective safeguards by way of inspection 
and other means to protect complying States against the hazards of violations and 
evasions. — The work of the Commission should proceed by separate stages, the 
successful completion of each of which will develop the necessary confidence of the 
world before the next stage is undertaken." And in Resolution 808 (IX) , adopted 
on 4 November 1954, the General Assembly, "Reaffirming the responsibility of the 
United Nations for seeking a solution of the disarmament problem .... 1. Con- 
cludes that a further effort should be made to reach agreement on comprehensive 
and coordinated proposals to be embodied in a draft international disarmament 
convention providing for: (a) The regulation, limitation and major reduction 



221 

of all armed forces and all conventional armaments ; (b) The total prohibition of 
the use and manufacture of nuclear weapons and weapons of mass destruction of 
every type, together with the conversion of existing stocks of nuclear weapons for 
peaceful purposes; (c) The establishment of effective international control, 
through a control organ with rights, powers and functions adequate to guarantee 
the effective observance of the agreed reductions of all armaments and armed 
forces and the prohibition of nuclear and other weapons of mass destruction, and to 
ensure the use of atomic energy for peaceful purposes only; — The whole pro- 
gramme to be such that no State would have cause to fear that its security was 
endangered . . ." 

37. The Protocol for the Prohibition of the Use in War of Asphyxiating, Poison- 
ous or other Gases and of Bacteriological Methods of Warfare signed at Geneva 
17 June 1925 contains the following provisions : "Whereas the use in war of as- 
phyxiating, poisonous or other gases, and of all analogous liquids, materials or 
devices, has been justly condemned by the general opinion of the civilized world ; 
and whereas the prohibition of such use has been declared in Treaties to which 
the majority of Powers of the world are Parties ; and to the end that this pro- 
hibition shall be universally accepted as a part of International Law, binding 
alike the conscience and the practice of nations ; [the signatories] declare : That 
the High Contracting Parties, so far as they are not already Parties to Treaties 
prohibiting such use, accept this prohibition, agree to extend this prohibition to 
the use of bacteriological methods of warfare and agree to be bound as between 
themselves according to the terms of this declaration. — The High Contracting 
Parties will exert every effort to induce other States to accede to the present 
Protocol. Such accession will be notified to the Government of the French Re- 
public, and by the latter to all signatory and acceding Powers, and will take 
effect on the date of the notification by the Government of the French Republic.'* 

The League of Nations Preparatory Commission for the Disarmament Con- 
ference adopted on 23 April 1929 the following text to be included in a draft 
convention on disarmament : "The High Contracting Parties undertake, subject 
to reciprocity, to abstain from the use in war of asphyxiating, poisonous or sim- 
ilar gases and of all analogous liquids, substances or processes. They under- 
take unreservedly to abstain from the use of all bacteriological methods of 
warfare." Doc. A/AC.50/2, p. 57. 

The Draft Convention contained in Part IV. — Chemical Warfare, among 
others, the following provisions : "Article 47. The following provision is ac- 
cepted as an established rule of International Law : The use of chemical, in- 
cendiary or bacterial weapons as against any State, whether or not a party to 
the present Convention, and in any war, whatever its character, is prohibited. 
This provision does not, however, deprive any party which has been the victim 
of the illegal use of chemical or incendiary weapons of the right to retaliate, 
subject to such conditions as may hereafter be agreed." "Article 51. All prep- 
arations for chemical, incendiary or bacterial warfare shall be prohibited in time 
of peace as in time of war." 

A United States Working Paper (DC/15) setting forth a summary of proposals 
made by the United States representative in the United Nations Disarmament 
Commission on 15 August 1952 contains the following passage : "It is proposed 
that appropriate stages in an effective system of disclosure and verification 
agreed measures should become effective providing for the progressive curtail- 
ment of production, the progressive dismantling of plants, and the progressive 
destruction of stockpiles of bacterial weapons and related appliances. Under this 
programme, with co-operation in good faith by the principal States concerned, all 



222 

bacterial weapons and all facilities and appliances connected therewith should be 
completely eliminated from national armaments and their use prohibited." Sec- 
ond Report of the Disarmament Commission, pp. 154-5. 

38. On 22 February 1932 the United Kingdom submitted to the League of Na- 
tions Conference for the Reduction and Limitation of Armaments the prohibi- 
tion and abolition of submarines as a humanitarian measure. Doc. A/AC.50/2, 
p. 83. 

39. On 22 June 1932 the United States delegation proposed the abolition of all 
tanks, of chemical warfare and of large mobile guns to the Conference. Doc. 
A/AC.50/2, p. 88. 

40. The United Kingdom draft convention submitted to the League of Na- 
tions Conference for the Reduction and Limitation of Armaments provided for 
the complete abolition of bombing from the air except for police purposes in 
certain outlying regions. It was recognized that a complete abolition of mili- 
tary and naval aircraft must depend on an effective supervision of civil aviation. 
Doc. A/AC.50/2, p. 106. 

41. Cf. pp. 205 f. 

42. On 24 April 1952 the representative of the United States submitted to the 
United Nations Disarmament Commission proposals entitled "Essential Prin- 
ciples for a disarmament programme" (DC/C.1/1). Point 3, referring to the 
goal of disarmament, reads as follows : "To reach and keep this goal, interna- 
tional agreements must be entered into by which all States would reduce their 
armed forces to levels, and restrict their armaments to types and quantities, 
necessary for (a) The maintenance of internal security, (b) Fulfilment of 
obligations of States to maintain peace and security in accordance with the 
United Nations Charter." Second Report of the Disarmament Commission, 
p. 63. Cf. note46. 

During the debate on the program of work in committee 1 of the United Na- 
tions Disarmament Commission, the representative of France declared the 
forces strictly necessary to a state within the framework of a collective security 
system may be determined as follows: "(a) police forces required for the se- 
curity of metropolitan territory; (b) forces required for the security of geo- 
graphically separated dependent territories; (c) reserves for the foregoing 
forces, and (d) forces to be placed at the disposal of the United Nations." Sec- 
ond Report of the United Nations Disarmament Commission, p. 51. 

43. The Report on International Sanctions contains, on p. 125, the follow- 
ing statements : "Many believers in the idea of an international police have 
been led to concentrate on the air arm by a knowledge of the tremendous 
advance that has been made in the technique of aviation since this weapon was 
first employed for military purposes in the Great War. The greatest preoccupa- 
tion in the minds of governments and peoples to-day is fear of an attack from 
the air — an attack which can be launched at almost a moment's notice, which 
can strike immediately at the heart of a nation, and against which many military 
•experts and responsible statesmen have declared there can be no sure defence. 
It is felt that the danger of such an attack can be removed only by the abolition 
■of national air forces, but that nations cannot be expected to renounce the use 
of the air weapon unless they are assured of the support of an international 
air force in case of unprovoked aggression on their territory." 

44. On 24 March 1928 the Preparatory Commission for the League of Nations 
Disarmament Conference adopted the following resolution: "The Preparatory 
Commission for the Disarmament Conference : Having examined the bases of 
the Draft Convention for Immediate, Complete and General Disarmament sub- 






223 

mitted by the Union of Socialist Soviet Republics, notes that the immense ma- 
jority of its members are of opinion that this draft, while in harmony with the 
ideals of mankind, is under existing world conditions incapable of being carried 
into execution, that it can only be realized when international organization is 
strengthened in respect both of methods of pacific procedure and the system of 
sanctions, and that, consequently, the said draft cannot be accepted by the Com- 
mission as a basis for its work, which work must be pursued along the lines 
already mapped out." Doc. A/AC.50/2, pp. 54, 55. On 19 April 1932 the Gen- 
eral Commission of the Disarmament Conference, created on 8 February 1932, 
adopted the following resolution : "In view of the opinions expressed during the 
discussion at the Conference for the Reduction and Limitation of Armaments, 
the General Commission considers that the reduction of armaments, as provided 
for in Article 8 of the Covenant of the League of Nations, shall, after this Con- 
ference has taken the first decisive step of general reduction to the lowest possi- 
ble level, be progressively achieved by means of successive revisions at appro- 
priate intervals.' Log. tit. p. 89. 

In a draft resolution submitted to the Subcommittee of the UN Disarmament 
Commission (Doc. DC/SC. 1/15/Rev. 1, 8 March 1955, and DC/SC. 1/22, 1 April 
1955), Canada, France, the United Kingdom and the United States suggested that 
the disarmament program should be carried out in the following stages : 

"I. After the constitution and positioning of the control organ which shall be 
carried out within a specified time, and as soon as the control organ reports that 
it is able effectively to enforce them, the following measures shall enter into 
effect: (a) conventional armament and overall military manpower shall be 
limited to levels existing on 31 December 1954, or such other date as may be 
agreed at the World Disarmament Conference, (b) overall military expenditure, 
both atomic and nonatomic, shall be limited to amounts spent in the year ending 
31 December 1954, or such other date as may be agreed at the World Disarmament 
Conference. 

II. As soon as the control organ reports that it is able effectively to enforce 
them, the following measures shall enter into effect: (a) one-half of the agreed 
reductions of conventional armaments and armed forces shall take effect ; (b) on 
completion of (a) : the manufacture of all kinds of nuclear weapons and all other 
prohibited weapons shall cease. 

III. As soon as the control organ reports that it is able effectively to enforce 
them, the following measures shall enter into effect: (a) The second half of the 
agreed reductions of conventional armaments and armed forces shall take effect ; 
(b) On completion of (a) : i. The total prohibition and elimination of nuclear 
weapons and the conversion of existing stocks of nuclear materials for peaceful 
purposes shall be carried out ; ii. The total prohibition and elimination of all other 
prohibited weapons shall be carried out; The measures mentioned in sub- 
paragraphs II and III above shall be accompanied by consequent reductions in 
over-all military expenditure." 

Second Report of the Subcommittee of the Disarmament Commission, An- 
nexes 4 and 11. 

On 4 May 1956, Canada, France, the United Kingdom and the United States of 
America submitted to the Subcommittee of the Disarmament Commission a 
Declaration (DC/SC.1/46), which contains the following statements: "(1) The 
programme [of disarmament] should proceed by stages. Progress from one state 
to another must depend upon the satisfactory execution of the preceding stage 
and upon the development of confidence through the settlement of major political 
problems. (2) The programme should begin, under effective international con- 



224 

trol, with significant reductions in armed forces, to such levels as are feasible in 
present unsettled world conditions. There should be corresponding reductions in 
conventional armaments and in military expenditures. Further reductions would 
be carried out as world conditions improved. (3) The programme should provide 
that, at an appropriate stage and under proper safeguards, the build-up of stock- 
piles of nuclear weapons would be stopped and all future production of nuclear 
material devoted to peaceful uses. (4) The programme should provide for a 
strong control organization with inspection rights, including aerial reconnais- 
sance, operating from the outself and developing in parallel with the disarmament 
measures. The control measures should also provide against major surprise 
attack. This is particularly important so long as it is impossible to account for 
past production of nuclear material. (5) Preliminary demonstrations of inspec- 
tion methods on a limited scale would help to develop an effective control system 
and could bring nearer agreement on a disarmament programme. (6) Provision 
should be made for the suspension of the programme, in whole or in part, if a 
major State failed to carry out its obligations or if a threat to peace under Chapter 
VII of the United Nations Charter should occur." Third Report of the Sub- 
Committee of the Disarmament Commission (Doc. DC/83, 4 May 1956), Annex 
10. 

45. In its Third Report, adopted on 17 May 1948 (AEC/31), the Atomic 
Energy Commission declared that it had reached an impasse in its work caused 
by the fact that the U. S. S. R. held that a convention outlawing atomic weapons 
and providing for the destruction of existing weapons must precede any con- 
trol agreement on the ground that the prohibition of atomic weapons would be 
the only valid reason for the establishment of a control system, whereas the 
majority of the Commission considered that such a convention, without safe- 
guards, would offer no protection against non-compliance. 

46. The majority of the members of the United Nations was always of the opin- 
ion that effective control is an essential condition of reduction and limitation of 
armaments and especially of the prohibition of nuclear weapons. Resolution 192 
(III), adopted by the General Assembly on 19 November 1948, contains the 
statement "that the aim of the reduction of conventional armaments and armed 
forces can only be attained in an atmosphere of real and lasting improvement in 
international relations, which implies in particular the application of control of 
atomic energy involving the prohibition of the atomic weapon." In Resolution 
299 (IV) adopted on 23 November 1949, the General Assembly "Calls upon 
Governments to do everything in their power to make possible, by the acceptance 
of effective international control, the effective prohibition and elimination of 
atomic weapons"; and in Resolution 290 (IV) adopted on 1 December 1949, the 
General Assembly "Calls upon every nation" "To agree to the exercise of national 
sovereignty jointly with other nations to the extent necessary to attain interna- 
tional control of atomic energy which would make effective the prohibition of 
atomic weapons and assure the use of atomic energy for peaceful purposes only." 
By resolution 502 (VI) adopted by the General Assembly on 11 January 1952 
the Atomic Energy Commission was dissolved and the Disarmament Commission 
of the United Nations established. In this resolution the General Assembly 
declared that "in a system of guaranteed disarmament there must be progressive 
disclosure and verification on a continuing basis of all armed forces — including 
para-military, security and police forces — and all armaments including atomic" ; 
and that the implementation of this disclosure and verification "is recognized as 
a first and indispensable step in carrying out the disarmament programme 
envisaged in the present resolution'' (Italics supplied). In its Resolution 









225 

914 (X), adopted on 16 December 1955, the General Assembly declared that 
"a control system" "is the keystone to any disarmament agreement." 

47. On 23 March 1928 the delegation of the U.S.S.R. submitted to the Prepa- 
tory Commission for the League of Nations Disarmament Conference a draft 
convention for the reduction of armaments, the principles of which were stated 
by the representatives of the U.S.S.R. on 17 April 1929 as follows: "(1) The 
substantial reduction of existing armaments; (2) the carrying out of reduc- 
tion on proportional principles, with certain deviations in favour of less protected 
and smaller countries; (3) the establishment at once of a coefficient for pro- 
portional reduction." In response, the Commission declared on 19 April 1929 
that it "has not seen its way to adhere to the method of reduction based on 
the proportional principle" and to accept "numerical coefficients for the reduc- 
tion of armaments" constituting this method. (Doc. A/AC.50/2, p. 55) The 
Resolution 502 (VI) adopted by the General Assembly of the United Nations 
on 11 January 1952 required a "balanced" reduction of all armed forces and 
all armaments. 

48. The representative of France declared also : "The security of a State 
or group of States was indivisible. Effectives and conventional armaments 
could not be separated from atomic armaments because the latter contributed 
to national security as long as they were not prohibited. Proportional reduction 
could not be considered since there was neither — (1) equilibrium between 
atomic armaments nor (2) equilibrium between conventional armaments and 
armed forces. The existing disequilibrium in one area compensated for the 
disequilibrium in the other. The U.S.S.R. proposals for prohibition of atomic 
weapons and proportional reductions of conventional weapons would reduce the 
security of some instead of increasing the security of all. The only way to 
meet the problem was to group atomic and conventional elements and to take 
the precarious initial balance resulting from the excess of atomic bombs on 
one side, and the excess of divisions on the other, as a point of departure. If 
there were an excess of one thousand atomic bombs on one side and 
an excess of one hundred divisions on the other, the suppression of the atomic 
bomb should involve the dissolution of the hundred divisions. By this means 
a first balanced reduction would have been effected with a general increase 
of security. After that, matters would be simpler, since all armaments would 
be conventional. Reduction might take place in three stages, in each of which 
each country would reduce its arms by one-third of the difference between the 
minimum levels set for it and the forces existing on the completion of the first 
reduction." Second Report of the United Nations Disarmament Commission, 
pp. 51, 52. 

On 28 May 1952 France, the United Kingdom and the United States submitted 
to the United Nations Disarmament Commission a Working Paper setting 
forth proposals for fixing numerical limitations of all armed forces. (United 
Nations Disarmanent Commission Doc. DC/10, 28 May 1952.) It contained the 
following working formula fixing numerical ceilings for China, France, the Union 
of Soviet Socialist Republics, the United Kingdom, and the United States of 
America : 

"(a) There should be fixed numerical ceilings for China, France, the Union 
of Soviet Socialist Republics, the United Kingdom, and the United States of 
America which should be worked out with a view to avoiding a disequilibrium of 
power dangerous to international peace and security among themselves or with 
other States and thus reducing the danger of war. It is tentatively suggested 
that the maximum ceilings for the Union of Soviet Socialist Republics, the United 



226 

States of America and China should be the same and fixed, at, say, between 
1 million and 1.5 million, and the maximum ceilings for the United Kingdom 
and France should be the same and fixed at, say, between 700,000 and 800,000. 

(b) For all other States having substantial armed forces there should be 
agreed maximum ceilings fixed in relation to the ceilings agreed upon for the 
Five Powers. Such ceilings should be fixed with a view to avoiding a dis- 
equilibrium of power dangerous to international peace and security in any 
area of the world and thus reducing the danger of war. The ceilings would 
normally be less than one per cent of the population. Moreover, they should 
be less than current levels except in very special circumstances." 

A Supplement to this Working Paper (DC/12, 12 August 1952) reads as 
follows : 

"I. It is contemplated that any agreement for the numerical limitation 
of armed forces would necessarily comprehend : 

(a) provisions to ensure that production of armaments and quantities 
of armaments bear a direct relation to the amounts needed for permitted armed 
forces ; 

(b) provisions for composition of permitted armed forcas and arma- 
ments in order to prevent undue concentration of total permitted armed forces 
in a manner which might prejudice a balanced reduction ; 

(c) procedures in conformity with the directive contained in paragraph 
6 (b) of General Assembly Resolution 502 (VI) of 11 January 1952, for the 
negotiation within overall limitations of mutually agreed programmes of armed 
forces and armaments with a view to obtaining early agreement on these matters 
among States with substantial military resources. 

Procedures should be worked out to facilitate the development under the 
auspices of the Disarmament Commission, of mutually agreed programmes of 
armed forces and armaments to be comprehended within the treaty or treaties 
referred to in General Assembly Resolution 502 (VI) of 11 January 1952. 

II. One possible procedure, advanced for the purpose of initiating discussions, 
might be : 

(a) Upon acceptance of the proposals set forth in Working Paper DC/10 
with respect to fixing numerical limitation of all armed forces, arrangements 
might be made for a conference between China, France, Union of Soviet Socialist 
Republics, United Kingdom and the United States of America with a view to 
reaching tentative agreement among themselves, by negotiation, on : 

(1) the distribution by principal categories of the armed forces that 
they would consider necessary and appropriate to maintain within the agreed 
numerical ceilings proposed for their armed forces ; 

(2) the types and quantities of armaments which they would consider 
necessary and appropriate to support permitted armed forces within the proposed 
numerical ceilings ; 

(3) the elimination of all armed forces and armaments other than those 
expressly permitted, it being understood that provision will be made for the 
elimination of all major weapons adaptable to mass destruction, and for the 
effective international control of atomic energy to ensure the prohibition of 
atomic weapons and the use of atomic energy for peaceful purposes only. 

The distribution of armed forces within stated categories and the types and 
volumes of armaments would not necessarily be identic, even for States with 
substantially equal aggregate military strength, inasmuch as their needs and 
responsibilities may be different. The objective of the agreements would be to 



227 

reduce the possibility and fear of aggression and to avoid a disequilibrium of 
power dangerous to international peace and security. Such agreements would 
necessarily be tentative, as they would have to be reviewed in the light of further 
tentative agreements to be reached, as indicated in the following paragraph. 

(b) When tentative agreement is attained at the conference referred to in 
paragraph II (a), regional conferences might be held, to be attended by all 
governments and authorities having substantial military forces in the respective 
regions, for the purpose of reaching similar tentative agreement on 

(1) the overall numerical ceilings for the armed forces of all such 
governments and authorities, as proposed in paragraph 5 (b) of the Tripartite 
Working Paper on numerical limitations, 

(2) the distribution of the permitted armed forces within stated 
categories, 

(3) the type and volume of armaments necessary and appropriate to 
support the permitted armed forces, and 

(4) the elimination of all armed forces and armaments other than those 
expressly permitted, it being understood that provision will be made for the 
elimination of all major weapons adaptable to mass destruction, and for the 
effective international control of atomic energy to ensure the prohibition of atomic 
weapons and the use of atomic energy for peaceful purposes only. 

(c) Thereafter a draft treaty might be worked out, as contemplated in 
operative paragraph 3 of General Assembly Resolution 502 (VI) of 11 January 
1952, comprehending and bringing into a balanced relationship all essential 
components of the programme. 

III. The timing and co-ordination of the reductions, prohibitions and elimi- 
nations should ensure the balanced reduction of overall armed strength and 
should avoid creating or continuing any disequilibrium of power dangerous to 
international peace and security during the period that the reductions, prohibi- 
tions and eliminations are being put into effect. In particular, the initial limita- 
tions or reductions in armed forces and permitted armaments and the initial 
steps toward elimination of prohibited armaments should commence at the same 
time. Subsequent limitations and reductions should be synchronized with sub- 
sequent progress in elimination of prohibited armaments. An international con- 
trol authority should be established at the commencement of the programme and 
it should be in a position to assume progressively its functions in order to ensure 
the carrying out of such limitations, reductions, curtailments and prohibitions. 
Thus, when the limitations and reductions in armed forces and permitted arma- 
ments provided by the treaty or treaties are completed, production of prohibited 
armaments will have ceased, existing stockpiles of prohibited armaments and 
facilities for their production will have been disposed of, atomic energy will be 
utilized for peaceful purposes only, and the international control authority will 
have assumed its full functions." 

49. J. H. Marshall-Cornwall, Geographic Disarmament, A Study of Regional 
Demilitarization (London, 1935), pp. v, vi. 

50. Cf. Oppenheim-Lauterpacht, International Law, 7th Ed., Vol. II, p. 244; 
Marshall-Cornwall, op. cit., p. 49; John Fischer Williams, Chapters on Current 
International Law and the League of Nations, 1929, p. 111. 

51. Marshall-Cornwall, op. cit., p. 49. 

52. Marshall-Cornwall, op. cit., p. 50. 

53. It has been asserted (cf. Paul de Lapradelle, La Frontier e, 1928, pp. 14 
ff. ; and Marshall-Corn w r all, op. cit., p. 174) that an international frontier cannot 
be expressed by a line, that it is, from a fiscal and especially from a military- 



228 

strategic point of view, by its very nature a zone which may extend to a depth 
of several miles. 

54. The provisions of the Treaty of Versailles concerning the demilitarization 
of the Rhineland ran as follows : "Art. 42. Germany is forbidden to maintain or 
construct any fortifications either on the left bank of the Rhine or on the right 
bank to the west of a line drawn 50 kilometres to the east of the Rhine. Art. 43. 
In the area defined above the maintenance and the assembly of armed forces, 
either permanently or temporarily, and military manoeuvres of any kind, as well 
as the upkeep of all permanent works for mobilization, are in the same way 
forbidden. Art. 44. In case Germany violates in any manner whatever the provi- 
sions of Articles 42 and 43, she shall be regarded as committing a hostile act 
against the Powers signatory of the present Treaty and as calculated to disturb 
the peace of the world." Example of provisions by which the prohibition of 
fortifications is imposed upon a defeated state, is Article 47 of the Peace Treaty 
with Italy, 10 February 1947, which runs as follows: "1. (a) The system of 
permanent Italian fortifications and military installations along the Franco- 
Italian frontier, and their armaments, shall be destroyed or removed, (b) This 
system is deemed to comprise only artillery and infantry fortifications whether 
in groups or separated, pillboxes of any type, protected accommodation for 
personnel, stores and ammunition, observation posts and military cableways, 
whatever may be their importance and actual condition of maintenance or state 
of construction, which are constructed of metal, masonry or concrete or exca- 
vated in the rock. 2. The destruction or removal, mentioned in paragraph 1 
above, is limited to a distance of 20 kilometers from any point on the frontier 
as defined by the present Treaty, and shall be completed within one year from 
the coming into force of the Treaty. 3. Any reconstruction of the above-men- 
tioned fortifications and installations is prohibited. 4. (a) The following con- 
struction to the east of the Franco-Italian frontier is prohibited : permanent 
fortifications where weapons capable of firing into French territory or territorial 
waters can be emplaced ; permanent military installations capable of being used 
to conduct or direct fire into French territory or territorial waters; and per- 
manent supply and storage facilities emplaced solely for the use of the above- 
mentioned fortifications and installations, (b) This prohibition does not include 
other types of non-permanent fortifications or surface accommodations and 
installations which are designed to meet only requirements of an internal char- 
acter and of local defence of the frontiers. 5. In a coastal area 15 kilometers 
deep, stretching from the Franco-Italian frontier to the meridian 9° 30' E., 
Italy shall not establish any new, nor expand any existing, naval bases or 
permanent naval installations. This does not prohibit minor alterations to, nor 
the maintenance in good repair of, existing naval installations provided that 
their overall capacity will not thereby be increased." Other examples of de- 
militarization of defeated states in : Disarmament and Security, pp. 449 ff. 

55. Marshall-Cornwall, op. cit., p. 175. 

56. In April, 1923, with reference to the proposed Treaty of Mutual Guarantee, 
Lord Robert Cecil submitted to the Temporary Mixed Commission on the Reduc- 
tion of Armaments a memorandum which contained the following provisions: 

"1. One of the principal difficulties in connection with the proposed Treaty 
of Mutual Guarantee, which is under the consideration of the Temporary Mixed 
Commission, consists in devising means for deciding at a moment of inter- 
national crisis, when hostilities between two States may have begun, which 
State is the aggressor. It is proposed, in the draft Treaty of Mutual Guarantee 
which the Commission is studying, that the Council should decide this point 



229 

and that, failing other evidence, that State should be considered the aggressor 
whose troops have violated the territory of another. 2. It is clear that deci- 
sion on this point would be greatly facilitated if, on the frontier between the 
two States about to go to war, there existed a demilitarized frontier zone into 
which both of them had undertaken not to send their military forces. If, 
further, the supervision of such a zone were in the hands of a Commissioner or 
Commissioners appointed by the League of Nations, who could, if either State 
sent its forces into the zone, so report to the Council of the League, the deci- 
sions of the Council would be immensely facilitated. 3. The establishment 
of such demilitarized zones under League supervision might, in other ways, 
give definite and concrete security against the danger of sudden attack to the 
States on both sides of them. In the agreements under which such zones 
would be established, provisions might be inserted which would have the effect 
of rendering military concentrations, preparatory to attack, very difficult, 
if not impossible, to carry out. These provisions, although they would not 
render attack impossible, might cause such delay to the aggressor as to make 
the position of the State attacked much stronger than it otherwise would 
be. It is therefore perhaps worth while for the Temporary Mixed Commission 
to examine how such zones might be established. 4. It may be suggested that 
an agreement for the establishment of such a frontier zone might include 
some or all of the following stipulations: (a) The zone should be at least 
thirty miles in width, (b) In this zone, no military fortifications or works 
of any sort should be constructed, (c) The conscription or military training 
of the population of the zone should be forbidden, (d) No military camps 
or barracks should be situated in the zone, (e) No depots of military stores 
or ammunition should be allowed, (f ) No manufacture of arms or munitions 
of any sort should be carried out — For ensuring that these obligations were 
effectively carried out in the whole zone, the Council of the League should 
appoint an impartial Commissioner or Commissioners who should reside in 
the zone and who should have the necessary rights of inspection and inquiry. 
Such Commissioners should be directly responsible to the Council and removable 
by them alone." The memorandum contains also suggestions concerning the 
use of railways in the demilitarized zones and the organization of a permanent 
international police force to render more effective the provisions establishing 
the demilitarized zones. 

The Draft Treaty of Mutual Assistance submitted by the Fourth Assembly 
of the League of Nations on 25 October 1923 to the Governments concerned 
contained the following article: "Article 9. In order to facilitate the applica- 
tion of the present treaty, any High Contracting Party may negotiate, through 
the agency of the Council, with one or more neighbouring countries for the 
establishment of demilitarized zones. The Council, with the co-operation of 
the representatives of the parties interested, acting as members within the 
terms of Article 4 of the Covenant, shall previously ensure that the estab- 
lishment of the demilitarized zone asked for does not call for unilateral sacrifices 
from the military point of view on the part of the High Contracting Parties 
interested." 

The General Convention to Improve the Means of Preventing War, signed at 
Geneva, 26 September 1931, contains the following provisions: "Article 2. If, 
in circumstances which, in the Council's opinion, do not create a state of war 
between the Powers at issue which are parties to the present Convention, the 
forces of one of those Powers enter the territory or territorial waters of the 
other or a zone demilitarized in virtue of international agreements or fly over 



230 

them, the Council may prescribe measures to ensure their evacuation by those 
forces. The High Contracting Parties undertake to carry out without delay the 
measures so prescribed, without prejudice to the other powers vested in the 
Council under Article 11 of the Covenant. Article 3. If the circumstances re- 
ferred to in Article 2 have arisen, or if, in the event of a threat of war, special 
conditions, and in particular the possibilities of contact between the forces of 
the parties to the dispute, render it necessary, the Council may fix lines which 
must not be passed by their land, naval, or air forces and, where necessary in 
order to avoid incidents, by their civil aircraft. The High Contracting Parties 
undertake to comply with the Council's recommendations in this matter. The 
lines referred to in the previous paragraph shall, if possible, be fixed by agree- 
ment with the parties at issue. Failing such agreement, the Council shall fix 
the lines with the consent of the party whose forces are affected, provided always 
that this does not involve the withdrawal of the forces further back than the 
exterior lines of the defense organizations existing on the frontier of the High 
Contracting Parties concerned at the time when the Council of the League of 
Nations takes its decision, and that the lines do not involve the abandonment of 
any other work, position or line of communication essential to the security or 
the supplies of the party concerned. It shall, in every case, rest with the Council 
to determine the period within which the said lines shall be fixed under the 
conditions specified above. The High Contracting Parties further agree to give 
strict orders to the commanders of their forces, if the Council so recommends, to 
take all necessary precautions to avoid incidents." 

57. This is the definition which was presented by the Technical Committee 
appointed by the National Defense Expenditure Commission established by 
the General Commission of the League of Nations Disarmament Conference on 
25 February 1932. Cf. Preliminary Report on the Work of the Conference. 
Series of League of Nations Publications. IX Disarmament, 1936, IX. 3 (here- 
after referred to as : Preliminary Report on the Work of the Conference) p. 96. 

58. As to the question of the limitation of defense expenditures, the Com- 
mittee of Experts on Budgetary Questions constituted on 29 November 1926 
by Sub-Commission B of the Preparatory Commission for the League of Na- 
tions Disarmament Conference was of the opinion "that a limitation of arma- 
ments through limitations of expenditures only would be an inadequate basis 
for a convention. The Committee of Experts wondered whether the limi- 
tation of expenditure could not be regarded as a subsidiary measure forming a 
useful supplement to the direct method of disarmament. . . ." Doc. A/AC.50/2, 
p. 43. 

The Draft Convention framed by the Preparatory Commission for the Dis- 
armament Conference contained only one Article referring to limitation of the 
material of land armament — namely Article 10 — which ran as follows : "The an- 
nual expenditure of each High Contracting Party on the upkeep, purchase and 
manufacture of war material for land armaments shall be limited to the figures 
laid down for such Party, and in accordance with the conditions prescribed in 
the annex ... to this Article.'* The Article embodied a decision taken by the 
Preparatory Commission to apply to land war material the principle of indirect or 
budgetary limitation. Preliminary Report on the Work of the Conference, p. 58. 

59. Certain members of the Committee of Experts preferred total limitation 
because it would involve less uncertainty than a limitation by categories. Doc. 
A/AC.50/2, p. 43. 

60. Cf. Preliminary Report on the Work of the Conference, p. 97. The Draft 
Convention contains in Part II, Section III (Expenditure) the following pro- 



231 

vision formulated by the Technical Committee of the National Defense Expendi- 
ture Commission: "Article 1. The High Contracting Parties undertake to give 
full publicity periodically to their national defense expenditure on a basis of 
•reciprocity and in the manner and by the dates stipulated in the following 
articles and in the Annex to this part of the Convention which includes a gen- 
eral definition and a conventional list of such expenditure. — Such publicity shall 
apply to all national defence expenditure, irrespective of the nature and origin 
of the resources out of which such expenditure is met." 

61. "The most important part of the system submitted (by the Technical 
Committee) for approval consisted of the Model Statement, in which all na- 
tional defense expenditure would be entered in a uniform manner for all States. 
The scheme had been unanimously adopted by the Technical Committee as a 
framework in which both limitation and publicity might operate." Preliminary 
Report on the Work of the Conference, p. 98. 

62. The principles of this draft agreement (DC/SC.1/27) are formulated as fol- 
lows : "1. The purpose of the present agreement is to institute financial supervision 
of military expenditure, together with a system of penalties, for the purpose of en- 
couraging disarmament. It provides for the allocation of the funds thus made 
available for the improvement of levels of living and the development of under- 
developed areas. 2. This form of financial supervision has an economic purpose. 
By ensuring the automatic transfer of part of the savings effected on military ex- 
penditure to orders for goods for peaceful purposes, the agreement averts the 
threat of an economic crisis which might be brought about by mass disarmament 
carried out within a short period of time. 3. The agreement provides certain 
advantages for States which, in a form recognized as accurate and complete by 
the supervisory body, submit evidence of the implementation of the budgetary 
reductions which they have agreed to make. States will agree to reduce their 
total military expenditure by a percentage that will increase from year to year, 
the increase in the percentage from one year to the next being based on the 
amount of the original defence budget. However, once evidence of the reductions 
has been accepted as being accurate and complete, this percentage will, for the 
current budgetary year, refer only to the actual amount of expenditure — that 
is to say, to a lower sum. 4. The amounts thus made available will be trans- 
ferred to an international fund which will ensure that they are used in accord- 
ance with the criteria laid down by the agreement. 5. The computation, ad- 
ministration and distribution of these resources will be assured by an international 
fund for development and mutual assistance, hereinafter called 'the Fund'. 
6. Upon the entry into force of the convention for the reduction of conventional 
armaments and armed forces, the abolition of weapons of mass destruction and 
the setting up of a control, the percentage reductions in military expenditure en- 
visaged in the agreement will be calculated in such a way as to correspond to 
the reductions in conventional armaments and armed forces and the abolition 
of weapons of mass destruction as provided for in connexion with each stage 
of the disarmament convention." Second Report of the Sub-Committee of the 
Disarmament Commission, DC/71, Annex 16. 

63. The Draft Convention contained the following provision in Part V, Sec- 
tion II (Derogations) : 

"Article 88. Should any of the High Contracting Parties become engaged 
in war, or should a change of circumstances constitute, in the opinion of any 
High Contracting Party, a menace to his national security, such party may 
suspend temporarily, in so far as he is concerned, any provision or provisions of 
the present Convention, other than those contained in Articles 30, 34 and 47 
to 62, provided that: (a) such High Contracting Party shall immediately notify 



232 

the other High Contracting Parties, and at the same time the Permanent Dis- 
armament Commission, of such temporary suspension and of the extent thereof ; 
(b) in the event of the suspension's being based upon a change of circumstance, 
the High Contracting Party concerned shall, simultaneously with the said noti- 
fication, communicate to the other High Contracting Parties and to the Per- 
manent Disarmament Commission a full explanation of such change of cir- 
cumstances. — Thereupon the other High Contracting Parties shall promptly 
advise as to the situation thus presented. — When the reasons for such tem- 
porary suspension have ceased to exist, the said High Contracting Party shall 
reduce his armaments to the level agreed upon in the Convention and shall make 
immediate notification to the other High Contracting Parties." 

64. Sub-Commission A of the Preparatory Commission for the League of 
Nations Disarmament Conference "reported complete disagreement on the ques- 
tion of the supervision and control of armaments. The delegations of Chile, 
Italy, Japan, Sweden, the United Kingdom and the United States were of the 
opinion 'that any form of supervision or control of armaments by an inter- 
national body is more calculated to foment evil and suspicion between States 
than to foster international confidence.' In their opinion, the execution of the 
provisions of any convention foi the reduction and limitation of armaments 
'must depend upon the good faith of nations scrupulously to carry out their 
great obligations.' The delegations of Chile, Italy, Japan and the United States 
were of the opinion that the inquiries contemplated would in general prove 
'fruitless and illusory' and that, to be successful, such inquiries would have to be 
carried out under strict and definite rules which would involve serious com- 
mitments in regard to military secrecy on the part of the State subjected to the 
inquiry. The same delegations, except the United States, recalled the opinion 
expressed by the Permanent Advisory Commission that 'the undertakings con- 
tained in Article 8 are based on a belief in the pledged word and the Permanent 
Advisory Commission does not consider that it is either opportune or conducive 
to great efficiency to substitute mistrust for this belief.' The French delegation, 
together with a number of others, did not agree that inquiries would be 'illusory 
and ineffective.' They recalled the precedent of the Opium Convention, which 
had introduced a system of supervision, and that of the Treaty for the Pacific 
Settlement of Disputes between American States, signed at Santiago de Chile 
on 3 May 1923. They also mentioned the League's right of investigation under 
the clauses of the Treaties of Peace relating to the disarmament of the defeated 
States, which showed that it was technically possible for armaments to be placed 
under supervision. They concluded that all States must be given a guarantee 
that the convention would be strictly observed, 'because, in the absence of such 
a guarantee, those States which regulated their armaments in strict accordance 
with the provisions of the convention would lack that adequate security upon 
which such limitation of armaments as were accepted should properly be based.' " 
Doc. A/AC.50/2, p. 45. 

The Draft Constitution of International Organization, prepared by the Special 
Committee appointed in 1943 by Secretary of State Hull (cf. supra, p. 137), con- 
tained in Article 10 the following provisions : "6. Members of the Interna- 
tional Organization undertake to keep the general level of their armaments 
at the lowest point consistent with the effective discharge of their respective 
obligations for maintaining international security, and consistent with their 
internal domestic security. They accordingly agree that the Council, acting 
on the advice of the General Security and Armaments Commission, and taking 
into account the special responsibilities for security assumed by some states, 






233 

and the collective responsibility assumed by all, shall establish the minimum 
and maximum limitations on armaments and the regulations of previously agreed 
categories of armaments potential to be observed by all members. These limita- 
tions and regulations shall be subject to modification and amendment by the 
Council. 7. The limitations and regulations established under paragraph 6 shall 
be enforced by a system of inspection carried out by the Armaments Inspection 
Commission under the direction of the General Security and Armaments Com- 
mission. Member States agree freely to accord to the Commission every facility 
for the effective discharge of its mission." (Postwar Foreign Policy, pp. 478 f.) 

65. In Committee 1 of the United Nations Disarmament Commission, the 
French representative, discussing the concept of "control" found one of the diffi- 
culties "to be the different meanings of the word in different languages. In 
French 'control' comported the establishment of fact for a higher authority 
which wished to know and verify the accuracy of what subordinate authorities 
reported in the exercise of their duties. In the USSR the separation of action 
from control was even more clear-cut. On the other hand, in English-speaking 
countries control implied an idea of direction and was, therefore, not so clearly 
separated from action. In the Commission for Conventional Armaments, France 
had argued for its conception of control, i. e., without participation in the direc- 
tion or management of the undertakings. The United Nations plan for the 
control of atomic energy, however, used the word 'control' to include participa- 
tion in management. It might be useful to set down either in the Commission 
or in a small committee the various meanings of the word "control," in order 
to determine to what extent it might be possible to devise a plan better or no 
less effective than the United Nations plan. That alternative could not be the 
USSR plan of 1947 which had already been judged to be less effective." Second 
Report of the United Nations Disarmament Commission, p. 52. The repre- 
sentative of the U.S.S.R. declared that the "USSR, like the French delega- 
tion, understood 'control' to mean verification and inspection, not management 
and ownership, as it was understood by the United States." Ibid., p. 57. 

In Resolution 191 (III), adopted on 4 November 1948, the General Assembly 
approved the general findings (part II C) and recommendations (part III) of 
the first report and the specific proposals of part II of the second report of the 
Atomic Energy Commission "as constituting the necessary basis for establishing 
an effective system of international control of atomic energy to ensure its use 
only for peaceful purposes and for the elimination from national armaments of 
atomic weapons in accordance with the terms of reference of the Atomic Energy 
Commission." This is the so-called United Nations plan for control of atomic 
energy. The recommendations of the Atomic Energy Commission follow, in prin- 
ciple, the so-called Baruch Plan, that is, the United States Proposal for the Inter- 
national Control of Atomic Energy presented to the United Nations Atomic En- 
ergy Commission by the United States Representative, Mr. Bernard Baruch, on 
14 June 1946. In this plan the United States proposed "the creation of an Inter- 
national Atomic Development Authority, to which should be entrusted all phases 
of the development and use of atomic energy, starting with the raw material and 
including : 

1. Managerial control or ownership of all atomic-energy activities potentially 
dangerous to world security. 

2. Power to control, inspect, and license all other atomic activities. 

3. The duty of fostering the beneficial uses of atomic energy. 

4. Research and development responsibilities of an affirmative character 
intended to put the Authority in the forefront of atomic knowledge and thus 



234 

to enable it to comprehend, and therefore to detect, misuse of atomic energy. 
To be effective, the Authority must itself be the world's leader in the field of 
atomic knowledge and development and thus supplement its legal authority with 
the great power inherent in possession of leadership in knowledge.'' 

The following measures were submitted as representing the fundamental 
features of the Baruch Plan : 

"1. General. — The Authority should set up a thorough plan for control of 
the field of atomic energy, through various forms of ownership, dominion, 
licenses, operation, inspection, research and management by competent per- 
sonnel. After this is provided for, there should be as little interference as may 
be with the economic plans and the present private, corporate and state rela- 
tionships in the several countries involved. 

2. Raw Materials. — The Authority should have as one of its earliest pur- 
poses to obtain and maintain complete and accurate information on world sup- 
plies of uranium and thorium and to bring them under its dominion. The 
precise pattern of control for various types of deposits of such materials will 
have to depend upon the geological, mining, refining, and economic facts in- 
volved in different situations. 

The Authority should conduct continuous surveys so that it will have the most 
complete knowledge of the world geology of uranium and thorium. Only after 
all current information on world sources of uranium and thorium is known to 
us all can equitable plans be made for their production, refining, and distribution. 

3. Primary Production Pluns. — The Authority should exercise complete 
managerial control of the production of fissionable materials. This means that 
it should control and operate all plants producing fissionable materials in dan- 
gerous quantities and must own and control the product of these plants. 

4. Atomic Explosives. — The Authority should be given sole and exclusive 
right to conduct research in the field of atomic explosives. Research activities 
in the field of atomic explosives are essential in order that the Authority may 
keep in the forefront of knowledge in the field of atomic energy and fulfil the 
objective of preventing illicit manufacture of bombs. Only by maintaining its 
position as the best-informed agency will the Authority be able to determine 
the line between intrinsically dangerous and nondangerous activities. 

5. Strategic Distribution of Activities and Materials. — The activities en- 
trusted exclusively to the Authority because they are intrinsically dangerous to 
security should be distributed throughout the world. Similarly, stockpiles of 
raw materials and fissionable materials should not be centralized. 

6. Non-Dangerous Activities. — A function of the Authority should be pro- 
motion of the peacetime benefits of atomic energy. 

Atomic research (except in explosives), the use of research reactors, the 
production of radioactive tracers by means of non-dangerous reactors, the use of 
such tracers, and to some extent the production of power should be open to na- 
tions and their citizens under reasonable licensing arrangements from the 
Authority. Denatured materials, whose use we know also requires suitable 
safeguards, should be furnished for such purposes by the Authority under lease 
or other arrangement. Denaturing seems to have been over-estimated by the 
public as a safety measure. 

7. Definition of Dangerous and Non-Dangerous Activities. — Although a 
reasonable dividing line can be drawn between dangerous and non-dangerous 
activities, it is not hard and fast. Provision should, therefore, be made to as- 
sure constant reexamination of the questions and to permit revision of the 
dividing line as changing conditions and new discoveries may require. 



235 

8. Operations of Dangerous Activities. — Any plant dealing with uranium 
or thorium after it once reaches the potential of dangerous use must be not only 
subject to the most rigorous and competent inspection by the Authority, but its 
acual operation shall be under the management, supervision, and control of 
the Authority. 

9. Inspection. — By assigning intrinsically dangerous activities exclusively to 
the Authority, the difficulties of inspection are reduced. If the Authority is the 
only agency which may lawfully conduct dangerous activities, then visible opera- 
tion by others than the Authority will constitute an unambiguous danger signal. 
Inspection will also occur in connection with the licensing functions of the 
Authority. 

10. Freedom of Access. — Adequate ingress and egress for all qualified repre- 
sentatives of the Authority must be assured. Many of the inspection activities 
of the Authority should grow out of, and be incidental to, its other functions. 
Important measures of inspection will be associated with the tight control of raw 
materials, for this is a keystone of the plan. The continuing activities of pros- 
pecting, survey, and research in relation to raw materials will be designed not 
only to serve the affirmative development functions of the Authority, but also to 
assure that no surreptitious operations are conducted in the raw materials field 
by nations or their citizens. 

11. Personnel. — The personnel of the Authority should be recruited on a basis 
of proven competence but also so far as possible on an international basis. 

12. Progress oy Stages. — A primary step in the creation of the system of 
control is the setting forth, in comprehensive terms, of the functions, responsibili- 
ties, powers and limitations of the Authority. Once a Charter for the Authority 
has been adopted, the Authority and the system of control for which it will be 
responsible will require time to become fully organized and effective. The plan of 
control will, therefore, have to come into effect in successive stages. These should 
be specifically fixed in the Charter or means should be otherwise set forth in the 
Charter for transitions from one stage to another, as contemplated in the resolu- 
tion of the United Nations Assembly which created this Commission. 

13. Disclosures. — In the deliberations of the United Nations Commission on 
Atomic Energy, the United States is prepared to make available the information 
essential to a reasonable understanding of the proposals which it advocates. 
Further disclosures must be dependent, in the interests of all, upon the effective 
ratification of the treaty. When the Authority is actually created, the United 
States will join the other nations in making available the further information 
essential to that organization for the performance of its functions. As the 
successive stages of international control are reached, the United States will be 
prepared to yield, to the extent required by each State, national control of 
activities in this field to the Authority. 

14. International Control. — There will be questions about the extent of con- 
trol to be allowed to national bodies, when the Authority is established. Purely 
national authorities for control and development of atomic energy should to 
the extent necessary for the effective operation of the Authority be subordinate 
to it. This is neither an endorsement nor a disapproval of the creation of na- 
tional authorities. The Commission should evolve a clear demarcation of the 
scope of duties and responsibilities of such national authorities." 

With respect to violations, the Baruch Plan suggested : "In the agreement, 
penalties of as serious a nature as the nations may wish and as immediate and 
certain in their execution as possible, should be fixed for : 
1. Illegal possession or use of an atomic bomb ; 

370624—57 16 



236 

2. Illegal possession, or separation, of atomic material suitable for use in an 
atomic bomb ; 

3. Seizure of any plant or other property belonging to or licensed by the 
Authority ; 

4. Wilful interference with the activities of the Authority ; 

5. Creation or operation of dangerous projects in a manner contrary to, or 
in the absence of, a license granted by the international control body." 

The Intcrnationul Control of Atomic Energy. Groicth of a Policy. The 
Department of State. Publication 2702, pp. 141 ff. 

The Recommendations of Part III of the First Report of the Atomic Energy 
Commission, approved by the Resolution 191 (III) of the General Assembly, con- 
tain a statement to the effect that the Convention should include provisions 
"specifying the means and methods of determining violations of its terms, setting 
forth such violations as shall constitute international crimes, and establishing the 
nature of the measures of enforcement and punishment to be imposed upon per- 
sons and upon nations guilty of violating the terms of the treaty or convention. 

The judicial or other processes for determination of violations of the treaty 
or convention, and of punishments therefor, should be swift and certain. Serious 
violations of the treaty shall be reported immediately by the international 
control agency to the nations parties to the treaty, to the General Assembly, 
and to the Security Council." Less serious infringements may be dealt with 
by the control agency itself. Chapter 3 of Part II of the Second Report of the 
Atomic Energy Commission (Official Records, Second Year, Special Supple- 
ment, p. 37) contains the following special proposal: "The Agency shall reserve 
the power to modify regulations and to suspend or revoke licenses in case of 
violation by the licensee. In case of refusal by the agency to grant a license 
applied for by a nation, or in case of suspension or revocation of a license 
granted, the applicant or licensee shall have the right of appeal to an inter- 
national court, and the agency shall have the right to maintain its control 
measures." 

66. In a resolution adopted by the first Assembly of the League of Nations 
in 1920, it was recognized that, while the final and general limitation of arma- 
ments was subordinate to certain preliminary conditions, the first step towards 
disarmament should, nevertheless, be taken without delay. The Temoprary 
Mixed Commission, considering that the ascertaining of the military strength 
of different States was one of the preliminary conditions for the final and gen- 
eral limitation of armaments, decided to carry out a statistical investigation on 
the armaments of the various countries for the years 1913-1921. Under the 
direction of the Temporary Mixed Commission, the Secretariat prepared the 
"Statistical Enquiry on Armaments, First Series of Data," and the "Budget Ex- 
penditure on National Defence, 1913 and 1920-1922." The Third Committee, in 
the report it presented to the Assembly on 22 September 1922 took the view that 
the "Statistical Enquiry on Armaments" was of great scientific interest but of 
no practical value to the subsequent work of the Temporary Mixed Commission. 
The Committee found that the national security of each country depended very 
largely on the existing military strength of other countries. It therefore pro- 
posed to the Assembly that the subject of the statistical inquiry should be the 
existing military strength. While expressing the view that potential military 
strength should perhaps be studied at a later date, it proposed that for the time 
being the investigation should be limited to the two following points : peacetime 
armaments and expenditure on armaments. Doc. A/AC. 50/2, p. 18. 



237 

In accordance with the Assembly resolution of 27 September 1922 concerning 
the exchange of military information between States, the Temoprary Mixed 
Commission suggested on 15 August 1923 that : 

"The engagements undertaken by the signatories of the Covenant in the last 
paragraph of Article 8 might now be begun by giving instructions to the Secre- 
tariat periodically to publish a year-book containing a certain number of data 
regarding the matters referred to in the last paragraph of Article 8." 

Pursuant to that suggestion, the Council adopted a resolution authorizing the 
Secretariat to publish a year-book beginning with an experimental volume deal- 
ing with the figures for 1923, it being understood that the information would be 
drawn solely from official publications. The objectives aimed at in the exchange 
of information were summarized by the Commission in its report for 1923. 
"Article 8 of the Covenant," declared the Commission, "was not drawn up with 
a view to facilitating the work of general staffs. Its object was to improve 
the political atmosphere by creating confidence." The Commission also con- 
sidered that the exchange of information "would render it possible to nip in the 
bud any campaign started by an alarmist Press and based upon the armaments 
of countries considered as potential enemies." 

The first edition of the Armaments Year-Book was published in September 
1924, and the last in May 1940. The first volume contained information on 
thirty-six countries, including all the great Powers, members and non-members 
of the League. The next edition included practically all the countries of the 
world, members and non-members of the League, all Colonies, Protectorates and 
Mandated Territories. Doc. A/AC.50/2, pp. 19-20. 

A resolution adopted by the Council in 1931 requested the Secretariat to pre- 
pare a special edition of the Armaments Year-Book for the use of the Disarma- 
ment Conference. That edition was based not only on official publications of 
various governments but also on their replies to a special questionnaire approved 
by the Council relating to the numerical strength of their respective forces. 

At the request of the Temporary Mixed Commission, the Secretariat also pub- 
lished regularly a year-book containing statistical information on the trade in 
arms, ammunition and implements of war. That request was made in connection 
with the view expressed by the Temporary Mixed Commission, as early as 1921, 
"that it was imperative to establish a control over the export and import of arms 
and implements of war, and that it was essential for the League of Nations to 
receive complete information as to the extent and character of the trade in arms." 
The Year-Book on the Trade in Arms, Ammunition and Implements of War 
included statistical information on practically all States, Colonies, Protectorates 
and other territories of the world. The tables contained data on exports and 
imports of arms and ammunition by categories and according to countries of 
destination or of origin. The monographs were prepared by the Secretariat on 
the basis of official publications and not as a result of any questionnaires. Doc. 
A/AC.50/2, pp. 20-21. 

On the question of the exchange of military information, as provided for under 
Article 8 of the Covenant of the League of Nations, Sub-Commission A of the 
Preparatory Commission for the Disarmament Conference submitted a text which 
was unanimously accepted. That text provided for the collection and periodical 
publication by the Secretariat of the League of military information in an en- 
larged "Armaments Year-Book." In addition to the Year-Book itself, Sub- 
Commission A considered the possibility of publishing a number of bulletins in 
the course of the year. The delegation of Belgium, France and some others 
proposed, in addition to the "Armaments Year-Book" and the periodical bulletins, 



238 

the preparation of objective reports on the carrying out of the convention for 
the limitation of armaments, on the basis of periodic uniform statistical returns 
by governments on their armaments, whether subject to limitation or not. The 
reports prepared on the basis of those returns were to be discussed by a commis- 
sion to be set up by the Conference. The delegations of Chile, Italy, Japan, 
Spain, Sweden, the United Kingdom and the United States objected that that 
proposal would raise the question of supervision or control. In their declaration 
concerning supervision of armaments by an international organization, those dele- 
gations, except Spain, pointed out that "most unfortunate results, both political 
and technical, would follow from these inquiries." They continued : "It is 
impossible to disregard the possibility that, in certain circumstances, one country 
might bring a charge against another in order to obtain, unjustifiably, informa- 
tion about the secret defensive organizations of the country accused. Moreover, 
the delegations of Chile, Italy, Japan, the United Kingdom and the United States 
are entirely unable to accept for their own governments anything in the nature 
of itinerant inquisitorial commissions." Doc. A/AC.50/2, p. 46. 

The Draft Convention framed by the Preparatory Commission contained in 
Part IV three articles concerning information to be annually communicated in 
respect to effectives. Article 30 provided for information to be exchanged 
through the Secretary-General of the League of Nations in regard to the average 
daily number of effectives reached during the course of the preceding year in 
the land, sea and air armed forces and formations organized on a military basis 
of each of the contracting parties, to be accompanied by an explanatory note 
showing the elements on which the figures supplied were based. Article 31 pro- 
vided for information to be exchanged as to the number of units compulsorily 
receiving preparatory military training during the preceding year. Article 32 
provided for an exchange of information at the end of the year concerning the 
provisions of the respective laws of the contracting parties relating to the total 
number of days comprised in the first period of service of effectives recruited 
by conscription and the total duration in days of the ensuing periods. Prelimi- 
nary Report on the Work of the Conference, p. 42. 

67. At the first meeting of Committee 2 of the United Nations Disarmament 
Commission, the representative of the United States submitted a Working Paper 
(DC/C.2/1) containing proposals for progressive and continuing disclosure and 
verification of armed forces and armaments on a continuing basis. 

Under the heading "C. Inspection" the following statements are made : 
"The system of disclosure and verification is an integral part of the system 
of safeguards which must be established to ensure observance of the overall 
programme of regulation, limitation and balanced reduction of armed forces and 
armaments so as to provide for the prompt detection of violations while at the 
same time causing the minimum degree of interference in the internal life of 
each country. It will not be adequate to provide merely for the verification of 
disclosed information. In addition, provision must be made for determining the 
adequacy of the disclosed information, through broad general powers of 'on-the- 
spot' inspection, through access to statistical data permitting independent con- 
firmation of required reports and through aerial surveys. Extensive aerial 
reconnaissance is obviously essential to the verification procedure in order 
completely to determine the adequacy of disclosed information. It will be 
obvious that aerial reconnaissance furnishes the easiest method of determin- 
ing the existence of large undisclosed facilities and installations. Aerial 
Survey will be essential in all stages of the disclosure and verification 
procedure. It is contemplated that 'on-the-spot' inspection will take place 



239 

in all stages as a part of the verification procedure. Its use, however, will be less 
extensive in the first than in the later stages because of the greater ease of 
verification through other methods of the items disclosed in the first stage. It 
will of course be necessary at each stage to regulate inspection in such a way as 
to prevent disclosure of information which is to be withheld from disclosure and 
verification during the particular stage. Certain principles governing limitations 
on the right of 'on-the-spot' inspections in early stages are set forth in Annex I 
and II. Each State at the commencement of each stage should submit to the 
Commission a general description of the nature and location of facilities falling 
within the terms of reference for that stage. Access to such locations, reasonably 
sufficient to verify the information disclosed, should be granted to inspectors. 
Inspection in each stage should proceed in accordance with a previously accepted 
plan. It is essential to an effective system of verification that the international 
inspectors, in addition to examining declared installations and facilities, be per- 
mitted in all stages to have access to the entire national territory in order that 
the Commission may determine within reasonable limits the accuracy and ade- 
quacy of the information disclosed. Accordingly, each State should be required 
during each stage of the process of disclosure and verification to permit the 
international inspectors such freedom of movement and to give them access to 
such installations and facilities, records and data as may reasonably be required, 
including the right to inspect physical dimensions of all facilities and installations 
wherever situated. Each State should facilitate the activities of the international 
inspectors and furnish to them such assistance as they may reasonably require. 
Procedure should be set up in order to permit a determination by the Commission 
of the necessity for inspection of any facilities or installations access to which 
is denied to the inspectors and where in the judgment of the inspectors such 
inspection is required. The inspectors should report to the Commission any 
information indicating a major violation of any provisions of the treaties or 
agreements respecting disclosure and verification. In the event of a Commission 
determination confirmed by the Security Council, by the affirmative vote of any 
seven members, of such a major violation during any stage and the failure of the 
State guilty of violation to repair the same within a reasonable specified period, 
other States should be free to suspend the operations of the disclosure and verifi- 
cation system." Second Report of the United Nations Disarmament Commission, 
pp. 25, 26. 

On 21 April 1955, Canada, France, the United Kingdom of Great Britain and 
Northern Ireland and the United States of America submitted to the Sub-Com- 
mittee of the Disarmament Commission a Joint Draft Resolution on the Prin- 
ciples of Control, in which the following principles were formulated : "A. The 
control organ shall have, to the extent necessary to ensure implementation of the 
treaty by all States, full responsibility for supervising and guaranteeing effec- 
tive observance of all the provisions of the disarmament treaty including: 
1. The limitations on levels of conventional armaments and over-all military 
man-power, and on over-all military expenditures, both atomic and non-atomic 
(paragraphs 6 (i) (a) and (b) of the four-Power draft resolution of 8 March 
1955 [DC/SC.l/15/Rev.l]) ; 2. The major reductions in armed forces and con- 
ventional armaments (paragraphs 6 (ii) (a) and 6 (iii) (a) of the four-Power 
draft resolution of 8 March 1955) ; 3. The total prohibition of manufacture and 
use, and the elimination of nuclear weapons and all other weapons of mass 
destruction, as well as conversion of existing stocks of nuclear materials to 
peaceful uses (paragraphs 6 (ii) (b) and 6 (iii) (b) of the four-Power draft 
resolution of 8 March 1955) ; 4. The continued supervision of permitted atomic 



240 

energy installations and facilities; B. In order to enable it to carry out these 
responsibilities and functions, the control organ shall be accorded powers to 
be exercised in accordance with the terms of the disarmament treaty and which 
shall include the following: 1. To determine, within the limits established by 
the disarmament treaty, the details of the methods and processes of supervising 
and guaranteeing the effective observance of the various phases of agreed limita- 
tions, reductions, and prohibitions, in order to ensure that the disarmament 
programme is carried out as rapidly as possible and with safety and equity for 
all; 2. To supervise and verify the disclosures of information required at each 
stage of the disarmament programme laid down in the four-Power draft resolu- 
tion of 8 March 1955, with respect to all armaments and armed forces and related 
installations and facilities; 3. To ensure that installations, facilities, equip- 
ment, and materials, including stocks of nuclear materials, are disposed of or 
utilized in accordance with the terms of the disarmament treaty ; 4. To organize 
and conduct field and aerial surveys in connexion with the above functions and 
for the purpose of determining whether all installations and facilities have 
been disclosed ; 5. To conduct such research as is necessary to keep itself in 
the forefront of nuclear knowledge and to enable it to be fully effective in 
eliminating the destructive uses of nuclear energy, so that such energy shall 
be used only for peaceful purposes ; 6. To report and provide information to 
the Security Council, the General Assembly and the States signatories and to 
make recommendations concerning appropriate action by them in the event 
of violation of the disarmament treaty ; 7. To take such measures provided for 
in the treaty as may be necessary to deal with violations of the disarmament 
treaty pending action by the Security Council, the General Assembly or the 
States signatories, and to call upon the party concerned and its agents to com- 
ply with such measures, without prejudice to the rights, claims or position of 
the party concerned ; C. In order to ensure that the international officials of the 
control organ are continuously in a position to fulfil their responsibilities, they 
will be granted the right : 1. To be stationed permanently in the countries adher- 
ing to the disarmament treaty; 2. Of unrestricted access to, egress from and 
travel within the territory of participating States, and unrestricted access to 
all installations and facilities as required by them for the effective perform- 
ance of their responsibilities and functions; 3. Of unrestricted use of com- 
munication facilities necessary for the discharge of their responsibilities; 4. 
Of inviolability of person, premises, property and archives; D. The control 
organ shall remain in being in order to ensure that the reductions, prohibitions 
and eliminations are faithfully and permanently observed." Second Report 
of the Sub-Committee of the Disarmament Commission, Annex 14. 

On 21 July 1955, at the Geneva meetings of the Heads of Government of 
France, USSR, the United Kingdom and the United States, the President 
of the United States made a statement in which he declared "that the priority 
attention of our combined study of disarmament should be upon the subject of 
inspection and reporting," and proposed "to give each other a complete blueprint 
of our military establishments, from beginning to end, from one end of our coun- 
tries to the other, lay out the establishments and provide the blueprints to each 
other. Next, to provide within our countries facilities for aerial photography to 
the other country — we to provide you the facilities within our country, ample 
facilities for aerial reconnaissance, where you can make all the pictures you 
choose and take them to your country to study, you to provide exactly the same 
facilities for us and we to make these examinations, and by this step to convince 
the world that we are providing as between ourselves against the possibility of 



241 

great surprise attack, thus lessening danger and relaxing tension." Doc. 
DC/SC. 1/28, 29 August 1955. Second Report of the Sub-Committee of the 
Disarmament Commission. DC/71, 7 October 1955, Annex 17. 

In its Resolution 914 (X), adopted at its 559th plenary meeting on 16 Decem- 
ber 1955, the General Assembly "Recognizing . . . that inspection and control 
of disarmament can best be achieved in an atmosphere which is free of fear and 
suspicion, 1. urges that the States concerned and particularly those on the Sub- 
Committee of the Disarmament Commission . . . should, as initial steps, give 
priority to early agreement on an implementation of: (i) Such confidence- 
building measures as the plan of Mr. Eisenhower, President of the United States 
of America, for exchanging military blueprints and mutual aerial inspection, and 
the plan of Mr. Bulganin, Prime Minister of the Union of Soviet Socialist Re- 
publics, for establishing control posts at strategic centers, (ii) All such measures 
of adequately safeguarded disarmament as are now feasible." 

68. The Special Committee for the Regulation of the Trade in and Private and 
State Manufacture of Arms and Implements of War, set up on 22 September 1932 
by the General Commission of the League of Nations Disarmament Conference, 
presented the results of its discussions in a report of which the following brief 
analysis is contained in the Preliminary Report on the Work of the Conference, 
pp. 125 ff . : 

"(a) General Obligations and Definition of Categories. — The Special Commit- 
tee unanimously adopted texts stipulating that each contracting party would 
assume, in the territories under its jurisdiction, full responsibility for the super- 
vision to be exercised over the manufacture of and trade in arms, with a view 
to ensuring the regular communication and accuracy of the information to be 
supplied under the Convention. Each of the contracting parties, for the purpose 
of securing publicity, undertook to forward to the Permanent Disarmament 
Commission the texts of all laws, regulations or other legal provisions enacted 
for the purpose of ensuring the execution of the Convention. — The categories of 
arms, ammunition and implements of war proposed by the Special Committee 
did not secure unanimity. A Technical Committee on Categories, reporting to 
the Special Committee, submitted the results of its work as an attempt at solu- 
tion of a purely technical character, accepted by its members with reservations 
as to the assent of their respective Governments. — Five categories were proposed 
by the Special Committee comprising : (I) military armaments; (II) naval arm- 
aments; (III) air armaments; (IV) arms and ammunition capable of being 
used for both military and non-military purposes; and (V) aircraft other than 
those in category III. 

(b) Manufacture. — Texts unanimously adopted by the Special Committee pro- 
vided that the contracting parties should forbid in their respective territories 
the manufacture of arms and implements of war as set forth in categories I, II 
and III, unless the manufacturers had, in the case of private establishments, 
obtained a license to manufacture issued by the government. The license to 
manufacture was to be valid for a definite period, to be revocable at any time 
and to be renewable for further periods at the discretion of the Government 
concerned. Licenses to manufacture would give the name and address of the 
manufacture, or the name, head office and principal works of the firm, together 
with a designation of the articles by headings in categories I, II and III whose 
manufacture was authorized by the license. Further, it was unanimously agreed 
that the contracting parties should send to the Permanent Disarmament Com- 
mission, within three months from the entry into force of the Convention, a copy 
of the licenses to manufacture already issued to private establishments and, 



242 

within the thirty days following the end of each quarter, a return showing copies 
of all licenses to manufacture granted, amended, renewed or revoked during 
the previous quarter. — In regard to naval armaments, the Committee unani- 
mously adopted texts under which the contracting parties undertook to forward 
to the Permanent Disarmament Commission, within thirty days of the laying- 
down of a war vessel in State or private shipyards within their jurisdiction, a 
return showing the date of the laying-down of the keel, the classification of 
the vessel, for whom the vessel was built, its standard displacement and princi- 
pal dimensions and the calibre of its largest gun. They further undertook, 
within thirty days of the date of the completion of each war vassel, to send a 
return giving the date of completion, together with the foregoing particulars. — 
The above provisions in regard to the regulation of the manufacture of arms rep- 
resented the minimum position adopted in the Committee. Texts provisionally 
approved by the majority of the members of the Committee, on the basis of the 
United States text, provided for a stricter system of control and a more extended 
publicity. It was stipulated, for example, that the manufacture of articles ap- 
pearing in categories I, II and III should not take place in private establishments 
unless the producer was in possession of 'bona fide orders, in each case duly noti- 
fied in advance to the government, and further stipulated that licenses accorded 
to manufacturers should state that all orders received by them were to be com- 
municated immediately to the Government which had granted the license. These 
provisions were not accepted by the delegations of the United Kingdom, Italy 
and Japan. — Further, the texts approved by the majority provided that the con- 
tracting parties should send to the Permanent Disarmament Commission, among 
other particulars, a return at the beginning of each financial year showing the 
quantities of articles in categories I, II and III whose manufacture or purchase 
was contemplated in the course of the year ; a return showing the national de- 
fense expenditure proposed in respect of the manufacture and purchase of arti- 
cles in categories I, II and III ; a return within fifteen days of orders placed with 
State or private establishments for articles in categories I, III and V, with their 
description, number and type, the name of the Government on whose account 
the order was given, and the name and address of the private manufacturer a 
description of the State establishment ; and, finally, a return within the month 
following the end of the civil year of manufactures completed during the year 
of articles in categories I to V. These provisions were not accepted by the 
delegations of the United Kingdom, Italy and Japan. — Texts going beyond 
these provisions in respect of the returns to be made to the Permanent Disarma- 
ment Commission were submitted by the delegations of France, Turkey, Afghani- 
stan, Iraq, Spain, Czechoslovakia, the Union of Soviet Socialist Republics and 
China. — An alternative text proposed by the United Kingdom, Italian and 
Japanese delegations provided that, within sixty days of the end of the quarter, 
a quarterly return of the total value under each heading of the categories of 
the articles whose manufacture had been completed during the previous quarter 
should be forwarded to the Permanent Disarmament Commission. 

(c) Trade. — The texts of the provisions concerning the trade in arms and 
implements of war were adopted subject to declarations by the minority dele- 
gations. Texts approved by the majority provided that the contracting parties 
should prohibit, in their territories, the export of articles in categories I to V 
inclusive, and the import of articles in categories I to III inclusive, without 
an export or import permit issued by the Government. The export permit was 
to contain a description of the articles, giving their number, aggregate weight 
and type, with the name and address of the exporter and a reference to the 



243 

original order in cases where the order had been notified to Geneva and was 
for arms manufactured in the country of export. It was also to give the name 
and address of the importing consignee, with a reference to the import permit 
for articles in categories I, II and III. The import permit was to contain a 
description of the articles in categories I to III inclusive whose import was 
authorized, giving their number, aggregate weight and type, the name and 
address of the importer, a reference to the order and the name and address of 
the exporter. — The contracting parties further undertook to forward to the 
Permanent Disarmament Commission copies of all import or export permits 
prior to the entry or despatch of articles in categories I to III and similarly 
copies of all export permits in respect of articles in categories IV and V. 
Moreover, within a period of one month from the end of the year, the con- 
tracting parties were to forward a statement of all imports and exports ef- 
fected during the year. — The provisions relating to naval armanents provided 
that, within thirty days of the end of each quarter, the contracting parties 
would furnish a return in respect of each vessel of war acquired during the 
quarter other than those constructed for their own account within their re- 
spective jurisdictions. The delegations of the United Kingdom, Italy, Japan 
and Switzerland submitted alternative texts from which all references to orders 
for manufacture were omitted. Further, the delegations of the United King- 
dom, Italy and Japan submitted an alternative text, as a substitute for the 
above provisions relating to returns, under which the contracting parties would 
furnish to the Permanent Disarmament Commission, within sixty days of the 
end of each quarter, a quarterly return giving the total values of the articles 
falling within categories I to V imported and exported during the previous 
quarter, showing the countries of origin and destination. Finally, the Soviet 
delegation, supported in principle by the delegations of France, Spain and China, 
submitted a proposal that the contracting parties should undertake not to issue 
import, export or transit permits for implements of war in excess of qualitative 
or quantitative limits to be fixed under agreements binding on the parties re- 
sponsible for the permits." 

Concerning supervision the Special Committee suggested the establishment 
of a Permanent Disarmament Commission and the appointment of experts 
by the Commission "to accompany its representatives and for the constitu- 
tion of regional committees to be entrusted with the duty of permanently 
following the execution of the Convention by the different States included in each 
of the regional groups within their respective jurisdictions. They further pro- 
vided that the Commission, for the purpose of its investigations, might take 
into account any information reaching it from a responsible source which it 
might consider as pertinent to the execution of its duties, and that it should 
have the right to hear such witnesses as might voluntarily appear before it 
or consult any person able to throw any light on a question under examination. 
The Commission, moreover, might proceed annually, or more often if it so 
determined, to examine on the spot the conditions in which the national con- 
trol exercised by each government over the manufacture of and trade in arms 
was organized and the accuracy of the information furnished by the govern- 
ments, such inspections being effected through the regional committees. The 
regional committees, if notified in the course of their inspections of certain 
facts which appeared to call for the attention of the Permanent Disarmament 
Commission, would be authorized to establish such facts and to report upon 
immediately to the Permanent Disarmament Commission. Any contracting 
party would be entitled to request the Commission to conduct, in its territory, 



244 

such investigations as might be necessary, in order to verify the execution 
of its obligations, and any contracting party of opinion that the provisions 
of the Conventions had been infringed might address a complaint to the Com- 
mission. The Commission, on receiving such requests or complaints, would 
be bound to consider the matter and determine whether a special investigation 
was necessary. Special investigations undertaken under these provisions would 
be carried out by a special committee created for the purpose, and the result 
of such investigations would be embodied in a special report by the Permanent 
Disarmament Commission, which might make recommendations addressed to 
the contracting party. The procedure to be followed in carrying out such local 
investigations was defined in detail. 

The delegations of the United Kingdom, Italy, Japan and Poland were unable 
to accept the articles which provided for a system of continuous and automatic 
inspection and supervision on the spot. These delegations submitted, in sub- 
stitution for the texts adopted by the Committee, a general article providing 
that the Permanent Disarmament Commission might call for explanations in 
the event of it having reason to believe that an infringement of the Convention 
had occurred or that information supplied to it by a contracting party was 
incomplete or inaccurate. The contracting party would in that case furnish 
explanations, either verbally by responsible officials or in writing as desired 
by the Permanent Commission, and the Commission would draw up, as soon 
as possible, a report embodying the result of its examination. The French 
delegation, in addition to the measures adopted by the Committee, proposed 
that each regional committee should apoint agents who would reside perma- 
nently in the territories of each of the states for which the committee was 
competent. These agents would be accredited to the local authorities and 
would have the necessary means of action to proceed at any moment to effect 
such local inspection as might be required for the discharge of the duties 
of supervision imposed on the regional committees. The Polish and Latvian 
delegations, moreover, proposed that the attention of the Permanent Disarma- 
ment Commission might be drawn by any one of the contracting parties to 
unexpected increases in the manufacture, import or export of arms and muni- 
tions or implements of war which seemed to it to indicate a threat to peace, 
the Commission being in such an event required to consider the matter and 
to call for such explanations as it might consider necessary." Preliminary 
Report on the Work of the Conference, p. 138. 

69. Cf. pp. 13 ff, 104 ff. The Draft Convention contained in Part V the follow- 
ing provisions : 

Article 64. There shall be set up at the seat of the League of Nations a 
Permanent Disarmament Commission composed of representatives of the Gov- 
ernments of the High Contracting Parties. Each such Government shall appoint 
one member of the Commission. Each member may be a accompanied by sub- 
stitutes and experts. . . . 

Article 69. It will be the duty of the Commission to watch the execution 
of the present Convention. The Commission shall receive all the information 
which the High Contracting Parties are bound to communicate to the Secretary- 
General of the League of Nations in pursuance of their international obligations 
in this respect. The Commission may request the High Contracting Parties to 
supply, in writing or verbally, any supplementary particulars or explanations 
in regard to the said information which it may consider necessary. 

Article 72. Any High Contracting Party whose observance of the execu- 
tion of the present Convention may have been the subject of criticism shall be 



245 

entitled to request the Commission to conduct in its territory such investigations 
as may be necessary in order to verify the execution of the obligations of the said 
party under the present Convention. — On receipt of such a request, the Commis- 
sion shall meet at once in order to give effect to it, to determine the scope of the 
investigation within the limits of the criticism which has been made, and to lay 
down the conditions in which the investigation is to take place. 

Article 73. At the request of one or more of the High Contracting Parties, 
the Commission may decide to have investigations of alleged infractions of the 
Convention conducted on the territory of any High Contracting Party. — On the 
receipt of such a request, the Commission shall meet at once in order to take 
a decision upon it. — The decision which will determine the scope of the investi- 
gation, if such is decided upon, shall be taken by a two-thirds majority of all 
the members of the Commission, whether present at the meeting or not. 

Article 74. The result of the investigations decided upon in accordance 
with Articles 72 and 73 shall be embodied in each case in a special report by the 
Commission. — The High Contracting Parties shall promptly advise as to the 
conclusions of the report. 

The United States Working Paper on Methods of Implementing and Enforcing 
Disarmament Programmes, submitted to the Sub-Committee of the Disarmament 
Commission on 25 May 1954 (DC/SC. 1/5) suggested the establishment of a 
United Nations Disarmament and Atomic Development Authority and, under 
this Authority a Disarmament and an Atomic Development Division. The Au- 
thority should be composed in the same manner as the Disarmament Commis- 
sion, that is, only one representative from each of those states represented on 
the Security Council (and Canada when that State is not a member of the Se- 
curity Council) ; but the inclusion of a limited number of representatives of ad- 
ditional states should be possible. "Any State not a member of the Authority 
would have an automatic right to participate, without vote, in Authority discus- 
sions of charges of violations by that State of provisions of the disarmament 
programme treaty. Any State not a member of the Authority would have the 
right to participate, without vote, in Authority discussions of any question 
brought before the Authority whenever the latter considers that the interests 
of that State are specially affected. . . . The Disarmament Division would be 
under the supervision and control of a Director-General, who might be appointed 
for a fixed term, by the Authority. While the Director-General would be sub- 
ject to control by the Authority, he should be allowed sufficient discretion in 
carrying out the terms of the disarmament programme treaty and the instruc- 
tions of the Authority to ensure effective operation of the Disarmament Division. 
The Director-General would be required to refer to the Authority charges of 
violations and other important developments but not routine day-to-day decisions 
concerning the operations of the Disarmament Division. . . . The Atomic De- 
velopment Division would be under the supervision and control of a Board of 
Governors. Each permanent member of the Authority would appoint a mem- 
ber of the Board. Not less than six nor more than eight additional members 
of the Board would be appointed by the Authority. Appointees would be ex- 
pected to possess outstanding technical qualifications and would be appointed 
for a term of five years. While the Board of Governors would be subject to 
control by the Authority, it should be allowed sufficient discretion in carrying 
out the terms of the disarmament programme treaty and the instructions of the 
Authority to ensure effective operation of the Atomic Development Division." 

The relations of the Authority to the main organs of the United Nations are 
determined as follows : 



246 

"To the Security Council. — The Authority would be required to submit sucb 
reports as might be requested by any seven members of the Security Council. 
The Authority's findings in respect to violations, evasions, discrepancies or per- 
tinent omissions should be referred, as appropriate with certification of facts 
to the Security Council. Findings would be accompanied by such recommenda- 
tions as the Authority might deem appropriate. In this regard, provision would 
have to be made for specific steps to be taken by the Security Council and/or the 
General Assembly to bring about rectification of violations of the disarmament 
programme treaty. 

To the General Assembly. — The Authority would transmit to the General 
Assembly periodic reports and any findings in respect to violations, evasions, dis- 
crepancies or pertinent omissions which are submitted to the Security Council. 
The Authority would be required to submit such reports as might be requested 
by the General Assembly. 

To the International Court of Justice. — The Authority would be authorized 
by the General Assembly to request of the International Court of Justice advisory 
opinions on legal questions arising within the scope of the Authority's activities. 
Proceedings before the Court, however, would not be permitted to delay the 
taking of measures necessary to maintain international peace and security. 

To the United Nations Secretariat. — The Authority would use the services 
of the United Nations Secretariat to the extent mutually agreed upon. 

Reports and other communications from the Authority to other organs of the 
United Nations would be transmitted through the Secretary-General." 

On 3 April 1956, the United States of America submitted to the Subcommittee 
of the Disarmament Commission a Draft Working Paper for the First Phase of 
a Comprehensive Agreement for Disarmament (DC/SC.1/42) which contains 
among others the following provisions : "1. Without delay and pending the report 
on the preliminary steps, the five Powers members of the Subcommittee, while 
continuing their work in the Subcommittee of the Disarmament Commission of 
the United Nations, agree to organize a preparatory armaments regulation com- 
mission. All decisions of the preparatory armaments regulation commission shall 
be taken by unanimous vote. 2. The preparatory armaments regulation com- 
mission shall agree upon the reduced level of conventional armaments, armed 
forces and military expenditures of the five members to be accomplished in the 
first phase, (a) The reduced level of armaments shall be fixed by an agreed 
application of the manpower levels as a basis for measurement applied to all 
conventional armaments, (b) The reduced manpower level at the first phase for 
illustrative purposes shall be: France — 750,000, U.S.S.R.— 2.5 million, United 
Kingdom — 750,000, United States — 2.5 million, (c) The application of the man- 
power measurement to the composition of the arms of each State shall be at the 
discretion of the State involved, but such application as is decided upon by the 
States shall be communicated to the preparatory armaments regulation commis- 
sion prior to the beginning of any reductions, (d) The reduced level of military 
expenditures shall be an agreed reflection of the reduced level of armaments 
and manpower. 3. A control and inspection plan will be agreed upon which will 
include the Geneva proposals of the President of the United States and of the 
Chairman of the U.S.S.R., and will include ground control posts at ports, railway 
terminals, airfields and main highways; aerial survey; mobile units; and an 
effective communications method. This control and inspection system shall be 
reciprocally extended in an appropriate and effective manner with consent of the 
States concerned to forces and facilities which the five Powers have outside their 
own borders. This control and inspection system shall be designed to be capable 



247 

of providing against surprise attack by any State and to be capable of verifying 
the agreed levels of conventional armaments, armed forces and military expendi* 
tures. 4. A committee of jurists shall be appointed to prepare a draft treaty to 
carry out the first phase of a disarmament programme and to prepare for sub- 
sequent phases. The draft treaty will include a clause for suspension, partial 
suspension, countering steps, or termination in the event of violation or upon the 
occurrence of circumstances adverse to the continued successful operation of 
the treaty. The draft treaty will also include a clause for appropriate reports to 
the United Nations Security Council and General Assembly. 5. The preparatory 
armaments regulation commission will prepare for the control and inspection 
responsibilities principally through the use of member States as executive agents 
designated for specific assignments. The executive agents, in the carrying out of 
their assignments, shall use the nationals of at least five States of which at least 
one State shall not be associated in any mutual defence agreements with the 
executive agent. Sixty percent of the personnel used by an executive agent on 
an assignment may be nationals of the executive agent's State. The assignments 
as executive agent shall be made with the consent of the State to be inspected 
and of the executive agent to be designated. 6. An effective world-wide control 
communications network shall be established with major control communications 
centres. 7. Upon the agreement of the members of the preparatory armaments 
regulation commission on the reduced level of conventional armaments and 
armed forces and military expenditures to be accomplished in the the first phase ; 
and upon agreement on the system of control and inspection to be installed to 
provide against surprise attack and to verify reductions in levels of armaments, 
armed forces, and military expenditures ; the following three steps will be taken 
interdependently and concurrently : ( a ) Each State will provide to the prepara- 
tory armaments regulation commission a 'blueprint' of its military establish- 
ments consisting of the identification, strength, command structure, and disposi- 
tion of personnel units and equipment of all major land, sea, and air forces includ- 
ing organized reserves and para-military; and a complete list of conventional 
military plant facilities and installations with their locations ; and the relevant 
budgetary and appropriation documents for the year ended 31 December 1955 
and for the current year, (b) Each State will carry out measures of a stabilizing 
nature relating to the limitation of the main types of armaments and armed 
forces, and accordingly will take steps not to increase its appropriations for 
armed forces and armaments above the level of the expenditures effected for 
those purposes during the year ended 31 December 1955. (c) The installation of 
the inspection and control system will be initiated and expeditiously completed. 
8. The praparatory armaments regulation commission will notify the member 
States when the control communications centres are prepared to function and 
thereafter each member State will give advance notice to the control communica- 
tion centres of all projected movements of land, sea, or air armed forces through 
international air or water or over foreign soil. The method and extent of the 
notice will be in accordance with detailed reciprocal arrangements drawn up 
for the purpose of increasing the effectiveness and reliability of the safeguards 
against surprise attack by any State upon any other State. 9. The Disarmament 
Commission of the United Nations will be requested to invite other States 
having a significant military potential to join in an armaments regulation 
organization, (a) In each instance an agreed first phase reduced level of 
armaments, armed forces, and military expenditures will be established, which 
should be considerably below the levels fixed for the four major members of the 
preparatory armaments regulation commission, account being taken of agreed 



248 

criteria including demographic, geographic, economic and political factors, and 
providing that the first phase levels of the armed forces of these States shall 
not exceed 500,000 men unless special circumstances require an agreed exception, 
and except that the first stage level of the armed forces of China shall not 
exceed 2,500,000 men. (b) Each State will be required to take appropriate 
corresponding obligations for inspection, control, limitation, and reporting in all 
respects similar to the obligations taken by the members of the praparatory 
armaments regulation commission. 10. An armaments regulation organization 
will be established, with an armaments regulation council including all signa- 
tories, an executive committee consisting of permanent and non-permanent 
elected members, and a director-general. All decisions of the executive com- 
mittee will be taken by a unanimous vote of the permanent members plus a 
majority vote of the non-permanent members, (a) Upon the establishment of 
the armaments regulation organization the preparatory armaments regulation 
commission will transfer all of its functions and activities to the appropriate 
bodies of the armaments regulation organization and will cease to exist. 11. All 
signatory States will report to the director-general in the affirmative or negative 
on the following four points : (a) The possession of fissionable materials ; (b) The 
production of fissionable materials ; (c) The possession of nuclear weapons ; and 
(d) The planning of tests of nuclear weapons. 12 The control and inspection 
system will be expanded so that it becomes capable of accounting for future pro- 
duction of fissionable materials and of monitoring the future testing of nuclear 
weapons. 13. Upon the report of the director-general that the system is prepared 
to verify the reductions in levels of armaments, armed forces, and military ex- 
penditures, and is prepared to provide against surprise attack; and upon the 
acceptance of the report of the director-general by the executive committee ; and 
upon the adherence to the treaty of the States considered by the executive com- 
mittee as essential for a sound system ; the first phase reductions will be carried 
out in all signatory States in accordance with an agreed and parallel time 
schedule, (a) The destruction of existing armaments required by each State to 
reduce to the agreed first phase levels will be done under the supervision of the 
inspectors of the armaments regulation organization, and the salvage material 
will be used for peaceful national purposes. 14. Appropriations by States for 
armaments and armed forces will be reduced correspondingly to reflect in an 
agreed manner the first phase reductions, and the funds available through this 
reduction shall be used both to improve the well-being of the peoples of these 
States and to furnish assistance particularly to the economically less-developed 
countries. 15. Upon the report of the director-general that the inspection and 
control system is prepared to account for future production of fissionable 
materials, and upon the acceptance of this report by the executive committee, all 
signatory States agree that future production of fissionable materials will not be 
used for the manufacture of explosive weapons. 16. All signatory States possess- 
ing nuclear weapons will begin to make agreed regular reciprocal and equitable 
transfers from past production of fissionable materials over to the use of such 
transferred material for exclusively peaceful purposes, thereby progressively 
reducing the amount of fissionable materials available for nuclear weapons 
purposes. 17. The testing of nuclear weapons will be limited and monitored 
in an agreed manner under the control of the armaments regulation council. 
18. Upon a report of the inspector-general that the first phase of the disarma- 
ment programme has been successfully completed, and upon the acceptance of this 
report by the executive committee, the executive committee will call a plenary 
session of the armaments regulation council. The council will appraise the 






249 

status of world tensions, review the situation affecting major issues between 
the States, consider the feasibility of further reductions of armaments, armed 
forces, and military expenditures, study the possibilities for further decreasing 
or eliminating the nuclear threat, and make recommendations to the executive 
committee for further phases in a comprehensive disarmament programme. 
19. The executive committee will take account of the recommendations of the 
armaments regulation council, consider scientific, military, economic, and po- 
litical factors, and decide upon further phases of a comprehensive disarmament 
programme, which will best serve the objective of a just and durable peace, for 
recommendation to the signatory States." Third Report of the Sub-committee of 
the Disarmament Commission, Annex 6. 

70. The Baruch Plan contained the following statement: "There must be no 
veto to protect those who violate their solemn agreements not develop or use 
atomic energy for destructive purposes." The International Control of Atomic 
Energy, p. 142. The Recommendations of Part III of the first Report of the 
United Nations Atomic Energy Commission, approved by the Resolution 191 
(III) adopted on 4 November 1948 of the General Assembly, contains the fol- 
lowing passage : The treaty concerning control of atomic energy "shall provide 
that the rule of unanimity of the permanent members, which in certain circum- 
stances exists in the Security Council, shall have no relation to the work of the 
international control agency. No Government shall possess any right of 'veto' 
over the fulfilment by the international control agency of the obligations imposed 
upon it by the treaty nor shall any government have the power, through the 
exercise of any right of 'veto' or otherwise, to obstruct the course of control or 
inspection." 

71. Georg Cohn, in a memorandum submitted to the International Studies 
Conference on Collective Security {Collective Security, pp. 287 ff.), wrote: "It 
may be that the tendency to war and to murder are innate in mankind. In 
that case, considering the frightful consequences entailed in the carrying out 
of this tendency, a much more energetic action should be undertaken with 
a view to suppressing it and rooting it out from childhood. But it is also pos- 
sible that we have here an unhealthy perversion of tendencies which are in 
themselves healthy and useful, and that it may therefore be possible to combat 
the madness of war also by medical means. Aside from this pedagogical and 
medical struggle against the war spirit, it is possible, finally, to consider com- 
bating it by means of repressive measures of an international character against 
incitement to war, either by parallel national legislation in the different coun- 
tries, or by the establishment of penal dispositions of an international order 
against States which do not repress with sufficient effectiveness the incitement 
to war on their own territory." 

72. Most of the measures mentioned above were suggested in a Memorandum 
submitted by the Polish Government to the Disarmament Conference of the 
League of Nations on 17 September 1931 (Series of League of Nations Publica- 
tions IX. Disarmament 1931. IX, 19, pp. 1 f.) and Proposals of the Polish Dele- 
gation with regard to the gradual attainment of Moral Disarmament (Series of 
League of Nations Publications IX. Disarmament 1932. IX, 18, pp. 1 f.) 

The Political Commission of the League of Nations Disarmament Con- 
ference appointed on 15 March 1932 a special committee of 22 members selected 
for their personal qualifications to study the question of moral disarmament. 
This committee adopted on 17 November 1933 the following Draft of a Con- 
vention on Moral Disarmament : 



250 

"The High Contracting Parties, considering that moral disarmament is 
one of the essential aspects of the general work of disarmament ; considering 
that the reduction and limitation of armaments depend to a large extent upon 
the increase of mutual confidence between nations ; considering that, as far 
as public opinion is concerned, a sustained and systematic effort to ease tension 
may contribute to the progressive realization of material disarmament; con- 
sidering that the interdependence of States calls, not only for their cooperation 
in the political sphere, but also for an effort of mutual understanding between 
the peoples themselves; being resolved to do whatever lies in their power to 
induce their nationals to display in any public discussion a spirit of tolerance 
and mutual respect ; being convinced that the success of the measures adopted 
in one country to ensure moral disarmament is largely dependent on the applica- 
tion of similar measures in other countries ; recognizing that the League of 
Nations has placed at the disposal of the various States the Intellectual Coopera- 
tion Organization, which is particularly suited to the accomplishment of certain 
tasks connected with moral disarmament, although a different procedure may 
have to be adopted to meet special situations : 

Article 1. The High Contracting Parties undertake to use their powers or 
their iniluence to see that education at every stage, including the training of 
teachers, is so conceived as to inspire mutual respect between peoples and to 
emphasize their interdependence, which makes international collaboration a 
necessity. 

Article 2. The High Contracting Parties will also do whatever lies in their 
power to see that teachers are guided by these principles. School text-books 
should be prepared in the same spirit ; those which are at variance with that 
spirit should be revised. The High Contracting Parties likewise agree to recom- 
mend to their competent authorities the inclusion of the following subjects in the 
syllabus prescribed for entrance examinations to official posts which entail rela- 
tions with other countries : fundamental principles of international law, legal 
bases of international relations, and outlines of the efforts made to consolidate 
peace between nations. They undertake to recommend to their competent au- 
thorities that their country's history is taught in relation to the history of other 
countries. 

Article 3. The High Contracting Parties undertake to encourage, in accord- 
ance with the special system in force in their respective countries, the use of the 
cinematograph and broadcasting with a view to increasing the spirit of good-will 
between nations. With this end in view, they will also support any action taken 
by the Intellectual Cooperation Organization, as well as by organizations having 
the same object. In accordance with the special system in force in their respec- 
tive countries, they will use their influence to avoid the showing of films, the 
broadcasting of programmes and the organization of performances obviously 
calculated to wound the legitimate sentiments of other nations. 

Article 4. The High Contracting Parties will endeavor to facilitate, by the 
most appropriate means, the cooperation in the work of moral disarmament of 
government departments, intellectual circles and others working for peace on 
a larger scale. With this end in view, they agree to encourage the creation and 
activities of national committees for intellectual cooperation or other organiza- 
tions collaborating in the work of moral disarmament." (Series of League of 
Nations Publications IX. Disarmament 1936. IX, 4, pp. 925 f.) 

At its meeting on 25 June 1932 the Committee for Moral Disarmament decided 
to set up a Legal Committee. This Committee drew up a questionnaire on the 



251 

various points to which its attention had particularly been directed and attached 
to this questionnaire the draft of some articles, which ran as follows: 

Article 1. (First Alternative) : "The High Contracting Parties agree to con- 
sider, within the limits of the possibilities afforded by their public law, the adop- 
tion of constitutional rules formally embodying the obligation to refrain from 
recourse to force as an instrument of national policy and not to attempt the 
solution of any difference or dispute by other than pacific means. The High 
Contracting Parties who are Members of the League of Nations assume the same 
obligation in respect of the stipulations of the Covenant of the League of Nations." 
(Second Alternative) : "The High Contracting Parties undertake to recognize as 
fundamental laws the stipulation of the Pact of Paris, the Covenant of the 
League of Nations (in the case of Members of the League of Nations) and of such 
articles as may subsequently be specified of the General Convention for the Reduc- 
tion and Limitation of Armaments. Each party further undertakes to ensure 
that none of its laws, regulations or other provisions shall conflict or be at vari- 
ance with the stipulations of the aforesaid international agreements. . . . 

Article 2. The High Contracting Parties undertake to adopt legislative 
measures empowering them to penalize: 1. The preparation and carrying-out 
in their respective territories of acts directed against the security of a foreign 
power. 2. (First Alternative) : Direct public propaganda urging the State to be 
the first to commit, contrary to its international undertakings, any of the follow- 
ing acts: (a) declaration of war upon another state; (b) invasion by its armed 
forces, even without declaration of war, of the territory of another State; 
(c) attack by its land, naval or air forces, even without declaration of war, upon 
the territory, vessels or aircraft of another State; (d) naval blockade of the 
coasts or ports of another State; (e) assistance given to armed bands, organized 
in its territory, which have invaded the territory of another State, or 
refusal, in spite of the request of the invaded State, to take in its own territory 
all possible steps to deprive the aforesaid bands of all assistance or protection. 
(Second Alternative) : Direct public propaganda urging the State to commit any 
one of the acts of aggression enumerated in Article ... of the present Convention 
relative to the definition of the aggressor. (Third Alternative) : Inciting public 
opinion by direct public propaganda with a view to forcing the State to embark 
upon a war of aggression. 3. Participation in or support of armed bands, organized 
in the territory of the State, which have invaded the territory of another State. 

4. The dissemination of false news, reports or of documents forged, falsified or 
inaccurately attributed to third parties, whenever such dissemination has a 
disturbing effect upon international relations and is carried out in bad faith. 

5. Causing prejudice to a foreign State by maliciously attributing to its acts 
which are manifestly untrue and thus exposing it to public resentment or con- 
tempt. 6. Acts contrary to the prohibitions laid down in Articles ... of the Con- 
vention. (This text should be completed by provisions dealing more especially 
with the case of persons who, contrary to the undertakings given by the State, 
have been guilty of the private manufacture of or trade in arms or implements 
of war and also of preparations, contrary to the provisions of the Convention, 
for chemical, incendiary or bacterial warfare, etc.). 

Article 3. The High Contracting Parties further undertake : ( 1 ) to prevent 
the activities of organizations committing any of the acts enumerated in Article 
2 and to treat them as organizations pursuing illegal aims under the municipal 
laws of the country; (2) to incorporate in their laws the necessary provisions- 
to permit of their giving effect to any provisions which may be embodied in 
the Convention on the subject of immunities (the reference here is to the pro>- 
370624—57 17 



252 

visions of the Convention which may be elaborated in consequence of the French 
delegation's proposals)." Series of League of Nations Publications IX. Dis- 
armament 1935. IX, 4, pp. 701 ff. 

The General Assembly of the United Nations adopted at its 108th plenary 
meeting on 3 November 1947 a Resolution 110 (II) concerning measures to be 
taken against propaganda and the inciters of a new war which runs as follows: 

"Whereas in the Charter of the United Nations the peoples express their 
determination to save succeeding generations from the scourge of war, which 
twice in our lifetime has brought untold sorrow to mankind, and to practice 
tolerance and live together in peace with one another as good neighbours, and 

Whereas the Charter also calls for the promotion of universal respect for, 
and observance of, fundamental freedoms which include freedom of expression, 
all Members having pledged themselves in Article 56 to take joint and separate 
action for such observance of fundamental freedoms, 

The General Assembly 

1. Condemns all forms of propaganda, in whatsoever country conducted, which 
is either designed or likely to provoke or encourage any threat to the peace, 
breach of the peace, or act of aggression; 

2. Requests the Government of each Member to take appropriate steps within 
its constitutional limits: 

(a) To promote, by all means of publicity and propaganda available to 
them, friendly relations among nations based upon the Purposes and Principles 
of the Charier ; 

(b) To encourage the dissemination of all information designed to give ex- 
pression to the undoubted desire of all peoples for peace; 

3. Directs that this resolution be communicated for the forthcoming Confer- 
ence on freedom of Information." 

The Resolution 176 (II) adopted by the General Assembly at its 123rd 
plenary meeting on 21 November 1947 contains the following statement: "The 
General Assembly Resolves to request the Governments of the Member states: 
1, To take appropriate measures to extend the teaching of international law 
in all ils phases, including its development and codification, in the universities 
and higher educational institutions of each country that are under government 
control or over which Governments have some influence, or to initiate such 
teaching where it is not yet provided ; 

2. To promote similar teaching regarding the aims, purposes, structure and 
operation of the United Nations in conjunction with paragraph 1 above and in 
accordance with Resolution 137 (II) adopted by the General Assembly on 17 
November 1947, on the teaching of the purposes and principles, the structure 
and activities of the United Nations in the schools of Member States." 

A Resolution, 290 (IV), concerning essentials of peace, adopted by the General 
Assembly at its 261st plenary meeting on 1 December 1949 contains the state- 
ment : "The General Assembly calls upon every nation. ... 8. To remove the 
barriers which deny to peoples the free exchange of information and ideas 
essential to international understanding and peace." 

On 17 November 1950 the General Assembly adopted at its 308th plenary 
meeting Resolution 381 (V) concerning the condemnation of propaganda against 
peace, which runs as follows: 

"The General Assembly, 

1. Reaffirms its resolutions 110 (II) and 290 (IV), paragraph 8, which con- 
demn all propaganda against peace and recommends the free exchange of infor- 






253 

mation and ideas as one of the foundations of good-neighbourly relations between 
the peoples ; 
2. Declares that such propaganda includes : 

(1) Incitement to conflicts or acts of aggression ; 

(2) Measures tending to isolate the peoples from any contact with the 
outside world, by preventing the Press, radio and other media of communication 
from reporting international events, and thus hindering mutual comprehension 
and understanding between peoples ; 

(3) Measures tending to silence or distort the activities of the United Na- 
tions in favour of peace or to prevent their peoples from knowing the views of 
other States Members." 

In this connection also the International Convention concerning the Use of 
Broadcasting in the Cause of Peace, 23 September 1936, and the Resolution of 
the General Assembly 424 (V) of 14 December 1950, are to be mentioned. Cf. 
supra, p. 89, note 8. 

(ee) Economic cooperation. 

If war is caused not only by political but also by economic circum- 
stances, a universal or quasi-universal international security organiza- 
tion must have institutions to bring about, as far as possible, 
satisfactory economic conditions throughout the world, and thus its 
constituent treaty must provide for so-called economic cooperation. 1 
The main question of the exact nature of the relationship between 
economic circumstances and war is highly disputed. It is a specific 
Marxian theory that the occurrence of war is exclusively, or at least 
predominantly, due to economic causes, especially to the capitalistic 
system. This view is rejected by an outstanding English economist, 
Lionel Robbins, who tries to show that, although it would be an 
exaggeration to say that wars have no economic causes or to deny 
that conflicts of national economic interests may lead to war, these 
conflicts are not the root cause. "The ultimate condition giving rise 
to those clashes of national economic interest which lead to interna- 
tional war is the existence of independent national sovereignties. Not 
capitalism, but the anarchic political organization of the world is 
the root disease of our civilization." la He says further : "We know 
today that unless we destroy the sovereign state, the sovereign state 
will destroy us." 2 Hence, according to Eobbins, the main purpose 
of an international security organization is to restrict national sov- 
ereignty by imposing upon its members definite obligations, the ful- 
fillment of which is guaranteed by effective sanctions. However, 
another and no less outstanding writer, Edward H. Carr, advocates 
the opinion that international security is only a by-product of a 
definite social organization. "International peace . . . cannot be 
achieved by the signing of pacts or covenants 'outlawing' war any 
more than revolutions are prevented by making them illegal. A gen- 
eration which makes peace and security its aim is doomed to frustra- 



254 

tion. ... If the victors in the present war [the second World War] 
are able to create the conditions for an orderly and progressive devel- 
opment of human society, peace and security will be added unto 
them." s Further, he suggests that this "orderly and progressive 
development of human society" may be brought about by a "new 
democracy" which differs from "liberal" democracy by the fact that 
the ideals of equality and liberty are "re-interpreted in predominantly 
economic terms," 4 by restricting the self-determination of the states, 5 
which are to be placed within a more or less universal international 
organization, and, last but not least, by abandoning the laissez-faire 
policy of economic liberalism and adopting a policy of planned 
economy, 6 that is to say, by socialism. 

However that may be, it is now an almost generally accepted opinion 
that economic cooperation is an important preventive measure which 
may be applied by an international security organization. 7 

That economic cooperation is a purpose of an international security 
organization means that this organization should bring about, as far 
as possible, a coordination of the economic policies of its members. 
The activities of different subjects can be coordinated only with a 
view to a definite goal. Economic cooperation of the members of an 
international security organization is achieved if the governments of 
these states adapt their activity to a certain pattern of economic policy 
which is characterized by its end as well as by the means to be applied 
with a view to realizing the end. There is no difficulty in answering 
the question as to the end of economic cooperation. It is a satisfactory 
economic situation of the states, an adequate status of world economy. 
The usual formulas by which this goal is described are: "economic 
health of every country," 8 "economic prosperity" (the opposite of 
economic depression), "social security," 9 "economic stability and well 
being," "high standard of living," 10 "economic advancement," n "eco- 
nomic progress," "full employment," 12 and the like. All these for- 
mulas are meaningless unless the specific means are indicated by which 
these ideals may be realized. There is, in general, agreement con- 
cerning the ultimate ends of social life : the greatest possible happiness 
of the greatest possible number of individuals. The real problem, 
and the main cause of conflict of opinion, is not the end but the means 
by which the generally accepted end is to be realized. There are two 
fundamentally different and directly opposite views concerning the 
appropriate method of bringing about satisfactory economic condi- 
tions: economic liberalism, postulating private property in the means 
of production and complete freedom of economic life, and rejecting 
any governmental intervention; and economic socialism, postulating 
the nationalization of the means of production, and the authoritative 



255 

regulation of economic life, especially in the organization of economic 
production and in the distribution of products. 13 If there is no agree- 
ment with respect to the specific methods determining the economic 
pattern to which the members of an international security organiza- 
tion are to adapt their policy — and there is evidently not only no 
agreement but the most passionate antagonism in this respect — there 
is not very much left to the activity of an international security 
organization in the field of economic cooperation. Even apart from 
this fundamental antagonism, economic cooperation is hampered by 
the conflict of interests between states which are forced to secure their 
national economy by protective tariffs and those the economy of which 
requires a free trade. The most serious limitation of economic coop- 
eration results from the principle that the international organization 
must not intervene in matters which are within the domestic jurisdic- 
tion of its members; and economic matters are usually considered to 
be within the domestic jurisdiction of the states. 14 

In view of these circumstances, it is not astonishing that the only 
effective way of achieving economic cooperation within an interna- 
tional security organization: the establishment of a special organ 
competent to impose by its decisions definite obligations upon the 
member states with respect to their economic policy, is practically 
out of the question. The organ or organs concerned may be endowed 
only with the power of discussing the problems involved, of giving 
advice, of making recommendations, of collecting and disseminating 
useful information. 15 Positive results may be — and actually have 
been — achieved on a more or less voluntary basis, especially through 
agencies established by special conventions, in the fields of relief 
and reconstruction, 16 international lending and monetary regulation, 17 
food and agricultural organization. 18 

The treaty constituting an international security organization may 
provide not only for economic but also for social cooperation — that 
is, for cooperation in the fields of labor, health, drug control, educa- 
tion, and human rights in general. 19 It may contain provisions 
concerning the treatment of non-self-governing peoples, especially 
colonies, by placing their administration under a system of interna- 
tional control. 20 However, these functions are not diractly connected 
with its main purpose — the prevention of war 21 — and therefore not 
essential elements of a system of collective security in the strict sense 
of this term. 

NOTES 

1. Article I of many Mutual Defense Assistance Agreements refers to "the 
principle that economic recovery is essential to international peace and security 
and must be given clear priority." 



256 

1*. Lionel Bobbins, The Economic Causes of War, (1939), p. 99; cf. also pp. 
15 ff, 57. 

2. Bobbins, op. cit., p. 105. 

3. Edward Hallett Carr, Conditions of Peace (1942), p. xxiii. 

4. Carr, op. cit., pp. 11, 30 ff. 

5. Carr, op cit., pp. 12, 39 ff. 

6. Carr, op cit., pp. 13 ff. 

7. Economic cooperation was not a main purpose of the League of Nations. 
The only provision of the Covenant referring to this subject matter was Article 
23 (e) which provided: "the Members of the League . . . will make provisions 
to secure and maintain freedom of communications and of transit and equitable 
treatment for the commerce of all Members of the League. In this connection 
the special necessities of the regions devastated during the war of 1914-1918 
shall be borne in mind." However, as a matter of fact, the activity of the 
League in the field of economic cooperation went far beyond the narrow limits 
of this provision, and in December 1939, the Assembly approved the report 
of a special committee — the so-called Bruce Committee, named for its Chair- 
man, S. M. Bruce, Australian High Commissioner — which suggested the estab- 
lishment of a Central Committee for Economic and Social Questions ( The Devel- 
opment of International Co-operation in Economic and Social Affairs. Report 
of the Special Committee. Special Supplement to the Monthly Summary of 
the League of Nations, August 1939). The outbreak of the Second World 
War prevented the realization of this plan. 

In the Charter of the United Nations, economic cooperation plays an im- 
portant part. The preamble proclaims that the United Nations are determined 
"to promote social progress and better standards of life in larger freedom" and 
to "employ international machinery for the promotion of the economic and social 
advancement of all peoples." Article 1, paragraph 3, declares that it is a Pur- 
pose of the United Nations "To achieve international cooperation in solving 
international problems of an economic, social, cultural, or humanitarian charac- 
ter . . ." Article 13, paragraph 1, letter b, confers upon the General Assembly 
the power to "initiate studies and make recommendations for the purpose of . . . 
promoting international cooperation in the economic, social, cultural, educa- 
cational, and health fields . . ." and two Chapters (IX and X) containing 
Articles 55-72 are devoted to "International Economic and Social Cooperation" 
and "The Economic and Social Council." The most characteristic provisions 
of these two chapters are: 

"Article 55. With a view to the creation of conditions of stability and well- 
being which are necessary for peaceful and friendly relations among nations 
based on respect for the principle of equal rights and self-determination of 
peoples, the United Nations shall promote : 

a. higher standards of living, full employment, and conditions of economic 
and social progress and development ; 

b. solutions of international economic, social, health, and related prob- 
lems; and international cultural and educational cooperation; and 

c. universal respect for, and observance of, human rights and funda- 
mental freedoms for all without distinction as to race, sex, language, or religion. 

Article 61. 1. The Economic and Social Council shall consist of eighteen 
Members of the United Nations elected by the General Assembly. 2. Subject 
to the provisions of paragraph 3, six members of the Economic and Social Coun- 
cil shall be elected each year for a term of three years. A retiring member 
shall be eligible for immediate reelection. 3. At the first election, eighteen 



257 

members of the Economic and Social Council shall be chosen. The term of 
office of six members so chosen shall expire at the end of one year, and of six 
other members at the end of two years, in accordance with arrangements made 
by the General Assembly. 4. Each Member of the Economic and Social Council 
shall have one representative. 

Article 62. 1. The Economic and Social Council may make or initiate 
studies and reports with respect to international economic, social, cultural, edu- 
cational, health, and related matters and may make recommendations with re- 
spect to any such matters to the General Assembly, to the Members of the United 
Nations, and to the specialized agencies concerned. 2. It may make recom- 
mendations for the purpose of promoting respect for, and observance of, human 
rights and fundamental freedoms for all. 3. It may prepare draft conventions 
for submission to the General Assembly, with respect to matters falling within 
its competence. 4. It may call, in accordance with the rules prescribed by the 
United Nations, international conferences on matters falling within its 
competence. 

Article 67. 1. Each member of the Economic and Social Council shall have 
one vote. 2. Decisions of the Economic and Social Council shall be made by a 
majority of the members present and voting." 

8. President Franklin D. Roosevelt said in his address to the Monetary and 
Financial Conference, Washington, D. C, on 29 June 1944 : "Economic diseases 
are highly communicable. It follows, therefore, that the economic health of 
every country is a proper matter of concern to all its neighbors, near and dis- 
tant." In : Louise W. Holborn, Ed., War and Peace Aims of the United Nations 
(Boston : World Peace Foundation, 1948), p. 288. 

9. Atlantic Charter (14 August 1941) : "The President of the United States 
of America and the Prime Minister, Mr. Churchill, representing His Majesty's 
Government in the United Kingdom, being met together, deem it right to make 
known certain common principles in the national policies of their respective 
countries on which they base their hopes for a better future of the world. . . . 
Fourth. They will endeavor ... to further the enjoyment by all states, great 
and small, victor or vanquished, of access, on equal terms, to the trade and to the 
raw materials of the world which are needed for their economic prosperity. 
Fifth, They desire to bring about the fullest collaboration between all nations 
in the economic field, with the object of securing, for all, . . . economic advance- 
ment and social security. . . ." 

10. Article 55 of the U.N. Charter. 

11. Preamble to the U.N. Charter. 

12. Article 55 of the U.N. Charter. 

13. When after the First World War the problem of the cooperation of the 
United States and the United Kingdom for the economic reconstruction of 
Europe became urgent, Bernard Baruch, on behalf of the United States, advo- 
cated the following opinion : "The salvation of the world must rest upon the 
initiative of individuals" (H. R. G. Greaves, The League Committees and World 
Order, 1931, p. 66.) This is a typical expression of economic liberalism. From 
this point of view, economic cooperation as a function of an international organi- 
sation is possible only in a negative sense: Its main purpose is to induce the 
governments of the members to remove all economic barriers. This was also the 
view of President Wilson who in point three of his fourteen points program of 
January, 1918, called for the "removal, so far as possible, of all economic 
barriers and the establishment of an equality of trade conditions among all the 



258 

nations consenting to the peace . . ." {Cf. Daniel S. Cheever and H. Field 
Haviland, Jr., Organizing for Peace, 1954, pp. 159, 160 ff.) 

14. Article 2, paragraph 7, of the Charter of the United Nations stipulates: 
"Nothing contained in the present Charter shall authorize the United Nations to 
intervene in matters which are essentially within the domestic jurisdiction of 
any state or shall require the Members to submit such matters to settlement 
under the present Charter; but this principle shall not prejudice the applica- 
tion of enforcement measures under Chapter VII." In its Report to the Presi- 
dent on the Results of the San Francisco Conference (Department of State 
Publication 2349, Washington, 1945, p. 44), Secretary of State Stettinius justi- 
fied this provision as desirable "because of the amplification of the power and 
authority given to the Assembly and, particularly, to the Economic and Social 
Council. Without this general limitation ... it might have been supposed 
that the Economic and Social Council could interfere directly in the domestic 
economy, social structure, or cultural or educational arrangements of the member 
states. Such a possibility is now definitely excluded." Cf. also Cheever and 
Haviland, op. oft., pp. 212, ff. 

15. Cf. Article 13, paragraph 1 (b), and Article 62 of the U.N. Charter, p. 256 f. 

16. In this respect the United Nations Relief and Rehabilitation Administra- 
tion (UNRRA) should be mentioned. 

17. The International Monetary Fund and the International Bank for Recon- 
struction and Development were established for these purposes. 

18. The Food and Agricultural Organization of the United Nations. 

19. The following agencies operate for these purposes : the International Labor 
Organization, the World Health Organization (specialized agencies brought in 
relationship with the United Nations) ; the Commission on Narcotic Drugs of 
the Economic and Social Council, which took the place of the Advisory Com- 
mittee on Traffic in Opium and other Dangerous Drugs of the League of Na- 
tions) ; the United Nations Educational, Scientific and Cultural Organization (a 
specialized agency) ; the Human Rights Commission of the Economic and 
Social Council. 

20. Such as the mandate system of the League of Nations (Article 22 of the 
Covenant) and the trusteeship system of the United Nations (Chapters XI and 
XII of the Charter.) 

21. Article 73 (c) of the U.N. Charter stipulates as an obligation of the 
members which have or assume responsibilities for the administration of terri- 
tories whose people have not yet attained a full measure of self-government, the 
obligation "to further international peace and security," and Article 76 (a) 
characterizes one of the objectives of the trusteeship system by the same 
formula. However, this is an obligation incumbent upon all members and not 
a specific element of the political system established for non-self-governing ter- 
ritories in general and trust territories in particular. 

(f f ) Universalism and regionalism. 

In spite of their tendency towards universality, the Covenant of 
the League of Nations and the Charter of the United Nations 
both authorize the establishment of regional security organizations. 
However, they do not contain a definition of this concept. 1 As a 
matter of fact, there are different views as to the meaning of the term 
"regional." la According to one, a regional organization is an associa- 



259 

tion of neighboring states, that is, of states which are united by the 
fact that their territories are contiguous. According to another, 
the geographical element is not essential. States may form a re- 
gional organization even if their territories are separated by the ter- 
ritories of states not belonging to the organization or by the ocean. 
Their unity is constituted by a common interest, e. g., by the fact that 
they have a common enemy. That their organization is "regional" 
means that it is not a universal but a partial association of states, com- 
prising only several but not all (or not almost all) the states of the 
international community. An additional criterion may be that the 
realization of the purpose for which the organization is established is 
limited to an area precisely defined in the constituent treaty. 2 

It stands to reason that territorial contiguity in itself is not capable 
of constituting a political unity. If states A, B and O may form a 
regional organization even though the territory of A is contiguous only 
to that of B and not to that of C whose territory is contiguous only to 
that of B, then there is no reason to exclude state D whose territory 
is contiguous only to that of A or state E whose territory is contiguous 
only to that of 6", and so forth. There is no answer to the question of 
where the territorial contiguity, which is to be considered as the basis 
of a "regional" organization, ends. There must be an additional 
factor constituting the unity of a regional organization, a common 
interest uniting the neighboring states, but such a common interest, 
as for instance defense against a potential aggressor, may unite states 
whose territories are far distant from one another. It may be only 
the territory of the potential aggressor which separates the states 
united by an international organization established for the purpose 
of collective defense. Such an organization is "regional" but not in 
the geographical sense of this term. 3 

There can be little doubt that a universal or quasi-universal organi- 
zation is the ideal solution of the problem of international security. 
Regional security organizations are at best only partial solutions and 
to some extent they are even a danger to international security. For 
this reason the framers of the Covenant as well as of the Charter were 
not in favor of regional security organizations which were suspected 
of being the old alliances in the disguise of mutual assistance agree- 
ments. 4 In order to differentiate alliances from regional security 
organizations, the doctrine has been expounded that the latter 
are by their very nature directed against an aggression which takes 
place within the organization whereas the former are directed against 
an aggression from the outside 5 and hence may be misused for offen- 
sive purposes. There is, however, no sufficient reason to deny a treaty, 
concluded by some states and imposing upon the parties the obligation 



260 

to assist one another in case of an aggression on the part of a state not 
a contracting party, the character of a regional security agreement. 
On the contrary, only a regional — in the sense of a non-universal — 
organization can be directed against aggression on the part of a state 
not belonging to the organization ; and even an agreement which re- 
stricts the obligation of the parties to mutual assistance in case of in- 
ternal aggression may be misused for offensive purposes. A state, 
party to such an agreement, may very well be attacked on the part of 
other parties under the pretext of being guilty of an aggression. A 
defensive alliance is always a regional security organization, and 
even if restricted to the case of internal aggression, a regional security 
organization is a defensive alliance of the non-aggressors against 
the potential aggressor among them. It is true that an "alliance," 
in the specific sense of the term — that is, a regional defense organiza- 
tion directed against aggression from the outside — arouses the sus- 
picion of aggressive intentions and leads, therefore, to counter alliances 
and thus to a situation which is just the contrary of international 
security. However, it should not be ignored that the strongest motive 
of uniting several states in a regional organization is the common 
danger of aggression on the part of a third state and that the most im- 
portant regional organizations are thus defensive "alliances" in the 
specific sense of the term. To refuse to call them "regional" is hardly 
more than a terminological paradox. 

Regional security organizations outside or within a universal or 
quasi-universal security organization are justifiable in so far as the 
latter, for some reason, does not work satisfactorily and hence needs 
to be supplemented or strengthened by the former. If, or to the ex- 
tent that, a universal or quasi-universal security organization does 
not fulfill its task to guarantee international peace, regional security 
organizations may be useful. In addition, there are some functions 
which regional organizations may perform without impairing the 
security to be guaranteed by the universal or quasi-universal organ- 
ization. Among these functions are, first, the peaceful settlement of 
strictly local disputes, especially if the treaty constituting the univer- 
sal organization does not establish a court with compulsory jurisdic- 
tions, 6 and, secondly, collective self-defense. Regional agreements 
imposing upon the parties the obligation to assist one another in case 
of aggression until a competent agency of the universal organization 
takes action against the aggressor can hardly be excluded if the uni- 
versal organization does not have its own armed force ready for im- 
mediate action at its disposal. 7 Within the limits just mentioned, such 
regional agreements may even establish a central executive organ for 
the purpose of collective self-defense. However, enforcement meas- 



261 

ures to be taken as sanctions which go beyond this limit should be 
reserved to the universal organization, which may — if appropriate — 
use the coercive machinery of regional organizations to execute sanc- 
tions against a. violator of the constituent treaty. 8 Such an action 
taken by a regional organization under the authority of the universal 
organization is to be considered as a function of the latter, and not as 
a regional action. 

The most important preventive measure — disarmament — can be ef- 
fected successfully only on a universal basis. Regional disarmament 
as a permanent political system is possible only within a partial area 
which is safe against aggression from the outside. Since there is no 
longer such an area, regional disarmament is hardly a practical 
consideration. 9 

NOTES 

1. Article 21 of the Covenant of the League of Nations refers to "regional 
understandings." It runs as follows : "Nothing in this Covenant shall be deemed 
to affect the validity of international engagements, such as treaties of arbi- 
tration or regional understandings like the Monroe doctrine, for securing the 
maintenance of peace." 

Chapter VIII (Articles 52-54) of the Charter of the United Nations deals with 
"regional arrangements." It provides : 

"Article 52. 1. Nothing in the present Charter precludes the existence of 
regional arrangements or agencies for dealing with such matters relating to 
the maintenance of international peace and security as are appropriate for re- 
gional action, provided that such arrangements or agencies and their activities 
are consistent with the Purposes and Principles of the United Nations. 2. The 
Members of the United Nations entering into such arrangements or constituting 
such agencies shall make every effort to achieve pacific settlement of local 
disputes through such regional arrangements or by such regional agencies before 
referring them to the Security Council. 3. The Security Council shall encourage 
the development of pacific settlement of local disputes through such regional 
arrangements or by such regional agencies either on the initiative of the states 
concerned or by reference from the Security Council. 4. This Article in no 
way impairs the application of Articles 34 and 35. 

Article 53. 1. The Security Council shall, where appropriate, utilize such 
regional arrangements or agencies for enforcement action under its authority. 
But no enforcement action shall be taken under regional arrangements or by 
regional agencies without the authorization of the Security Council, with the 
exception of measures against any enemy state, as defined in paragraph 2 of 
this Article, provided for pursuant to Article 107 or in regional arrange- 
ments directed against renewal of aggressive policy on the part of any such 
state, until such time as the Organization may, on request of the Governments 
concerned, be charged with the responsibility for preventing further aggression 
by such a state. 2. The term enemy state as used in paragraph 1 of this Article 
applies to any state which during the Second World War has been an enemy 
of any signatory of the present Charter. 

Article 5If. The Security Council shall at all times be kept fully informed of 
activities undertaken or in contemplation under regional arrangements or by 
regional agencies for the maintenance of international peace and security." 



262 

la. Cf. pp. 229 ff. 

2. Pierre Vellas, Le Regionalismc International et VOrganisation des Nations 
I nics (Paris, 1948), pp. 32 ff., 147, referring to declarations made by La tin- Ameri- 
can delegations at the San Francisco Conference (U. N. C. I. O., Vol. XII, p. 792, 
802), advocates the doctrine that a regional organization is the expression of 
sociological solidarity, the legal order constituting the organization being the ef- 
fect of the social reality. If the solidarity is effective, the legal order is super- 
fluous. If it does not exist, the legal order is ineffectual. It is true that there 
must be a common interest and, in this sense, a certain solidarity inducing states 
to enter an agreement establishing a legal order regulating the mutual behavior of 
the contracting state. However, the sociological doctrine overlooks the fact that 
the legal order may not only be the effect of a certain solidarity, but may, as a 
fact in the minds of the men concerned, in itself have the effect of strengthening 
the solidarity so that there is a correlation between solidarity as a social reality 
and legal order, which is itself a social reality. 

3. Neither the Covenant nor the Charter restricts regional organizations to 
states whose territories are contiguous. 

4. Cf. p. 39 ff. 

5. Vellas, op. cit., p. 46. 

6. Article 21 of the Covenant expressly mentions treaties of arbitration ; and, 
according to Article 52, paragraph 2, of the Charter, regional arrangements shall 
provide for the pacific settlement of local disputes. Article 95 authorizes the 
members to entrust the solution of their differences to other tribunals than the 
International Court of Justice, which implies that regional agreements for arbi- 
tration are compatible with the Charter. 

7. The question as to whether treaties for the implementation of the provisions 
of Article 51 concerning collective self-defense are to be considered as "regional 
arrangements" within the meaning of Chapter VIII of the Charter is answered 
in the negative as well as in the affirmative. The main arguments for a nega- 
tive answer are that Article 51 is not inserted into Chapter VIII, and that 
enforcement actions in the exercise of self-defense are not mentioned in Article 
53, paragraph 1, among the enforcement actions which may be taken under 
regional arrangements without the authorization of the Security Council. 
However, there can be no doubt at all that at the San Francisco Conference the 
right of collective self-defense, as stipulated in Article 51, was considered by 
many delegates, especially by the South American delegates, as a specific sub- 
ject of regional arrangements. (Cf. the declaration of the representative of 
Colombia, U. N. C. I. O., Vol. XII, p. 680.) 

Whether a treaty for the implementation of Article 51 is or is not a re- 
gional arrangement within the meaning of Chapter VIII of the Charter, it is 
certainly a regional agreement within the meaning of the definition of this 
concept presented above. Such a treaty may — in accordance with Article 51 — 
provide for mutual assistance not only in case of an aggression within the 
organization but also in case of an aggression from the outside. It may even 
provide for collective action against an aggressor which is not a member of the 
United Nations; for the wording of Article 51 does not restrict the right of 
individual and collective self-defense to the case of an armed attack on the 
part of a member state ; and Article 53, paragraph 1 refers to enforcement 
actions "taken under regional arrangements or by regional agencies," that is, 
by regional organizations, against former enemy states, which may not be 
members of regional organizations and even not members of the United Nations. 
If a treaty concluded for the implementation of Article 51 of the Charter does 



263 

not constitute a "regional" arrangement in the sense of Chapter VIII of the 
Charter, Article 54, providing that "the Security Council shall at all times be 
kept fully informed of activities undertaken or in contemplation" under the 
treaty, does not apply. This may explain the tendency to interpret Chapter VIII 
of the Charter in a restrictive sense, so that treaties such as the North Atlantic 
Treaty do not fall under the provisions of this Chapter. 

Julius Stone, op. cit., pp. 247 ff., considers as an essential element of a re- 
gional organization that some relation to a "region" must be implied in the 
arrangement, "but what it is is obscure." He expressly rejects the view that 
the treaty constituting a regional security organization may provide for col- 
lective measures "against attack from another region." The state against 
which the enforcement action is directed may not be a contracting party to 
the constituent treaty, but it must be "within the region" if the organization 
constituted by the treaty is to be considered as a "regional" organization within 
the meaning of Articles 52-54 of the Charter. That the state must be "within 
the region" can only mean that its territory must be within the .region deter- 
mined by the constituent treaty. Stone justifies his interpretation first, by 
stating that "this is the natural meaning of the phrase 'appropriate for regional 
action' in Article 52 [not 53, as misprinted], paragraph 1." However, an action 
may be regional — in the "natural" meaning of this term — not only when the 
state against which it is directed is within the area determined in the con- 
stituent treaty but also when the action is restricted to this area insofar as 
it is conditioned by an act of aggression which has taken place within this 
area, even by a state whose territory is not within this area. This may be the 
case when the attack takes place on the open sea on vessels of one of the con- 
tracting parties, a case expressly referred to in Article 6 of the North Atlantic 
Treaty. Secondly, Stone says "if an arrangement for common action of one 
region against a threat to peace from another region were within the articles, 
the provision of Article 53, paragraph 1, that the Security Council may u?e 
regional arrangements as agencies for enforcement under its authority, would 
mean that the Council would invoke the military aid of one regional alliance 
against another region." Although Stone admits that "such a situation is 
conceivable," he asserts that "it certainly seems inconsistent with the 'Pur- 
poses and Principles of the United Nations' as Article 52, paragraph 1, re- 
quires. It would arise as a stage in the breakdown of the Charter, not of its 
application." If the Security Council may authorize an enforcement action 
to be taken by a regional organization against an aggressor state which is 
within the region, without violating the provisions of the Charter concerning 
the Purposes and Principles of the United Nations, it is not understandable 
why the Security Council could not, without violating these provisions, authorize 
an enforcement action to be taken by a regional organization against an ag- 
gressor state which is not "within the region." All the more so as no provision 
of Chapter VIII restricts enforcement action by a regional organization to ac- 
tions directed against states within the region. Article 53 expressly refers to 
enforcement actions "taken under regional arrangements or by regional agen- 
cies" against former enemy states, whether these states are or are not "within 
the region." Since the Charter does not restrict enforcement actions to be 
taken by a regional organization to actions against a state "within the re- 
gion," the Security Council may, in applying Article 53, paragraph 1 of the 
Charter, authorize a regional organization to take an enforcement action against 
a state which is not "within the region." Such an authorization would be 
quite "natural" if in case of a conflict between a state member of a regional 



264 

organization and a state which is not within the region, the Security Council 
considered an enforcement action involving the use of armed force to be di- 
rected against the state which is not within the region as adequate, but still 
has not yet at its disposal the armed forces referred to in Article 43, whereas 
the regional organization disposes of such an armed force. There is no 
reason to assume that such a situation "would arise as a stage in the breakdown 
of the Charter, not of its application." 

The provision of Article 53, paragraph 1, that enforcement action may be taken 
by a regional organization only with the authorization of the Security Council, 
must be interpreted as restricted by Article 51. If a state, member of a re- 
gional organization, is the victim of an armed attack by a state which is not 
"within the region," the regional organization, in the exercise of the right of 
collective self-defense, may take a collective enforcement action against the 
aggressor until the Security Council intervenes. The latter may if it considers 
this action adequate, applying Article 53, paragraph 1, authorize the regional 
organization to continue its action. In this way Article 53, paragraph 1 may be 
interpreted as complementing the provision of Article 39 concerning action to 
be taken by the Security Council in case of a threat to or breach of the peace. 

The third argument set forth by Stone runs as follows : "The disputes, the 
pacific settlement of which parties to regional arrangements are to assume, and 
the Security Council is to encourage them to assume, are specified by Article 52, 
paragraphs 2 and 3, to be 'local' only. It would be strange to limit the delegation 
of the settlement function to intra-regional disputes, without a similar limit 
on delegated peace enforcement." By "local disputes" Article 52, paragraph 2 
can only mean disputes between parties to the treaty constituting the regional 
organization. For this treaty can impose only upon the contracting parties 
the obligation to settle their disputes in a definite way, prescribed by the treaty. 
A state which is "within the region," but not a contracting party, cannot be 
bound by it. Hence "local" cannot mean "intra-regional." That a treaty con- 
stituting a regional organization regulates only the settlement of disputes be- 
tween the members of the organization, but does not limit enforcement actions 
to be taken by the organization to actions against an aggressor which is a mem- 
ber of the organization, is not strange at all. For also an enforcement action 
to be directed against an aggressor which is not a member of the organization — 
whether it is or is not within the region — may be provided for by the stipulation 
of obligations imposed upon the member states. The provision concerning "local 
disputes" does not support Stone's statement : "The real question is not whether 
the State against which enforcement action is directed is within the arrangement ; 
it is rather whether it is within the region," Finally, Stone states that only 
if his interpretation of the term "regional" is accepted the absurdity could be 
avoided to apply Article 54 to organizations constituted by treaties providing 
for military action against external aggression. "If an alliance for defence 
against a Permanent Member from outside the region were a 'regional arrange- 
ment,' even military staff plans would have to be disclosed in advance to the 
potential aggressor; and the potential aggressor's own consent obtained before 
he could be resisted. On the present view these absurdities are avoided, and 
such outwardly orientated arrangements must justify themselves as preparation 
for measures of self-defence, reportable only after they are taken, under Article 
51." If security organizations protecting their members against aggression on 
the part of states not members of the organization or not being within the re- 
gion are not considered to be "regional," then, indeed, Article 54 does not apply 
to them. That its non-application to the organizations concerned is desirable, 



265 

can certainly not be denied. But from this fact does not follow that the or- 
ganizations concerned are not regional within the meaning of the Charter. 
Such an interpretation can be based neither on the wording, nor on the inten- 
tion of those who drafted the provisions, of Articles 51-54. 

8. Article 53, paragraph 1, of the Charter contains such a provision. 

9. In 1922 the Assembly of the League of Nations did not share this opinion. 
On 27 September it adopted a resolution (XV) which runs as follows: "The 
Assembly, whilst declaring that the reduction of armaments contemplated by 
Article 8 of the Covenant cannot achieve its full effect for world peace unless 
it be general, desires to emphasize the importance of regional agreements for 
the purpose of reducing armaments — agreements which, if necessary, might 
even go beyond the measures decided upon in respect of general reduction ; and 
requests the Council to ask the Temporary Mixed Commission to take into con- 
sideration, during its subsequent work, the possibility of recommending the 
•conclusion of similar agreements to States which might be concerned." 

A regional agreement for the purpose of reducing armaments was the Con- 
vention signed on 7 February 1923 by Guatemala, El Salvador, Honduras, Nica- 
ragua, and Costa Rica. It is characteristic that among the derogations ex- 
pressly recognized by the treaty were "impending invasion by another state" 
(Article I), and "threatened attack by a foreign state" (Article IV). 



INDEX 

A 

Absolute or relative security, 7, 10 f., 23 
Acts of state, 123 f. 

Aggression, 10, 24, 27 f., 29 f., 35 f., 37, 40, 55, 58 ff., 60 f., 63 ff., 65 ff., 67 ff., 69 ff., 73 ff. 
75 ff., 78 ff., 80 ff., 83 ff., 85 ff., 88 f., 90 ff., 93 ff., 98 f., 115, 118 

armed attack as, 60 f., 88 

including or not including the use of armed force, 63 ff. 

as unprovoked attack, 86 

definition of, 60, 66 ff., 69 ff., 73 ff., 78 ff., 83 ff., 87, 93 ff., 89 f. 
and determination of the aggressor, 83 ff. 
general, enumerative or mixed, 78 ff., 98 f. 

direct and indirect, 61, 63 ff., 80, 82, 89 

economic, 65, 81 f. 

elimination of the problem of, 67 ff., 90 ff. 

external and internal, 24, 29 f., 61, 64, 115, 118 

ideological, 65, 81 f. 

intention of, 63, 85, 88, 93, 94 

under general international law, 35 f., 37 

legal or political concept, 75 ff. 

major or minor, 66 

military and legal concept of, 58 f . 

revolution as internal aggression, 64, 88 

and self-defense, 27 f., 59 ff., 68, 86, 118 
Aggressive or defensive war, 35 f., 58 f., 89, 90 f., 110, 202 

weapons, 202, 219 
Aggressor, definition of the, 79 ff. 

determination of the, 67 f., 70, 72 f., 75, 120, 121 f., 146 f. 
by an international court, 121 f. 
Alliances, 39 ff., 259 f., 262 ff. 

and regional security organizations, 39 ff., 259 f., 262 ff. 
Armaments, see also Disarmament 

abolition of, 203 f . 

aggressive and defensive, 202 

bacterial and chemical, prohibition of, 201, 203 f., 221 f. 

as cause of war, 199 

control of, 26, 232. See also Disarmament, control of 

conventional and atomic, 201, 219 

definition (elements of), 199 ff. 

differentiation of, 120 

expenditure, 202, 206 f. 

internationalization, 204 

land, sea and air, 202 f. 

nuclear, 201 f., 203 f., 210, 220 £., 224 
control of, 204, 208, 210, 220 f., 224 

peacetime and wartime, 199 f., 202 f., 206, 219 

quantity and quality of, 202 

reduction and limitation of, 118 f., 120, 197 ff., 203, 206 f., 231 f. 
derogations, 207, 231 f. 

370624—57- 18 267 



268 

Armed force, see Force, armed 

use of, see Force, armed, use of 
Arms and ammunition, manufacture, internationalization of, 209 

nationalization of (state monopoly), 209 
Arms and ammunition, manufacture and trade of, 201, 209, 241 ff. 
Arms of mass destruction, 201 f., 203 
Assistance, mutual, 24, 40 

Assistance (defense), right or obligation of, 24 ff., 61 
Attack, armed, 60 f., 88 

Atomic energy, control of, 198, 210, 220 f., 224, 233 ff. 
Aviation, civil and military, internationalization of, 120, 145, 204 

B 

Balance of power, 39, 41 f., 51 
Baruch Plan, 233 ff., 249 

Bellum justum principle, 30, 34 ff., 38 f., 41, 49, 53, 59 f., 65, 86, 110, 153, 158 
Blockade, pacific, 35, 53, 109 
Boycott, international, 92, 107 ff., 133 f. 
Budget, military, 202, 206 f., 231 
publication of, 206 f. 

c 

Case method, 31 

Causes of illegal use of force, 22 f. 

war, 23, 46, 54, 199, 253 
Centralization and decentralization, 2, 7 ff., 11, 12 ff., 24 ff., 28 f., 38, 43, 105, 110 
Change, peaceful, of established legal relations, 28 f., 43, 194 ff. 
Civil execution, 102 

Coercive (enforcement) measures as sanctions, 5 f., 11, 23 ff., 53 ff., 69, 101 ff. 
Coercive measures not having the character of sanctions, 102 
Collective security, see also International security 

concept of, 1 ff., 11 

of communism, 23 

degrees of, 9, 10 ff. 

and democracy, 9 

and individual security, 1 ff. 

and law, 5 ff., 10, 34 ff. 

and flexibility of law, 16, 22, 43, 46, 75, 77 f., 82, 97, 185 

under general international law, 34 ff. 

under national and under international law, 23, 34 ff. 

under particular international law, 53 ff. 

under primitive law, 7 ff. -' 
Compulsory jurisdiction, 13 f., 21, 28, 43, 182 f., 191 f., 196 
Conciliation, 181 f. 
Conflicts, see Disputes 
Consultation, 171 ff. 

Contigent or quota system, 112 ff., 119 f., 135, 138 f. 
Control of atomic energy, 198, 210, 220 f., 224, 233 ff. 
Control of disarmament, 204, 207 ff., 224 (., 232 f. 
Cooperation, economic, 253 ff. 

social, 255 
Criminal law and international law, 91 f. 
Custom as a decentralized creation of Jaw, 28 



269 
D 

Decentralization, see Centralization 
Delict and sanction, 6, 8, 10, 92, 101 ff. 
Demilitarization of territorial areas, 205 f., 228 ff. 
Democracy and collective security, 9 

Denationalization of organs of an international security organization, 117, 144 
Differentiation of armaments, 120 
Diplomatic sanctions, 104, 106 

Disarmament, 26, 120, 197 ff., 202 ff., 205 f., 207 ff., 210, 212 ff., 219, 222 ff., 224 f., 232 f., 
244 ff., 249 f., 261, 265 

aim of, 202 ff. 

control of, 204, 207 ff., 224 f., 232 f. 

derogations, 207, 265 

direct and indirect, 199 

geographical, 203, 205 f. 

immediate, complete or gradual (progressive), 204, 222 ff. 

organization of, 210, 244 ff. 

physical and moral, 198 ff., 210 ff., 249 f. 

proportional or balanced, 205, 225 

quantitative and qualitative, 202, 219 

regional, 261, 265 

and security, 197 ff., 212 ff. 

total or partial, 202 f. 
Dispute, concept of, 19, 181, 184 

Disputes (conflicts), legal (justiciable) and political (non-justiciable), 19 ff., 182 ff., 189, 191 f.,. 
193 

local, 260, 264 

peaceful settlement of, 15 ff., 181 ff., 260 
Disputes, international, judicial procedure for the settlement, 182 ff., 190 
Domestic affairs (jurisdiction), intervention by an international security organization in the 
domestic affairs (jurisdiction) of its members, 118 f., 189, 192, 255, 258 



Economic sanctions, 67 f., 91, 92, 104, 106 ff., Ill, 122, 125 f., 160, 162 f. 

Economic security, 1, 22 f. 

Effectives, reducible and irreducible, 200 f., 203, 222 

Egotism of the state and international security, 42, 47 f. 

Enforcement (execution) of judicial decision, 187 

Enforcement measures (actions), see also Force, sanction 

involving and not involving the use of armed force, 53, 57 f., 104 
Equity and justice, 16, 31 f., 183 f., 185 f. 
Expenditure, armaments, 202, 206 f., 230 f. 

defense, 202, 206 f., 230 f. 

reduction and limitation, 202, 206 f., 230 f. 
Expulsion from international security organization, 113, 125, 151 



Financial sanctions, 104, 106 ff., 133 

Flexibility of law and collective security, 16, 22, 43, 46, 75, 77 f., 82, 97, 185 
Force, armed, definition of the concept, 79 
international, 113 f. 
concept of, 11 f., 31, 53 ff., 57 f. 



270 

Force — Continued 
and law, 6 
monopoly, 6 ff, 26, 35 ff., 119, 120 

of the international security organization, 119 f. 
physical and non-physical, 11 
thread of, 64 
use of, causes of illegal, 22 ff. 

centralization and decentralization, 11, 14, 23 ff. 

legal and illegal, 6, 22 

to be prohibited within an international security organization, 53 ff. 

repression and prevention of the illegal use of force, 15 ff., 171 ff. 

(enforcement action), as sanction, 5 ff., 11, 14, 23 ff., 53 ff-, 69, 101 ff. 

as a sanction, centralization, 23 ff. 

security as protection against, 1 ff. 
and self-defense, 27 
Force, use of armed force as war, 1, 53 ff., 57 f. 

short of war, 53 ff., 57 f. 
Forfeiture of rights as a sanction, 102, 125, 151 f. 



Gaps in law, 19 ff., 32 f., 185, 189, 193 

Government, form of government of international security organization, 119 



Ideology, legal, international security as, 42, 44 f. 

"Ideology" in Marxian sociology, 44 f. 

Illegal use of force, causes of, 22 ff. 

Independence, political, protected by international law, 36, 62 

Individual and collective responsibility, see Responsibility 

Individual and collective security, see Collective security 

Informations, military, 208, 236 ff. 

Integrity, territorial, protected by international law, 36, 62 

Interest of the state and international security, 46 ff. 

International criminal jurisdiction, 123 

International law, collective security under general international law, 34 ff. 

and criminal law, 91 f. 

nature of, 34 ff., 45 

neutrality under general international law, 36 f., 152 ff. 

peace treaties under general international law, 36 ff., 152 ff. 

primitive character of the sanctions of, 103 f. 

self-defense under general international law, 35 f-, 59 f. 
International legislative organ, 195 

International security, 1 ff., 5, 23, 34 ff., 42, 44 f., 46 ff., 51 f., 54 f., 90 ff., 110, 117, 154 if., 
195 f. see also Collective security 

as a legal ideology, 42, 44 f. 

and national security, 3 ff., 23 

and neutrality, 90 ff., 117, 154 ff. 

opposition to, 5, 42 ff., 51 f., 54 

and interest of the state (national interest), 46 ff. 

and egotism of the state, 47 f. 

as security of the state, 1 ff. 

and sovereignty of the states, 42, 45, 55, HO, 117 f., 195 f. 






271 



Internationalization of armaments, 204 
of aviation (civil and military), 120, 145, 204 
manufacture of arms and ammunition, 209 
territories of security organizations, 117 

Inquiry, 181 

Interpretation of law, 18, 77, 196 



Judicial decision, declaratory or constitutive character of, 17 f., 196 

enforcement (execution) of, 187, 194 
Judicial function, application of law as, 13, 16 

Judicial procedure for the settlement of international disputes, 182 ff., 190 
Jurisdiction, compulsory, see Compulsory jurisdiction 

domestic, 118 f., 189, 192, 255, 258 

international criminal, 123 

over states, 123 f. 
Justice and equity, 16, 31 f., 183 f., 185 f. 
Justice and law, 31 f. 
Justice and peace, 44 
Justiciable and non-justiciable conflicts (disputes), 19 ff., 182 ff., 189, 193 

K 

Kellogg-Briand Pact (Pact of Paris), 39, 50, 87, 164 f., 174 f. 
Korea, police action of the United Nations in, 142 f. 

L 

Law, application of, two stages, 12 ff. 

creation and application of, centralization and decentralization, 12 ff., 28 f. 

criminal, see Criminal law 

and force, 6 

gaps in, 19 ff., 32 f., 185, 189, 193 

international, see International law 

interpretation of, 18, 77, 196 

and justice, 31 f. 

and peace, 6 f. 

primitive, collective security under, 7 ff. 
as a decentralized coercive order, 7 ff., 12 f. 

and security, 5 ff., 10, 34 ff. 

and state, 1 f. 
League of Nations, 30, 38, 42, 43, 47, 50, 55 ff., 67, 88, 100, 108 f., 125 ff., 134 f., 136 f., 143, 168, 

172, 175 ff., 187 f., 189 f., 193, 196, 197 f., 213, 217 f., 220 ff., 225 f., 228 f., 230 ff., 236 ff., 

241 ff., 249 ff., 256, 261 f., 265 
Legal and political concepts (norms), 75 f. 

Legal and political conflicts (disputes), 19 ff., 182 ff., 189, 191 f., 193 
Legal and political considerations, 75 f., 105, 106, 121, 187 
Legal security, 3 f., 5 f., 9, 16, 71 
Legislation as a centralized creation of law, 28 
Legislative organ, international, 195 
Liberalism, economic, and socialism, 254 f., 257 f. 



272 

M 

Mass destruction, arms of, 201, 203 

Mediation, 181 

Military bases of international security organization, 117 

Military informations, 208, 236 ff. 

Military organization as centralization, 24 

Military and non-military sanctions, 68, 104 ff., 106 ff., 110 ff., 125 f., 160, 163 

Moral disarmament, 210 f., 249 f. 

N 

National security and international security, 3 ff., 23 

Nationalization of manufacture of arms and ammunition (state monopoly), 209 

Natural-law doctrine, 3, 27, 38, 46, 87 

Neutrality and btllum justum principle, 157 f. 

concept of, 154 ff. 

and impartiality, 154 ff. 

under general international law, 36 f., 152 ff. 

and non-belligerency, 154 ff. 

obligations and rights, 157 

and international security, 90 ff., 117, 154 ff. 

within an international security organization, 154 ff. 

permanent, 9, 117, 168 f. 

qualified, 163 f. 
Neutralization of zones of territory, 205 f. 
Neo-neutrality, 90 f. 
Non-aggression pacts, 40, 158 
Non liquet, 20, 32 
Nulla poena sine lege, 74 f., 123 
Nullum crimen sine lege, 74 f. 

o 

Organization, security, see Security organization 

P 

Pacific blockade, 35, 53, 109 
Peace, breach of, and threat to, 68 
and justice, 44 
and law, 6 f. 
and security, 6 f. 

treaties under general international law, 36 ff., 152 ff. 
treaties within an international security organization, 152 ff. 
Police action, 37, 93, 114 f., 143 

force, 26, 30, 112 ff., 115 ff., 142 f., 203 f., 222 
international, 112 ff., 203 f. 
composition of, 118 
financial problems, 118 f. 
location, 117 

nationality (denationalization) of its members, 117, 144 
recruitment, 116 f., 143 f. 
national, 203, 222 
Political independence protected by international law, 36, 62 
Political and legal concepts (norms), 75 f. 
Political and legal conflicts (disputes), 19 ff., 182 ff., 189, 191 f., 193 



273 

Political and legal considerations, 75 f., 105, 106, 121, 187 

Political security, 4 

Power policy, 44 

Precedent, 29, 31 

Preventive measures, 171 ff. 

Preventive war, 60, 62, 88 

Prevention and repression of the illegal use of force, 15 ff., 171 ff. 

Primitive law, collective security under, 7 ff. 

as a decentralized coercive order, 7 ff., 12 f. 
Provisional measures applied in the procedure for the determination of the aggressor, 68, 120, 

122, 146 f. 
Provocation, 86 
Publicity, budgetary, 206 f. 
Punishment, concept of, 102 ff., 123 
Punitive character of the sanctions of international law, 103 f. 



Quota or contingent system, 112 ff., 119 f., 135, 138 f. 

R 

Rechtssicherhcit, 9, 16 

Regional arrangements, 127, 262 ff. 

and collective self-defense, 262 ff. 
Regional disarmament, 261, 265 

Regional security organizations and alliances, 39 ff., 259 f., 262 ff. 
Regional and universal security organizations, 29 f., 40 f., 106, 120, 258 ff., 262 ff. 
Regionalism and universalism, 29 ff., 113, 258 ff. 
Repression and prevention of the illegal use of force, 15 ff., 171 ff. 
Reprisals, 34 ff., 53, 57, 103 f., 109, 159, 165 

as sanction, 35, 53, 57, 103 f., 109, 159 
Responsibility, collective and individual, for violations of international law, 74, 103, 111, 
122 ff. 

individual criminal, for violations of international law by acts of state, 123 ff., 147 ff. 

of states, 63 
Revision of treaties, 194 f. 
Revolution as internal aggression, 64, 88 
Rule-of-law principle, 9, 16, 22, 32, 71, 74 f. 

S 

Sanction, concept of, 5 f., 69, 101 ff. 
and delict, 6, 8, 10, 92, 101 ff. 
forfeiture of rights as, 102, 125, 151 f. 

as use of force, centralization and decentralization, 11, 14, 23 ff. 
as coercive (enforcement) measure, 5 f., 11, 23 ff., 53 ff., 69, 101 ff. 
diplomatic, 104, 106 

economic, 67 f., 91, 92, 104, 106 ff., Ill, 122, 125 f., 160, 162 f. 
execution of, centralization, 14, 23 ff. 

within an international security system, 104 ff. 

procedure preceding, 120 ff. 
financial, 104, 106 ff., 133 
military and non-military, 68, 104 ff., 106 ff., 110 ff., 125 f., 160, 163 

opposition to, 110 f., 122 

organization of, 111 ff. 



274 

Security, absolute or relative, 7, 10 f., 23 

collective, see Collective security 

economic, 1, 22 f. 

external and internal, 24, 29 

individual, 1 ff. 

international, see International security 

and law, 5 ff., 10, 34 ff. 

legal, 3 f., 5 f, 9, 16, 71 

national, and international, 3 ff, 23. 

and peace, 6 f. 

political, 4 
Security organization, international, denationalization of organs, 144 

expulsion from 113, 125, 151 

force monopoly of, 119 f. 

form of government, 119 

military bases of, 117 

neutrality within, 154 f. 

legal status of its organs, 117, 144 

peace treaties within, 152 ff. 

prohibition of war within, 53 ff. 

execution of sanctions within, 104 ff. 

sovereignty of, 117 

internationalization of territories, 117 

use of force to be prohibited within, 53 ff. 

withdrawal from, 113, 143 
Security organizations, regional and universal, 29 f., 40 f., 106, 120, 258 ff., 262 ff. 
Security as protection against the use of force, 1 ff. 
Self-defense, 25, 26 ff., 31, 35, 53, 59 ff., 62, 68, 86, 87 ff., 91, 105, 118, 127 ff., 161 ff., 262 ff. 

and aggression, 27 f., 59 ff., 68, 86, 118 

collective, and regional arrangements, 262 ff. 

individual and collective, 25, 61, 87 f., 105, 118, 127 ff., 161 f. 

under general international law, 35 f., 59 f. 

and use of force, 27 
Self-help, 8, 25 ff., 86 
Self-preservation, right of, 27, 60 
Separation of powers, 22 
Si vis pacem para bellum, 199, 217 
Social contract, 3 
Social cooperation, 255 
Socialist doctrine, 20, 22, 253 
Socialism and economic liberalism, 254 f., 257 f. 
Sovereignty of the state, 35, 42, 45, 55, 62, 110, 117 f., 195 f. 

and international security, 42, 45, 55, HO, 117 f., 195 f. 
Sovereignty of international security organization, 117 
State, acts of, 123 f. 

concept of, 1 f., 25, 35, 42, 45 

egotism, 42, 47 f. 

interest, 42, 46 ff. 

jurisdiction over, 123 f. 

and law, 1 f. 

responsibility of, 63 






275 

State — Continued 

and international security, see International security 

security of the state as international security, 1 ff. 

sovereignty of, see Sovereignty of the state 
Status quo, change or preservation of, 28, 39, 41, 42 ff., 185 f. 
Stimson doctrine, 133 
Superior order, individual responsibility for acts committed at, 124, 149 f. 

T 

"Tension" conflicts, 185 f. 

Territorial integrity protected by international law, 36, 62 

Territories, internationalization of territories of international security organizations, 117 

Treaties, revision of, 194 f. 

u 

United Nations, 25, 30, 31, 39, 42, 43, 47, 50, 57 f., 61, 71, 74, 80 ff., 83, 87 ff., 93 ff., 96 ff., 
126 ff., 132, 134 f., 138 ff., 140 ff., 144 ff., 167, 169 ff., 172, 177, 187 ff., 190 ff., 196, 198, 207, 
210, 213 f., 215 ff., 219 ff., 225 ff., 231, 233 ff., 238 ff., 245 ff., 252 f., 256 ff., 261 ff. 

Universal and regional security organization, 29 f., 40 f., 106, 120, 258 ff., 262 ff. 

Universalism and regionalism, 29 ff., 113, 258 ff. 

Use of force see Force 

V 

Veto right, 105, 210, 249 

w 

War, acts of, 49, 53 ff., 57, 58 

aggressive or defensive, 35 f., 58 f., 89, 90 f., 110, 202 

causes of, 23, 46, 54, 199, 253 

concept of, 37, 49 ff. 

and counterwar, 35, 37, 158 

legal or illegal, 35 f., 37, 58 f. 

localization of, 42, 49 

material, 199, 200, 208 f. 

manufacture and trade of, 199, 208 f. 

potential, 200 

preventive, 60, 62, 88 

prohibition of, conditional or unconditional, 53, 55 f. 
within an international security organization, 53 ff. 

as sanction, 35 ff., 53, 103 f. 

as use of armed force, 1, 53 ff., 57 ff. 

universal (world war) as a consequence of international security organization, 47, 49 
Weapons, aggressive or defensive, 202, 219 
Withdrawal from the security organization, 113, 143 
World public opinion, 174 
World state, 29 f., 52