A Modern Law Of Nations

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A MODERN LAW
OF NATIONS

AN INTRODUCTION

BY

PHILIP G. JESSUP

THE MACMILLAN COMPANY

NEW YORK 1948

Copyright, 1946, W?> and 1948, by
THE MACMILLAN COMPANY.

All rights reserved no part of this book may be
reproduced in any form without permission in writing
from the publisher, except by a reviewer who wishes
to quote brief passages in connection with a review
written for inclusion in magazine or newspaper.

First Printing.

PRINTED IN THE UNITED STATES OF AMERICA

TO
L. K. J.

CONTENTS

PAGK

PREFACE vii

NOTE ON ABBREVIATIONS k

CHAPTER

I. INTRODUCTION i

H. THE SUBJECTS OF A MODERN LAW OF

NATIONS 15

III. RECOGNITION 43

IV. NATIONALITY AND THE RIGHTS OF MAN 68

V. RESPONSIBILITY OF STATES FOR INJURIES

TO INDIVIDUALS 94

VI. THE LAW OF CONTRACTUAL AGREEMENTS 123

VII. THE LEGAL REGULATION OF THE USE OF

FORCE 157

VIII. RIGHTS AND DUTIES IN CASE OF ILLEGAL

USE OF FORCE 188

INDEX 223

CHAPTER I
INTRODUCTION

THERE is MORE AGREEMENT today than at any earlier period on the
need for some change in the traditional international system of a
community of sovereign states. Unlimited sovereignty is no longer
automatically accepted as the most prized possession o$ even as a
desirable attribute of states. The postwar revulsion against war and
against an international system in which war is not only possible but
tolerated is stronger as our most recent experience with war is more
frightful. The potentialities of atomic warfare give more widespread
support to the effort to exercise greater ingenuity, to achieve more
success, in the science of politics. It is natural that some minds seek a
complete change through the immediate creation of a world govern-
ment. Others would prefer to build more slowly through the medium
of what is generally called international organization or administra-
tion, now typified by the United Nations. One point of agreement
may be found in all plans and proposals, whether they come from
statesmen or from laymen, from experts or from novices. That com-
mon point is the necessity for an adequate international law. This
feeling is naturally the more pronounced in countries devoted to the
slogan that government should be of laws and not of men. Interna-
tional lawyers and laymen alike admit or assert defects in the present
system of international law. Some deny that any such system even has
an existence. Leaving that argument momentarily aside, it may be
coifceded that there is at this time both need and opportunity for the
development of a modern law of nations.

No system of law springs into existence full-panoplied. All legal
systems from the most primitive to the most advanced have their
backgrounds and roots in the society which they govern. It is there-
fore not enough for the future of the international society to say that
we must have a rule governing the use of atomic bombs and other
weapons of mass destruction. It is not enough merely to have a law

2 A MODERN LAW OF NATIONS

making war illegal. Such rules, even if backed by an adequate form of
organization or government, would fail to create a well-ordered inter-
national society, the existence of which is a prerequisite to the success-
ful functioning of any legal system. If there be no adequate body of
law governing the solution of the conflicts which are inherent in any
human relations, frictions and tensions will develop to a point which
will bring about breaches of the primary rules about weapons and
wars; even in the most highly developed societies, underlying inequi-
ties and resulting strains produce riots, revolutions, and civil wars.

It is the purpose of this book to explore some of the possible bases
for a modern law of nations. The exploration proceeds upon the basis
of an examination of the way in which peoples and nations have
attempted, however inadequately, in the past to govern their inter-
relationships. Jt proceeds upon the assumption that progress must and
can be made in the social sciences to come abreast of the new ad-
vances in the physical sciences. Two points in particular are singled
out as keystones of a revised international legal order. The first is the
point that international law, like national law, must be directly appli-
cable to the individual. It must not continue to be remote from him,
as is the traditional international law, which is considered to be
applicable to states alone and not to individuals. The second point is
that there must be basic recognition of the interest which the whoj|
international society has in the observance of its law. Breaches of the
law must no longer be considered the concern of only the state
directly and primarily affected. There must be something equivalent
to the national concept of criminal law, in which the community as
|uch brings its combined power to bear upon the violator of those
parts of the law which are necessary to the preservation of the public
peace.

Sovereignty, in its meaning of an absolute, uncontrolled state will,
ultimately free to resort to the final arbitrament of war, is the quick-
sand upon which the foundations of traditional interactional law are
built. Until the world achieves some form of international govern-
ment in which a collective will takes precedence over the individual
will of the sovereign state, the ultimate function of law, which is the
elimination of force for the solution of human conflicts, will not be
fulfilled There must be organs empowered to lay down rules (a legis-
lature); there must be judicial organs to interpret and apply those

rules (a judiciary); and there must be organs with power to compel
compliance with the rules (a police force). These organizational
developments must take place, and if this volume does not concern
itself primarily with the sblution of such problems, this is not because
of any doubt concerning their importance. This work is dedicated
to the solution of another problem: granted that the necessary organ-
ization is perfected, what is to be the nature of the body of law which
is to be laid down, applied, and enforced?

ILaw js indeed a human necessity. The current spate of writing
about the need for world government avows the need for law. The
Romans put it tersely ubisocietas ibi ius. The Charter of the United
Nations recognizes the fact. It is asserted in the roundly phrased ora-
tions of heads of state and of foreign ministers l and in the crusading
columns of the New Yorker magazine. Opinions will continue to
differ enormously about the type of world government or world
organization demanded by an atomic age the exact potentialities of
which are too vast to be kept in the common consciousness. There is
as much disagreement about the means for achieving the desired end
and about the tempo of the progress which is practicable. There are
advocates of more government and of less government in huipan
affairs, but only the most detached philosophic minds contemplate the
Utopia of anarchy, that perfection of the human spirit in which no
rules and no controls are necessary to enable human beings to live
together in peace and harmony. Law must govern world relationships
if they are to be peaceful, whether those relationships continue to be
organized on the present order of sovereign states, whether there is to
be a world confederation, or whether there is to be one unitary world
state. The differences of opinion lie far more in the necessary agencies
and methods of enforcement of law than in the actual rules to govern
human conduct.

There is no such dichotomy as one writer suggests between law
and diplomacy. 2 They are not mutually exclusive procedures. To be
sure, both procedures may be abused; the lawyer may become legal-
istic, the diplomat may become Machiavellian. But the successful
practicing attorney is as much a negotiator as a citer of precedents,

1 Cf. Jessup, "International Law in the Post- War World," Am. Soc. Int. L,,

. (1941), 46.

Moigenthau, "Diplomacy," 55 Yale LJ. (1946), 1067.

4 A MODERN LAW OF NATIONS

Whether he be dealing with a corporate reorganization, a divorce suit,
or the protection of national interests abroad.

As in arguments about many other matters, differences of opinion
about law are frequently found to rest upfln definitions. X may use
the word "law" to include moral law, religious law, and rules of social
intercourse, as well as the statutes enacted by a legislature, while Y
may be using the same word to include only the last category. In legal
literature there is voluminous debate about the proper definition.
There are still devotees of the simple Austinian concept based upon
uncomplicated observation of the most usual manifestations of law
rules laid down by a superior power (legislature), enforced by a
superior power (police). There are more modern concepts which
have been evolved largely as the result of consideration of the Anglo-
American system of the development of common law through court
decisions. Thus it is said that law is a prophecy of the action of agen-
cies of society; it is "the law" that I must not steal or break my
contract, in the sense that if I do the forbidden thing, agents
of society policemen or courts and their marshals will arrest
me or seize and sell my goods to pay a determined amount of
damages.

There is a tendency to assume that there is such a thing as one cor-
rect definition for any one word or concept. In the physical sciences,
in mathematics; this was generally thought to be true. Water was
always H 2 O and 2 plus 2 equaled 4. But even in the physical sciences
such old fundamentals as Newtonian physics and Euclidean geometry
have had to yield their sacrosanct character in the light of such ideas
as relativity and the retesting of basic assumptions against a broader
field of observation. Frederick S. Dunn pointed out fifteen years ago
that the time had come for a similar challenge of underlying assump-
tions in international law and relations. 8 In the social sciences surely
an old Chinese proverb is much to the point: "It is always well to
have in the background of one's mind a multiplicity of definitions
covering the subject at hand to prevent oneself from accepting the
most obvious." A definition is useful only to the extent to which it
records an accurate observation, whether of natural phenomena,
literary usage, or social conduct. "Law and obedience to law," wrote
Judge Cardozo, "are facts confirmed every day to us all in our expe-

8 Dunn, The Protection of Nationals (1931), 7.

INTRODUCTION 5

riettce of life. If the result of a definition is to make them seem to be
illusions, so much the worse for the definition; we must enlarge it till
it is broad enough to answer realities." 4

International law, or the law of nations, is a term which has been
used for over three hundred years to record certain observations of
the conduct of human beings grouped together in what we call
states* There is a vast literature on the subject, and courts have exam-
ined that literature and based decisions upon it. The works of the
writers, the United States Supreme Court has said, "are resorted to
bjr judicial tribunals, not for the speculations of their authors con-
cerning what the law ought to be, but for trustworthy evidence of
what the law really is." 5 The debate about the propriety of using the
word "law" in the term "international law" is as old as the term.
Much of that debate is fruitless because it rests upon the undeclared
differences in underlying definition. If to X the word "law" cannot
properly be applied to any rules behind which there is not a sanction
or power of enforcement by an overall authority, then X is correct
in denying that international law is "law." Although the Supreme
Court of the United States asserted in Virginia v. West Virginia 8 the
power to enforce its judgments against one of the states of the Union,
federal force has never been used for such a purpose. If it were used
against a resisting state, it would be difficult to distinguish the situa-
tion from rebellion or civil war. Untfer Article 94 of the Charter of
the United Nations, the Security* Council could direct the use of
force against a state which failed to perform the obligations incum-
bent on it under a judgment rendered by the International Court of
Justice; such a situation would resemble international war or civil
war within the United Nations. The vindication of "rights" i.e
legal rights under international law has frequently throughlfet
modern history been advanced as the justification for resort to war.
tt k clearly a kind of enforcement very different from that of the
ordinary police action: it is power against power, North against
South, United Nations against Axis. One side is "right" and the other
side is "wrong," and these are not merely moral judgments, but also

4 Cardozo, The Nature of the Judicial Process (1928), 127.

5 The Paquete Habana, 175 US. 677, 700 (1900).

8 246 US. 565 (1918). See Rosenberg, "Brutum Fulmen: A Precedent for a
World Court," 25 Col. L. Rev. (19x5), 783, 794; Freeman and Paullin, Coercion
of States: In Federal Unions (1943).

5 A MODERN LAW OF NATIONS

reflections of conviction that certain rules, certain standards of con-
duct, have been violated.

The significant question to ask about international law is whether
the use of that term is in accordance withr an accurate observation
md study of the conduct of states in the world community. Super-
ficially, the negative reply comes easily. Wars, breaches of treaties,
oppression of the weak by the strong, are the headlines of the daily
press and of the history textbooks. The superficial observer has not
noted the steady observance of such treaties as that under which
letters are carried all over the world at rates fixed by the Universal
Postal Union. He ignores the fact that there is scarcely an instance
in two hundred years in which an ambassador has been subjected to
suit in courts of the country where he is stationed. The recording of
the observation of this last fact is stated in legal terms by saying that
under international law an ambassador has diplomatic immunities.
The superficial observer has not read the hundreds of decisions
handed down by international courts called Mixed Claims Commis-
sions, which have awarded money damages duly paid by the de-
fendant states. Perhaps he has not even read the sixty-odd decisions
and opinions of the Permanent Court of International Justice or noted
the subsequent history of "the observance of those pronouncements
as recorded for example in the writings of Judge Manley O. Hudson. 7
He may be unfamiliar with the extent to which international law has
been incorporated in national law and has thus secured an enforce-
ment agency through the ordinary governmental machinery of the
national states. Perhaps he forgets that the Constitution of the United
s gives Congress the power to "define and punish, . . . Offences
"t the Law of Nations" and that tfte Supreme Court has sustained
gltionality of the exercise of that power by determining
aty to prevent the counterfeiting or foreign currency is a
ed upon the United States by international law. 8 He may
not be familiar with such classic statements as^ that of Mr. Justice
Gray: "International law is part of our law, and must be ascertained
and administered by the courts of justice of appropriate jurisdiction,
as often as questions of right depending upon it are duly presented

T ILg. The Permanent Court of international Justice 1920-1942 (1943);
World Court Reports (2 vols n 1934, 1935).

* United States v. Arjona, 120 UJS. 479 (1887).

INTRODUCTION 7

for their determination." 9 He may not have examined the counter-
parts of these United States positions in the constitutions and judicial
decisions of the courts of other countries. 10 Always he will come
back, ,with his own definition of law in mind, to the undeniable fact
that international law has been unable in the past to check resort to
war because the international society lacks its own overall police
force. As in our own individual relations, it is the instances of lawless
conduct and of violence that dominate the memory. We are accus-
tomed to think that the United States is a community governed by
law, but violence and the failure of government controls in labor
relations are "facts confirmed every day to us all in our experience
of life." Indeed, the parallelisms between labor relations within states
and international relations among states are striking. It is said that it
was experience with labor problems that led William Jennings Bryan
as Secretary of State to negotiate a series of treaties providing for
"cooling-ofF periods" and fact-finding commissions. 11 If such devices
have not succeeded in eliminating international conflicts, this is not
surprising in view of their comparable inadequacy within the frame-
work of a highly developed national legal system.

Those who have taken the pains to become familiar with the way
in which governments behave in their relations with other govern-
ments reach no such discouraging conclusions as those which obsess
the minds of the headline-readers. One of the wisest and most expe-
rienced of them all, John Bassett Moore, has recorded his observation
that on the whole international law is as well observed as national
law. 12 The Director of the Yale Institute of International Studies has
recently remarked that those "who make light of trfeaty commit-
ments in general seem to ignore the fact that the vast majority of such
engagements are continuously, honestly, and regularly observed <h>$n
under adverse corjditfbns and at considerable inconvenience to the
paities." 18 It is not without significance that foreign offices through-
out the world have, and have had through the course of at least two
centuries, staffs of legal advisers, most of whose time is devoted to

The Paquetc Habana, 175 17.S. 677, 700 (1900).

10 See Masters, International Law m National Courts (1932).

11 Scott, "Remarks," Am. Soc. Int. L., Proc. (1929), 172.

18 Moore, International Law and Some Current Illusions (1924), 300.
"Brodie (ed.), The Absolute Weapon: Atomic Power and World Order,
8.

$ A MODERN LAW OF NATIONS

problems of international law. When a controversy develops between
two governments (a controversy of the ordinary day-to-day type)
the legal adviser either drafts or has a hand in drafting the corre-
spondence. If one skims such diplomatic correspondence written over
the course of many decades, one is bound to be struck by the fre-
quency, the habitual frequency, with which governments support
and defend their international actions by appeal to legal arguments,
arguments based on international law. 14 It is immaterial for the pur-
poses of this discussion whether such legal arguments are hypocritical
or are contradicted by subsequent conduct. The fact remains that
they reflect the basic human conviction of the necessity of law and
bear witness to the evolution through the years of a body of custom-
ary and treaty international law, invoked by governments and applied
by courts. The record proves that there is a "law habit" in interna-
tional relations. It is not immaterial to add that the instances in which
judgments of international tribunals have been flouted are so rare
that the headline-reader may well place them in the man-bites-dog
category.

It is true, as Hall said in a passage quoted with approval by the
Judicial Committee of the Privy Council in 1934, that "Looking
back over the last couple of centuries, we see international law at the
close of each fifty years in a more solid position than that which it
occupied at the beginning of the period. Progressively it has taken
firmer hold, it has extended its sphere of operation, it has ceased to
trouble itself about trivial formalities, it has more and more dared to
grapple in detail with the fundamental facts in the relations of
States." 15

Among the defects of the existing international legal system, two
have been mentioned as the basis of this study. They stand out as
obstacles to progress. The first is the fundamental tenet of traditional
international law that it is a law only between states, not between
individuals or between individuals and states. The individual has been
one stage removed from the application of international law, the legal
jargon being that he is not a "subject" of the law but only an

14 Jessup, "The Reality of International Law," 18 Foreign Affairs (1940),
244.

18 Viscount Sankey, L. C., In Re Piracy Jure Gentium [1934], A.C. 586, 592,
citing the preface to the third edition of Hall, International Law (1889).

INTRODUCTION 9

"object." International law affects him only through the medium of
the state. Perhaps the most striking example of the weight of the dead
hand of this juridical concept is to be found in that branch of inter-
national law known as the Responsibility of States for Injuries to
Aliens, or the Diplomatic Protection of Citizens Abroad. 16 The con-
cepts of alienage and citizenship are based on the notion that the
individual has no legal significance from the standpoint of interna-
tional law save as he is related to one state through the bond of citizen-
ship or nationality and thus stands in relation to other states in the
role of alien. The responsibility of the state for injuries to an indiv-
idual is owed under international law to another state and not to the
individual. Thus there is no responsibility if the injured individual is
Stateless, that is, has no nationality. To explain the legal basis of
responsibility to another state, international law for some two cen-
turies has made use of a fiction invented by Vattel to the effect that
a state is injured through the injury to its citizen. If this were the true
basis of responsibility, the measure of damages to be paid for an
injury would vary with the importance of the role played by the
injured individual in the life of the state of which he is a citizen.
Actually, in the hundreds of claims cases which have been adjudi-
cated by international tribunals, lip service only is paid to the fiction,
and decisions are made upon the inescapable realization that it is really
John Smith or Frangois Picaud who has been physically injured or
whose widow and children have been left destitute. The alleged in-
direct loss to the state is forgotten until the final judgment is ex-
pressed in terms of an obligation of the defendant state to pay a sum
of money to the claimant state, the usually unexpressed assumption
being that the latter will pay the money over to the proper individ-
uals. Many tortuous bits of judicial reasoning would have been
eliminated if it were agreed that the individual himself is protected
by the rule of law.

There is a considerable literature on the question whether this
fundamental basis of the traditional law as a law between states only t
is juridically and philosophically sound. 11 It is frequently asserted
that the principle is not an absolute one, since it admits of exceptions,
notably in the case of piracy, where the pirate is said to be hostis

16 This topic is explored in detail in Chap. V.
"SeeCbpp.IL

10 A MODERN LAW OF NATIONS

hismmi generis, punishable by any state that apprehends him. The
trials of war criminals have elicited learned discussions along the same
lines. It is not intended here to continue such debates concerning the
existing law. It is rather the purpose to take as a hypothesis the gen-
eral acceptance of the thesis that internaional law does apply directly
to the individual, that it does or can bind him as well as states directly,
and in the light of that hypothesis to re-examine the existing law as it
has developed through the centuries to see what changes, what modi-
fications would need to be made to fit the law to the new basis. Much
of the current discussion of world government concerns itself with
this problem of the direct application of international law to the
individual, but the nature of the changes which such a concept would
need to work in international relations does not appear to have been
fully explored.

A second characteristic of the traditional international legal sys-
tem requires the same kind of thorough re-examination. As already
noted, international law resembles tort law rather than criminal law
fti the national legal system. The significance of this comparison is
that under the traditional international legal system, a breach of inter-
national law is considered to be a matter which concerns only the
state whose rights are directly infringed; and no other state, nor
the community of states, is entitled to remonstrate or object or
take action. "No nation," said Judge Story, "has a right to infringe
the law of nations, so as thereby to produce an injury to any other
nation. But if it does, this is understood to be an injury, not against all
nations, which all are bound or permitted to redress; but which con-
cerns alone the nation injured." 18 In contrasting international and
national law Elihu Root remarked that we "are all familiar with the
distinction in the municipal law of all civilized countries, between
private and public rights and the remedies for the protection or en-
forcement of them. Ordinary injuries and breaches of contract are
redressed only at the instance of the injured person, and other persons
arc not deemed entitled to interfere. It is no concern of theirs. On
the other hand, certain flagrant wrongs the prevalence of which
would threaten the order and security of the community are deemed
to be everybody's business . . . [robbery or assault]. Every citizen
is deemed to be injured by the breach of the law because the law is
"La Jeune Eugtaie, Fed. Cue No. 15,551 (C.G, D. Mass. 1822).

INTRODUCTION II

his protection, and if the law be violated with impunity, his protec-
tion will disappear. . . . Up to this time breaches of international law
have been treated as we treat wrongs under civil procedure, as if
they concerned nobody except the particular nation upon which the
injury was inflicted and the nation inflicting it. There has been no
general recognition of the right of other nations to object. ... If
the law of nations is to be binding, if the decisions of tribunals
charged with the application of that law to international controversies
are to be respected, there must be a change in theory, and violations
of the law of such a character as to threaten the peace and order of
the community of nations must be deemed to be a violation of the
right of every civilized nation to have the law maintained and a legal
injury to every nation." 19

Article 1 1 of the Covenant of the League of Nations was hailed
as marking an innovation in this respect by declaring: "Any war or
threat of war, whether immediately affecting any of the Members of
the League or not, is hereby declared a matter of concern to the
whole League. . . ." Some have hailed the Briand-Kellogg Pact as
another step in the same direction. The American Republics at the
Lima Conference of 1938 recorded their conviction that "Each State
is interested in the preservation of world order under law, in peace
with justice, and in the social and economic welfare of mankind." ao
The philosophy underlying the Charter of the United Nations clearly
embraces the notion of the community interest in matters affecting
international peace. For example, under Article 34, "The Security
Council may investigate any dispute, or any situation which might
lead to international friction or give rise to a dispute. . . ." Article 35
empowers any Member of the United Nations to bring to the atten-
tion of the Security Council or of the General Assembly any such
dispute or situation. This is sound political principle governing the
operations of the international organization. Yet the traditional legal
foundations of unilateralism remain largely unshaken. The Charter
provisions may be applicable to what Root called "flagrant wrongs"
where the danger to peace is apparent. It is not clear that international
19 Root, "The Outlook for International Law," Am. Soc. Int. L^ Proc.

7-9-

Report of the Delegation of the United States of America to the Eighth
International Conference of American States, Dept. of State Pub. 1624 (1941),
191.

12 A MODERN LAW OF NATIONS

law yet embodies the principle that because the law is the protection
of all states, all are interested in any breach or weakening of that law.
How far should such a principle extend? 21 Are there some breaches
of international law that should still be the concern only of the state
immediately injured? According to Article 62 of the Statute of the In-
ternational Court of Justice, a state may request from the Court per-
mission to intervene in any case if it considers that "it has an interest
of a legal nature which may be affected by the decision in the case."
Has a state such a legal interest, for example, in the vindication of the
law of diplomatic immunities? Presumably there will always be
breaches of law that do not involve the general community interest,
just as the trespass of my neighbor's cow concerns me alone and is to
be remedied by my individual lawsuit, without the intervention of
third parties and without the community processes of arrest and
criminal prosecution. The definition of "matters which are essentially
within the domestic jurisdiction of any state," which are reserved
under Article 2 of the Charter, is a cognate problem.

In some instances the acceptance of the concept of community
interest would be comparable, as Root contemplated, to substituting
for the present tort basis of international law a basis more comparable
to that of criminal law, in which the community takes cognizance
of law violations. In other instances, however, the change would be
a shift in the direction of more extended governmental functions of
an organized international community, as would be true if processes
of collective recognition should be substituted for the present uni-
lateral action.

It is the purpose of this volume to examine traditional international
law in an attempt to suggest to what portions of a developed inter-
national legal system the concept of community interest might well
apply. For this purpose again, the discussion will proceed on the
hypothesis that a new principle is accepted, in this instance the prin-
ciple of community interest in the prevention of breaches of inter-
national law.

Implicit in the adoption of the two hypotheses upon which this
work is based is the questioning of the archfiction of international
law absolute state sovereignty. "Sovereignty is essentially a concept

* x Cf . Postulate 4, The International Law of the^Future, Carnegie Endow-
ment for International Peace (1944), 32.

INTRODUCTION 1$

of completeness. It is also a legal creation, and as such, is a paradox,
if not an absolute impossibility, for if a state is a sovereign in the
complete sense, it knows no law and therefore abolishes, at the
moment of its creation, the jural creator which gave it being." 22
"Legal fiction," says Morris Cohen, "is the mask that progress must
wear to pass the faithful but blear-eyed watchers of our ancient legal
treasures. But though legal fictions are useful in thus mitigating or
absorbing the shock of innovation, they work havoc in the form of
intellectual confusion." 23 The establishment of the United Nations
presents an opportunity for innovations. The development of the
organization of the international community suggests the ultimate
possibility of substituting some kind of joint sovereignty, the suprem-
acy of the common will, for the old single state sovereignty. The
official proposals of the United States with reference to the inter-
national control of atomic energy rests on an altered attitude toward
the fiction of sovereignty. Mr. Baruch, in his presentation of these
proposals to the United Nations Commission, declared that the
peoples of the democracies "are unwilling to be fobbed off by mouth-
ings about narrow sovereignty . . ." 24 But in the same Commission
the Soviet representative declared that the "principle of sovereignty
is one of the cornerstones on which the United Nations structure is
built; if this were touched the whole existence and future of the
United Nations would be threatened." 25 The path to progress may
be long and thorny; this book does not seek to catalogue the obstacles
or to hazard guesses on how soon they may be surmounted.

The two hypotheses taken as the basis of the present re-examina-
tion of international law would involve an alteration of the tradi-
tional notion of sovereignty. They do not exhaust the needs or pos-
sibilities of the situation, and their preliminary development here is
advanced with no claim to completeness or exclusiveness. If they con-
stitut^an introduction to a much larger task, they will serve the pur-
pose for which they are designed. Article 13 of the Charter of the
United Nations imposes upon the General Assembly the duty to

22 Jessup, op. cit., supra note i, p. 49.

23 Cohen, Law and the Social Order (1933), 126.

24 UN Atomic Energy Commission, Official Records, No. i (June 14,
1946), 6.

The International Control of Atomic Energy: Growth of a Policy,
Dept. of State Pub. 2702 (1946), 219.

14 A MODERN LAW O* NATIONS

"initiate studies and make recommendations for the purpose of ...
encouraging the progressive development of international law and its
codification." There are abundant opportunities for fruitful work in
discharge of this obligation. 20 Such development can best proceed by
utilizing the experience of the past centuries, reviewed in the light of
new concepts. As Chief Justice Stone pointed out, "the problem . . .
of jurisprudence in the modern world is the reconciliation of the
demands . . . that law shall at once have continuity with the past
and adaptability to the present and the future." 27 Ignorance of the
progress already achieved in the development of international law
over the past three centuries and blindness to the still primitive char-
acter of the international legal system are equally inimical to the
further progress which must be made if all civilization is not to go the
way of Hiroshima and Nagasaki.

**See Eagleton, "International Law and the Charter of the United Na-
tions," 39 Am. J. Int. L. (1945), 751; Jessup, Development of International Law
by the United Nations, ibid., 754.

87 Stone, "The Common Law in the United States," 50 Harv. L. Rev.
(1936), 4, ii.

CHAPTER II

THE SUBJECTS OF A MODERN
LAW OF NATIONS

INTERNATIONAL LAW is generally defined or described as law applica-
ble to relations between states. States are said to be the subjects of
international law and individuals only its "objects." Treatises on inter-
national law accordingly usually proceed at the very outset to
examine the nature and essential characteristics of the fictitious jural
person known as the state.

But there has welled up through the years a growing opposition
to this traditional concept. Numerous writers have attacked the
dogma from a variety of approaches. Duguit, Krabbe, Kelsen, and
others have impugned the philosophical and juridical basis of the
concept. 1 Georges Scelle has called the traditional view "une vue
f ausse, une abstraction anthropomorphique, historiquement respon-
sable du caract&re fictif et de la paralysie de la science traditioneUe
du droit des gens." 2 The record of progress toward the goal of
acknowledging the international legal position of the individual has
been traced by many jurists. 8 Politis has graphically said: "Formerly

1 Duguit, i Traite de droit constitutional (3rd ed. 1927), 713; Krabbe
"L'Ictee moderne de P6tat," 13 Hague recueil des cours (1926), Vol. HI, 514;
The Modern Idea of the State (1922); Kelsen, General Theory of Law and the
State (1945).

2 Scelle, "Regies ff6nerales du droit de la paix," 46 Hague recueil des
cours (1933), Vol. IV, 343. Cf. Dunn, "The International Rights of Individ-
uals," Am. Soc. Int. L., Proc. (1941), 14, 16.

8 Cf. e.g. Segal, Ulndividu en droit international positif (1932); Politis, The
New Aspects of International Law (1928); Le Fur, "Le Developpement his-
torique du droit international," 41 Hague recueil des cours (1932), Vol. in,
505; T6nkides, Ulndividu dans Vordre juridique international (1933);
Lauterpacht, Private Law Sources and Analogies of International Law (1927)9
73 ff M 305. See also Garner, "Le Developpement et les tendances ricentes du
droit international," 35 Hague recueil des cours (1931), Vol. I, esp. 695 n. i;
Aufricht, "Personality in International Law," 37 Am. Pol. Sci. Rev. (1943)1
2i7&; Pintor, "Les Sujets du droit international autres que les tots," 4' Hague
recueil des cours (1932), Vol. in.

1 6 A MODERN LAW OF NATIONS

the sovereign State was an iron cage for its citizens from which they
were obliged, to communicate with the outside world, in a legal
sense, through very close-set bars. Yielding to the logic of events, die
bars are beginning to open. The cage is becoming shaky and will
finally collapse. Men will then be able to hold free and untram-
melled communication with each other across their respective
frontiers." 4

Since this discussion starts with the hypothesis that a change in
the old fundamental doctrine has been accepted and proceeds from
that point to consider certain modifications in the traditional body of
international law which would be desirable or necessary if individuals
as well as states were considered subjects of the law of nations, there
is no occasion here to continue the debate as to whether under exist-
ing international law individuals are subjects of the law or only its
"destinataires." 5 Those who will may consider some of the observa-
tions here as lex lata, while others will deal with them as made de lege
ferenda. It remains true, as Sir John Fischer Williams has said, that
it "is obvious that international relations are not limited to relations
between stateS." 6 The function of international law is to provide a
legal basis for the orderly management of international relations. The
traditional nature of that law was keyed to the actualities of past cen-
turies in which international relations were interstate relations. The
actualities have changed; the law is changing. 7 The conclusion may
be that states remain the organs for conducting even those interna-
tional relations which involve individuals, and it may also be true, as
the same able writer has said, that when "the world is more fully
organized politically . . . the disappearance of the State as we know
it will mean that international law will either be wholly absorbed into
a general body of law or will preserve a separate existence only as a

4 Politis, op. cit.y supra note 3, p. 31.

5 Cf . Spiropoulos, Traite tbeorique et pratique de droit international public
(1933), 42 ff.

6 Williams, Aspects of Modern International Law (1939), 18.

7 M The existence of rules of international law governing relations between
states and foreign individuals is not inconceivable, but their existence has not
been proved, and, if it should be proved the contents of the rules will necessar-
ily differ from those rules which concern relations between sovereigns." Feil-
chenfeld, Public Debts and State Succession (1931), 582. As indicated above,
this discussion assumes the proof by way of hypothesis and proceeds to consider
the content of the international law of the future.

THE SUBJECTS OF A MODERN LAW OF NATIONS 17

branch of a general system." 8 But one may also agree with him that
de Madariaga's insistence that we want to supplant international law
by "world law, or to use a fine Roman expression, jus gentium, le
droit des gens, the law of the World Commonwealth," involves
merely a superficial change of name. 9 The term "Modern Law of
Nations" has been used here nevertheless to suggest the point that
the acceptance of the hypothesis on which this discussion proceeds
involves a break with the past.

For the purposes of this context, therefore, international law or
the law of nations must be defined as law applicable to states in their
mutual relations and to individuals in their relations with states. 10
International law may also, under this hypothesis, be applicable to
certain interrelationships of individuals themselves, where such inter-
relationships involve matters of international concern. So long, how-
ever, as the international community is composed of states, it is only
through an exercise of their will, as expressed through treaty or
agreement or as laid down by an international authority deriving its
power from states, that a rule of law becomes binding upon an indi-
vidual. 11 When there is created some kind of international constitu-
ent assembly or world .parliament representative of the people of the
world and having authority to legislate, it will then be possible to
assert that international law derives authority from a source ex-
ternal to the states. This would be true even though states might well
have been the original creators of such a representative legislature.
The inescapable fact is that the world is today organized on the basis
of the coexistence of states, and that fundamental changes will take
place only through state action, whether affirmative or negative. 12

8 Williams, Chapter on Current International Law and the League of
Nations (1929), 19, 20. Cf. Schucking, The International Union of the Hague
Conferences (1918), 147, 150.

9 Williams, op. cit., supra note 6, pp. 18, 20, and cf. his Chapter on Current
International Law and the League of Nations, 7, note 2.

10 Cf. Spiropoulos, op. cit. 9 supra note 5, p. 43.

11 Cf. Borchard, "The Access of Individuals to International Courts," 24
Am. Soc. Int. L. (1930), 359. Many writers distinguish the individual as a sub-
ject of international law from the individual as a creator of norms; cf . e.g.
Rundstein, "L* Arbitrage international en matiere privee," 23 Hague recueil des
cows (1928), Vol. Ill, 331; Strupp, "Les R&gles gnrales du droit de la paix,"
47 ibid. (1934), Vol. I, 263; Akzin, Problemes fondamentaux du droit inter-
national public (1929), 125 fiF.

18 i Hyde, sec. nA-C, 38 ff.

1 8 A MODERN LAW OF NATIONS

The only possible alternative would be revolution on a world scale
which would circumvent the existing system of states as national
revolutions have circumvented pre-existing constitutional or govern-
mental law and procedure. It is true to say that states themselves
operate by virtue of the will of individuals and that the indi-
vidual is thus the ultimate source of authority. Yet so firmly
rooted is the international state system that we are accustomed
to think in terms of the state itself as the ultimate authority and
sole actor.

-There is no novelty in the suggestion that states may delegate
the exercise of some of their customary attributes. The classic case is
that of the European Commission of the Danube established under
the Treaty of Paris of March 30, 1856. The Commission was given
legislative, administrative, and judicial powers. 18 The Central Com-
mission for the Navigation of the Rhine established under Article 109
of the Final Act of Vienna of 1815 had comparable powers. 14 The
regulations of these commissions were directly applicable to individ-
uals, and individual infractions of the rules were directly cognizable
by the Commissions. Thus the international bodies dealt directly with
individuals in the same manner in which national bodies customarily
deal with them. The same remark may be made in regard to those
exceptional cases in which individuals have been given by treaty the
right to appear before international tribunals. 15 The notable cases are
those of the Central American Court of Justice established in 1907,
the Mixed Arbitral Tribunals established by the peace treaties at the
end of World War I, and the Arbitral Tribunal for dealing with the
rights of minorities in Upper Silesia under the Geneva Convention
of 1922 between Poland and Germany. In such cases the international
tribunal acted directly upon the claim of an individual and the judg-
ment ran in favor of the individual. It is not yet clear to what extent
the powers delegated to the organs of the United Nations will be

t See TfoUddes, Vlndmdu dans Vordre juridique international (1933), 84;
Hostie, "Examen de quelques regies du droit international dans le domaine des
communications ct du transit," 40 Hague recueil des court (1932), Vol. II,
488 fiv, Chamberlain, The Regime of International Rivers: Danube and Rhine
(1923), c. 3, p. 47. See also P.C./J. Ser. B, No. 14, Adv. Op. on Jurisdiction of
European Commission.

14 Hostie, loc. cit^ note 13.

18 The question of individuals as beneficiaries of treaty provisions is dis-
cussed in Chap. VI.

THE SUBJECTS OF A MODERN LAW OF NATIONS 19

exercised directly upon the individual. The measures of enforcement
ordered by the Security Council may be dkectly applicable to indi-
viduals, 16 The development of the Trusteeship Council and the Com-
mission on Human Rights may produce similar situations. Current
proposals for the establishment of a United Nations Atomic Energy
Commission may well lead to the creation, by special treaty to which
states will be parties, of a rule-making authority which will enact rules
directly binding on individuals. Thus it may become a rule of inter-
national law that no state shall use atomic bombs; it may also become
a rule of international law that no state or individual shall without
international license manufacture, possess, or traffic in atomic bombs
or fissionable materials. 17

States may agree to separate the legislative function from the law-
enforcing function so far as international agencies are concerned.
Enforcement may be left to national authorities as is customary under
treaties for the protection of fisheries, the control of the slave trade,
and the traffic in narcotics. The degree of delegation does not affect
the principle. Just as a national legislature may delegate certain regu-
latory authority and powers to an administrative commission or
officer, so the community of states may delegate to an international
authority. Although one may in both cases trace the authority back
to its original source, the individual will deal with the immediate and
not the remote source and will regard the former as the origin of his
rights and duties. 18

In using the term "individual" in connection with the hypothesis
here under discussion, it should be understood that various types of
groups or associations of individuals are included. International law,
particularly in claims cases, is accustomed to dealing with corpora-
tions as "citizens" or "nationals" of states in the same way in which
it deals with natural persons. So long as national law creates these

10 But the national state may be the intermediary through which measures
are brought home to the individual; cf. Eagleton, "The Individual and Inter-
national Law," Am. Soc. Int. L., Proc. (1946), 22, 24, citing Public Law 264,
7pth Cong, ist Sess., 59 Stat. 619 (1945) on enforcement of United Nations
measures by the President.

17 See the recommendations of the report of the Atomic Energy Commis-
sion to the Security Council, contemplating the definition of international
crimes in connection with the use of atomic weapons and the punishment of
both persons and nations, 15 Dept. of State Bulletin (1946), 1090.

18 Cf. Balladore Palliere, Diritto internazionale pubblico (1937), 286.

2O A MODERN LAW OF NATIONS

juristic persons, international law must deal with them as individ-
uals. 1 * Accordingly, under the hypothesis, corporations or partner-
ships may also be subjects of international law. In this instance, how-
ever, the fiction of the juristic person introduces new complications
in the international field, since a corporation may be created under
the law of State A, may have its principal place of business in State B,
may have directors who are nationals of State C and stockholders
who are nationals of State D. 20 Problems resulting from such situa-
tions will be further considered in Chapter IV.

Special mention should be made of the problem created by the
growing tendency of the state to assume and to discharge functions
which in the formative period of international law were normally
considered to be the function of private interests. 21 Where the state,
for example, sets up a government corporation to manage a fleet of
merchant vessels or to operate a government monopoly in matches or
tobacco, international law has tended toward the acceptance of a rule
which would distinguish the corporation from the state. The develop-
ment has taken place especially in connection with the law of sover-
eign immunity before the courts of another state; Such immunity is
denied to government corporations in the jurisprudence of mapy
countries. 22 Even where no governmental corporation is interposed,
the sovereign character of the state has not been recognized by some
courts when the state acts as a private trader. 23 In a socialized state it
would seem to be distinctly to the advantage of the state to separate

10 "Every system of law that has attained a certain stage of development
seems compelled by the ever-increasing complexity of human affairs to add to
the number of persons provided for it by the natural world, to create persons
who are not men." Pollock and Maitland, I, History of English Law (ist ed.),
469, quoted by Fischer Williams in "The Legal Character of the Bank of Inter-
national Settlements," 24 Am. J. Int. L. (1930), 665, 666.

20 See Timberg, "Corporate Fictions: Logical, Social, and International
Implications," 46 Col. L. Rev. (1946), 533, 572.

21 See Friedmann, "The Growth of State Control over the Individual, and
Its Effect upon the Rules of International State Responsibility," 19 Brit. Y. B.
Int. L. (1938), 1 1 8.

22 "Harvard Research in International Law, Draft Convention on Com-
petence of Courts in Regard to Foreign States," Art. 12 and Comment, 26
Am. /. Int. L. Supp. (1932), 641.

28 See ibid., Art. 1 1 and Comment, 597 ff . and cf . the changing view of the
Supreme Court of the United States as reflected in Republic of Mexico v.
Hoffman, 324 US. 30 (1945).

THE SUBJECTS OF A MODERN LAW OF NATIONS 21

its political character from its business functions in order that eco-
nomic relations may be carried on without the frictions and prestige
considerations which may be involved if the business is handled on a
political level. Perhaps the Soviet corporations fulfill this function. 24
It has been found useful, for example, for European railway adminis-
trations, both public and private, to arrange their affairs through the
Union of International Transport by Rail, before whose arbitral
tribunal no distinction is made between the governmental and the
private administration. 25 The formation of international corporate
bodies in finance, such as the International Bank for Reconstruction
and Development and the International Monetary Fund, in the devel-
opment of atomic energy, as in the proposed United Nations Atomic
Energy Commission, and in other fields, may serve in international
economic relations to reduce the number of instances in which private
individual and public governmental interests have clashed on the in-
ternational level. 26 There is a corresponding possibility that all clashes
of interest would be raised at once to the level of national interests
with ensuing complications in international relations. The recognition
of the international legal personality of corporate or other bodies,
whether private, governmental, or intergovernmental, would tend to
bring their interrelationships under normal international legal con-
trols, exercised by appropriate international organizations and pro-
cedures which would need to be established.

Since statehood is not here an essential criterion for a subject of
international law, there ceases to be any difficulty about the legal

24 See Hazard, "Soviet Government Corporations" (1943), 41 Mich. L. Rev.
850. Cf. the view expressed by Lord Maugham in The Cristina, 54 Times Law
Reports 512 (1938), 32 Am. J. Int. L., 825, 848 (1938): "The Soviet Republic
has apparently adopted the admirable practice of owning its merchant ships
through limited companies, and does not claim even if it could, which for my
part I should doubt any immunity whatever in relation to such ships."

85 Sse Hudson and Sohn, "Fifty Years of Arbitration in the Union of Inter-
national Transport by Rail," 37 Am. J. Int. L., 600 (1943).

36 See Timberg, op. cit., supra note 20, 556: "Communication of the Dele-
gation of the United States to the Secretary-General of the United Nations
(Sept. 24, 1946)," 15 Dept. of State Bulletin 659; Finer, "The T.VA., Lessons
for International Application" (1944), 7.L.O. Studies and Reports, Ser. B. No.
37; Schmitthoff, "The International Corporation," 30 Transactions of the Qro-
tius Society (1945), 165. It is interesting to note that fifteen governments have
agreed to organize a "Caribbean Tourist Development Association" which is
to be a Delaware corporation; 15 Dept. of State Bulletin (1946), 735.

*2 A MODERN LAW OF NATIONS

personality of various other entities. In traditional international law
there has been debate about the status of the Holy See, the great char-
tered companies of an earlier period, various "semi-independent"
political entities, and international organizations. The Dutch East
India Company and the British East India Company had the power to
make war and peace and to conclude treaties on which their states
relied as the basis of rights. Because of the traditional concept that
only states were international persons, Judge Huber as sole arbitrator
in die Palmas Island case between the United States and the Nether-
lands felt compelled to hold that the agreements made by these com-
panies were not "in the international law sense, treaties or conven-
tions capable of creating rights and obligations such as may, in inter-
national law, arise out of treaties." But at the same time he felt im-
pelled to attribute to them certain legal significance which is hardly
distinguishable in fact from that which they would have had if he had
called them international law treaties. 27 Under traditional interna-
tional law, third states did not attribute the quality of statehood to
the native princes bf India although, perhaps as a matter of domestic
policy, the British courts treated them as such. 28 In the United States,
although the Supreme Court has applied the international law rules
concerning treaties to agreements with the Indian tribes, their status
was early determined by Chief Justice Marshall to be that of "domes-
tic dependent nations." 29 An international tribunal has held that the
Cayuga Indians had no standing before it save as represented by a
state. 80 Under the hypothesis here taken, these entities may also be
subjects of international law, as may other national minority groups
which may come under the protection of special provisions in
treaties.

Colonies and other political subdivisions have long been admitted

a7 Scott, Hague Court Reports, zd Ser. (1932), 1156*.; cf. Lawrence, The
Principles of International Law (4th ed., 1910), 7 3 ft.; Wheaton, Elements of
International Law (8th ed., 1936), 26.

M Miehell v. Sultan of Johore [1894], i QJB. 149; Duff Development Co. v.
Kelantan 1 1924], A.C. 797. A parallel situation is presented by the recognition of
the status of the Philippine Commonwealth in courts of the United States:
Bradford v. Chase National Bank 24 F. Supp. 28 (1938); Hooven and Allison
Co. v. Evttt, 314 US. 652 (1945).

10 Cherokee Nation v. Georgia, 5 Peters i, 17 (1831).

80 Great Britain (The Cayuga Indians CfiMm) v. United States, "United
States Great Britain Arbitration, Nielsen's Report (1926), 272, 307.

THE SUBJECTS OF A MODERN LAW OF NATIONS 23

as members of various international unions such as the Universal
Postal Union and the International Institute of Refrigeration. Under
Article i of the Covenant of the League of Nations they could also
become members of the League if they were "fully self-governing 1 *;
the provision was designed to provide for the membership of the
British dominions and India. This situation has necessitated fine legal
distinctions, since the entities were not states and yet had a certain
international position. 81 According to Schwareenberger, "The
attempts which have been made to decide in the abstract whether en-
tities which are not states are subjects or objects of international law
do not lead beyond mutually contradictory assertions. The only
premise which it is safe to state, is that the existing subjects of inter-
national law are free to extend the application of international law to
any entity whom they see fit to admit to the realm of the interna-
tional legal system." 82 All such entities are here recognized as sub-
jects of international law.

There has been debate also about the status of various international
organizations. 88 Whether or not the League of Nations should be
considered an international person was hotly debated, the juridical
arguments reflecting the political controversy over the question
whether the League was to be considered a "super-state." 84 Sir John
Fischer Williams calls attention to the striking case of the interna-
tional personality of the Reparations Commission established under
the Treaty of Versailles. Once created by states, the Commission
enjoyed a large degree of independence. It could not be ordered by
the Allied Government "not to give Germany 'a just opportunity to
be heard.' " A delegate on the Commission was not in legal contem-
plation the agent of his government and was not paid by his govern-
ment; he could be recalled by his government, but his acts were not
subject to governmental ratification. The judicial decisions of the

81 Of. the solution of Strupp, Elements du droit international public uni-
versel, europjen et americato (1927), 22-3.

88 Schwarzenberger, i International Law (1945)* 62.

88 Cf. Briefly, "Le Fondement du caractere obligatoire du droit inter*
national," 23 Hague recueil des court (1928), 526.

84 "The League of Nations appeared before the Court of Appeal of
Geneva as an 'international organism' enjoying privileges and immunities ex-
empting it from die jurisdiction of local courts. Allen, The Position of Foreign
States Before National Courts (1933), 6. See also Pfanknchen, A Documentary
Textbook of International Law (1040), 52.

24 A MODERN LAW OF NATIONS

Commission bound the states, and majority rule applied in reaching
decisions. 85

In the formation of the various United Nations organizations, it
has become customary to insert in their constitutions or charters
some reference to their legal status. Thus for example Article XV of
the Constitution of the Food and Agriculture Organization provides:
"The Organization shall have the capacity of a legal person to per-
form any legal act appropriate to its purpose which is not beyond the
powers granted to it by this Constitution." 86 In general the history of
the drafting of these provisions suggests that the drafters were con-
cerned chiefly with the legal status of such organizations under
national law: could they take title to real and. personal property,
make contracts, and sue in national courts? In regard to the United
Nations Organization itself, there was evident a distinct reluctance to
include in the Charter any provision relative to the international
status of the Organization. Thus Article 104 merely provides: "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." The subcommittee of .Committee
IV/2 of the San Francisco Conference, in reporting this text, stated:
"As regards the question of international juridical personality, the
Subcommittee has considered it superfluous to make this the subject
of a text. In effect, it will be determined implicitly from the provisions

85 Fischer Williams, "A Legal Footnote to the Story of German Repara-
tions," 1932 Brit. Y. B. Int. L., 34. See also the same author's article cited, supra
note 19, and Hudson, International Tribunals, Past and Future (1944)^67, where
the Bank for International Settlements is mentioned in the same connection as
having the right under treaties to appear as a party before international
tribunals.

86 Food and Agricultural Organization of the United Nations, Report of
the First^Session of the Conference (1945), 8 7- Cf. Art. 47 of the Convention on
International Civil Aviation (1944), Dept. of State Pub. 2282, 72; Art. 66 of the
Constitution of the World Health Organization: Final Acts of the International
Health Conference, 1946, United Nations Doc. 7155; Art. IX of the Articles
of Agreement of the International Monetary Fund and Art. VII of the Articles
Of Agreement of the International Bank for Reconstruction and Development,
Dept. of State Pub. 2187, 42 and 88; Art. XII of the, Constitution of UNESCO,
Dept. of State Pub. 2457, 21; Art. 73 of the Suggested Charter for an In-
ternational Trade Organization of the United Nations, Dept. of State ftifc
2598, 44; Art. DC, sec. i, of the "Draft Convention for an fnter-Governmqg
tal Maritime Consultative Organization," 15 Dept. of State Bulletin (1946)
1096.

THE SUBJECTS OF A MODERN LAW OF NATIONS 25

of the Charter taken as a whole." 87 Yet under Article 43 it is cleat
that the Organizations may make agreements with states, and there is
no reason to believe that the agreement-making power will not be
exercised also in other connections, as, for example, the current pro-
posals for an agreement between the United Nations and the state
in which its headquarters are to be located. 88

As Borchard has suggested, we now have "autonomous corpora-
tions formed under a constitution which assures their perpetuity,
grants them immunities from taxation and other local burdens, and
yet subjects them to judicial responsibility for their business activi-
ties. . . . These are no longer mere agencies of the constituent states,
hampered by the unanimity rule of sovereignty." 89

The reasons why international organizations do not have a locus
standi before the International Court of Justice are more political than
juridical. The Statute of the Court retains the provision in Article 34
of the Statute of the Permanent Court of International Justice that
only states may be parties in cases before the Court. A determined
effort was made in the United Nations Committee of Jurists which
drafted the Statute in Washington, and later in Committee IV/i of
the San Francisco Conference, to amend this article so as to permit
intergovernmental organizations to have direct access to the Court
as parties. 40 The International Labour Organization was the body
which naturally came first to mind in this connection, and the rela-
tions between it and the Soviet Union had not been brought into
adjustment. Under the Statute of the Permanent Court, the ILO was
to be at liberty to furnish information in contentious labor cases, but
no such case arose. In advisory proceedings, international organiza-
tions were permitted to furnish information "and even to take part
in the oral proceedings which were almost invariably held." 41 The

37 See ReifF, Work of the United Nations Legal Committees, 15 Dept, of
State Bulletin, 3, 12; Preuss, "The International Organizations Immunities Act,"
40 Am. /. Int. L. (1946), 332, 341.

88 See UN Doc. A/6;, i Sept. 1946, 23.

39 Borchard, "Relation of Bretton Woods Agreements to Other Types of
International Organization," Money and the Law, Supplement N.Y.U. L. Rev.
(1945)9 99* no. Cf. Sumberg, "Financing International Institutions," 13 Soc.
Res. (1946), 276, 278.

40 "UNio," 14 Documents of the United Nations Conferenty on Interna-
tional Organization, San Francisco, 1945 (1945), 133 &; Vol. 13, 133 1 270.

41 Hudson, op. cit., supra note 35, pp. 68-9.

HJ A MODERN LAW OF NATIONS

committee vote in both Washington and San Francisco was against
the proposals for amending Article 34, but the door was left open for
international organizations, if authorized by the General Assembly,
to request advisory opinions. 42 Under Articles 34 and 66 of the new
Statute, international organizations may furnish information to the
Court in appropriate cases. The United Nations itself, represented by
its Security Council or General Assembly, 48 may request advisory
opinions, as could the Council and Assembly of the League of Na-
tions under the old statute, but the United Nations could not be a
party to a contested case before the Court. The result has no signifi-
cance in law or logic relating to the legal personality of international
organizations. The consequence of the reluctance to accord them
standing before the International Court of Justice is revealed by a
provision in the Working Draft of the proposed "Convention/ Agree-
ment between the United Nations and the United States of America"
relative to the location of the United Nations headquarters in the
United States. Under Article 38 of the Draft, disputes concerning
interpretation or application are to be referred to a special tribu-
nal of three arbitrators, the third member in case of deadlock
to be selected by the President of the International Court of
Justice. 44

THE DOCTRINE OF EQUALITY

The proposition that such individuals, groups, or bodies have
legal personality and are subjects of international law does not neces-
sarily imply that they have equal rights and duties. A fundamental
document such as the Charter of the United Nations may confine
membership in that organization to states, thus excluding from mem-
bership individuals, corporations, and various types of dependencies. 45

48 Art. 96 of the Charter.

48 The Economic and Social Council was given the right to request advi-
sory opinions by a resolution of the General Assembly adopted on Dec. 1 1, 1946,
under the authority of Art. 96 of the Charter; UN Doc. A/ 201. A similar right
has been given to specialized agencies; Hudson, "The Twenty-fifth Year of
the World Court," 41 Am. /. Int. L. (1947), i, 14.

44 UN Doc. A/67, * Sept, 1046, 23. See also Domke, "The Settlement of
Disputes in International Agencies," i (New Series) The Arb. /., 145.

48 But see Kelsen, "Membership in the United Nations," 46 Col. L: Rev.
(1946), 391, 392 on the question whether the original members of the United
Nations are all states.

THE SUBJECTS OF A MODERN LAW OF NATIONS *J

But another instrument of like origin may create an international
organization composed of states, dependencies and corporations, or
individuals. A treaty would thus no longer be properly defined as an
agreement between states; it may be an agreement between a state and
an individual. 46 The criterion distinguishing a treaty * from what has
usually heretofore been called a contract is whether the agreement
imposes obligations and confers rights under international or under
municipal law. There have been examples of agreements between
states which were municipallaw contracts, as, for instance, the usual
type of contract of State A to purchase land from State B for the
erection of an embassy and some loan contracts such as the Inter-
Allied loans of World War I, which are couched in terms of munici-r
pal law and not of international. 47 A concession contract from a state
to a national (individual or corporation) of another state or to a state-
less person may also, under our hypothesis, be an international law
agreement, thus eliminating the type of controversy revealed in cer-
tain decisions of Mixed Claims Commissions. 48 Special international
tribunals may be established for the adjudication of controversies
arising out of such contracts between a state and an individual, and
other international tribunals may be open only to states, as is pre-
scribed by Article 34 of the Statute of the International Court of
Justice.

It is thus apparent that much of the existing law concerning the
nature and qualifications of states as international persons is still
pertinent, regardless of the acceptance of the hypothesis that indi-
viduals are also subjects of the same law. But certain concepts stand in
need of clarification. The principle of the equality of states is among
the principles which need to be reappraised. In saying that states
are equal, the assumption is implicit that all the subjects of interna-
tional law enjoy equality, one with another. As Dickinson has pointed
out, this statement is true of equality in the sense of "equality before
the laav" or "equal protection of the law," which is a matter of status,
but not necessarily true of equality used in the sense of "equality of

46 This subject is more fully explored in Chap. VI.

47 See Mann, 'The Law Governing State Contracts," 1944 Brit. Y. B. Int.
L. y ii.

48 See Judge Nielsen's dissent in United States of America on behalf of In-
ternational Fisheries Company v. United Mexican States, Nielsen, international
Law Applied to Reclamations (1933), y 20,

28 A MODERN LAW OF NATIONS

capacity for rights," which he notes is not essential to the reign of
law. 40 In Dickinson's sense, equality would still appertain to all sub-
jects of international law, whether individuals or states; both would
enjoy the equal protection of the law. But the actual existing inequali-
ties of capacity for rights which is apparent in the present interna-
tional state system would continue and be sharpened with reference
to the differences between states and individuals.

As is also true of other parts of international law, the writings on
the subject of equality often fail to distinguish between the legal prin-
ciple and the political maxim. There was a historical period in which
the doctrine of equality of states had to make its way as the national
state emerged in Europe out of the collapse of the empire, but for a
century at least statesmen and international politicians have been able
to assert the existence of the principle without fear of verbal contra-
diction but with some certainty that, while equality is preached,
inequality will be practiced. The international problem of equality is
the result of the coexistence of two facts:

1. States are not factually equal; their power differs; *

2. States have "feelings," and the psychological factor can-
not be ignored in international politics.

Power may be overcome by superior power or checked by an equiv-
alence of power. From this principle there has evolved, in the interest
of maintaining the peace, the plan of the balance of power. Power
may be surrendered, and from this principle stem plans for disarma-
ment, for an international police force, and for a world state. Power
may be utilized by those who have it for the general advantage of the
international community as a result of a conviction of self-interest in
such utilization. This is the theoretical basis of the United Nations
Charter, which recognizes the existence of power and entrusts its
exercise, under agreed limitations, to those who possess it.

Just as within states the last hundred years reveals a growth of

49 Dickinson, The Equality of States in International Law (1920), 4. As
Kelsen, op. tit., supra note 45, p. 398 points out, Art. 35 of the Statute of the
International Court of Justice recognizes the principle of equality between
Members of the United Nations and non-Members, by requiring that conditions
on which the court is to be open to "other states" shall not "place the parties
in a position of inequality before die Court."

THE SUBJECTS OF A MODERN LAW OF NATIONS 2p

social consciousness and of a public conscience, so has it been, in lesser
degree, in the international community. Contrasting the Congress of
Vienna of 1815 and its aftermath with the Paris Peace Conference of
1919 and its aftermath, one finds in both situations the original domi-
nance of the Great Powers, but in the latter period, as the League of
Nations developed, there is a growing participation and, compara-
tively, a growing influence of the middle and small powers com-
manding a world audience through the Geneva forum. Moving on to
the San Francisco Conference of 1945 and the early stages of the
United Nations, one observes that the voice of the middle and small
powers is louder, more insistent, and, again comparatively, more
productive of results.

The psychological factor may properly be called the prestige
factor. This is not universally true, as for example when the small
riparian states on the Danube have demanded representation on a
river commission with a view to exercising at least some influence
over decisions that vitally affect them. Here a legal interest may be
involved and appeal made to the legal principle of equality before the
law. But the insistence of certain diminutive states at the Hague Peace
Conference of 1907 on permanent and equal representation on the
bench of the proposed International Court of Arbitral Justice was
much less genuinely a reflection of legal interest than of prestige con-
siderations.

As one examines the manifestations of the doctrine of equality of
states in international relations, one seems to detect the emergence
of a notion that it does no violence to the doctrine if unequal rights
or privileges are accorded on the basis of a formula which fairly re-
flects a recognizable degree of interest. One may compare the United
States constitutional doctrine that a reasonable classification of per-
sons affected saves a statute from doing violence to the constitutional
guarantee of the equal protection of the laws. Examples of this emer-
gent rfotion are abundant in connection with various international
organizations. For instance, in the International Institute of Agri-
culture voting was determined by membership in one of five classes,
members of Class I having five votes and members of Class V having
one vote. Equality was admitted in the sense that each state was free
to choose the class to which it wished to belong, but membership in
Class I involved an assessment of 16 units of the budgetary base, and

3O A MODERN LAW OF NATIONS

membership in Class V involved the assessment of only one unit. 50 A
comparable plan in the Bretton Woods agreement led states to seek a
larger allotment of shares in the Fund in order to be entitled to larger
credit facilities, and to avoid larger allotments of shares in the
Bank, with resulting larger obligations to subscribe capital.

It is relatively easy to find formulae for inequalities in voting
power and in representation in technical international organizations,
where interest can be measured by statistics or factual criteria. It is
supremely difficult to find acceptable formulae in political organiza-
tions, where the prestige factor and problems of political existence
may be at stake. Great powers have power because they are great and
not because a skillful draftsman has invented an ingenious formula.
The platform of the League to Enforce Peace suggested in 1918 that
"The representation of the different nations in the organs of the
League should be in proportion to the responsibilities and obliga-
tions they assume." This suggestion is not dissimilar to the actual
basis of five-great-powers control of the Security Council of the
United Nations. The provisions of the Charter on regional arrange-
ments reflect in large part the wide concessions which the United
States, in pursuance of the Good Neighbor Policy, has actually made
to the principle of political equality in the Americas. The United Na-
tions organization is affirmed by the Charter to be "based upon the
principle of the sovereign equality of all its Members," but no one can
deny that unequal rights, privileges, and responsibilities are also
recognized throughout the Charter. 51 Some of the factual inequali-
ties are based on the more readily measurable types of interest, as in
the composition of the Trusteeship Council. Some, as in the voting
formula for the Security Council, are based on the inescapable fact
of power differentials. It is true, as Woodrow Wilson said, that "all
nations are equally interested in the peace of the world"; it is not true
that all can make equal contribution to its maintenance. 52

80 A similar plan had been utilized in the agreement of December 1907
creating the International Office of Public Health.

81 m his fable Animal Farm (1946) George Orwell describes the amend-
ment of the animals' principle "All Animals are Equal" by the addition of the
words "But Some Animals are More Equal than Others. The Charter might
realistically be amended in the same way.

59 The above discussion of equality is based largely qn the writer's introduc-
tion to a series* of studies on the subject prepared in die graduate seminar in

THE SUBJECTS OF A MODERN LAW OF NATIONS 3!

The doctrine of equality of states has been championed by small
states and their spokesmen. It is they who see in it a safeguard against
encroachments by the greater powers. The great powers have their
divisions among themselves within their small circle, but in a major
sense the conflict of interest in terms of designing international
organization or world government has been between the great powers
on the one side and the small and middle powers on the other. When
the international community lacked any form of internationally
democratic organization, there was no other safeguard to which the
smaller powers could appeal. 58 With the development of international
organization, even in the still relatively primitive form which the
United Nations takes, there is a possibility that the function of equality
as a legal and political principle may be fulfilled by a doctrine of com-
munity interest, the acceptance of which is taken as a second hypoth-
esis in this discussion. Given the forum of the General Assembly and
also of the Security Council, to which any state may appeal, and
given the extension of the acceptance of the compulsory jurisdiction
of the International Court of Justice, all operating on the basis of the
acceptance of the principle of community interest in the maintenance
of a developed law of nations, the safeguards of the international
organization may suffice to protect the legal interests of all subjects
of international law, whether states or individuals. Thus all subjects
of the law would be guaranteed equal protection of the law, although
equal capacity for rights would still differ with factual criteria. The
prestige factor would still need to be taken into account as a matter
of international politics, as is true in any social relationships, but it
would tend to become more clearly recognized in its true light,
stripped of confusion with the sound legal principle of equality.
States would still seek the prestige of representation on various inter-
national commissions and other bodies, but progress could be made

International Law at Columbia University; Peterson, "Political Inequality at the
Congress of Vienna," 60 Pol. Set. Q. (1945), 527. Herrera, "Evolution of Equal-
ity of States in the Inter- American System," 61 ibid. (1946), 90. The writer has
also had the benefit of other unpublished studies of the seminar, especially
Lande, Revindication of the Principle of Legal Equality of States in the Period
Between the Franco-Prussian War and the First World War. The first instal-
ment of Dr. Lande's study has been published in 62 Pol. Sci. Q. (1947), 258.

53 As Lande, op. cit., supra note 52 points out, the small states have at times
been the beneficiaries of the rivalries among the Great Powers.

J 2 A MODERN LAW OF NATIONS

along the lines of the development of an international civil service in
which individuals would be selected on the basis of their competence
rather than on that of state representation. The formula already in
use in UNR^A and in the Charter (Article 101) "Due regard shall
be paid to the importance of recruiting the staff on as wide a geo-
graphical basis as possible" would still represent a sound principle
of administrative organization.

The acceptance of the adaptation of the legal principle of equal-
ity of states to the principle of equality of subjects of the law,
whether states or individuals, is necessary to the development of
new doctrines of human rights under the Charter of the United
Nations. 54

It is not impossible to accord equal protection of the law to states
and to individuals when these two different subjects of international
law appear before an international forum. The experiment has been
tried with some success in the special regime for the protection of
the minorities in Upper Silesia. Kaeckenbeeck, in his excellent anal-
ysis of this regime, says: "Even when, as a result of what is almost a
fiction, a state and a private person stand side by side as parties before
an international tribunal a new and still quite exceptional departure
it is essential that the impartiality of the judge should not be
affected by the difference in the importance of the parties, if I may
put it in this way, and in this connection it is essential that the judge
should treat the parties as equals. But from another standpoint, if we
are not to lose touch with reality, it must be admitted that the interests
of a state and the interests of an individual are not on the same level,
and further, that the feelings of a nation, with their consequences,
both national and international, are not commensurate with the
psychological and material satisfaction which an individual receives
when his strict rights are recognized." 55 He notes that in the matter
of costs of the judicial or arbitral procedure, for example, the state is
in a very different position from the individual and that "costly jus-
tice . . . would upset the balance very strongly in favour of the
State." Similarly in the matter of language, which is always a diffi-

54 Sec Chap. IV.

55 Kaeckenbeeck, The International Experiment of Upper Silesia (1942),
78. Cf. in the same sense T&ielcides, Ulndividu dans Vordre juridique inter-
national (1933), 35

THE SUBJECTS OF A MODERN LAW OF NATIONS 33

culty for any international body, states are in a position to hire skill-
ful attorneys to plead in any required language, whereas the individ-
ual would be at a complete loss unless his own language could be
used. 56 Kaeckenbeeck's observations are directed to a pioneering
experiment in the field of international recognition of individual
rights, and it was essential to the success of that experiment that com-
promise and adjustment should play a large part. Similarly in con-
nection with the Mixed Arbitral Tribunals established under the
Peace Treaties at the end of World War I, it has been noted that,
while the individual could appear in his own right before the tribunal,
there was no procedure open to him for the collection of a judgment
rendered in his favor save through the assistance of his government. 57
As the law develops and the world community becomes more
familiar with the problem and its possible solutions, the difficulties
will tend to minimize themselves, although they may never be wholly
obliterated. One difficulty inherent in the minority regimes was that
they were imposed only on certain countries and did not represent
a principle accepted by the whole world and notably by the great
states. When the position of the individual is internationally recog-
nized and the rights of man are placed under international protec-
tion against both the small and the great states, equality before
the law may be insisted on with respect to both states and in-
dividuals.

It has been said that "big commercial and industrial enterprises
increasingly often deal with States on a footing of complete equality,"
and the arbitration between the Lena Goldfields Company Ltd. and
the Soviet Union has been cited in this connection. 68 In some in-
stances the private corporation may even be factually in a more
advantageous position than the government with which it deals. 59

56 Kaeckenbeeck, op. cit. y supra note 55, p. 500

57 Bluhdorn, "Le Fonctionnement et la jurisprudence des tribunaux arbi-
traux4nixtes crees par les traite*s de Paris/' 41 Hague recueil des cours (1932),
Vol. Ill, 141.

58 Cf. Schwarzenberger, op. cit., supra note 32, p. 215. The Arbitral award
in this case is summarized in Annual Dig. of Pub. Int. L. Cases (1929-30), Case
No. i.

00 The United Fruit Company might be suggested as an example; see
Kepner, Social Aspects of the Banana Industry (1936) and sources there cited;

also the Statement of allegations in Am^t-iran Ranana f!n_ v. TTntferl Friiir f!ri-

213 U. S. 347 (1909).

34 A MODERN LAW OP NATIONS

The necessity for considering the problem of equality in such inter-
national commercial relationships would take a different form but
would not be eliminated if there should be "international incorpora-
tion of private business firms conducting business operations on an
international or world scale." *

If the foregoing be now factually true regarding the relations be-
tween private corporations and states, there is no reason why a mod-
ern law of nations should not embody the result in an appropriately
qualified rule of law. A fortiori, equality between states and inter-
national organizations presents no legal difficulty if both are con-
sidered subjects of the law of nations.

A modern law of nations must also take account of tHe principle
of equality as applied to relations between and among individuals
who are nationals of different states, whether those states be "sover-
eign" equals or political subdivisions of a world government. Some
aspects of traditional international law are illuminating in this con-
nection even though they have been conceived in terms of interstate
rights and duties with respect to individuals characterized as citizens
and aliens.

In the history of the law of responsibility of states for injuries to
aliens, it has been urged, notably by Latin-American jurists, that the
standard of treatment of aliens should be equality with nationals.
This standard has been accepted by some other states, such as the
United States, only as a minimum. This latter point of view is sup-
ported by invoking the doctrine of the international standard. Thus
it is maintained that if the treatment of nationals in country X falls
below the minimum standard, equality of treatment is no defense to
a claim on behalf of an injured alien. 61

In commercial treaties there is a standard clause known as the
national treatment clause, much used especially in connection with
shipping, which assures to the nationals of one contracting party

60 Studies of the need for and methods of such incorporation were sug-
gested by the delegation of the United States to the Secretary-General of the
United Nations on September 24, 1046. 15 Dept. of State Bulletin, 659.

C1 See Chap. V. But the Montevideo Convention of 1933 on Rights and
Duties of States declares in Article 9: "Nationals and foreigners are under the
same protection of the law and the national authorities, and the foreigners may
not claim rights other or more extensive than those of nationals." US. Treaty
Ser. y No. 88 1.

THE SUBJECTS OF A MODERN LAW OF NATIONS 35

equality with the nationals of the other in specified matters. 62 Such
national treatment clauses are to be contrasted with most-favored-
nation clauses, which use as a standard equality with the most favor-
able treatment accorded to nationals of another state. 88

The same principle of legal equality is to be found in the law
restraining states from certain types of discrimination. This is a sub-
ject on which adequate monographic studies are lacking, but certain
examples may be noted. 64 Thus the United States Immigration Act
of 1924 was questioned by various foreign governments on the
ground that it contained improper discrimination against their na-
tionals. The Japanese objection was specifically based on the ground
that the proposed law was "obviously aimed against Japanese as a
nation." 65

By no means all examples of discriminatory treatment are illegal
under international law; states have wide latitude to accord or with-
hold special privileges, and this latitude may be used for bargaining
purposes. The British-American Claims Commission under the Treaty
of August 1 8, 1910 properly refused to award compensation, even
under its equity powers, when the United States had compensated
some but not all cable companies damaged by its cutting submarine
cables during the Spanish-American war, the original destruction
having been a lawful exercise of belligerent rights. 66 A tribunal of the
Permanent Court of Arbitration in 1904 held in the Venezuelan
Preferential Claims case that the three countries, Germany, Great
Britain, and Italy, which had resorted to force to compel Venezuela

M See McClure, A New American Commercial Policy (1924), 62; Cutler,
"The Treatment of Foreigners," 27 Am. J. Int. L. (1933), 225, 226. Cf. Art. 15
of the Chicago Convention on International Civil Aviation, International Civil
Aviation Conference, 1944, Dept. of State Pub. 2282, 59.

63 "The Most Favored Nation clause embodies the principle of equality of
treatment in international economic relations." Snyder, "The Most Favored
Nation Clause and Recent Trade Practices," 55 Pol. Sci. Q. (1940), 77. Cf. Art.
8, SiJ&gested Charter for an International Trade Organization of the United
Nations (1946), Dept. of State Pub. 2598.

64 Bee ibid., Arts. 21, 22.

es *The Japanese Ambassador to the Secretary of State, April 10, 1924," 1924
17. S. For. Rel., II, 369, 372; *The Secretary of State to President Coolidge, May
23, 1924," ibid., 39. Cf. Garis, Immigration Restriction (1927), 263 fF., 349; 'Fen-
wick^ International Law (1924), 177.

64 Great Britain (Eastern Extension, Australasia & China Telegraph Co.
Claim) v. United States (1923), Nielsen's Report, 73.

36 A MODERN LAW OF NATIONS

to pay the claims of their nationals, were entitled to priority over
other creditor states in the distribution of earmarked Venezuelan
assets. 67

Inequality or discrimination as between local and foreign credi-
tors, particularly in bankruptcy proceedings, has been so widely
recognized as an injurious trade barrier that numerous bipartite and*
multipartite treaties have dealt with the matter. The fact that in many
of these instances the distinctions are based on residence rather than
on nationality is illustrative of the point that the merging of the
sovereign state system into a world government would not be a
panacea and would not eliminate the need for international law.
There is a sufficient unanimity in the views expressed by various
international bodies, business and legal, governmental and private, to
warrant the devotion of early attention to this problem when the pro-
posed International Trade Organization is established. As has been
suggested, such an effort might well proceed on the principle stated
by Mr. Justice Jackson that "we cannot successfully cooperate with
the rest of the world in establishing a reign of law unless we are pre-
pared to have that law sometimes operate against what would be our
national advantage." 68

INDEPENDENCE AND INTERDEPENDENCE

Independence is another quality or characteristic which states are
commonly said to possess under international law. Historically tjiis
concept has been convenient because it helped to differentiate |hose

67 Scott, The Hague Court Reports (1916), 55. In his argument before the
tribunal, Wayne MacVeagh as counsel for the United States said: "It is not
enough that the conduct of the Allies in making war upon Venezuela was equally
meritorious with the policy pursued by the other creditor nations in abstaining
from war and in seeking to collect the claims presented by them by peaceful
methods. Before you can award preferential treatment to their claims, you must
declare their conduct to be more meritorious than the conduct bf those nations
which abstained from making war; for equality of treatment is the rule, and
preferential treatment can only be accorded as an award of merit." The Vene-
zuelan Arbitration before the Hague Tribunal, 1903, Sen. Doc. 119, 58th Cong.
3d Sess., 1133.

68 Nadelmann, "Legal Treatment of Foreign and Domestic Creditors,*' n
Law and Contemporary Problems (1946), 696, 709. This article is an excellent
discussion of the whole subject and contains ample citations on the points that
have been noted here.

THE SUBJECTS OF A MODERN JLAW OF NATIONS 37

political groupings which determined their own policies, especially in
international relations, from those which acknowledged a certain
subordination to other groups. Only fully independent groups were
considered to be "states," although the terms "semi-independent
state" and even "sovereign dependency" have had currency. The doc-
trine had additional importance, however, as a basis for those rules of
international law which sought to restrict interferences by one state
in the affairs of another. An interference in the affairs of a vassal, a
protectorate, a colony, or other unit in a position of political sub-
ordination to a state might be justified by that relationship, whereas
it would not be justified if the other unit were also an independent
state. The doctrine of independence of states is thus also linked to
the development of a legal system for the protection of the weak
against the strong, and in this respect it is akin to the doctrine of
equality. To that extent the acceptance of the principle of com-
munity interest and the perfection of forms of international organi-
zation will tend to diminish the importance of the concept of inde-
pendence, although it will remain one of the criteria for identifying
a state in cases where that classification retains its importance. In this
connection Chapter XI of the Charter of the United Nations with
its "Declaration Regarding Non-Self-Governing Territories" and
Chapters XII and XIII on the Trusteeship System and the Trustee-
ship Council are significant indications of the acceptance already ac-
corded to the community interest in nonindependent groups.

It may be suggested that it would be more conformable both to
the realities and to the desiderata of the international community if,
instead of emphasizing that each state is independent of every other,
it were frankly asserted that each state is dependent on all other
states, linked together in the society of nations or in a world govern-
ment. But the terms "dependent" and "dependence" have connota-
tions which would clearly make them unacceptable in this connection.
The same thought is conveyed by the acceptance of the hypothesis
of community interest. The thought might be expressed concisely by
saying that every state has the quality of "interdependence" with
every other state. Interdependence would connote both rights and
duties. The rights would include respect for its territorial integrity
and its safety and observance toward it by all other states of the rules
of international law designed for mutual well-being. The duties

38 A MODERN LAW OF NATIONS

WOUld include the obligation to accord to nthr staff* rermrncal

respect and observance.

Limited interdependence, through cosignature of multipartite
treaties, is a familiar aspect of traditional international law. For
example, Paragraph I of Article 386 of the Treaty of Versailles pro-
vided that "In the event of violation of any of the conditions of
Articles 380 to 386, or of disputes as to the interpretation of these
articles, any interested Power can appeal to the jurisdiction instituted
for the purpose by the League of Nations." This provision was
quoted by the Permanent Court of International Justice in its first
judgment in the case of the S.S. Wimbledon, involving the right of
free passage provided by the treaty as the regime for the Kiel Canal.
A refusal of passage to a French vessel was the subject of proceedings
against Germany before the Court. The proceedings were instituted
jointly by France, Great Britain, Japan, and Italy, and Germany
raised the question whether such joint application was proper, inas-
much as only France could "adduce a prejudice to any pecuniary
interest." The Court held that the joint application was proper, since
"each of the four Applicant Powers has a clear interest in the execu-
tion of the provisions relating to the Kiel Canal, since they all possess
fleets and merchant vessels flying their respective flags." ** If the
legal quality of interdependence were recognized, the same reason-
ing could be applied to the interest of any maritime state in a question
involving the freedom of the seas or the navigation of an international
river, and it would not be necessary to show that the state asserting
the interest was a party to any treaty which might be involved. This
would mark a clear change from the traditional position, which has
been well stated by Verdross in saying that the "merely ideal inter-
est of the other states in maintaining the international legal order is
. . , insufficient" to support a claim to act. But he admits that there
may be exceptional cases where the general interest is involved, as
when some state embarks on a career of lawlessness. 70 Upon the
acceptance of the concept of interdependence, the exception would
become the rule. 71

M P.CJ./., Scr. A, No. i, p. 20 (1931).

70 Verdross, Volkerrecht (1937), 165, citing Vattel and Hefter in accord on
these exceptional cases.

71 Garner in 1925 argued that states should have "an admitted legal right to
protest against violation of the law" ven where no immediate injury could be
shown; Recent Developments in International Law, 814.

THE SUBJECTS OF A MODERN LAW OF NATIONS 39

Tentative assertion of such a right in connection with the com-
mon interest of all neutral states in the upholding of the law of
neutral rights is to be found in the views expressed by several Euro-
pean governments in connection with the Trent Affair in i86i. 72
The same thought was utilized in various proposals for armed neutral-
ities or leagues of neutrals. 78

The history of the Concert of Europe throughout much of the
nineteenth century is illustrative of the acceptance of a concept of
interdependence as a legal norm in international relations, at least so
far as the affairs of the European continent were concerned. It is
true that this instrument was wielded by the Great Powers, often for
selfish ends, and that they tended to ignore the rights of the small
powers. But as the action of the Concert was frequently rationalized
and defended, there was an invocation of a concept of community
interest, of interdependence. Procedurally, the Great Powers asserted
their right to act as the instruments of the public law of Europe.
Thus Lord Salisbury defended the action of the Concert in respect
of Greece by referring to "the federated action of Europe" enacting
rules as a "legislature" in the interests of European peace. 74 Numerous
discussions and agreements concerning the neutralization of Switz-
erland and other areas reflect the acceptance of the concept of inter-
dependence. 75 The famous declaration in the treaty of Paris of March
30, 1856 is comparable in its pronouncement that the Sublime Porte
was admitted to participate in the advantages of the public law and
Concert of Europe. The signatory powers accordingly agreed to
respect the independence and territorial integrity of the Ottoman
Empire and said that they would consider any act tending to violate

72 "Harvard Research in International Law, Draft Convention on Rights and
Duties of Neutral States in Naval and Aerial War,'* An. 114, commentary, 33
Am. /. Int. L. Supp. (1939), 788 ff.; French Statement in 55 British and Foreign
State Papers, 610-12, and 1862 US. For. Rel., 307; Austrian position in 55 British
and Foreign State Papers, 618 and German statement in ibid., 624; also British
summary of these views in ibid., 641 ff.

73 See Jessup, "Neutrality, Its History, Economics and Law," Vol. IV,
Today and Tomorrow (1936), i6off.; Billow to Lord Granville, 31 Aug. 1870,
Fontes juris gentium, Ser. B. Sectio I, Tomus I, Pars I, 2.

74 Address in the House of Lords quoted in i Westlake International Law
<2d ed. 1910), 322; cf. Lawrence, The Principles of International Law (7th ed.
1923), 322.

78 See "General Act of the Congress of Vienna, June 9, 1815," Articles DC,
LXXXIV, XCII. 2 British and Foreign State Papers, 3; cf. Peterson, op. cit. t
supra note 52, p. 547.

40 A MODERN LAW OF NATIONS

this engagement as a question of general interest. 76 The joint interest
of the powers in the "open door" for China and respect for Chinese
territorial integrity may also be noted. The concept of interde-
pendence is clearly recognized in the Covenant of the League of
Nations and in the Charter of the United Nations. 77

An interesting assertion of the right of a state to secure satisfaction
because of the injury it sustains through the weakening of the inter-
national legal system through any breach of a rule of international
law was made by the French Government in its case against Italy
before a tribunal of the Permanent Court of Arbitration in the cases
of the Carthage and the Manouba. These two French ships had been
captured by the Italians during their war with Turkey; the French
claims for indemnity were submitted to arbitration. In addition to
material compensation for the damage to the vessels, the French
Government asked for the "sum of one hundred thousand francs for
the moral and political injury resulting from the failure to observe
international common law and conventions binding both Italy and
France." The Tribunal, correctly under the existing law, refused to
make such an award, holding that the establishment by an arbitral
tribunal of the fact of a breach of international legal obligations "con-
stitutes in itself a serious penalty." 78

SOVEREIGNTY

Sovereignty, in its meaning of an absolute, uncontrolled state will,
ultimately free to resort to the final arbitrament of war, is the quick-
sand on which the foundations of traditional international law are
built. 79 Until the world achieves some form of international govern-
ment in which a collective will takes precedence over the individual
will of the sovereign state, the ultimate function of law, which is the
elimination of force for the solution of human conflicts, will not be
fulfilled. Like the legal attribute of equality, the function of sover-
eignty as a legal concept was to protect the state in a world devoid of

76 46 British and Foreign State Papers ( 1855-56) , 8.

77 See "Commentary on the League of Nations Covenant by the British
Government," reprinted in Butler, A Handbook to the League of Nations '(ad
ed. 1925), 172.

711 Scott, Hague Court Reports (1906), 332, 335.
70 See the Introductory Chap.

THE SUBJECTS OF A MODERN LAW OF NATIONS 41

any alternative to self-protection. The gradual development of ade-
quate modernized law and organization should provide such an al-
ternative.

Because the international system has so far failed to meet the cen-
tral problem of war, it is often inaccurately assumed that no progress
has been made in the direction of limiting the free exercise of state
will. 80 Once it is agreed that sovereignty is divisible 81 and that it
therefore is not absolute, various restrictions on and relinquishments
of sovereignty may be regarded as normal and not stigmatizing.
The slow but steady development of majority rule in international
organizations 82 bears witness to the change which is taking place. Of
great significance is the contrast between the Covenant of the League
of Nations, which left to each member freedom to decide whether it
would participate in sanctions recommended by the Council, and
Chapter VII of the Charter of the United Nations, whereby the mem-
bers relinquish the power of decision to the Security Council and
are bound to take action on the basis of that decision. Notable also
are those numerous provisions in the Charter which recognize that
the treatment of the individual citizen is no longer a matter solely of
domestic concern and that the denial of fundamental human rights
to a citizen can no longer be shrouded behind the impenetrable cloak
of national sovereignty. 88 Sovereignty in the sense of exclusiveness of
jurisdiction in certain domains, and subject to overriding precepts of
constitutional force, will remain a usable and useful concept, just as
in the constitutional system of the United States the forty-eight states
are considered sovereign. But sovereignty in its old connotations of
ultimate freedom of national will unrestricted by law is not consistent
with the principles of community interest or interdependence and of
the status of the individual as a subject of international law. With
the development of international law regulating the state's use of
force |nd the implementation of the spirit of those provisions of the
Charter which should make any resort to war clearly illegal, sover-

80 Cf. Postulate 3, International Law of the Future (1944), p. 29; Chap.
VII, infra.

81 See the practical argument to this effect in i Oppenheim, Sec. 69, p. 116.
88 See Riches, Majority Rule in International Organization (1940).

83 See Norman Wait Harris Memorial Foundation, Proceedings zist Insti-
tute (1945), "The United Nations and The Organization of Peace and Securitv."
99, 126; Chap. IV, infra.

42 A MODERN LAW OF

eignty would no longer constitute a major obstacle to the develop-
ment of a genuine international community. Theoretical difficulties
confronting the acceptance of the supremacy of international law
would then disappear.

CHAPTER III
RECOGNITION

THIS CHAPTER DEALS with the recognition of states and governments
and of insurgents and belligerents. It does not deal with non-
recognition as a sanction; that subject will be considered in Chapter

Recognition of a state is the act by which another state acknowl-
edges that the political entity recognized possesses the attributes of
statehood. The common case is one in which a community not there-
tofore accepted as a member of the international society has thrown
off a previous subservience to another state, as in the case of a revolt-
ing colony which declares its independence, or which is accorded
full autonomy by the former parent state. Less frequent are those
instances in which independent and locally well-developed groups
have at length established full contacts with the world community,
which in earlier days meant the western world; the entrance of
Japan into the family of nations is an example. The recognition
of new governments involves very different considerations and
should be sharply distinguished; it will be treated later in this
chapter.

There is broad divergence of opinion among writers as to whether
recognition is declaratory or constitutive; that is, whether a state
exists prior to recognition or whether it is brought into being by the
act of recognition. Professor Lauterpacht maintains the constitutive
view in a recent amcle. r ~The American Republics concluded at
Montevideo in 1933 a convention wHcfinarnphatically states the
declaratory position. 2 Confusion is caused by the fact that some
writers consider recognition a purely political act, whereas others

1 Lauterpacht, "Recognition of States in International Law," 53 Yale L. /.
(1944), 385.

a US. Treaty Ser. No. 881. The proposition was reaffirmed in Art. VII of
the Draft Declaration of the Rights and Duties of American States, approved by
the Governing Board of the Pan-American Union, July 17, 1946.

43

44 A MODERN LAW OF NATIONS

stress its legal character. Whichever view reflects more accurately
the existing international law, it is clear that political opposition to
the constitutive view stems from the lack of organization of the
international community, inasmuch as recognition is accorded at the
will of established states in a position to blackball a new aspirant to
membership in the community of nations. The argument of some
writers that there is a duty to recognize when an aspirant actually
possesses the attributes of statehood has afforded slight satisfaction
in the absence of organized international machinery to enforce the
pbligation.

Surely this is a situation to which the concept of community
interest has clear application. The appearance on the international
scene of a new state must be a matter of interest to all other states,
especially in modern times, when so many contacts in trade, aviation,
radio, and other human activities do not depend on geographical
proximity and when there is general acknowledgment of the world-
wide interest in the existence of stable and "peace-loving" govern-
ments. The traditional practice of unilateral recognition of a new
state is not consistent with the hypothesis of the acceptance of the
concept of community interest. Examples in the past of group
recognition of a new state bear witness to the fact that recognition
of states in certain areas and under certain conditions has already
been acknowledged to involve such a degree of community interest
as to induce joint action. This was particularly true of the period in
which during the nineteenth century the Concert of Europe under-
took to act in matters of common concern. Turkey was indeed
recognized before it was admitted "to participate in the advantages
of the public law and the Concert of Europe" by the Treaty of Paris
of 1856; that treaty was rather an acknowledgment and guarantee of
the integrity of the Ottoman Empire. 8 It was otherwise with the
Balkan states. When Rumania declared its independence Russia
considered that this created a de facto but not a de jure situation;
the legal position would remain to be determined by the Powers. 4
Not until Rumania was recognized by a European congress was it
believed that the new state could become a party to international

3 See statement of Lord Salisbury in the House of Lords, 19 March 1807,
reprinted in i Westlake, International Law (id ed. 1910), 3*2.

4 Lord Loftus to the Earl of Derby, 31 May 1877, Fonus Juris Gentium,
Series B. Sectio I, Tomus II, Pars I, p. 53.

RECOGNITION 45

treaties. 5 By the Treaty of Berlin of 1878 the Great Powers formally
recognized the independence of Rumania. But in the same treaty a
split in the collective front is registered by the provision of Article
XXVI relative to Montenegro, whose independence was recognized
by the Sublime Porte "and by all the High Contracting Parties who
have not yet admitted it." Serbia was recognized in the same manner
as was Rumania. 6 After World War I the Principal Allied and
Associated Powers jointly confirmed the recognition of Poland. In
transmitting to Poland the treaty to be signed the President of the
Peace Conference pointed to the past practices of Europe in dealing
with such matters. 7 Negatively, the combined action of the Members
of the League of Nations and of the United States in denying
recognition to the Japanese puppet Manchukuo presents a striking
example of a like attitude. 8

vXOnce this community interest in recognition is admitted, the
problem resolves itself into one of procedure. There has been no
single established procedure for according recognition. Recognition
might be express or implied, unilateral or joint. It might take the
form of a declaration, the conclusion of a treaty, or the exchange
of diplomatic representatives. Under the League of Nations Covenant
it might be accorded through the admission of a new state to mem-
bership in the League through the two-thirds vote of the Assembly
required by Article i of the Covenant. 9 The Permanent Mandates
Commission of the League adopted in 1931 a list of conditions which
must be fulfilled before a mandated territory could be considered
to have achieved a position in which it could be released from the
mandatory regime and recognized as a state. 10

These League of Nations precedents suggest the utility of in-
voking the organization of the United Nations for the establishment
of a standard procedure for the recognition of new states. It is
necessary first to determine whether recognition should be con-

5 (Jeneral Ghika to M. Kogalniceano, 14/26 January 1878, ibid., 12.

6 69 British and Foreign State Papers, 749.

7 112 ibid., 2258.

8 See i Oppenheim, sec. 751, and i Hyde, sec. 1090.

9 See the discussion and citations in Lauterpacht's note 3, i Oppenheim, 122;
Graham, The League of Nations and the Recognition of States (1933).

10 Permanent Mandates Commission, Minutes of the Twentieth Session,
1931, League Doc. C. 422. M. 176. 1931. VI., VI. A. Mandates 1931. VI. A. L, 229,
summarized in i Hackworth, Digest of Int. L., 119-120.

A MODERN LAW,, OF NATIONS

sidered to jnvolve legal or political considerations. The answer must
KT that both types of considerations are involved. There are and
should continue to be certain definite criteria for determining
whether an entity has the necessary attributes of statehood territory,
population, and a sufficiently independent government able and
willing to enter into international relationships and to assume and
discharge international obligations. The fixing of those criteria is
in the nature of a legislative act for which the Montevideo Conven-
tion of December 26, 1933 on Rights and Duties of States and the
resolution of the Permanent Mandates Commission in 1931 afford
models. Such a legislative act might take the form of a general con-
vention proposed by the General Assembly and submitted to the
states for ratification. It would seem preferable, however, to utilize
the method found. satisfactory in the Inter- American Conferences,
which have adopted "declarations" embodying the conclusions of the
delegates. These declarations do not require ratification and do not
have the status of treaties, but they are persuasive evidence of the
existence of the rule of law which they enunciate. 11 Thus at the Lima
Conference of 1938, the American Republics reiterated "as a funda-
mental principle of the Public Law of America" the proposition that
the occupation or acquisition of territory by force shall not be valid
or have legal effect. 12 One may also note statements embodied in
treaties which continue to have evidential value quite irrespective of
the continued validity of the treaties in which they were originally
embodied. For example, in a number of the liquor-smuggling con-
ventions concluded by the Ignited States in the 1920*5 there was an
assertion of the three-mile rule as the limit of territorial waters, so
phrased as to be an acknowledgment of the existing law rather than
merely a contractual obligation in regard to the future. 18 A more

11 Cf. Lauterpacht's view on the binding effect of resolutions of the Assem-
bly of the League of Nations in i Oppenheim, 141 n. 3. According to Schwarzen-
berger, "if States have declared their intentions" in such a body as the General
Assembly, "they cannot go back on the decision at which the international organ
has arrived." In this connection he cites the advisory opinion of the Permanent
Court of International Justice in the matter of the Jaworzina Boundary, P.C/./.,
Ser. B, No. 8 (1923), 51-53; i Schwarzenberger, International Law (1945), 2X2

18 Report of the Delegation of the United States of America to the Eighth
International Conference of American States, Dept. of State Pub. 1624 (1941),
132.

19 E.R.: "The High Contracting Parties declare that it is their firm intention
to uphold die principle that 3 marine miles extending from the coast-line out-

RECOGNITION 47

famous instance is the statement in the Declaration of Paris of 1856
to die effect that "privateering is and remains abolished." 14
^Although the General Assembly of the United Nations possesses
under Chapter IV of the Charter powers which are no more than
recommendatory, it would be within IfifcompetencSf to adopt by the
two-thirds vote required under Article 18 for "important questions"
a declaration relative to the essential characteristics of a state and
to assert that there must be a finding of the^ possession of-such
characteristics before .any political entity is recognized as a
state. The membership of the United Nations is sufficiently
broad to lend persuasive force to such a declaration even at
this time; the weight of such declarations would be enhanced as
the membership is enlarged by the admission of new members. It
may be presumed that any new state would desire to become *
member of the United Nations. Under Article 4 of the Charter the
admission of new members takes place by a decision of the General
Assembly on the recommendation of the Security Council. The
General Assembly might well frame such a declaration as has been
suggested in the form of an indication of the standards by which it
would be guided in determining whether to admit a new member.
The criteria for membership would not be identical with the criteria
for statehood, but the latter would be included within the former,
since one requirement for membership is that the applicant shall be a
state. 15 Moreover the requirement of paragraph i of Article 4 that
the applicant shall be "able and willing to carry out" the obligations
of the Charter is closely akin to the general requirement that a state
shall possess a government able and willing to enter into and carry
out international obligations. 16 There would remain for the judg-
ment of the Organization the question whether the applicant was
not only a state, but a "peace-loving" state.

wards and measured from low-water mark constitute the proper limits of terri-
torial waters." US. Treaty Ser. No. 685.

14 But the treaty itself declared that its provisions were binding only upon
the parties; 46 British and Foreign State Papers, 136,

15 The nature of this requirement has already been discussed in Chap. II.

16 "The recognition of any State must always be subject to the reservation
that the State recognised will respect the obligations imposed upon it either by
general International Law or by definite international settlements relating to its
territory." ''Report of the International Committee of Jurists on the Legal
Aspects of the Aaland Islands Question," League of Nations Off. /. Sp. Supp,
(1920-21), No. 3, p. 1 8.

48/ A MODERN LAW OF NATIONS

In one sense, the establishment of the fact that a state is "peace-
loving" may be regarded as the imposition of a condition of recog-
nition, but there is no basis for continuing the nonsensical practice
which has been called "conditional recognition." Baty has properly
pointed out in regard to so-called conditional recognition of a state
that "Any entry into relations with the new state, as a governing
authoriJy, implies recognition of its state-hood. ... It follows . . .
that recognition cannot be conditional. . . . Either it is a fact or it is
not. The very essence of recognition is that the recognizing state
thereby declares that it has satisfied itself that the recognized
authority possesses the distinguishing marks of a state. To say that
one recognizes that it has them, subject to its conduct being satis-
factory in other particulars, is sheer nonsense. It is like telling a pupil
that her sum is right if she will promise to be a good girl." 17 Thes&
considerations do not exclude the possibility that a recognizing
state may announce the conditions which it insists must be fulfilled
before it will accord recognition, and these considerations may be
informally communicated to the authority seeking recognition. The
recognition of new states by the Concert of Europe was often
extended on such conditions. The fulfillment of the condition was
exacted as an indication that the new community possessed the
attributes required of a state, including the readiness to comply with
the responsibilities of its position in the society of nations. It is in
this sen^ that one may read the Protocol of June 28, 1878, signed
on behaft of Great Britain, France, Italy, and Germany, relative to
the recognition of Serbia. It was said that "Serbia, who claims to
enter the European family on the same basis as other States, must
previously recognize the -principles which are the basis of social
organization in all States of Europe and accept them as a necessary
condition of the favour which she asks for." 18 The condition there
demanded was the recognition of the principle of religious liberty; in
connection with the admission of a new state to the United Nations,
the condition would be the recognition of the principles of the
Charter relative to the pacific settlement of all international disputes.
Obviously in connection with the applications for membership in the

17 Baty, "So-called 'De Facto' Recognition," 31 Yale L. J. (1922), 469.

18 Quoted in a letter to M. Paderewski by the President of the Paris Peace
Conference on June 24, 1910, 112 British and Foreign State Papers, 225.

RECOGNITION 49

United Nations by established states such as Sweden, Iceland, and
Eire, admission to membership is not the same as recognition. The
observations made above relate to new entities which may come
into existence, and may be considered applicable at this time to
the cases of Outer Mongolia and Trans-Jordan, which had not been
recognized by all states at the time of their applications for member-
ship. It is also true that admission to membership in the United
Nations is at present much more in the nature of a "favour" than
was recognition of a new state in 1878, despite the tendency of the
Concert of Europe to consider itself somewhat like an exclusive
club. J

The declaration of the General Assembly might well also in-
clude a statement of the position that members of the United Nations
would not independently accord recognition to new states. Such a
statement would be justified by the desideratum that the Organiza-
tion become universal at the earliest possible time. It is a basic defect
of the United Nations that the principle of universality was not ac-
cepted at the outset. It is obvious that this principle wa rejected
because the Charter was framed during a great war when political
considerations led to the conclusion that certain states not then
members of the political grouping already called "the United
Nations" should not be included in the new more formal Organiza-
tion, It would have been wiser political judgment to insist that the
enemy states accept membership, instead of leaving them outside as
the potential nucleus of a rival and hostile group. 10 It would be within
the competence of the General Assembly to record its conviction
of the desirability of attaining universality at the earliest possible
date, and to that end to stipulate that, since the admission of a new
state to the community of nations would eventually result in its
admission as a member of the United Nations, recognition of new
states should be only by the decision of the Organization itself. 20
The acceptance of the principle of universality might logically in-
volve an amendment of Article 4 to eliminate the criterion "peace-
loving," which is nothing more than a self-righteous declaration of

10 See the persuasive arguments for universality in The International Law of
the Future, Carnegie Endowment for International Peace (1944), 78.

20 See ibid., 81. Cf. die Norwegian proposal of May 3, 1945. "UNIO," 3
Documents of the United Nations Conference on International Organization,
San Francisco, 194$ (1945), 366.

50 A MODERN LAW OF NATIONS

cne victors in the war. But since it may be fairly said that the
obligations of the Charter require every member to be "peace-
loving," that term could be construed as embodying no concept
different from that of ability and willingness to carry out the
obligations of that covenant. The principle of universality of course
does not exclude the possibility of adopting rules for the organiza-
tion which would exclude certain states from the exercise of voting or
other privileges. Such a penalty might be imposed, for example, on a
state momentarily ruled by a government considered obnoxious by
a majority of the members of the Organization. Thus if the principle
of universality had been adopted in framing the Charter and if Spain
had been a member in 1945 and 1946, the registered opposition of
the United Nations to the Franco regime 21 might have been effec-
tively implemented by the withdrawal of some of the privileges of
membership, Spain remaining a state subject to the obligations of the
Charter. There would not need to be any change in Article 5 of the
Charter, which provides that "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 recommendation of the Security Council." But Article 6, which
provides for the expulsion of a member, is not consistent with the
principle of universality.

On the adoption of some such proposals as those just made, the
problem of recognition of states would fall easily and naturally into
the mold of common action by the organization. Since the birth of
a new state possessing the necessary qualifications would auto-
matically result in membership in the Organization, it would na-
turally be for the Organization itself and not for its members in-
dividually to accord recognition.

kThe question may be asked whether, if the criteria for statehood
established by legislative or quasi-legislative act of the General As-
iembly, it would not then be a judicial question whether an applicant
lad attained statehood. If this were true, the finding might be by
:he International Court of Justice instead of by the General Assem-

11 Sec Journal of the General Assembly, First Session, No. 28, n Feb. 1946,
469$.; Doc. A/241, 10 Dec. 1046. Text also in 15 Dept. of State Bulletin (1946)*
H4J.

RECOGNITION 5!

Diy. it is oeiievea, however, that such a finding would inevitably call
for the exercise of political judgment with respect to the ability and
willingness of the applicant to carry out its obligations and that the
matter should therefore be confided to the General Assembly, acting,
as now required by the Charter, on the recommendation of the
Security Council. It is not intended to enter here on a discussion of
whether changes should be made in the Charter relative to the dis-
tribution of powers between the General Assembly and the Security
Council. Neither is it intended at this point to consider the possible
evolution of the United Nations into some more closely knit unit
such as a world government. The problem of recognition of new
states, and therefor that of their admission into the organized com-
munity of nations, would remain substantially the same under such
circumstances.

RELATIONS WITH POLITICAL COMMUNITIES NOT RECOGNIZED
AS STATES RECOGNITION OF INSURGENCY AND BELLIGERENCY

Before a political community is recognized as a state, other states
may have occasion to enter into certain relations with that com-
munity. In the past, such relations have been established and main-
tained. Few if any such communities now remain in the world which
are not politically linked to some state in one or another form of
dependence or subordination. In such cases the question of relation*
ship becomes one for adjustment between the dominant state and
other states. This is true of colonies, protectorates, and the like, even
though, as suggested in the preceding chapter, such entities be con-
sidered "subjects" of international law. The constitutional or the
treaty relationship between the dominant and the subordinate
entities determines the extent to which the latter are free to deal
with other members of the international communitv/lBut an inter-
nationfi interest in the relationship may be recorded by joint
action, as when in the Treaty of Berlin of 1878 Article I stated that
Bulgaria was constituted an autonomous principality under the
suzerainty of his Imperial Majesty the Sultan. 22

It may be suggested, in line with the discussion of "subjects" of

** Op. rit. y supra note 6. Such an international interest is implicit in connection
with territories under mandate or trusteeship.

5* A MODERN LAW OF NATIONS

international law in the preceding Chapter, that the General
Assembly in a given case might conclude that an entity had not yet
developed the characteristics deemed necessary for membership in
the United Nations, but that it had achieved such a status as would
entitle it to become a member of some other international organi-
zations such as the Universal Postal Union or other technical
nodjes.

A more difficult problem is presented by a polony or other sub-
ordinate entity seeking to throw off the control of the mother
country. Under existing international law premature recognition of
a revolting colony constitutes intervention and is hostile to the
mother country. 23 The memory of the international disturbances
attending the Spanish Civil War in the 1930*5, although the case did
not involve a struggle for the independence of a colony, is too fresh
to let one ignore the relationship between such intervention and
the peace of the world. The more recent struggle in the Netherlands
East Indies has not been lacking in international repercussions. The
government of dependencies and the treatment accorded their in-
habitants has in the past been considered a domestic question in which
other states were not free to interfere. Chapter XI of the Charter
of the United Nations introduces a change in this position. By
Article 73, "Members of the United Nations which have or assume
responsibilities for the administration of territories whose peoples
have not yet attained a full measure of self-government recognize
the principle that the interests of the inhabitants of these territories
are paramount, and accept as a sacred trust the obligation to promote
to the utmost, within the system of international peace and security
established by the present Charter, the well-being of the inhabitants
of these territories." There follow certain specific obligations im-
plementing this general principle, including a duty to transmit re-
ports to the Secretary-General of the United Nations. In Article 74,
"Members of the United Nations also agree that their policy in
respect of the territories to which this Chapter applies, no less than
in respect of their metropolitan areas, must be based on the general
principle of good-neighborliness, due account being taken of the
interests and well-being of the rest of the world, in social, economic,
and commercial matters." Where anv such territories are olaced
* i Hyde, 153.

RECOGNITION 53

under trusteeship, the additional obligations of the Trusteeship
Systepf under the Charter are also applicable.

vlhese treaty obligations suffice to remove colonial questions
from the realm of domestic questions and to acknowledge the general
international interest in them. The United Nations may properly
take cognizance of any maladministration in a colony or other
dependent territory administered by a Member. A colonial revolu-
tion is now legally as well as practically a matter of concern to the
whoje international community.

"Binder traditional international law it was customary for states
during a civil war to take cognizance of various stages of develop-
ment of the conflict by recognizing the insurgency of the insurrec-
tionary faction or, if that party had attained sufficient stature, the
belligerency of the two contending parties. The principal con-
sequence of a recognition of insurgency is to protect the insurgents
from having their warlike activities, especially on the high seas, from
being regarded as lawless acts of violence which, in the absence of
recognition, might subject them to treatment as pirates. It may also
sharpen the obligation of third states with respect to their duty of
nonintervention in the conflict. 24 It may involve the recognition of
the insurgents as the de facto authority in the territory they actually
control, and thus lead to the maintenance of relations incidental to
the protection of the rights and interests of the recognizing state. 25
When the insurgents are sufficiently well organized, conduct
hostilities according to the laws of war, and have a determinate
territory under their control, they may be recognized as belligerents
whether or not the parent state has already actually or impliedly
recognized that status, as by establishing a maritime blockade against
ports under their control. With the recognition of belligerency, the
third state assumes the obligations of neutrality, just as in a war
between two states.

International war and the consequent status of neutrality as it has
existed under traditional international law are not compatible with the
hypothesis of the acceptance of the principle of community interest. 26
It is not clear what rights and duties should devolve upon members

24 i Hyde, 203-204.
85 i (ippenheim, 138.

ac

Sec Chaps. VII, Vffl.

54 A MODERN LAW OF NATIONS

of the United Nations in civil war. No doubt the Security Council
could determine that a civil war constituted a "threat to the peace"
under Article 39 of the Charter, but if the Security Council took
ho action, no obligation under the Charter would be violated
if a member state proclaimed its neutrality, thus recognizing the
belligerency of the contending factions. Yet experience has clearly
shown that legal neutrality in civil or in international wars, no matter
how rigorously observed, may constitute a factual interference in
the outcome of the struggle, in view of the geographic position of
the contestants. Three centuries of experience with neutrality
justify the conclusion that the very coexistence of belligerents and
neutrals constitutes in itself a "situation which might lead to inter-
national friction or give rise to a dispute." Recognition of insurgency
or belligerency should therefore be the act of the Organization, just
as recognition of a new state should. Procedurally, the problem is
much more difficult, in part because of the probable necessity of im-
mediate decision, which would exclude the possibility of action by
the General Assembly even though that body might be called into
special session. It would seem necessary for the Security Council to
act, and the general philosophy of the Charter would indicate that
this is the appropriate body in such cases. If the Security Council
is unable through the interposition of the veto or otherwise, to
marshal the requisite vote, it would be better to delay action until
the General Assembly convenes than to split the membership into
opposing camps of recognizing and nonrecognizing states. Some of
the legal problems which might arise in the interim are considered in
Chapter VIII. Under Article 12 of the Charter the General Assembly
cannot make any recommendation with regard to a dispute or
situation while it is being considered by the Security Council unless
the latter so requests. The General Assembly might, however, in the
absence of a request from the Security Council, adopt a resolution re-
cording its view that the contending factions were or were not entitled
to recognition as belligerents. Whether all the member states would
thereafter act in conformity with the view expressed would depend
on the strength of tne political forces which had prevented the Security
Council from acting on the question. This situation reveals a defect
in the organization of the United Nations; it also involves the basic
difficulty of dealing on a general international level with the problems

RECOGNITION 55

arising from domestic strife in any state. Such difficulties would not
be avoided, although they might be solved, through a more perfect
organization. 27

THE RECOGNITION OF GOVERNMENTS

The traditional international system of leaving states free to
accord or to withhold the recognition of new governments has
frequently resulted in the exercise of undue influence or interference
by a strong state in the affairs of a weaker state. The earlier history
of the relations between the United States and the republics of the
Caribbean area has been particularly marked by such instances. 28
Even in rudimentary forms of international organization such as the
Paris Peace Conference and the Pan American Union, nonrecognition
by the United States served to exclude Costa Rica, for example, from
participation in the common tasks of the community of nations. The
effect of nonrecognition of a country's government on its economic
life may be marked, since it may find the principal financial markets
and trade centers closed to it. 29 The acceptance of the principle
of community interest would require a change in the traditional
situation.

Confusion will be avoided if a distinction is sharply drawn
between the according of recognition and the establishment of
diplomatic relations. A tendency to identify the two acts has caused
much difficulty, particularly in national courts when they have been
called upon to determine whether a regime actually functioning iii
another country was or was not to be considered its government,
with the right to represent the state in litigation. It has not been
doubted that a state has continuity in the sense that its existence as a
state is not affected by changes in government, whether or not the
new government has secured recognition from other states. It is thus
possible, and would be wise policy for states under the traditional

87 The whole problem of international concern with such internal problems
is the subject of a separate study to be published subsequently.

28 See Buell, 'The United State? and Central American Stability," 7 Foreign
Policy Reports (1931), 161 and "The United States and Central American Revo-
lutions," ibid., 187.

20 See Lauterpacht, "Recognition of Governments": L AC Col. L. Rev. (104*),
815, 818.

j6 A MODERN LAW OF NATIONS

system of unilateral recognition, in appropriate cases to recognize that
i regime in de facto control of a state is the government of that state,
md at the same time to assert that, because of some disagreement
with the government, diplomatic relations will not be established
until there has been satisfactory adjustment of outstanding dif-
ferences. There has never been any doubt that one state is free to
break off diplomatic relations with another state as a mark of dis-
satisfaction or displeasure when the situation in that other state is
free from the complication of a change in government. At is re-
markable that wider cognizance has not been accorded the equally
clear proposition that where there is a change of government, recog-
nition may be accorded without the establishment of diplomatic
relations or without the resumption of such relations if they have
been broken during the course of a civil conflict which has resulted
in the change of government.

jThe reason why the practice of according recognition without
establishing diplomatic relations has not been generally followed is to
be found in the changed character of the act of recognition. There
have been periods in which it was the usual practice of governments
to recognize new governments in other states as soon as it was clear
that the new government was de facto in control of the state and was
ready to discharge the international obligations of the state. In Jef-
fersonian terms, it was necessary merely to determine that the gov-
ernment represented "the will of the nation, substantially declared." 80
Under such practice recognition was evidence of the establishment
of the new government. The change in practice and its effects has
been noted in two judicial pronouncements. In the Tinoco Arbitra-
tion between Great Britain and Costa Rica Chief Justice Taft as Sole
Arbitrator declared: "The non-recognition by other nations of a gov-
ernment claiming to be a national personality, is usually appropriate
evidence that it has not attained the independence and control
entitling it by international law to be classed as such. But when
recognition vel non of a government is by such nations determined
by inquiry, not into its de facto sovereignty and complete govern-
mental control, but into its illegitimacy or irregularity of origin,
their non-recognition loses something of evidential weight on the
issue with which those applying the rules of international law are
110 i Hyde, 161.

RECOGNITION 57

alone concerned." 81 Similarly Judge Cardozo, in breaking into the
fictional log jam that for many years harassed the New York courts
in passing on questions involving the status of the Soviet Govern-
ment before its recognition by the United States in 1933, declared:
"Consequences appropriate enough when recognition is withheld on
the ground that rival factions are still contending for the mastery,
may be in need of readjustment before they can be fitted to the
practice, now a growing one, of withholding recognition wherever
it is thought that a government, functioning unhampered, is un-
worthy of a place in the society of nations." 82 The withholding of
recognition has thus become a political weapon wielded to force a
new government to make concessions to the demands of the recog-
nifcin^ state.

^The confusion resulting from this melange of political and legal
considerations has done much to bring about the present state of
disagreement regarding such concepts as conditional recognition,
4e facto recognition, and the withdrawal of recognition. All three
of these terms have been used in connection both with the recog-
nition of governments and with the recognition of new states.
^jDe facto recognition is a term which has been used without pre-
cision. When properly used to mean the recognition of the de facto
character of a government, it is unobjectionable and indeed could be
identical with the practice suggested of extending recognition with-
out resuming diplomatic relations. It is objectionable when it con-
notes a modern revival of the now almost forgotten policy of
European monarchical governments of contrasting "de facto" with
"de jure divino" thus stigmatizing all republican or democratic
governments. In modern form, the suggestion is implicit that another
state should determine its recognition policy by inquiry into the
legitimacy of origin of the new government, as Taft indicated in
the Tinoco case. This is bad international politics and may actually
put tfle recognizing state in the impossible position of attempting to
pass on constitutional provisions of another state. 88 The withdrawal

31 18 Am. /. Int. L. (1924), 147, Cf. also United States (George W. Hop-
kins) v. Mexico, US.-Mexican General Claims Commissions, Opinions of Com-
missioners (1927), 50.

99 Sokoloff v. National City Bank 239 N.Y. 158 (1924).

08 Cf . Buell, "American Supervision of Elections in Nicaragua," 6 Foreign
Policy Assn. Information Service (1930), 385, 399.

J$ A MODERN LAW OF NATIONS

ur recognition, like the according of conditional recognition, is also
nonsense if the withdrawal is based on factors extrinsic to the con-
sideration of the continued existence of the state or government.
Recognition need never be "withdrawn," since it ceases to have
vitality or jural consequences if the entity recognized goes out of
existence. There is no impropriety in state Y 9 $ asserting that it has
reached the conclusion that Government A in state X has been over-
thrown and is no longer the government of X. Thereafter, Govern-
ment A would no longer be a recognized government so far as Y
was concerned. Thus, the British Secretary of State for Foreign
Affairs made a proper reply to an inquiry in the House of Commons
in February, 1924, as to whether the authority of Russia was recog-
nized as extending over Armenia and whether therefore the de jure
recognition extended to Armenia in 1920 had been withdrawn. The
Foreign Secretary replied that the answer was "yes" in that the
authority of Russia over the Armenian territory was acknowledged,
but he added "official recognition of governments which no longer
exist de facto naturally lapses when they cease to function." 34
X The group or community interest in the recognition of new
governments has already been signalized in international relations.
Thus the Central American treaties of 1907 and 1923, under which
the five republics assumed certain obligations relative to the recog-
nition of new governments which came into power through revolution
or coup d'etat, bore witness to the regional group interest in the then
chronic political instability of those countries. Currently, the dis-
cussions in the United Nations General Assembly and Security
Council relative to the Franco Government in Spain are com-
parable. 85 One may also cite the intergovernmental discussions among
the American republics relative to governmental changes in the
Argentine. 8 *

In the functioning of the United Nations or any other inter-
national organization composed of states in which members of
various bodies or commissions are delegates of governments, the
community interest cannot be ignored. It must be faced whenever

84 169 Pad. Debates No. 14, p. 1293.
99 Sec note 21, supra.

"See Consultation Among the American Republics with Respeot to the
Argentine Situation, Dept. of, State Pub. 2473, (1946).

RECOGNITION 59

a credentials committee passes on the papers of a delegate accredited
by a regime asserting governmental powers. In case of civil war
where the supremacy is in the balance, two sets of delegates may
appear and claim to represent the Member of the United Nations.
In like cases the Secretary-General, in sending communications to
the governments of Members, may be confronted with the necessity
of determining which of two rival groups should be the addressee.
The problem was illustrated in the history of the League of Nations
with reference to the seating of Ethiopian representatives in the
Assembly after the Italian conquest. The Credentials Committee
handled the issue by invoking the provision in its Rules of Procedure
which stipulated that, unless the Assembly decided otherwise, any
representative to whose Admission objection had been made should
sit provisionally with the same rights as other representatives. The
Ethiopian credentials were therefore considered sufficient to permit
its delegation to be seated. 87 The fact that the Italians absented them-
selves from this session of the Assembly and withdrew from the
League in the following year perhaps facilitated this solution. One
may contrast the fact that after the Swiss recognition of the Burgos
government in Spain in 1939 the Swiss government forcibly closed
and sealed the office of the permanent delegation of Spain to the
League of Nations, which had been in the possession of the repre-
sentatives of the Nationalist government. 88 It would surely not be
contemplated that when the permanent seat of the United Nations
is established in New York the United States Government should
be in a position to control the representation of another state
through action comparable to that of Switzerland or through im-
migration restrictions applied to exclude alleged representatives ap-
pointed by a government which the United States had not recog-
nized. The decision regarding the legitimacy of the representation
should be made by some organ of the United Nations and not by a
single* state which happens to be in the geographical position to
exercise control. 89

37 See Burton, The Assembly of the League of Nations (1941), 370.

38 Padelf ord, International Law and Diplomacy in the Spanish Civil Strife
(1939), 193.

39 The draft agreement between the United Nations and the United States in
Sec. IT provides that the authorities of the United States "shall not impose any
impediments to transit to and from the headquarters district by representatives

6O A MODERN LAW OF NATIONS

It would not be easy to provide that unilateral recognition of
governments should wholly yield to collective recognition by the
Organization, as in the case of the recognition of new states and of
insurgents and belligerents. The actuality of situations in inter-
national relations which raise the issue is that when a revolution or
coup cTttat takes place in State X, other states are at once faced
with the question whether they shall continue unbroken their
diplomatic and consular contacts with the threatened regime,
whether they shall deal with the new regime, or whether there must
be dealings with both regimes.

The Mexican Government in 1930 evolved a practice for meet-
ing such 'situations. The practice rests on political considerations
but is sustained by jural argument. The practice or policy was
formulated by Sr. Genaro Estrada, Secretary of Foreign Relations,
and is known as the Estrada Doctrine. The formulation is, in effect,
an announcement of instructions sent to the diplomatic representa-
tives of Mexico to acquaint them with a new policy of their govern-
ment. The policy is said to have had the specific endorsement of
President Ortiz Rubio.

The declaration begins with several paragraphs containing the
Mexican government's reflections on the practice of recognition of
de facto governments. It is stated to be a well-known fact that
Mexico suffered particularly from the consequences of the present
practice of recognition whereby foreign governments assume the
prerogative of passing on the legitimacy or illegitimacy of govern-
ments, thus subordinating national authority to foreign opinion.
This recognition practice is said to be largely of postwar de-
velopment and of particular application to the Latin-American
Republics. After careful study of these matters, the Mexican
government instructed its diplomatic representatives that it would
no longer give any expression regarding recognition of new
governments which come into power by coups d'hat or revolu-
tion.

The reason for this new policy is the belief that recognition in-

of Members." UN Doc. A/6;, i Sept. 1946. In case of doubt whether an indi-
vidual carrying credentials from the alleged government of another state is or is
not the representative of that state, the United States should assume the validity
of the credentials pending action by an organ of the United Nations.

RECOGNITION tfl

volves the assumpuon of a right to pass critically on the legal
capacity of foreign regimes, a right derogatory to the sovereignty of
other states. Consequently, the Mexican government confines itself
to continuing or withdrawing its diplomatic representatives, and to
continuing or not continuing to accept diplomatic representatives
of other states, as it may deem appropriate from time to time, with-
out any regard to accepting or not accepting any change of
government. In respect of accrediting and receiving diplomatic
representatives, Mexico continues to observe the established formal-
ities.

In terms of a factual situation, the Mexican position is apparently
as follows: A successful revolution takes place in State X; while
other states may be considering recognizing or not recognizing the
new de facto government, Mexico will merely continue its diplo-
matic representation without expressing any opinion as to recog-
nition, vel non. If some circumstances, other than the mere change
of government, gives umbrage to Mexico, the Mexican diplomats
will be withdrawn.

Theoretically, there is much to be said in favor of the Estrada
Doctrine. Latin-American commentators have emphasized the view
that it is desirable in that it acknowledges the full sovereignty of the
state and eliminates foreign interference in the internal affairs of
governments which are not constantly stable. It has also been argued
that the Estrada Doctrine properly assumes that diplomatic repre-
sentatives should be considered as accredited to the state and not to
,the government. In times of revolutionary disturbance a foreign
state may frequently be called upon to decide whether it owes a
duty of noninterference to the disturbed state or of support to the
threatened government. Witness the case of a revolution in Brazil,
wherein the United States proceeded on the latter thesis just before
the triumph of the revolutionary party which it recognized shortly
thereafter. Of course the problem is less difficult when the belliger-
ency of the revolutionary faction is recognized and the foreign state
may be guided by the obligations of neutrality. It is said that the
Estrada Doctrine is in accord with the principles of the continuity
of the state and of the juridical equality of states. It is argued that
governments de facto are necessarily de jure and that the Estrada
Doctrine admits this reality. It is true that this new doctrine gives

62 A MODERN LAW OF NATIONS

welcome evidence to the important distinction between recognition
of a new state and recognition of a new government.

Practically, the Estrada Doctrine does not remove all difficulties,
although only a few of the Latin-American commentators have re-
marked on this fact. Granted that the diplomatic relations remain
unaffected by changes of government, with whom are the foreign
diplomats to deal? Should they continue to carry on their business
with the local officials who are in the capital, even if the revolution-
ists are in de facto control of all the rest of the country? Should
they carry on their business with the revolutionary leaders if the
latter seize the capital, although the government to which the
diplomats were originally accredited retains control of all the rest
of the country, including the seaports? Or should they deal with
both sets of officials in respect of problems arising in areas in which
they respectively exercise de facto control? And will the "constitu-
tional" government be quite willing that the foreign representatives
should deal with revolutionary leaders in certain parts of the coun-
try? If money payments should fall due to the state during a revo-
lutionary disturbance, to whom should the sums be paid?, Probably
both factions could be looked to for the satisfaction of state obliga-
tions and for the protection of foreign interests. The Estrada Doc-
trine will not always save foreign governments from the necessity
of choosing between rival claimants. Nor, as the Tinoco arbitration
showed, would the elimination of recognition solve those difficulties
which arise from the necessity of determining whether 'the state is
bound by obligations incurred by de facto authorities.

Fundamentally, however, the Estrada Doctrine seems to con-
template the obliteration of the distinction between change of
government by peaceful balloting and change of government by
revolution or coup d'foat. The formalities of presenting credentials
of the diplomatic corps may be dismissed as relatively unimportant,
but the formalities are frequently indicative of underlying reality.
When a new president is elected in the United States, diplomatic
relations with other states continue unbroken. 40 According to the
Estrada Doctrine, the same consequences would follow a change of
government by revolution, whereas at present, some states seem to

40 Cf. Lauterpacht, op. cit n supra note a<x D, 810.

6<

consider the deposed government as having gone out of existence,
thus terminating the foreign missions. 41

Since the issue of approving the credentials of one or the other
of two rival governmental groups may arise not only in the General
Assembly but also in other organs of the United Nations and in
specialized agencies, 42 it would seem to be necessary to establish a
general procedure for determining such questions. It would surely
be unsatisfactory to have the representative of faction A seated in
the Economic and Social Council and the representative of faction B
seated in the Food and Agriculture Organization. Nor would one
wish to contemplate the Board of Governors of the International
Monetary Fund carrying on financial discussions with one faction
while the Board of the International Bank for Reconstruction and
Development negotiated with the other faction. There are not the
same types of objective tests to determine which of two factions is
entitled to be called the government of a state as are available to
determine whether a new entity is or is not a state. Such tests might
be developed, and if they were they could be applied by the Inter-
national Court of Justice, for example in rendering an advisory
opinion to one of the organs of the United Nations. But a change
overnight in the factual or military situation might invalidate such
an opinion. It would appear to be necessary in such situations to
continue to deal with the established government until the success
of the opposing faction is clearly demonstrated, applying the tests
which international law has developed with reference to the premature
recognition of a revolting colony. To adopt the language of Secre-

41 This discussion of the Estrada Doctrine is taken largely from the author's
Editorial Comment in 25 Am. J. Int. L. (1931), 719. See also Carneiro, "O Direito
internacional E A democracia" (1943), 147^.; Fenwick, "The Recognition of
New Governments Instituted by Force," 38 Am. J. Int. L. (1944), 448.

42 Although the function of a credentials committee is usually purely
formal, the Commission on Credentials of the International Labour Conferences
may h* required to deal with extremely difficult problems under Article 389 of
the Treaty with reference to the seating of the nongovernment delegates, espe-
cially those representing the workers. See for example the "Report of the Com-
mission on Credentials to the International Labour Conference, Washington,
1919," 2 Shotwell, The Origins of the International Labor Organization (1934)*
480. The Permanent Court of International Justice was called upon to render an
advisory opinion on the question whether the Workers' Delegate for the Nether-
lands in the third session of the International Labour Conference was properly
nominated by the government; P.CJ.J-, Ser. B, No. i (1922).

64 A MODERN LAW OF NATIONS

tary of State Adams in 1818, one must await the stage when the
new government is established as a matter of fact so as to leave the
chances of the opposite party to recover their dominion utterly
desperate. 43 On such a basis, the determination of the facts might be
left to the International Court of Justice. 44 If necessary, action on
the seating of any delegate from the state affected or negotiations
with the government of the state might be deferred until a decision
was reached.

EFFECTS ON INDIVIDUALS

In connection with recognition and the events which call for its
extension, the acceptance of the doctrine that individuals are sub-
jects of international law may also have at least indirect application.
Individuals themselves would not ever be "recognized"; their status
does not depend on recognition. The common provisions in existing
treaties for the reciprocal "recognition" of the juridical status of
companies incorporated under the laws of the contracting states
might well be generalized, 45 but the similarity to the recognition of
states or governments is only terminological. Duties attendant on
nonintervention or neutrality would devolve upon individuals (as
well as upon states) directly under international law and not solely,
as in the past, through the medium of national laws. The nature
of such duties and of the measures to be taken for their enforcement
is reserved for treatment in Chapter VII.

In litigations involving individuals in national courts, the decision
by the determined organ of the international organization in regard
to recognition should be conclusive without the necessity for further
action by the government of the state in which the court exists.
This would be true even though the group or community decision
was taken by majority vote with the state in question voting in the

43 i Moore, Digest of Int. L. (1906), 78. Cf. Lauterpacht, op. cit. y supra note
29, pp. 823, 840 ff.

44 See Lauterpacht, "Recognition of Governments: II," 46 Col. L. Rev.

5 See Art. 16 of the Draft Convention on the Treatment of Foreigners, pre-
pared by the Economic Committee of the League of Nations in 1928, League
Doc. C. 36. M. 21, 1929. II, II. Economic and Financial 1929. II. 5.; Declaration
approved by the Governing Board of the Pan-American Union in 1936, 3 Hack-
worth, Digest of Int. L. (1942), 706; i Hyde, sec. 2042.

RECOGNITION 65

negative. From a constitutional point of view in some states, this
situation might require legislation or other general advance expres-
sion of the acceptance b r the political branch of the government
of such decisions. Such would be the fact where, as in the United
States and Great Britain, judicial decisions have established the con-
stitutional principle that recognition is a political function and that
the courts will therefore look to the political branch of the gov-
ernment for information concerning the recognized or unrecognized
status of a foreign government or state. The principle would be
satisfied if the proper constitutional organ by some general state-
ment once and for all informed the judicial branch that thereafter
the decision of the international organization would be accepted by
it as its view. It might be considered preferable procedure for the
Courts still to address inquiries to the Foreign Office or Department
of State, which might reply by advising the Court what position the
United Nations had taken. This is merely another instance of the
necessity for utilizing national or in the international sense local
governmental agencies as instrumentalities of the international order
for bringing the law home to the individual. There may well re-
main borderline cases in which the decision may not be clear or
may not have been made by the international authority, and such
cases will remain to be decided by the exercise of judicial discre-
tion.

It will also remain for the courts to determine the legal con-
sequences in any given case of the recognition or nonrecognition
of the political entity involved. 46

An individual may have a direct interest in the recognition of
a state. If he travels abroad he is concerned with the acknowledg-
ment of his passport issued by the authority of the state whose
nationality he claims. If he is a member of an unrecognized com-
munity he may be as badly off as the stateless person, whose con-
dirtbn is considered in Chapter IV. Possibly the recognition of his
state would be immaterial if he sought to invoke against it by appeal
to an international authority his rights under an International Bill
of Rights.

46 On the proper division of functions between the political and judicial
branches of the government in similar cases see Jessup: ''Has the Supreme Court

66 A MODERN LAW OP NATIONS

teTROACTIVITY OF RECOGNITION

It may be necessary or desirable to have international agreement
on the doctrine of the retroactivity of recognition which has been
evolved by the Supreme Court of the United States and followed by
British courts. 47 Under this doctrine, it is said "that when a govern-
ment which originates in revolution or revolt is recognized by the
political department of our government as the de jure government of
the country in which it is established, such recognition is retro-
active in effect and validates all the actions and conduct of the
government so recognized from the commencement of its exist-
ence." 48 The sound view is stated by John Bassett Moore: "By no
law, national or international, can such a statement be justified. . . .
The supposition that recognition of any kind 'validates all the actions
and conduct' of the government recognized is as startling as it is
novel. Recognition Validates* nothing. On the contrary, it opens the
way to the diplomatic controversion of the validity of any and all
'actions and conduct* that may be regarded as illegal." 4t) But the
extent to which the doctrine has been repeatedly stated makes
clarification desirable. It would be even more true of a collective or
group recognition than of unilateral state recognition that recognition
should not be considered as a "validation" of prior actions and con-
duct. If the opposite were true, a very heavy burden would be placed
on the international organ charged with the according of recognition,
and undesirable and seriously awkward delays might be involved.

It may be appropriate here to call attention to the legal situation
which has developed as a result of the failure of courts to understand
the process of recognition and what it involves. The point is ex-
emplified by litigations involving the effect of nationalization decrees
by foreign governments. The Soviet nationalization program was
carried through by a government not recognized by the government
of the United States. After recognition was extended in 1933

47 See Underbill v. Hernandez, 168 US. 250 (1897) and other citations in
i Hyde, sec. 45?.

4 *Oetjen v. Central Leather Co., 246 US. 297, 302 (1918).

40 Moore, "The New Isolation," 27 Am. J. Int. L. (1933), 607, 618; cf. Nisot,
"Is, the Recognition of a Government Retroactive?", 21 Canadian Bar Rev.

RECOGNITION 67

American courts talked in terms of the "retroactivity" of the recog-
nition and assumed that recognition of the government has something
to do with "recognition" of its decrees. Currently the Czechoslovak
government is carrying through a nationalization program. 50 No
question of the recognition of that government is involved. If litiga-
tion develops in the United States relative to the effect to be attributed
here to such foreign laws, the Courts will have an opportunity to
clarify the rules of conflicts of laws applicable to such situations
without invoking nonapplicable doctrines of public international law.

80 See 15 Dept. of State Bulletin (1946), 1027.

CHAPTER IV

NATIONALITY AND THE RIGHTS

OF MAN

As ALREADY INDICATED in the Introductory Chapter, the concept of
nationality was necessary in traditional international law to explain
the connection between the individual, who had no standing under
international law, and the state, which was the exclusive subject of
that law. 1 Conversely, alienage was the title under which were sub-
sumed the relations of the individual to a state of which he was not a
national. The acceptance of the concept of the international per-
sonality of the individual would not eliminate the utility of the con-
cept of nationality, but it would necessitate some changes in it.

The Permanent Court of International Justice declared in 1923
that "in the present state of international law, questions of na-
tionality" were solely within the domestic jurisdiction of a state. 2
But this position was not inconsistent with the proposition soundly
stated by the Harvard Research Draft Convention on Nationality
that "under international law the power of a state to confer its
nationality is not unlimited." 8 This proposition was endorsed by the
Hague Codification Conference of 1930, as by the terms of Article i
of the Convention on Certain Questions Relating to the Conflict of
Nationality Laws, which stated that the law of each state on nation-
ality "shall be recognized by other States in so far as it is consistent
with international conventions, international custom, and the prin-
ciples of law generally recognized with regard to nationality." 4
The limitations were prescribed by international law, not in the
interest of the individual, but in the interest of other states. Con-

1 Cf. i Oppenheim, Sec. 291; Koessler, "Subject," "Citizen," "National,"
and "Permanent Allegiance," 56 Yale L. /. (1946), 58.

* "Advisory Opinion on the Tunis-Morocco Nationality Decrees," P.C J./.,
Ser. B No. 4.

* 23 Am. /. Int. L. Supp. (1929), 24.

4 League Doc. C. 351. M. 145. 1930. V., V. Legal 1930. V. 14., p. 81.

68

NATIONALITY AND THE 1 RIGHTS OF MAN 69

flicts of nationality were not avoided, since international law recog-
nized the propriety of both the ius soli and the ius sanguinis as the
basis of the acquisition of nationality at birth. Dual nationality is
common. Nor was statelessness avoided, and many individuals were
therefore unable to claim the nationality of any state and thus could
look to no state for protection against the violent action of any other
state.

Lauterpacht* in An International Bill of the Rights of Man,
properly includes the "right to nationality" in his proposals. He is
impressed particularly by the anomaly of statelessness in the inter-
national legal order and the resulting hardships of stateless persons.
It is true, as he points out, that the stateless person is a caput lupinum.
"He may be treated according to discretion by the State in which
he resides. In cases in which aliens enjoy rights and advantages sub-
ject to reciprocity, the stateless person is excluded from such rights
and advantages for the reason that he is not a national of any State
offering reciprocity. He cannot, as a rule, possess a passport and his
freedom of movement is correspondingly impeded. There is no State
to which he can be deported, and cases have frequently occurred in
which stateless persons have been moved from one frontier to another
and were subject to imprisonment by way of punishment for failing
to comply with a deportation order." B It is also justifiable for Lauter-
pacht to assert, within the frame of reference of his International
Bill of the Rights of Man, that the proper way to eliminate this
anomalous condition and to provide some degree of protection for
stateless persons is to*impose on states an obligation to accord their
nationality to all persons born on their territory and not to deprive
a person of his nationality by way of punishment or until he has
concurrently acquired another nationality. This remedy for state-
lessness is not inconsistent with the hypothesis on which this book
is based; that is, the acceptance of the position that the individual
is a subject of international law. It may be true under this hypothesis
that the best remedy for the difficulty is that which Lauterpacht
suggests; but it is no longer the only solution. If the individual him-

5 Lauterpacht, An International Bill of the Rights of Man (1945), 126. Cf.
also Goldschmidt, Legal Claims Against Germany (1945)9 ^o Aufricht, "Per-
sonality in International Law," 37 Am. Pol. Sci. Rev. d943> 241; Mansur
Guerios, Condi fao juridica do apdtrida (1936).

70 A MODERN IAW OF NATIONS

self has rights, he has them in his own capacity and not derivatively
through the state of which he is a national. His possession of inter-
national rights thus ceases to be dependent on his possession of a
nationality. Procedurally, the vindication of the rights of the in-
dividual may be conceived in terms of the development of inter-
national organization for the protection of the individual. 6 A viola-
tion of a right of a stateless person might be made the concern of an
international Commission on Human Rights to which the individual
could appeal by right of petition. Another procedural solution under
the hypothesis of individual rights could be found in the specific
acknowledgment of the rights of the stateless individual against the
state of his residence, with duties imposed on all states to provide
local or national machinery, open to the stateless person, for the
vindication of such rights. In this case, some type of international
review or right of appeal might be recognized.

In connection both with nationality and with the rights of the
individual irrespective of nationality, the test of residence has utility. 7
It has been a familiar criterion under international law for aiding in
the solution of problems of dual nationality. But like other legal
concepts, the meaning of the term is by no means clear when it
becomes necessary to speak with reference to many different legal
systems. The difficulty of defining "residence" is intensified if the
term "domicile" is substituted, since, even within the realm of the
common law of England and the United States, differences appear
in the definition of this term. International law has further com-
plicated the problem by its concept of "belligerent domicile" as a
test of rights and status during war. 8 An attempt to meet the
terminological difficulty has been made by employing adjectives,
as in the term "habitual and principal residence." 9 It will be among
the minor problems of the codification of international law to put
precise and universally agreed content into one of these terms.

Goldschmidt, he. cit. See also in general, Lessing, La Obligafidn interna-
tional de admisidn de apatridas (1944).

7 Cf. i Schwarzenberger, International Law (1945)* 160.

See 3 Hyde, 2085-89.

9 The United States Nationality Act of 1940 in sec. 104 defines "residence"
for the purposes of certain sections of the act as "the place of general abode.'*
54 Scat 1137. See Codification of the Nationality Laws of the United States,
House Committee Print, 76th Cong, ist Sess. (1939). Part I, p. 6.

NATIONALITY AND THE RIGHTS OF MAN Jl

An insistence on the right to a nationality, regardless of inter-
national procedural developments, is a proper insistence so long as
the world is organized on the basis of states, since it is only or at least
principally through states that an individual has an opportunity for
exercising political rights and thus sharing in the privilege and re-
sponsibility of government. But while this is true in theory, in
reality the fact is that millions of human beings today exercise no
political rights. In some instances this situation is due to the primitive
political development of the individuals; in other cases it is due to
what western nations would call the primitive democracy of the
states in which they live. Lauterpacht provides in his International
Bill of the Rights of Man that "No State shall deprive its citizens of
the effective right to choose their governments and legislators on a
footing of equality, in accordance with the law of the State, in free,
secret, and periodic elections." In amplifying the clause "in accord-
ance with the law of the State" he makes clear that literacy tests for
voters, or even property qualifications, may be defended. The accept-
ance of his proposal would therefore not require a state to confer the
franchise on primitive peoples subject to its rule and treated as wards
of the state. In a broader sense Lauterpacht properly argues that
unless representative government is established the freedom of the
individual, which is the essential objective of the rights of man, is not
established. He denies that such a proposal as he makes would mean
interference in controlling the activities of all governments or that
it negates the right of revolution. 10 It would undoubtedly be true in
the world at large, regardless of the acceptance of the principle, that
governments would vary widely in the quality and quantity of their
democracy. It is a common error in the United States to assume that
the American type of democracy is widespread or that it would be
congenial to all peoples. It is no more inconsistent with the principle
of representative government and equality of political rights to
exclude a man from voting on account of his opposition to the gov-
ernment than to exclude him on account of the color of his skin. It
is not merely international law and the international system, but also
human nature, that must be revolutionized before there will be an
end to such violations of political guarantees as those of which the
history of the Fifteenth Amendment of the Constitution of the

10 Lauterpacht, op. cit., supra note 5, p.

72 A MODERN LAW OF NATIONS

United States unfortunately affords many examples. If full com-
pliance with such basic guarantees as those contained in that Consti-
tution has not been secured within the United States, one should not
anticipate that the formation of a world government would on its
vast scale succeed in securing universal local compliance with an
International Bill of Rights.

Nevertheless, reasonable anticipation of local violations of an
international rule for the protection of the individual should by no
means discourage the adoption of the basic guarantees. The way to
begin is to begin.

The general international acceptance of the principle of equality
of political rights for the individual would have to be subject to
reasonable local requirements, which might exclude, for example,
the insane and the inmates tof prisons from the exercise of the fran-
chise. Again one returns to the procedural difficulties of enforcement
and the international supervision of the application of remedies open
to the individual. These difficulties, it may be repeated, would exist
whether the existing state system continues or whether the world
is reorganized on the basis of world government. Under either sys-
tem there must inevitably be delegation of authority to local units of
manageable proportions with gradated units possessing supervisory
powers or powers of review.

Similarly, the general international acceptance of the principle
that every individual is entitled to a nationality would be pertinent
under either the present state system of the world or the various
projected forms of world government. Under the latter, however,
the significance of nationality would be altered. It would no longer
be the sine qua non of the availability of international rights, but
only the symbol of the allocation of the individual to particular local
units of government for purposes of convenient administration and
representation in a "world parliament." Such units might vary enor-
mously in size, as the Soviet Union and China now vary in size from
Iceland and San Marino, or as Texas and California vary from Rhode
Island and Delaware.

Granted that the individual possesses a right to a nationality, it
does not follow that he should be free to choose any nationality
regardless of reasonable qualifications, such as his identification with
a particular community through ties of birthplace, blood, or resi-

NATIONALITY AND THE RIGHTS OF MAN 73

dence. One may accept also the reasonableness of fairly administered
differentials in the exercise of political rights by nationals. Such
acceptance would merely continue the existing distinction which is
frequently made between nationality, as the tie linking the individual
to a governmental unit for international purposes, and citizenship as
the quality requisite for the exercise of local political rights. A recent
survey indicates that the nationality laws of seventeen states "are
based solely on jus sanguinis, two equally upon jus soli and jus san-
guinis, twenty-five principally upon jus sanguinis but partly upon jus
soli, and twenty-six principally upon jus soli and partly upon jus
sanguini'" n Arguments may be advanced for the choice of either
basic system as the one that must be accepted by states to avoid the
condition of statelessness; in principle it matters little which one is
chosen.

Assuming then that every individual acquired at birth some
nationality, two questions remain: first, the question of dual nation-
ality, and secondly the question of changes of nationality.

Dual nationality at birth is the natural and inevitable consequence
of the coexistence of the two systems of ius soli and ius sanguinis.
A child born in the United States of French parents has American
nationality, iure soli, and French nationality, iure sanguinis. The
United States has for many years insisted that when a person thus
born with dual nationality attains his majority, he should be free to
elect one or the other of the two national ties, 12 but the statutory
law of the United States was not wholly consistent with this claim.
Various treaties contain provisions for the termination of such dual
nationality by some form of election. 18 International friction has in
the past resulted from dual claims to nationality, as was recognized
at the First Conference for the Progressive Codification of Interna-
tional Law held at The Hague in 1930. That Conference accordingly
drafted conventions to eliminate some of the sources of controversy,
e.g. through its Protocol Relating to Military Obligations in Certain

11 "Harvard Research in International Law, Draft Convention on National-
ity," op. cit. y supra note 3, p. 29.

12 See 2 Hyde, 1140 ff.

13 "Harvard Research in International Law, Draft Convention on National-
ity," op. cit., supra note 3, p. 44. Cf. Flournoy, "Nationality Convention, Proto-
cols and Recommendations Adopted by the First Conference on the Codification
of International Law," 24 Am. f. Int. L. (1930), 467, 471.

74 A MODERN LAW OF NATIONS

Cases of Double Nationality. 14 The perfection and general accept-
ance of such agreements would be helpful.

In the Advisory Committee of Jurists which drafted the Statute of
the Permanent Court of International Justice, Professor de Lapradelle
suggested that a person having dual nationality should be enabled to
bring suit against both states in the international court in order to
determine his status, but the committee did not approve the sugges-
tion. 15

Dual nationality has generally been considered to arise also in
certain cases of changes of nationality after birth, as by naturalization.
The United States, especially following the precept of the Act of
July 27, i868, 16 long insisted on "the right of expatriation" or the
right of the individual to throw off the nationality acquired at birth
in exchange for the assumption of another nationality through nat-
uralization. 17 This position of the United States was not successfully
maintained and was steadfastly opposed by states which continued to
insist that their nationals could not throw off their allegiance with-
out permission, which would customarily be withheld until the indi-
vidual had satisfied certain local requirements such as the^rendering
of military service. Difficulties were avoided only through the con-
clusion of bilateral treaties. The basic fallacy of the United States
position was that, under a system of international law which recog-
nized only states as subjects of that law, there was an assertion of the
right of the individual against his state. The United States would
have been on sound theoretical ground had it rather taken the posi-
tion that international law acknowledges the right of a state to nat-
uralize aliens under certain conditions and that international law
further prescribes that when naturalization is thus accorded its effect
is to terminate the nationality of origin. It is doubtful whether even
this position had achieved such general international acceptance as to
warrant the conclusion that it was supported by international law,
but it would at least have been more logical and theoretically
plausible.

14 Flournoy, op. cit., supra note 13, p. 480.

18 ?.CJf./. r *Advisory Committee of Jurists, Proc^s-Verbaux of the Proceed-
ings of die Committee, June i6th-July 24th, 1920** (1920), 210.
16 i j Stat. 223.
17 2 Hyde, sec. 378.

NATIONALITY AND THE RIGHTS OF MAN 75

This long controversy over' the "right of expatriation" is de-
prived of its historical significance if one accepts the hypothesis that
the individual does have rights under international law. It then be-
comes proper to assert, as the Congress of the United States asserted
in 1868 and as the United States Delegation declared at The Hague
in 1930, that "expatriation is an inherent and natural right of all per-
sons." 18 Thus Lauterpacht cites these and other precedents in support
of the provision in his International Bill of the Rights of Man to the
effect that "the right of ... expatriation shall not be denied."
Assuming that international law places reasonable restrictions on the
requirements for naturalization, such as residence within the natural-
izing country, the right of expatriation is an appropriate and a neces-
sary attribute of the free individual.

A right of expatriation is predicated on the principle that the
individual has the right to control his nationality, subject to the
reasonable requirements of the law of the state involved. Conversely,
it might be argued that an individual has a right of retention of his
nationality. Actually, the laws of most states contain provisions that
enable the state to deprive an individual of his nationality under cer-
tain- circumstances. Where such provisions take the form of attaching
such a legal consequence to the free act of the individual, they do
not conflict with proper respect for the rights of individuals. Thus,
for example, when the national law provides that nationality shall
be lost by naturalization abroad, or by taking an oath of allegiance
to or accepting a political office from a foreign power, no exception
can properly be taken. It may also be reasonable for a state to assert
that if an individual absents himself from the country for a long
period of years without retaining his home ties, he shall be deemed
to have expatriated himself. In these cases too, the individual acts on
notice of the legal consequences of his action. But when loss of
nationality is imposed as a penalty for political acts, a different con-
clusioft may be reached. The interest of the state is presumably as
well protected by the common type of provision which as a punish-
ment, deprives an individual of the exercise of his political rights,
while leaving his nationality unaffected. 19 As already noted, the re-

18 Hunter Miller, Acts of the Conference for the Codification of Interna-
tional Law, Meetings of the Committees^ Vol. II Nationality, League, Doc. V.
Legal. 1930, V. 15, p. 80.

19 See Borchard, Diplomatic Protection of Citizens Abroad (1915), 687.

76 A MODERN LAW OF NATIONS

duction of cases of statelessncss is a desirable international objective,
and its attainment would be furthered by prohibiting states from
canceling nationality as a penalty.

Following from the same principle of the freedom of the individ-
ual to control his nationality is the conclusion that a state should not
be free to impose its nationality on an individual against his will.
This is the existing rule of international law in cases of forced
naturalization. 20 It may be noted, however, that just as the legal con-
sequence of expatriation may properly ensue upon certain volun-
tary acts of the individual, so there is no reason why a state may not
assert that naturalization will automatically result from certain acts.
The case of a woman naturalized by marriage to a citizen is a case
in point, although attention will be called to the need for eliminat-
ing such discriminations because they are based on the sex of the
individual. Controversy has been caused by provisions such as that
in Mexican laws that the purchase of land by an alien would entail
naturalization. 21 It would seem more appropriate in such cases to
frame the law in terms pf conferring only upon citizens the right to
buy land; the individual would then have a choice between becom-
ing a citizen and a landholder, or remaining an alien and not acquir-
ing tide to real property.

A form of forced expatriation and sometimes of forced natural-
ization has been recognized by international law in the case of
change of sovereignty of territory. Where, for example, territory is
ceded by one state to another, the ceding state is considered to have
the power to transfer the allegiance of the/ inhabitants, and such
transfer is deemed an automatic consequence of the cession. Under
traditional law, however, the acquiring state was obligated to con-
fer its nationality upon those persons, although not required to give
them the political rights of citizens. The growing practice of hold-
ing plebiscites to determine whether a transfer of territory is in
accord with the will of the majority of the inhabitants should be
made the rule in all such cases. Members of the minority who oppose
the transfer should be given the right to opt for the old nationality

80 2 Hyde, 1066.

11 Ibid., 1089 note 3. See Feller, The Mexican Claims Commissions, 1923-1924
(1935), 98-100.

NATIONALITY AND THE RIGHTS OF MAN 77

and to transfer to other parts of the territory of the ceding state of
which they are nationals. 22

Change of nationality by voluntary expatriation and naturaliza-
tion is the result of a free exercise of individual will. Other changes of
nationality take place frequently by operation of law. The effect of
marriage on the nationality of the woman has been the subject of
much international discussion. 28 This discussion is another precedent
for the international concern in the status of the individual, and in
this instance the concern has been manifested not only from the
point of view of the interests of the state, but also from that of the
human being, the family. The discrimination against women which
was the result of the wide prevalence of laws providing that the
nationality of the wife should follow that of the husband led even-
tually to international action such as, for example, the Inter-Amer-
ican Convention of December 26, 1933 signed at Montevideo provid-
ing that "there shall be no distinction based on sex as regards nation-
ality" in the legislation or practice of the contracting states. 24 The
provisions of the Charter of the United Nations, beginning with the
reference in the Preamble to "the equal rights of men and women"
and continuing through the multiple references to the "respect for
human rights and for fundamental freedoms for all without distinc-
tion as to ... sex" are confirmatory of the trend. 25 It is reasonable
to expect the gradual approach to uniformity in nationality laws,
which will remove any discrimination on the basis of sex in regard
to nationality. The Nationality Law of 1940 in the United States has
effected such equality in the law of this country. The Economic
and Social Council of the United Nations through its various com-

aa See i Oppenheim, 434-37.

23 See Scott, L'figalite des deux sexes (1932). The Supreme Court of the
United States rationalized changes of the nationality of a woman effected by
marriage to an alien, by asserting that this was an example of "voluntary" ex-
patriation inasmuch as the woman freely contracted the marriage with notice of
the consequences; Mackenzie v. Hare, 239 US. 299 (1915). But the principle of
equality of the sexes does not tolerate this explanation so long as only the
woman's status is thus affected.

24 4 Malloy, Treaties (1938), 4813.

25 Cf. LeFur, "Le D6veloppement historique du droit international" (1932),
41 Hague recueil des cours 505, 594; International Labour Office, The Inter-
national Labour Code 1939 (1941), Book IV, 176; Report of the Sub-Commission
on the Status of Women to the Commission on Human Rights, UN Doc.
E/38/Rev. i, 21 May 1946, Appendix I, 14.

j8 A MODERN LAW OF NATIONS

missions would appear to have a mandate to maintain and promote
such equality in matters of nationality and otherwise.

In regard to minor children, the laws of various states still reveal
a lack of uniformity. 26 The naturalization of a parent may include
the naturalization of the minor children, and conversely the loss of
a parent's nationality may embrace the loss of the nationality of such
children. In general such provisions with respect to nationality fol-
low more general provisions of the national law concerning the
status of those not yet legally of age. International attention might
well be directed to the problem with a view to recommendations
for such changes in national laws as might be conducive to the unity
of the family, but the problem cannot be considered one which in
principle involves the theory of the rights of the individual.

EMIGRATION, IMMIGRATION, AND ASYLUM

A corollary of the right of expatriation is the right of emigration.
If the right of the individual to leave the territory of his state is
denied, the right of expatriation is effectively denied. Thus in the
same year (1868) that the Congress of the United States proclaimed
the inherent and natural right of expatriation, the United States
concluded a treaty with China whereby the two governments "cor-
dially recognize the inherent and inalienable right of man to change
his home and allegiance, and also the mutual advantage of the free
migration and emigration of their citizens and subjects respectively
from the one country to the other for purposes of curiosity, of
trade or as permanent residents. The high contracting parties there-
fore join in reprobating any other than an entirely voluntary emi-
gration for these purposes." 2T

Lauterpacht thus justifiably couples the right of emigration with
the right of expatriation. 28 But he also properly notes that states
must be free to impose some limitations upon the right of emigra-

* "Harvard Research in International Law, Draft Convention on Nation*
ality," op ch., supra note 3, pp. 95, 105.

1<r Article V of the Treaty; i Malloy, Treaties (1910), 234. Cf. i Oppenheini,
515-16. It was alleged at the Paris Peace Conference at the end of World
War I that the Treaty of Westphalia in 1648 had recognized die right of emigra-
tion; see Bonsai, Unfinished Business (1944), 45.

**Op. eft., supra note 5, pp. 129-31.

NATIONALITY AND THE RIGHTS OF MAN 79

don to prevent the exercise of the right from being utilized as a
means for evading the legitimate demands of the state of original
nationality. Thus permission to emigrate might be withheld until
taxes had been paid or debts discharged. The right can, however,
be effectively destroyed by excessive restrictions such as those im-
posed through exchange controls. 29 Without asserting the accuracy
of the account, an item in the New York Times for January 2, 1947,
may be cited as an example. In a dispatch from The Hague David
Anderson asserted th^t some 2,000,000 Dutch citizens wished to
emigrate. "By means of foreign-exchange control the Government
maintains a rigid control of emigration. The majority of the persons
seeking to leave appear to have sufficient backing in cash or family
support; nevertheless they are powerless to convert it into the cur-
rency of an adopted land." It is asserted also that a strict system of
priorities imposes an equally rigid control over ocean passage on
ships. The traditional prohibition of emigration until after the
fulfillment of military service should be stripped of its legality. At
the same time it would be reasonable for states to limit the right of
the expatriate to return to his native country under certain circum-
stances. The troubles of the United States Government in asserting
the right of expatriation were in large measure due to the common
practice of individuals coming to the United States to be naturalized
and then returning for permanent residence to the country of origin,
where the newly acquired nationality would be used as a protection
against wholly legitimate demands of the state of origin. The statu-
tory law of the United States was amended in 1907 to take account
of this difficulty and to regularize the denial of the protection of the
United States to persons who had become naturalized solely or prin-
cipally for the purpose of evading their native responsibilities and
liabilities. 80

The general denial of the right of emigration would constitute
such a limitation on the freedom of the individual as to negate the
general acceptance of his international rights. The concept of com-
munity interest in international relations could not tolerate a total
denial of the right of emigration. It is clear, however, that no simple

** Cf . Letter of Philip Cortney to Craven-Ellis in Commercial and Financial
Chronicle, July 4, 1946.
80 2 Hyde, sec. 389.

80 A MODERN LAW OF NATIONS

rule could be self-operating and that international procedures in
these as in other instances will be necessary to the realization of
individual rights. The difficulties in the way of the necessary inter-
national administrative processes can scarcely be exaggerated. ~

More difficulty is experienced with the right of immigration. Just
as the right of expatriation may be nullified by a denial of the right
of emigration, so the right of emigration might be nullified by the
denial of the right of immigration. There is, however, an important
factual difference. A single state, having full physical power over the
individual, is in a position to make unreasonable exactions as the
price of a permit to emigrate. Theoretically at least, the same indi-
vidual has sixty-odd choices of states to which to emigrate. The
possibility of a conspiracy to deny to a particular individual or group
of individuals the right of immigration is thus slight.

Traditional international law has recognized the right of a state
to adopt such tests as it wishes for the admission of aliens. This
principle was recognized, for example, by the Japanese government
at the time when it objected strenuously to the actual exclusion of
Japanese nationals from the United States. 31 The United States in
that and other instances justified its position on the same theory of
reasonable classification that is recognized by its courts in applying
the constitutional rule guaranteeing to individuals the "equal protec-
tion of the laws." Essentially the protests against the United States
immigration laws were based on the assertion of improper discrimi-
nation against the nationals of particular countries and especially the
countries of East Asia. The protests were answered by the provisions
of the Immigration Act of I924, 32 which provided that only aliens
capable of being naturalized in the United States could be admitted
as immigrants. (It may be noted in passing that there is general inter-
national acceptance of the principle that immigration may be pro-
hibited on the basis of qualifications of health, morals, and the like.)
The naturalization law confined the privilege of naturalization to
white persons and persons of African descent, thus excluding mem-
bers of the brown and yellow races. This situation has fortunately
been altered by the passage of later laws permitting the naturalization
of Chinese, Filipinos, and East Indians and by the allocation of mini-

11 1 Hyde, 218.
a 43 Stat. 153.

NATIONALITY AND THE RIGHTS OF MAN 8 1

mal immigration quotas to persons of those races. 88 The Australian
"white immigration" policy has, however, not been relaxed.

Like other cases of discrimination, the matter is not as simple as
some would make out. If all immigration restrictions were removed
in certain countries, the effect on their economies might be disas-
trous. The result would be the termination of those favorable living
conditions which attracted the immigrants, with the result that new
emigrations to other countries would ensue, the first emigrants being
largely drawn from among those native elements of the population
which had created the formerly favorable conditions. To carry the
example to extremes for purposes of illustration, it might be sug-
gested that if State A has attractive living conditions and draws a
mass of immigrants from State B, where living conditions are bad,
the ultimate result might be the deterioration of conditions in A and
the ultimate improvement of conditions in B, causing the reverse
trend in immigration, with the ultimate restoration of the former
relative conditions in A and B, thus inducing a further turn in the
cycle. In any event, the right of states to set reasonable conditions,
whether numerical or in terms of individual qualifications, cannot be
denied in any immediate future. Such regulation of immigration is
not destructive of an individual right of emigration, even though it
limits the choice of destination for the emigrant. Nor is it incon-
sistent with general freedom of travel, as is shown by the greater
latitude in the immigration laws of the United States for various
temporary visitors classed under the statute as "non-immigrants"
and embracing not only tourists but also business men, seamen, and
officials. 84

Aside from the rankling discrimination against the admission of
Asiatic peoples to the metropolitan areas of the western world, the
United Nations cannot avoid being concerned with the settlement
of coloyial areas in which "empty" spaces have been deliberately
maintained in the interest of outworn forms of colonial exploitation.
It has been well said that "this much is certain if the peoples of
Asia are settled in, and are using the resources of, Borneo and New
Guinea in 2000 A.D., they will not make war to take them from the

33 Act of Dec. 17, 1943, 57 Stat. 600; Act of July 2, 1946, Ch. 534, Public
Law 483.

84 Sec. 3 of the Immigration Act of 1924, op. cit., supra note 28.

82 A MODERN LAW OF NATIONS

British, the Dutch, and the Australians, as they well may if the
colonial system survives." w

There is another side to the question of emigration and immigra-
tion which has caused international repercussions in the past. The
right of emigration is designed to prevent a state from forbidding the
departure of persons from its territory; should a state equally be
forbidden to force an individual to leave the country? The right of
expulsion has been recognized by international law, although the
manner of the exercise of the right has been restricted to avoid undue
harshness and hardship. 86 In general the condition of proper solici-
tude for the interests of the person expelled has been invoked by
the state of which he is a national; in other words, it has been
applied to the cases of expulsion of aliens. But the expulsion of
nationals, or the creation of conditions which force them out of the
country, has been considered a matter of concern to the countries to
which they may emigrate. Thus President Harrison, commenting on
the harsh application of anti-Semitic laws in Russia in 1891, declared
that the "banishment, whether by direct decree or by not less certain
indirect methods, of so large a number of men and women is not a
local question. A decree to leave one country is, in the nature of
things, an order to enter another some other. This consideration, as
well as the suggestions of humanity, furnishes ample ground for the
remonstrances which we have presented to Russia." 87 In the same
connection, Secretary of State Elaine adverted to the question of
"asylum" in the countries to which the Jewish 6migr6s might resort. 88
The right of asylum in international relations, like the right of
expatriation, has been talked about as if it were a right of the indi-
vidual, whereas actually under traditional international law it has
referred to the right of a state to afford a safe haven to individuals
who sought its protection. The state was privileged, not obligated, to
grant asylum. 89 In line with what has been said above about immi-
gration, it must follow that even under a modern law of nations the
individual would not have a right of asylum in the sense of a right

"Population Growth and Control in Relation WnrM

55 FtfteL. /., 1242, 1254.

[, op. tit.) supra note 19, pp. 48 ff.

* T US. For. Rel. 1891, p. xii; 6 Moore's Digest Int. L., 359.
/<*., 354.
*' Of. i Oppenheim, 539.

NATIONALITY AND THE RIGHTS OF MAN 8}

to require any particular state to receive him. But precedent and
humanity would suggest that every state should be under an obliga-
tion to grant temporary refuge to persons fleeing from persecution.
In connection with the clearly distinguishable "right of asylum' 9 in
foreign embassies and consulates, the United States has denied the
right but has admitted that its foreign missions might give temporary
refuge to persons fleeing from a mob in time of unrest or political
turmoil. 40 In such cases the United States acknowledged the duty to
deliver the refugee to the local authorities, even where it was known
that he would be shot for political activities adverse to the govern-
ment in power. In the cases that we are here considering of refugees
from one country to another, there should be no duty to return the
individual to the country from which he has fled. The absence of a
duty in such cases would be in accord with the well-established prac-
tice of providing in extradition treaties that political offenders shall
not be surrendered. 41 Exception has been made for assassins, and, in
line with the considerations developed in Chapter VII, such an excep-
tion might well be retained, subject to the possible establishment of
international criminal courts to which the individual could be sur-
rendered for trial. If local persecution reached the extent of the anti-
Semitic activities in Russia in 1891 or in Nazi Germany in the 1930*5,
the view expressed by President Harrison would require that the
problem be considered by an appropriate organ of the United Na-
tions, which should decide either to intervene and put an end to the
conditions causing the large migration or provide for the resettle-
ment of the refugees.

A special case involving nationality, emigration, and immigration
arises in the transfer of territory from one state to another. Atten-
tion has already been called to this problem in connection with the
forced changes in nationality, and the matter of plebiscites has been
touche^J upon. Where a territorial change has been authorized by a
peace conference representing a group of states, by the Concert of
Europe purporting to act for the European continent, or by a gen-
eral or universal international organization acting on behalf of the
world community, provision must be made for the future position of

40 2 Hyde, 1288.

41 "Harvard Research in International Law, Draft Convention on Extradi-
tion," 29 Am. J. Int. L. Supp< (1935), 107.

84 A MODERN LAW OF NATIONS

the individuals affected. In such cases it has been common to allow
the inhabitants a right to opt for one country or another. "It is gen-
erally admitted," says Kaeckenbeeck, 42 "that the exercise of the right
of option in favor of another country entails the obligation to emi-
grate. Indeed, option made its appearance in Europe in the form of a
jus ermgrandi" Clearly in such cases, if there is a duty of the indi-
vidual optant to emigrate, there is a duty of the state for which he
opts to permit his immigration.

NATIONALITY OF JURISTIC PERSONS

It is generally considered that a corporation or other juristic per-
son has a "nationality" or national character. This attribute is impor-
tant in determining rights under commercial treaties and in the exten-
sion of diplomatic protection. A variety of theoretical arguments
have been advanced concerning the proper criteria for determining
corporate nationality. 48 In practice, the laws of a majority of states
"have accepted the country of domicil (siege, Sitz) as the nationality
of the corporation." 44 But differences then arise concerning the
identification of the domicile. The matter may lie in the field of
Private International Law or Conflict of Laws as Lauterpacht as-
serts, 45 but it has important consequences in the field of international
relations. As noted in Chapter II, the adoption of the concept that
the individual is a subject of international law naturally includes the
position that a corporate person is also a subject of that law. While
it remains true that many aspects of the problem will continue to
involve questions of internal law, the juristic person should, under
the hypothesis stated, be considered to have rights and duties directly
under international law. The acceptance of this concept may facili-
tate the adoption of international regulations governing cartels and
other forms of corporate association. If, for example, through the
studies of the Economic and Social Council of the United Nations
the conclusion is reached that certain forms of monopolistic inter-

48 Kaeckenbeeck, The International Experiment of Upper Silesia (19*2),
183.

48 See Borchard, Diplomatic Protection of Citizens Abroad (1915), sec. 277.

"Loc.cit.

45 i Oppenheim, 511, note i.

NATIONALITY AND THE RIGHTS OF MAN 85

national combination in restraint of trade should be made illegal
under international agreements, a breach of the rule would involve
the direct liability of the corporation as under the national laws of
the United States. The situation would not be different from that in
which an individual or natural person violates a rule of international
law. Again the question of enforcement of the penalty for breach of
the rule may be delegated to national authorities, or use may be made
of various suggestions for international tribunals specially constituted
to take jurisdiction of such cases. 46

NATIONALITY OF SHIPS AND AIRCRAFT

The concept of nationality has also been applied to ships and
aircraft, although the term "national character" is preferable. The
concept is needed to determine the applicability of national laws to
ships on the high seas and in foreign ports and to aircraft over the
high seas or territories of states other than the home state. The prob-
lems are only in part those of conflict of laws as illustrated in the
United States cases of Crapo v. Kelly and Fisher v. Fisher. 47 Public
international importance attaches to the identification of the national
character of vessels and aircraft in determining the applicability of
treaty provisions concerning tonnage taxes, taxes on shipping profits,
admissions to ports, and numerous problems which arose under the law
of neutrality and of belligerent rights. The fiction of the territorial-
ity of vessels is nothing more than a legalistic explanation of juris-
dictional rules and has properly been rejected by the Supreme Court
of the United States in a series of recent cases. 48

Another legal fiction well established in Anglo-American admi-
ralty law personifies the vessel and attributes to it a personalized
responsibility in various situations. There is no advantage from the
general<point of view of a modernized international law in perpetu-
ating or extending such fictions. Desirable results can be secured by
straightforward description of factual situations and their legal con-
sequences without resorting to fictional props. No useful purpose

46 See Chap. VII.

47 Crapo v. Kelly, 16 Wall. 610 (1872); Fisher v. Fisher, 250 N.Y. 313
(1929).

48 See Cunard Steamship Co. v. Mellon, 262 US. 100, 123 (1923).

86 A MODERN LAW OF NATIONS

would be served by asserting that a ship or aircraft is an interna-
tional person directly governed by international law. Such a position
would constitute the substitution of an inanimate thing for that
traditional intermediary between the individual and international
law, the state.

SOLUTION OF NATIONALITY CONFLICTS

As already pointed out, questions of conflicts of nationality have
frequently provoked international controversy, and they have often
engaged the attention of international tribunals, particularly in claims
cases. In the case of the Tunis-Morocco Nationality Decrees, the
Permanent Court of International Justice pointed out that national-
ity questions are frequently governed by treaty provisions and in
such instances clearly cease to be matters solely of domestic concern.
There is no novelty therefore in the suggestion that it should be
generally recognized that the administration of international law re-
quires that cognizance be taken of national laws governing national-
ity and of the situation of individuals where two or more national
laws come into conflict. But, as will be pointed out in Chapter V, the
abandonment of the fiction that aliens derive their rights to protec-
tion and fair treatment only through the states of which they are
nationals lessens the importance of the nationality factor in claims
cases. It does not wholly obviate that factor, since it may still prove
to be convenient from the point of view of procedure to provide for
the prosecution of claims through the machinery of national govern-
ments. Although the sponsorship of an international body may be
utilized in some cases (as for claims of individuals in or from terri-
tories under trusteeship, through the Trusteeship Council) it may
also be envisaged that special international claims commissions will
be established to which individuals may appeal directly for the vindi-
cation of their rights against other states. It will also continue to be
true that, even where claims are prosecuted on behalf of an individ-
ual through the government of a state, it would be undesirable to
permit states to prosecute claims of persons other than their own
nationals. The danger in allowing a contrary procedure is that cer-
tain powerful states might through their power affect the adminis-
tration of justice.

NATIONALITY AND THE RIGHTS OF MAN 87

THE RIGHTS OF MAN

Since the rights of man are placed under international guaran-
tee by the Charter of the United Nations, it would no longer be pos-
sible for a state to brush aside international representations concern-
ing a violation of those rights on the ground that the victims were its
citizens and that international law leaves a state free to deal with its
own as it wills. It should be repeated that the treatment by a state of
its citizens is no longer a matter which, under Article 2, paragraph 7
of the Charter, is "essentially within the domestic jurisdiction." 49 For
this issue it is immaterial that the Charter language is different from
that used in the Dumbarton Oaks text, which excluded from the
competence of the international organization "situations or disputes
arising out of matters which by international law are solely within
the domestic jurisdiction of the state concerned." The elimination of
the reference to international law as a test was supported by the argu-
ment "that the body of international law on this subject is indefinite
and inadequate. To the extent that the matter is dealt with by inter-
national practice and by text writers, the conceptions are antiquated
and not of a character which ought to be frozen into the new
Organization." 50 The development of international law under the
auspices of the United Nations has as one of its objectives the filling
of such gaps in the law. It is wholly within the competence of the
Members of the United Nations to make agreements that will supply
in various situations tests which are definite and adequate to deter-
mine what matters are "essentially within the domestic jurisdic-
tion."

The General Assembly of the United Nations took on December
8, 1946, action which may prove to be of great importance in this con-
nection. The Government of India complained about the treatment
accordftl Indians in the Union of South Africa. Replying to the
Indian presentation of its case, Field Marshal Smuts for the Union of
South Africa "stressed the fact that Article 2, paragraph 7, of the
Charter, embodied an over-riding principle, qualifying, subject to one

49 CL iHydewc. uc.

80 Report to the President on the Results of the San Francisco Conference
by the Chairman of the United States Delegation, Dept. of State Pub. 2349, p. 45.
See ibid., 181, for text of the Dumbarton Oaks Proposals.

88 A MODERN LAW OF NATIONS

specific exception, all the provisions of the Charter. That principle
recognized that, within the domain of its domestic affairs, a state is
not subject to control or interference, and its action could not be
called into question by any other State." He recognized that treaty
obligations might constitute another exception to the rule of non-
interference, but denied that any such obligations were involved in
this case. He went on to say that "a third exception to the rule of
domestic jurisdiction might be sought in the direction of human
rights and fundamental freedoms. . . . Up to the present, however,
there did not exist any internationally recognized formulation of
such rights, and the Charter itself did not define them. Member
States, therefore, did not have any specific obligations under the
Charter, whatever other moral obligations might rest upon them." 51
The General Assembly apparently did not share the point of view of
Field Marshal Smuts either as to the nonexistence of specific bi-
lateral obligations owed to India by South Africa or as to the non-
existence of legal obligations under the Charter. On December 8,
1946, it adopted a resolution by thirty-two votes to fifteen with seven
abstentions, in which it stated that because of the treatment of Indians
in South Africa "friendly relations between the two Member States
have been impaired, and unless a satisfactory settlement is reached,
these relations are likely to be further impaired." 62 This suggests that
the jurisdiction of the General Assembly may rest on the impairment
of friendly relations, even in cases involving a matter alleged to be
within the domestic sphere. But the next paragraph of the resolution
recognizes the existence of agreements between the two governments
which could be interpreted to mean that the General Assembly found
that the case fell within one of the exceptions admitted by Field
Marshal Smuts. The resolution further records the opinion that the
treatment of Indians in South Africa should also be in conformity
with "the relevant provisions" of the Charter, which suggests that the
general provisions of the Charter relative to human rights have certain
obligatory force even before their explicit formulation.

Even under traditional international law there were examples of
obligations which states assumed limiting the general freedom which
they possessed in regard to the treatment of their own nationals. The

51 Journal of the UN No. 40, Suppl. Nos. i & 6, p. 3, 23 Nov. 1046.
** UN Doc. A/205, 2 Dec. 1946.

NATIONALITY AND THE RIGHTS OP MAN 89

minorities treaties are the most familiar examples. In 1938 a declara-
tion of the Eighth Conference of American States asserted that "any
persecution on account of racial or religious motives which makes it
impossible for a group of human beings to live decently, is contrary
to the political and juridical systems of America." 53 There is no in-
herent reason why more definite and inclusive obligations concerning
fundamental human rights should not be embodied in a multipar-
tite convention, even though the political difficulties of securing gen-
eral ratification and the mechanical difficulties of providing appro-
priate means of enforcement are enormous. It is notable that a
Canadian Court has already cited the Preamble and Articles i and 55
of the Charter as among the evidences of the public policy of the
Dominion which justified the court in holding void a restrictive cove-
nant on land which forbade the sale of land "to Jews or persons of
objectionable nationality." 54 A like development in the jurisprudence
of the courts of the United States which would invalidate some of
the racial discrimination in the United States is by no means impos-
sible.

It has been argued that the attempt to impose international con-
trols on a state's treatment of its nationals tends to increase rather
than to lessen both the internal and the external frictions. Viewed in
this light, the minorities regime is said to have been detrimental to
the achievement of the goal of harmonious relations between a minor-
ity group and the state of their residence. It is true that the privileged
position of aliens under the former extraterritorial regimes in China
and elsewhere tended to provoke hostility to the favored alien group.
But the minorities treaties were obnoxious largely because they car-
ried the stigma of imposition upon small states by the great powers,
who were unwilling to accept like obligations in their own territories.
Xenophobia has not markedly been traceable to the general protec-
tive shjpld which traditional international law has set up for the benefit
of the alien. The acceptance by all states of such obligations as are

53 This and other striking examples are noted in The International Law of
the Future (1944), Comment on Principle 2, 45. To the same effect as the Inter-
American resolution of 1938, see Resolution XLI of the Conference of Chapulte-
pec, 1945, Report of the Delegation of the United States of America to the
inter-American Conference on Problems of War and Peace, Dept. of Sttto
Pub. 2497 (1946), 109.

54 Re Drummond Wren [1945] 4 DJL.R. 674.

90 A MODERN LAW OF NATIONS

contemplated in proposals for an international bill of rights would
be nondiscriminatory, and their enforcement would therefore be at
least partially free from the element of provocation of local resent-
ment which is the natural concomitant of "foreign" interference in
local affairs. Unless such obligations are now generally accepted, the
minority clause in paragraph 4 of Article 19 of the Italian Peace
Treaty may be open to the objection indicated, since it requires a
state to which Italian territory has been transferred to secure to per-
sons within that territory the enjoyment of human rights and funda-
mental freedoms. 55 The implication is that it has no such duty in
other parts of its territory. Article 15 of the same treaty 56 imposes
upon Italy the general obligation to "take all measures necessary to
secure to all persons under Italian jurisdiction, without distinction as
to race, sex, language or religion, the enjoyment of human rights and
of the fundamental freedoms, including freedom of expression, of
press and publication, of religious worship, of political opinion and
of public meeting." It is to be hoped that this article is designed to
subject Italy as a nonmember of the United Nations only to the same
obligations that members have under the Charter.

If, in the early stages of the international development of the pro-
tection of human rights, enforcement is left to the national state,
subject to review by an international authority, one may gradually
approach a situation analogous to that in the federal system of the
United States, where constitutional rights may be first considered by
state courts and ultimately reviewed by federal courts. As the expe-
rience in the United States also teaches, it is of primary importance
that flexible administrative procedures be developed and that the
system be not left entirely in the more rigid hands of strictly judicial
tribunals.

It is inherent in the concept of fundamental rights of man that
those rights inhere in the individual and are not derived from the
state. 57 This philosophy is as old as the struggle for human rights and
human dignity. "The doctrine of inherent rights as expressed in the
American Declaration of Independence, in the first American consti-

88 New York Times, Jan. 18, 1947, p. 25.

89 Similar provisions are in Article 2 of the Hungarian and Bulgarian treaties
and Article 3 of die Rumanian treaty.

87 The question whether special rights should be accorded individuals in
their position as "aliens" is considered in the following chapter.

NATIONALITY AND THE RIGHTS OF MAN 9!

tutions, and in the French Declaration of the Rights of Man was not
an original invention. It put to revolutionary use the accumulated
power of what had been for a long time the backbone of the doctrine
of the law of nature on which James Otis, Samuel Adams, Jefferson,
and the other Fathers of the Revolution leaned so heavily." w It is
also true that among the jurists who developed the system of inter-
national law, those who took the natural law point of view were
influential. Yet the more recent period, notably in the nineteenth
and twentieth centuries, and particularly perhaps in the United States,
has seen the dominance of the positivist position. As the Fathers of
the American Revolution put to revolutionary use theoretical doc-
trine, the opportunity now exists for similar revolutionary applica-
tion of that same theoretical doctrine as the foundation of a modern-
ized law of nations. The confirmed positivist need have no quarrel
with such a position. The quarrel of the positivist is with those inter-
national lawyers who look backward rather than forward and who
then read into the past and into existing law the ideals they would
like to see achieved. Since this book is written de lege ferenda, the
attempt is made throughout to distinguish between the existing law
and the future goals of the law. It is already the law, at least for
Members of the United Nations, that respect for human dignity and
fundamental human right is obligatory. The duty is imposed by the
Charter, a treaty to which they are parties. The expansion of this
duty, its translation into specific rules, requires further steps of a
legislative character. It is immaterial to this discussion whether such
international legislation takes the form of additional treaties entered
into by the Members of the United Nations as states, or whether, as
is urged by many advocates of "world government," it takes the
form of real legislation enacted by a world parliament composed of
representatives not of states but of peoples. As already pointed out,
what many advocates of world government fail to take into consid-
eration^ the necessity, in view of the existing composition of the
world community, of action by states to create any new international
parliamentary body. Governments may be moved by men and
women, but organization of some sort is essential to governmental
development, whether on a national or an international scale. When
the unit is as large and as diverse in composition as the world, it is
88 See Lauterpacht, op. cit., supra note 5, p. 31 and generally Part J f

9* A MODERN LAW OF NATIONS

advantageous if not essential to progress through the governments of
existing states.

No attempt is made here to draft an international Bill of the
Rights of Man. Effective spadework has already been done, and the
task is in the hands of the United Nations Commission on Human
Rights. 5 * The human rights to be defined and protected must be con-
sidered not in a vacuum of theory, but in terms of the constitutions
and laws and practices of more than seventy states of the world. Not
every personal guarantee which is congenial to the constitution of the
United States of America is necessarily well adapted to other civiliza-
tions. In the relatively simple question of adopting fair procedures for
the Niirnberg Tribunal for the trial of the major German war
criminals, American lawyers had to reconcile their views, their tradi-
tions, and their prejudices to the different views, traditions, and pre-
judices of European lawyers. It may be true that jury trials are neces-
sary to the well-being of every tribe in Africa; but they are not uti-
lized in every western country, and it may be that they should not be
used. Throughout its work the Commission on Human Rights will be
tossed from substantive problems to the procedures for their enforce-
ment. It would do well to avoid seeking to impose as universal con-
cepts those which are historically local phenomena. When the United
States assumed the government of the Philippine Islands the Commis-
sion sent out to undertake the task was instructed by President
McKinley, in terms drafted by Secretary of War Root, that they

50 Among the official documents on this subject attention may be drawn
to the Draft Declaration of the International Rights and Duties of Man and
Accompanying Report, formulated by the Inter-American Juridical Committee
and published by Pan American Union in March 1946; various proposals con-
sidered at San Francisco are summarized in the Statement of tne Uruguayan
Delegation on Committee I/i, Doc. 995, I 1/41, June 15, 1045, UNIO, United
Nations Conference on International Organization, San Francisco, 1945 (1945),
627; Statement of Essential Human Rights by the Delegation of Panama, UN
Doc. E/HR/3, 26 Apl. 1946; Cuban Proposal, UN Doc. E/HR/i; 22 Apl. 1946;
Chilean Proposal, UN Doc. E/CN, 4/2, 8 Jan. 1047; Report of the Commission
on Human Rights to the Second Session of the Economic and Social Council,
UN Doc. E/38/Rev. i, 21 May 1946. Among the unofficial 'discussions, see
Lauterpacht, An International Bill of the Rights of Man (1945); Robinson,
Human Rights and Fundamental Freedoms in the Charter of the United Na-
tions (1046); "Essential Human Rights," Annals of the American Academy of
Political and Social Science (1946); "Commission to Study the Organization of
Peace, Bill of Human Rights," Int. Conciliation (1946) No. 426; American
Federation of Labor Proposal, UN Doc. E/CT. 2/2, 20 Aug. 1946.

NATIONALITY AND THE RIGHTS OF MAN 93

"should bear in mind that the government which they are establishing
is designed, not for our satisfaction or for the expression of our
theoretical views, but for the happiness, peace and prosperity of the
Philippine Islands, and the measures adopted should be made to con-
form to their customs, their habits, and even their prejudices, to the
fullest extent consistent with the accomplishment of the indispensable
requisites of just and effective government." 60

The United Nations Commission on Human Rights might well be
inspired by a like philosophy. 61 Its work might well proceed in
stages. There might be a Declaration of Human Rights to serve as a
standard and a goal. There might also be specific proposals designed
to meet the most pressing needs of the people of the world through
viable procedures. The philosopher may aid in drafting the Declara-
tion; the practical statesman will have to devise the procedures.

60 Jessup, i Elihu Root (1938), 356.

61 Its Report of May 21, 1946, to the Economic and Social Council, already
cited supra note 59, is a most encouraging indication of the wisdom with which
it has envisaged its task.

CHAPTER V

THE RESPONSIBILITY OF STATES
FOR, INJURIES TO INDIVIDUALS

THE INTERNATIONAL LAW governing the responsibility of states for
injuries to aliens is one of the most highly developed branches of that
law. 1 The practice which has become so frequent in the course of the
last century and a half of setting up mixed claims commissions for the
adjudication of claims presented by states for injuries to their na-
tionals in other states has provided an abundant body of the "case
law" which appeals so strongly to the lawyer trained in the common
law. Masses of briefs and of dissenting opinions are also available for
study, and these frequently constitute useful guides to the diplomatic
correspondence in which governments have set forth their views as
to the applicable rules of international law. As on other subjects also,
the preparatory documentation for the Hague Codification Confer-
ence of 1930, which constitutes the most fruitful work of that whole
endeavor of the League of Nations, yields much evidence of govern-
mental viewpoints on the law of responsibility. 2 The subject has also
attracted the attention of numerous writers who have canvassed the
subject from both the theoretical and practical points of view in gen-
eral treatises and in monographs. Although frequently represented as
a weapon of the strong against the weak states, in recent times the

1 The author wishes to acknowledge his debt to the discussions at a meeting
convened by the Division of International Law of the Carnegie Endowment for
International Peace at the Council on Foreign Relations, New York City, on
January 18, 1941. The following participated in the discussions: Prof. James W.
Angell, Prof. Percy W. Bidwell, Dr. Chao Ting Chi, Prof. Percy E. Corbett,
Prof. Frederick S. Dunn, Dr. Ernst Feilchenfeld, Prof. A. Feller, Mr. George A.
Finch, Judge Manley O. Hudson, Mr. William L. Lockwood, Prof. Charles F.
Reiner, Dr. William Sanders, Prof. James T. Shotwell, Mr. Frank A. Southard,
Mr. Lionel M. Summers, Prof. Frank Tannenbaum, Mr. Edgar Turlington, Dr.
Bryce Wood, Mr. Oliver J. Lissitzyn. The discussion covered broadly the field
of foreign investments and the development of international law relative thereto.

a League Doc., C. 196. M. 70. 1917. V.; League Doc. C. P. D. i. 95 (2), 1927.

94

THE RESPONSIBILITY OF STATE? 95

subject affords perhaps the most striking example of the effectiveness
of international law as the protector of weak. More claims by aliens
inevitably arise in countries which have not yet attained their full
economic development or in which there have been recurrences of
violent political turmoil, but the United States and Great Britain have
satisfactorily utilized mixed claims commissions for the disposition of
their reciprocal claims. Judge Hudson counts some sixty mixed claims
commissions which have functioned during the past one hundred
years. "The United States has had twenty-six of these tribunals with
other States . . . and three with Great Britain; nine of these tribunals
were created by Great Britain with eight Latin American States, and
three with two European States; Venezuela was a party before four-
teen tribunals; Mexico before eight; France before seven; Colombia
before five; Italy and Chile each before four; Belgium, Germany,
Panama, and Spain, each before three; and Netherlands and Sweden
each before two tribunals." 3 The dockets of many of these commis-
sions were large; Hudson notes that the 1868 American-Mexican
Claims Commission had 2015 claims before it and that of 1923, 3617
claims. The British claims alone before the commission established
with the United States after the Civil War totaled $96,000,000. Con-
siderable case material of value on the subject resulted from the
operation of the Mixed Arbitral Tribunals established by the peace
treaties at the end of World War I; Hudson mentions 30,000 claims
before the German-Polish tribunal, 20,000 before the French-Ger-
man tribunal, and 13,000 before the American-German Claims Com-
mission set up in 1922.* In addition to the mixed claims commissions,
other international tribunals, including the Permanent Court of Inter-
national Justice, have dealt with particular claims and thus have had
to rule on questions of the law of responsibility.

The history of this branch of international law during the nine-
teenth^nd twentieth centuries exemplifies the way in which a body
of customary law develops in response to the need for adjustment of
clashing interests. It was inevitable that the states which had achieved
a large measure of local industrial and financial development should
seek outlets for the investment of surplus funds and for the energies
of their ranchers, bankers, mining engineers, railroad builders, con-

8 Hudson, International Tribunals Past and Future (1944), 196.
9.

96 A MODERN LAW OF NATIONS

structors of ports, and other trained personnel. In many instances
those energies found an outlet in colonies. In other instances colonial
outlets were few and attention was turned to those independent
countries which were on the threshold of their economic development.
In the background as a driving force was the desire of governments
for political influence in certain countries, the scramble for markets
and for sources of rew materials which induced organized state sup-
port for the export of capital and industrial skill. The history of the
development of the international law on the responsibility of states
for injuries to aliens is thus an aspect of the history of "imperialism,"
or "dollar diplomacy." 5 It is remarkable that in this struggle which
so generally involved the relations between the strong and the weak,
international law, for all its primitiveness, developed as a balance for
conflicting interests. The fact that several strong states found them-
selves simultaneously interested in the welfare of their nationals in
states which were "exploited" may have assisted the legal develop-
ment. Frederick S. Dunn, in the most imaginative and penetrating
analysis of the problem which has been published, suggests that govern-
ments of even the most powerful states "are normally well disposed
toward settling their differences on matters of protection [of their
nationals abroad] by appeal to existing law" because "the interests
involved in individual cases are not usually very extensive." 6 Con-
sidering the thousands of individual claims which demand a govern-
ment's attention, this is probably true despite the recurrence of major
disputes such as that attending the nationalization program in Mexico.
Long-range policies of economic expansion can never be carried
through without utilizing the inevitable bureaucratic techniques that
permanent officials in foreign offices perfect and cling to as the means
for handling routine appeals. Blanks, questionnaires, and printed
forms are the inevitable human devices for disposing of individual
cases when the scale becomes too vast to permit each case to be
handled on a personalized basis, whether in government, business, or
educational and philanthropic organizations. 7

8 The connection between expansionist state policy and foreign investments
has been graphically recorded in Feis, Europe the Worlds Banker (1930), See
Moon, Imperialism and World Politics (1930), c. W.

e Dunn, The Protection of Nationals ( 1932), i.

7 See ibid^ 98 et seq. Although procedural details are not discussed in this
Chapter, attention should be drawn to the practice of securing lump sum pay-

THE RESPONSIBILITY OF STATES 97

Dunn notes that the problem of the international law governing
the protection of nationals abroad which is the converse way of
labeling the subject of the responsibility of states for injuries to aliens
"is ultimately concerned with the possibility of maintaining a uni-
fied economic and social order for the conduct of international trade
and intercourse among independent political units of diverse cultures
and stages of civilization, different legal and economic sybicms, and
varying degrees of physical power and prestige." 8 1 hat problem
would remain unchanged in its substantive essentials if there should
be developed a world government; that is, if the present emphasis on
the separateness, independence, and sovereignty of the individual
states were minimized. It is notable that among current proposals in
the United States by advocates of world government, there is a
tendency to confine the first efforts to achieve "world law" to the
problem of the use of force, with considerable emphasis on the reten-
tion of economic autonomy. 9 Even in the federal system of the
United States the right of business interests (corporations) from one
state to do business in other states has required federal regulation and
no small amount of judicial legislation. 10

The embodiment in international law of the principle of the duty
to respect the rights of man suggests new complications. The topic
formerly known in international law as "the responsibility of states
for injuries to aliens" might be transformed into "the responsibility of
states for injuries to individuals." As already pointed out, the term
"alien" connotes one of the relationships between individuals and
states, in this instance the relationship of noncitizenship. Cases of
statelessness being left aside, the assumption is that the "alien" is at
the same time a citizen or national of another state. The state of which
he is a national is interested in protecting him against the state to

merits to cover a large number of claims, the distribution to individual claim-
ants bejpg determined by an ad hoc domestic tribunal. See McKernan, "Special
Mexican Claims," 32 Am. ]. Int. L. (1938), 457.

8 Ibid., i.

9 "Dublin Manifesto," 2V. Y. Times, Oct. 17, 1945, p. 4, col. 4; "Rollins Col-
lege Manifesto," N. Y. Times, Mar. 17, 1946, p. 5, col. i. Cf. Reves, Anatomy of
Peace (io45),pt. 2.

10 See Henderson, The Position of Foreign Corporations in American Con-
stitutional Law (1918), especially c. VII; Ribble, State and National Power Over
Commerce (1937); cf. Wechsler, "Stone and the Constitution" (1946), 46 Col.
L. Rev., 764.

l>8 A MODERN LAW OF NATIONS

which he is an alien. This state interest has been asserted even in
opposition to the will of the individual, and it is independent of the
individual's interest. There are numerous grandiloquent statements
about the "duty" of a state to protect its nationals abroad, but actu-
ally no such duty is imposed either by international law or, so far as
appears, by national law. In the United States and in most states the
extension of diplomatic protection and the prosecution of claims is a
matter of discretion with the Secretary of State or the Foreign Sec-
retary. 11 Protection was accorded, for example, over the opposition
of American missionaries who have notified the Department of State
that they did not wish to present any claim. The Department of State
has insisted that it must bear in mind the general welfare of all Amer-
ican citizens abroad and that it must exercise its own judgment as to
whether neglect of an injury to one citizen may inure to the damage
of other citizens and to the general prestige of the United States. The
action of the person damaged may be taken into account, but only if
the government concerned wishes. 12 As Dunn has pointed out, the
denial of international status to the individual has caused government
officials in claims cases to "gravely [overemphasize] the importance,
of the political relations of states at the expense of the activities of
men as human beings." 18 Instances in which the Department of State
has declined to press diplomatic representations on behalf of impor-
tunate claimants are frequent and have often been due, not to the
demerits of the claims, but to some overriding policy of fostering
friendly relations. The Foreign Offices of small states may hesitate to
antagonize a powerful neighbor by pressing against it the claim of
one of its nationals. 14 On the other hand Brierly has argued effectively
that the recognition of the international position of the individual in

11 2 Hyde, sec. 273; i Whiteman, Damages in International Law (1937), 275;
McNair, The Law of Treaties (1938), 333.

12 i Whiteman, op. cit., supra note u, 184; Feller, The Mexican Claims
Commission 1923-1934 (1935), 90; see opinion dealing with Germany's Obliga-
tion and the Jurisdiction of this Commission as Determined by the Nationality of
Claims and Administrative Decision No. V (1923-1925) Mixed Claims Commis-
sion U. S. and Germany, Administrative Decisions and Opinions 144, 190.

13 Dunn, "The International Rights of Individuals," 1941 Am. Soc. Int. L.
Proc., 14, 16, 17.

14 Cf. Scott, The Hague Peace Conferences of 1899 and 1907 (1900), 487,
488; see Borchard, 'The Access of Individuals to International Courts" (1930),
24 Am. J. Int. L., 350, 362.

THE RESPONSIBILITY OF STATES 99

such cases would promote international peace, since the difficulties of
the individual would not automatically be raised to the diplomatic
level where they become entwined in "that mysterious but potent
abstraction, 'national honor.' " Such recognition would also tend to
check the grave menace of the promotion by states of private eco-
nomic interests with which they identify national interests. 15 Under
existing law, in at least some situations, such as disputes over adminis-
tration of mandated areas, the state must not only espouse a claim
but also make it the subject of an insoluble diplomatic controversy
before the matter can be submitted to an international tribunal. 16

Under traditional international law a state may not make diplo-
matic representations to another state on behalf of an individual who
is not its national. 17 Rules have developed concerning the nationality
of claims which are generally said to require not only that the claim
must be national in origin, but also that it must remain continuously
national up to the time of presentation or even of adjudication by an
international tribunal. 18 Where states have made representations on
behalf of oppressed groups of peoples they have been justified by
identifying the representation either as a friendly gesture not based
on claim of legal right, or by basing it on a treaty relationship be-

15 Briefly, "Le Fondement du caractere obligatoire du droit Internationale"
(1928), 23 Recueil de cours, 467, 531.

18 Cf. the reasoning of Judge Moore, dissenting in "Case of the Mavrom-
matis Palestine Concessions," F.C././., Ser. A, No. 2, 54, 61 (1924).

1T According to the Permanent Court of International Justice: ". . . the rule
of international law ... is that in taking up the case of one of its nationals
... a State is in reality asserting its own right, the right to ensure in the person
of its nationals respect for the rules of international law. This right is necessarily
limited to intervention on behalf of its own nationals because, in the absence of
a special agreement, it is the bond of nationality between the State and the indi-
vidual which alone confers upon the State the right of diplomatic protection,
and it is as a pan of the function of diplomatic protection tnat the right to take
up a claim and to ensure respect for tne rules of international law must be en-
visaged. Where the injury was done to the national of some other state no
claim to* which such injury may give rise falls within the scope of the diplomatic
protection which a State is entitled to afford nor can it give rise to a claim which
that State is entitled to espouse." Case of the Panevezys-Saldutiskis Ry., P.C././.,
Series A/B, No. 76, 16 (1939)*

18 See Hurst, "Nationality of Claims," 1926 Brit. Y. B. Int. L., 163. Mem-
bers of the Institut de Droit International in 1932 questioned the rules on the
nationality of claims on the ground that they reflected the basic artificiality of
the law governing the diplomatic protection of citizens abroad; 1932 Annuaire
de rinstttut de droit international, 479 ff.

100 A MODERN LAW OF NATIONS

tween the two states or on broad grounds of humanitarian appeal. 19
In cases of dual nationality there has been confusion because some
judicial decisions have suggested that there are tests provided by
international law for establishing the priority of one nationality claim
over another. 20 Actually the cases establish that one state may not
assert a claim of one of its nationals against another state of which he
is also a national, on the ground that the second state is free under
international law to treat its own national as it pleases, despite the fact
that he has also the nationality of another state. In other words, the
right of a state to deal unhampered with its own nationals has been
considered a right superior to its duty to deal fairly with the nationals
of another state. 21

As noted in the preceding chapter, a stateless person cannot have
a claim pressed on his behalf, because under the traditional view "A
State . . . does not commit an international delinquency in inflicting
an injury upon an individual lacking nationality, and consequently,
no State is empowered to intervene or complain on his behalf either
before or after the injury." 22

Assuming the acceptance of the hypothesis that the right to fair
treatment is a right of the individual and not merely the right of a
state with which he is connected, the cases of dual nationality offer
an illuminating picture of the change that would take place in inter-
national law. If X is a national of both States A and B and is mis-
treated in B, A could make legal representations on his behalf and B
could not offer as a defense that X was at the same time its national,
since B would owe a duty to X, not as a national of A, but as an

10 See Jessup, "The Defense of Oppressed Peoples" (1938), 32 Am. J. Int.

L.y Il6.

a Lavigni and Bister claim, Spain-United States Claims Commission of 1871,
3 Moore's International Arbitrations (1898), 2454; Maninat claim, France- Vene-
zuela Claims Commission of 1903, Ralston, Venezuelan Arbitrations of 1903
(1904), Sen. Doc. No. 316, 58th Cong., 2d Sess. (1906), 44.

81 "A State does not incur international responsibility from the fact that a
subject of the claimant State suffers damages as a corollary or result of an injury
which the defendant State has inflicted upon one of its own nationals or upon
an individual of a nationality other than that of the claimant country, with
whom the claimant is united by ties of relationship." The United States of
America on behalf of Dickson Car Wheel Company v. The United Mexican
States (1930-31), General Claims Commission United Staws and Mexico 175,
191 (1931), and cf. ibid.. 188.

"Ibid.

THE RESPONSIBILITY OF STATES IOI

individual. Granted appropriate procedural developments in inter-
national relations, such as the establishment of special claims commis-
sions to which the individual would have the right of direct access, X
himself could present his claim and the question of nationality would
clearly become irrelevant and immaterial. It might still be true, how-
ever, that international law would embody two sets of norms; one,
those based on an international bill of rights and therefore apper-
taining to any individual, and another, those based on special addi-
tional rights accorded aliens. The justification for the existence of the
second set of norms might be found in further attempts to solve the
problem that Dunn states as the basis for the existing law on the pro-
tection of nationals, namely the orderly promotion of international
trade and intercourse. The interests of the world community may
require that additional safeguards be provided for the individual who
as laborer, engineer, banker, or contractor goes into a strange coun-
try at its request or with its consent for the rendering of what are
considered to be useful services. The issue is now acute with refer-
ence to the resettlement of displaced persons. Such a stranger or
alien would not have the familiarity with local law, language, and
custom that would be possessed by the native and would not have the
opportunity for the exercise of political rights that appertain to the
citizen. Under the traditional international law it has been said that
"the individual in his capacity as alien enjoys a larger measure of
protection by international law than in his character as the citizen of
his own State." 2S The balance needs to be redressed, but the pendu-
lum should not swing to the other extreme.

Latin-American jurists and governments have long asserted that
the test for appropriate treatment of aliens should be equality with
the nationals of the country in which they come to reside. This
position has been countered, especially by the United States, with
the assertion that there exists such a thing as an international standard
for the administration of justice and the protection of the individual.
If, in a particular state, the international standard is not maintained,
the alien is entitled to the protection of his government. Secretary
of State Cordell Hull sought to state a reductio ad absurdum in para-
phrasing the Mexican Government's defense of the expropriation of
agrarian properties, by declaring that it was the Mexican contention

18 Lauterpacht, An International Bill of the Eights of Man (1945), 48.

IO2 A MODERN LAW OF NATIONS

"that it is wholly justifiable to deprive an individual of his rights if
all other persons are equally deprived, and if no victim is allowed
to escape." 24 There was something illogical in the traditional asser-
tion of the international standard against the background of the
conception of state interest and the denial of the existence of the in-
dividual as a subject of international law. In appearance, the inter-
national standard might be deemed the equivalent of the adoption
of an international bill of rights; actually it did not envisage the
existence of an international duty of a state with respect to its own
nationals. 25 It thus was descriptive of a special duty with respect to
aliens imposed on states by international law. Equality of treatment
with nationals under this hypothesis was never really a defense
against an international claim, even where the local standard was the
same as the international standard. The defense was that the treat-
ment of aliens was in accordance with the international standard; it
was irrelevant whether nationals were treated in accordance with
the same standard. If all states accepted an international bill of rights
and if a denial of such rights constituted a breach of international
law, the subsequent differences between the new and the old system
might be merely procedural. International law might still permit the
state of which the injured individual was a national to interpose on
his behalf, to be his agent for securing the vindication of his rights.
In such instances the protecting state would no longer be seeking to
vindicate the traditional right of the state, which was said to be
injured by the injury to its national. International law might like-
wise empower some international agency such as the United Nations
Commission on Human Rights to take steps on behalf of the in-
dividual, at his request or on its own initiative. 26 Action by such an

a *Dept. of State Pub. 1288, Communication to the Mexican Ambassador at
Washington of Aug. 22, 1938 (1938); 2 Hyde, op. cit., supra note 12, 877. In a
case Arising under the terms of a special treaty between England and Russia the
law officers of the Crown held that Russia was entitled to discriminate against
British Jews provided she applied the same discriminatory treatment to her own
Jewish nationals, although tne language of the treaty favored the equal treatment
of all British nationals. Report of the Law Officers of the Crown to Earl Gran-
ville dated November 5, 1881, McNair, The Law of Treaties (1938), 193.

28 Hyde, "Confiscatory Expropriation" (1938), 32 Am. J. Int. L., 750, 763.

aa See the interesting suggestion for the establishment of an international
body without power to adjudicate but charged with investigating and reporting
on claims in Turlington, A New Technique in International Reclamations
<*943)> 37 Am. J. Int. L,, 291. Cf. Cowlcs, The Hamevig Case (1938), 32;
ibid., 142.

THE RESPONSIBILITY OF STATES

international body would under these circumstances take no account
of the nationality of the injured individual.

Many suggestions are currently being made concerning the
possible content of an international bill of rights. 27 At this point it is
pertinent to consider whether a modernized international law would
have need of an additional set of rules designed for the particular
protection of a special class of individuals, identifiable by the label
"aliens." In addition, emphasis on the acceptance of the concept of
the individual as a subject of international law, and therefore as a
direct beneficiary of the rights which it confers, should not blind the
eye to the possible need for international legal rules designed for the
protection of groups of individuals associated together in what we
call a state. Such a need might exist even when the significance of
the state has been diminished through reduction of the importance
of the concept of absolute sovereignty and through the acceptance
of the concept of community interest. As in other matters, it is
convenient to explore this subject by further examination of the
relevant traditional international law, in this instance the law de-
termining the responsibility of states for injuries to aliens.

Two rules are generally accepted as starting points in the ap-
proach to the determination of a state's responsibility for an injury
to an alien. The first of these is that the alien, by entering a foreign
country, subjects himself to the local law. 28 The second rule is that
the state is not an insurer of the safety and lives of aliens. 29 Offsetting
the first rule is the concept of the international standard which
qualifies the supremacy of the local law, including law administra-
tion, by asserting that the local law is not the last resort if it falls
below the standard, in general or in its application to the particular
case. Thus a Mexican citizen residing in Texas subjects himself to
the law of that state and of the United States, but the United States
has been held liable when the trial of an American citizen who injured
the Mexican was characterized by excessive delays amounting to
maladministration. 30 The second rule is qualified by a set of sub-

87 See Chap. IV supra.

28 Borchard, Diplomatic Protection of Citizens Abroad (1915), 179.

80 The United Mexican States on behalf of Salome Lerma Vda. de Gahin v.
United States (1926-27) General Claims Commission, United States and Mexico
408 (1927).

104 A MODERN LAW OF NATIONS

sidiary rules stating the conditions under which the state is liable for
an injury to an alien. In general, liability is predicated on fault
(culpa). Thus if a British national residing in the United States is
run over by a bus or if his wallet is stolen by a pickpocket in the
subway, the United States is not liable. But if his fishing boat is run
down by a negligently operated paval vessel, or if after warning of
an impending mob attack complacent police officials decline to take
preventive action, or if agencies of the federal government take his
property without paying proper compensation, the United States
is liable. 81

The responsibility of the state for an injury to an alien may be
predicated on a sin of omission or on one of commission. If the state
fails under certain circumstances to use the means at its disposal to
ward off a threatened injury of which it has advance notice or if it
fails to provide appropriate remedial processes through its courts,
it may be liable. 82 If its soldiers, in line of duty, shoot an alien with-
out justification, responsibility has attached. 83 A simple breach of
contract between a state and an alien is a violation of local law, not
of international law; if it is accompanied by forcible seizure or
destruction of property amounting to what is called tortious or
confiscatory breach of contract, the state's responsibility will be
engaged. 8 *

As a corollary to the rule that the alien subjects himself to the
local law, there is a well established but inadequately defined rule
that the alien must exhaust his local remedies before a diplomatic
claim is made. The assumption is that if the alien resorts to the local
courts, justice will be done. The line of reasoning then leads to the
formulation of the rule that the state is liable for a denial of justice.
This would be a satisfactory test if there were agreement on the
meaning of the term, but there is not, and, as Lissitzyn has

81 In the Matter of the Lindisfarne (1913), Am. J. Int. L., 875; Case of the
Confidence, 1855, 3 Moore's International Arbitrations (1898), 3063, commented
on in Borchard, op. *., supra note 28, p. 188. Cf. "The I'm Alone," Dept. of
State Arbitration Ser. No. 2 (x) (1931); cf. the Norwegian Ships case (1922),
17 Am. J. Int. L^ 362 (Permanent Court of Arbitration), commented 9n in
2 Hyde, 936.

*' Borchard, op. cit., supra note 28, p. 224; 2 Hyde, 917 et seq.

88 Borchard, op. cit., supra note 28, p. 193.

84 3 Whiteman, op. cit., supra note 11, p. 1555; 2 Hyde, 988.

THE RESPONSIBILITY OF STATES 1 05

shown, the variety in the definitions of the term has robbed it of
utility. 85

The conclusion must be reached that while there is abundant
precedent and general statement of principle to enable international
tribunals to make or to refuse awards in any particular claim, the lack
of precision in the law leaves to the tribunal wide latitude and in-
evitably results in a very large measure of subjectivity in these
judicial decisions. Since few jurists still cling to the old view that the
role of the judge is merely mechanical, requiring him to identify the
law of the case and to turn out the judgment as if he were tapping
keys and pulling levers on an adding machine, this characteristic of
the law of responsibility of states does not imply that it is encumbered
by more defects than many branches of national law. It does suggest,
as Dunn has amply demonstrated, that there is room for creative re-
appraisal of the function of the law in such cases in order that the
judge's choice may be guided by accepted standards and principles.

The function of the law of responsibility of states for injuries to
aliens, in terms of the modernization of international law, is to
provide, in the general world interest, adequate protection for the
stranger, to the end that travel, trade, and intercourse may be
facilitated. The law must take into account the fact that in States
A and B peaceful habits, a minimum of violence, and well-developed
law administration prevail, whereas in States C and D conditions of
turmoil, violence, and imperfect or slovenly law administration are
characteristic. One trouble has been that statesmen, writers and
judges on international tribunals have all too often set up in their
minds an ideal condition which rarely exists and have tended to assert
a perfect international standard which does not reflect actual con-
ditions in the most orderly states. Municipal graft and corruption,
packed juries, and delays in law administration 'have existed in the
United^States while it has sought to hold others to a nonexistent per-
fection. 86 And yet the general standard of law administration in the

88 Lissitzyn, "The Meaning of the Term Denial of Justice in International
Law," 30 Am. J. Int. L. (1936), 632, 645, 646; 2 Hyde, p. 911.

38 In his annual message to Congress on December 6, 1004, President Theo-
dore Roosevelt declared: "We have plenty of sins of our own to war against,
and under ordinary circumstances we can do more for the general uplifting of
humanity by striving with heart and soul to put a stop to civil corruption, to
brutal lawlessness and violent race prejudices here at home than by passing reso-

IO6 A MODERN LAW OF NATIONS

United States has undoubtedly been higher than that in some other
states.

Attempts have been made to invoke the doctrine of the equality
of states as a bar to considering factual inequalities in these respects.
But any reasonable application of the doctrine of equality before
the law requires merely that the same objective tests be applied to
the conduct of all states. A state unable or unwilling in general or
in particular cases to order its own affairs in such a way as to
facilitate the promotion of the interests of the world community
must be made to pay the penalty. Granted adequate international
tribunals staffed by judges unswayed by prejudices, responsibility
can be fairly assessed. By and large the experience with the existing
system of law, despite its defects, has been satisfactory. 87

The conception of territorial sovereignty has also been invoked
to justify unreviewable exercises of state will within the national
territory. If the concept of absolute sovereignty yields to the con-
cept of community interest, as this study assumes by way of
hypothesis, this logical difficulty that pervades international law in
many if not all of its branches loses its importance.

Dunn has suggested a satisfactory basis for the development of
this branch of international law:

"It seems that a workable test can only be arrived at by
giving consideration to the general purpose of the notion of
international responsibility in connection with the injuries to
foreigners. As already suggested, that purpose seems to be to
preserve the minimum conditions which are regarded as
necessary for the continuance of international trade and inter-
course on its present basis. That purpose does not require that

lutions about wrong doing elsewhere. Nevertheless there are occasional crimes
committed on so vast a scale and of such peculiar horror as to make us doubt
whether it is not our manifest duty to endeavor at least to show our disapproval
of the deed and our sympathy with those who have suffered by it. The cases
must be extreme in wnich such a course is justifiable. There must be no effort
made to remove the mote from our brother's eye if we refuse to remove the
beam from our own." For. Rel., U. S. 1904, xlii.

37 The term "satisfactory" is used here with reference to the criterion of
monetary compensation to injured individuals. Before the term could be used to
suggest mat the law has adequately discharged the function of facilitating inter-
national trade and intercourse, more detailed studies than are yet available would

THE RESPONSIBILITY OF STATES 107

a state be made to answer for every injurious act of every one
of its many officials and employees. At the same time, it does
require that the state be held responsible for certain types of
misuse of governmental power.

"Here one can have recourse to the notion of risk alloca-
tion (as developed in Anglo-Saxon law in recent years) in
place of the old notion of fault as the determinant of respon-
sibility. It is obvious that normal business and social relations
can still be carried on although there is a certain percentage
of abuses of governmental power by individual officials and
employees. The existing system takes account of the fact that
a certain proportion of these is inevitable, and makes allow-
ances for them without expecting compensation from the
state. Normal business and social relationships, in other words,
are capable of taking a certain degree of risk in this matter.
There is a point, however, where derelictions and errors on
the part of government officials (regardless of rank) might
become so numerous as to make the usual course of social and
economic life difficult, if not impossible, to carry on. In other
words, these relationships are not able to absorb the entire
risk of such derelictions. From this point on, the state should
take over the risk of injuries from misuses of the govern-
mental power. Failures beyond this point are occasionally
bound to occur, regardless of the care exercised in the selec-
tion of personnel or the amount of supervision used, but the
state can and should assume the risk of these failures; other-
wise it would not be fulfilling the primary purpose of political
organization, which is to maintain conditions under which
social life is possible." 38

Dunn continues to show that his test is applicable even in those
instances where the legal jargon talks in terms of the responsibility of
the state for the acts of individuals, since in these cases responsibility

38 Dunn, op. cit., supra note 6, p. 133. Dunn's discussion of the quantum of
derelictions and errors perhaps glosses over situations in which unique acts of
maladministration of justice in a well-ordered state subjfect an individual to
injury for which he should equitably be entitled to compensation. If the law of
responsibility be considered, like criminal law penalties, in the light of a deterrent
to further improper acts of government officials, other elements such as the indi
vidual liability of the official to punishment for an "international crime" woul<
need to be weighed; see Chap. VII.

108 A MODERN LAW OF NATIONS

is ultimately predicated on the action or inaction of officials. The
question of denial of justice also resolves itself into a consideration of
the propriety of the acts of the judicial branch of the government.
In all cases therefore it is possible to return to the theory of risk
allocation, Dunn admits that his test does not eliminate all vagueness,
but he demonstrates that it is easier of application than the traditional
tests, which often rested on fictions and forms of words devoid of
real meaning.

The test of risk allocation may itself be tested by problems which
arise in connection with contractual claims. 89 Two typical situations
rriky be analyzed. Specific states may be used for purposes of illustra-
tion. The first situation is that of a Delaware corporation which con-
tracts with the Government of Iran to construct a railway from
point A to point B in Iran. The contract provides that the corpora-
tion shall complete X miles of roadbed within six months and the
entire job within twelve months. The Government agrees to pay the
contractor Y dollars per mile of finished roadbed, the sums to be
paid in two installments, one at the end of each six-month period.
The Government further agrees to allow the free importation of
all necessary materials, machinery, and supplies and the free entry of
all necessary personnel. The corporation begins work, bringing
in goods and engineers and supervisory personnel. In the course of
the first six months a revolution occurs in Iran. Fighting continues
for two months after which the revolution is suppressed. In the
course of the fighting, revolutionists seize a quantity of food and
other supplies belonging to the corporation, and an officer of the
government forces requisitions the services of a number of the men
working on the railway to build fortifications. .The result is that

39 A complete test of the theory obviously requires a much wider sampling
of various types of claims. It is not derogatory to assert that Dunn's book is itself
only an introduction to the subject. Further detailed studies will be required
before one can be dogmatic in asserting that the theory of risk allocation meets
all needs even of the traditional system of international law. Its utility in new
situations that may develop under present and future conditions is a challenging
topic, which this chapter does not seek to exhaust. For interesting examples of
the application of the theory of risk allocation in cases involving currency and
foreign exchange restrictions see Domke, "La Legislation allemande sur les de-
vises en droit international priveY' 64 Journal du droit international (1937), 226,
243; "Nouveaux aspects des restrictions de transfert en droit international priveV
&&., 990; "International Loans and the Conflict of Laws," 1937 Trans, of the
Grotius Society. At.

THE RESPONSIBILITY OF STATES 109

work on the railway is interrupted and the scheduled mileage is not
completed until three months after the first six-month period. The
corporation demands the payment of the sum stipulated for the first
installment, which the Government declines to pay on the ground
that the contractor has not fulfilled his contract. The corporation
thereupon abandons work on the railway and seeks to remove its
supplies. The government prevents the removal. The corporation
appeals to the United States Department of State for assistance. 40

A number of rules of international law enter into the picture.
Ordinarily the Government of the United States will not interpose
diplomatically in contract claims, but it will on occasion do so in
case of "tortious interference" with the performance of contracts.
A simple breach of contract, as already mentioned, constitutes a
violation of local but not of international law. In the next place, the
Government of Iran would undoubtedly reply to any diplomatic
representation that the courts of Iran are open to the corporation and
that they will adjudicate upon the rights under the contract accord-
ing to the Iranian law. It may be assumed that under Iranian law
contractual suits against the government may be entertained by the
Iranian courts. It is a further rule of international law, frequently
applied by international tribunals, that a state is not liable for the
acts of unsuccessful revolutionists, but is liable for the acts of its
own military officers in the performance of their duty. If the
corporation resorts to the Iranian courts and if, after prolonged
litigation with appeals to the highest courts, the judgment is adverse
to its claims, it will undoubtedly allege that there has been a "denial
of justice." At this point the governments of the United States and
Iran might agree to submit the claim to an arbitral tribunal.
Granted the establishment of appropriate international procedures,
the corporation might itself invoke the international jurisdiction.

If such a tribunal were applying an international law based on
the theory of risk allocation, what judgment would be rendered?
It would be reasonable to assert that under such circumstances the
corporate contractor, while assuming the normal risks of weather,

40 Analogous factual situations can be found in various claims cases before
international tribunals, e.g., The North and South American Construction Co.
claim, United States and Chile, 1892, 3 Moore's Arbitrations (1898), 2318; Martini
case, France and Venezuela, Ralston (1904), op. cit., supra note 21, p. 8ro; Itoend
Company of Venezuelan R. R. case, idem, 367.

110 A MODERN LAW OF NATIONS

terrain, and the like, should not be expected to assume the risk of
revolutionary disturbance; that latter risk should be borne by the
government. This result is diametrically opposite to that obtained
under the existing law based on fault, but it may be noted that there
are precedents for a state's assumption of an obligation to make com-
pensation for injuries suffered by aliens during periods of revolu-
tionary disturbance. The most notable case is that of Mexico in
1923, which concluded agreements with six states whereby it was
agreed that claims commissions should determine the amounts of such
claims and that they should be paid by Mexico ex gratia and without
reference to their basis in the international law of responsibility. 41
The 1903 arbitration protocols with Venezuela contained an ad-
mission of liability to pay for certain types of claims. Umpire
Duffield in the German- Venezuelan Commission construed the
language as including liability to pay for damages inflicted by revolu-
tionary forces. Umpire Ralston in the Italian- Venezuelan Com-
mission reached the opposite result in the Sambiaggio claim, which
has become a leading case for the proposition that no liability
attaches for such damages. 42 It would also be reasonable to assert
that such a contract made in Iran and to be performed in Iran is
governed by Iranian law. That law may provide that breach of con-
tract by one party does not justify breach by the other. The
corporation by entering into the contract took the risks of the local
law. The conclusion would be that Iran, having the benefit of the
completed mileage, was obligated to pay the stipulated sum for that
amount of finished roadbed; 48 that it was obligated to reimburse the
company for the value of the supplies confiscated by the revolution-
ists. On the other hand the corporation would not be justified in its
refusal to continue the work, and the loss of machinery, supplies, and
materials due to its abandonment of the work must be borne by it.
Let it be assumed that the contract also embodied a "Calvo
Clause"; that is, a clause providing that the corporation should in all
matters connected with the contract be deemed an Iranian national
and should not under any circumstances seek the diplomatic protec-

41 Feller, The Mexican Claims Commissions 1923-1934 (1935), 157-58..

48 Borchard, op. cit., supra note 28, pp. 229, 231, n. 7.

41 The international law on state succession has taken into account the prin-
ciple of unjust enrichment. Kaeckenbeeck, "The Protection of Vested Rights in
International Law," 16 Brit. Y. B. Int. L. (1936), i, 10, 11, 15, 16,

THE RESPONSIBILITY OF STATES III

tion of its government. 44 The long controversy over the Calvo
Clause in which the United States has been the chief protagonist of
the opposition and the Latin-American countries the chief defenders
has focused on the traditional precept of international law that only
states are subjects of that law. Therefore all of the law having to do
with the responsibility of states for injuries to aliens is law conferring
rights on states, which are said to be injured by injuries to their
nationals. Accordingly the United States has consistently maintained
that the individual could not waive a right which was not his, but was
the right of his state. Under the hypothesis that it is the individual
himself who has rights under international law, this basic objection
loses all logical force. The rights which appertain to the individual
may be waived by the individual. But the raison d'etre of the Calvo
Clause also disappears with the acceptance of this hypothesis. Under
the traditional law the individual himself could not vindicate his
rights, but must act through his government. If, as already envisaged,
there are established international claims commissions to which the
individual has direct right of access, the corporation in our illustra-
tive case would not need to proceed through the Department of
State, but might take its case direct to the international tribunal.
This situation illustrates the utility of retaining in a modernized
international law the rule of exhaustion of local remedies. Claimants
should be required to resort first to the local courts in order to avoid
overburdening the international tribunals. 45 A Calvo Clause may
be nothing more than a promise to use local remedies and thus be
unnecessary but harmless. International tribunals should be called
on to act only after the use of the local remedies has failed to yield
satisfaction. In this connection it should be the rule that if the inter-
national tribunal finds that the local courts acted through prejudice
or corruption, the costs of the litigation should be collectible as part
of the Judgment in favor of the claimant.

Under the new hypothesis, would the signature of a Calvo Clause
be effective if the contractor agreed to waive not only the right to
appeal to his own government but also the right to appeal direct

44 See 2 Hyde, 994.

45 Cf . Coudert and Lans, "Direct Foreign Investment in Undeveloped Coun-
tries: Some Practical Problems," n Law and Contemporary Problems (1946),
74'-

112 A MODERN LAW OF NATIONS

to an international tribunal which otherwise would have jurisdiction?
The answer should be that in the general interest an individual
should not be free to oust the international jurisdiction unless an
adequate substitute is utilized. The case would be comparable to one
under the law of the United States in which the contracting parties
seek to oust the jurisdiction of the courts. 40 Such provisions are
held to be unenforceable on the ground of public interest, although
the rigid earlier attitude of the courts, applying this notion even to
the exclusion of agreements to submit disputes to private arbitration,
has been modified. 47 It should be possible for the private contractor
and the state to agree on an alternate method of impartial adjudica-
tion in case of an allegation of denial of justice. This would be in line
with the arbitration clauses which are becoming common in interna-
tional private commercial contracts, and on the other hand would be
comparable to the option reserved by some states when accepting
the compulsory jurisdiction of the International Court of Justice, to
submit a dispute to settlement by some other tribunal. International
public policy should ban only such clauses as would prevent im-
partial review by some tribunal freely chosen by the parties. It may
be argued that if the parties freely choose in advance to accept as
final the decision of the local courts, this agreement should be
sustained. In the typical concession contract there may be sufficient
equality of bargaining power between the foreign corporation and
the contracting state to warrant such a conclusion.

The second typical hypothetical situation which may be considered
is that in which private bankers in one state extend a loan to the
government of another state. A somewhat extreme case may be taken
from history for purposes of illustration. The first foreign loan
negotiated by the Mexican government after the establishment of its
independence was negotiated with the British house of Goldschmidt
in 1824. The face value of the 5 per cent bonds issued was 16,000,000
pesos, of which 8,000,000 pesos were placed at the disposal of the
Mexican government, but 2,000,000 pesos were first deducted for
interest, sinking fund, and commissions, netting Mexico 6,000,000

46 2 Willistpn, Contracts (id ed. 1938), sec. 1919; cf. Doleman & Sons v.
Ossec Corporation, [1912], 3 K. B. 257 (C. A.).

47 2 Williston, Contracts (26* cd. 1938), sec. 1920; Nussbaum, "The 'Separa-
bility Doctrine* in American and Foreign Arbitration*' (1940), 17 N. Y. Univ.
L. Q. Rev., 609.

THE RESPONSIBILITY OF STATES

pesos. Goldschmidt sold the bonds to the public at 58, grossing a
quarter of a million pounds plus subsequent commissions. 48 Default
on this loan did not lead to intervention by the British Government,
but nonpayment of 100 per cent of the loan placed by Mexico in
1859 with the Swiss-French banking firm of J. B. Jecker and Com-
pany when Mexico borrowed at a cost of about 90 per cent was
one of the justifications advanced by the French government for its
intervention in 1862 leading to the establishment of the Maximilian
"empire." 49 Venezuela's nonpayment of loans and of other foreign
claims led in 1902 to the celebrated action of three European powers,
Great Britain, Germany, and Italy, which first established a pacific
blockade and later a belligerent blockade. These events led the Ar-
gentine Foreign Minister Drago to send his famous note to the United
States proposing an international agreement prohibiting the use of
force for the collection of such debts. Drago supported his views by
arguing that a loan contract was of a special nature, contracted by
the bankers with the realization that it was not enforceable in any
court and therefore rested on the good faith of the borrowing gov-
ernment. 50 Thanks to the support of Secretary of State Root the
Pan-American Conference in 1906 endorsed the Drago Doctrine, and
under the leadership of the United States the so-called Porter Con-
vention was signed at the Second Hague Peace Conference in 1907.
This convention prohibited the use of force for the collection of any
contract debts, but left a loophole through which a fleet of warships
could sail; the undertaking was not applicable "when the debtor
state refuses or neglects to reply to an offer of arbitration, or, after
accepting the offer, prevents any compromis from being agreed on,
or, after the arbitration, fails to submit to the award." 51 Drago and
other Latin- American spokesmen at the Hague pointed out that this
agreement in effect legalized the use of force in certain contingencies.
That thir fears were justified is illustrated by a subsequent incident.
In 1912 there was a discussion in the Department of State between a
banking representative acting as agent for the Honduran government
and Department officials concerning a proposed loan to Honduras. It

48 Turlington, Mexico and Her Foreign Creditors (1930), 35.
40 Ibid., 141.

50 Drago, "State Loans in Their Relation to International Policy" (1907), i
Am. J. Int. L. 9 692.

81 See 2 Jessup, Elihu Root (1938), 74.

114 A MODERN LAW OF NATIONS

was proposed to include in the loan corttract a provision for arbitra-
tion in case of difficulty. The bankers' representative doubted the
efficacy of this provision, whereupon one of the officials told him
about the provisions of the Porter Convention, adding that the in-
ference was "clear that this [United States] Government would have
the right, should any of these exceptions arise [regarding the agree-
ment to arbitrate or the carrying out of the award], to use force in
behalf of the Americans making the loan." The representative of the
bankers "seemed very pleased upon learning of this Hague Conven-
tion, and seemed to think that it afforded a satisfactory guaranty." 52
The dissatisfaction with the Porter Convention persists and at the
Chapultepec Conference of 1945 the Mexican Delegation suggested
that it be abrogated. 58 In view of the provisions of the Charter of
the United Nations restricting the use of force, the Porter Conven-
tion may now be deemed supplemented by that greater treaty which,
according to its Article 103, prevails over any conflicting interna-
tional agreement.

States have in the past interposed not only at the request of the
bankers, but also on behalf of bondholders. There may* be no in-
equity in this practice where there is a submission to an international
tribunal as in the case of the French-Serbian and French-Brazilian
submissions to the Permanent Court of International Justice to deter-
mine the proper interpretation of the terms of the loan contract con-
cerning the form of payment. 54 But in other instances the bond-
holders may be individual speculators who have bought the bonds
at a large discount on the open market in the hope that their govern-
ment will collect a profit for them. 55 In such cases governments have
sometimes refused to press the claims. 56

Whether the claimant be the bankers or the individual bond-
holders, the case seems to be a clear one for the assumption of the
risk of default by the lender and not by the borrower. Banking prac-
tice calculates the risk, discounts it in advance, and sets the price of
the issue and the interest rate in terms of the appreciation of the risk.
It is obviously inequitable to permit a situation in which they may

M For. ReL, U. S. 1912, 616.

"Carneiro, O Direito international e a democratic* (1945), 139.

84 P.C/J., Series A/B No. 20/4.

88 Of. the dissenting opinion of Judge Pessoa, ibid., 64.

86 3 Whiteman, op. cit. y supra note 1 i, p. 1584 ff.

THE RESPONSIBILITY OF STATES 115

eat their cake and have it too in the sense that default will bring to
bear the military power of their state to exact 100 per cent compli-
ance, perhaps through the seizure of customs houses or other reve-
nue-producing assets. If the use of force for the collection of the
loan were lawful, the bonds should be issued on terms reflecting not
the financial and political hazards of the borrowing state, but the
superior military power of the state of the lender.

The whole subject of international loan contracts was studied by
a League of Nations Committee whose report was published just
before the outbreak of World War II. 57 The Committee recom-
mended the creation of an International Loans Tribunal with power
to adjudicate upon the terms of loan contracts.

Such a Tribunal would be useful even under the newer practices
in international financing. Where loans are extended by one govern-
ment to another the problem is at once set upon a different plane and
some of the bases of Drago's arguments are eliminated. But such
intergovernmental loans may still be used as the basis for pressure
by a strong state against a weak. That difficulty will not be overcome
until international loans are contracted under international auspices.
The League of Nations loans to Bulgaria, Danzig, Estonia, Greece,
and Hungary are precedents which will presumably be built up by the
activities of the new International Bank for Reconstruction and
Development which should be in a position to guard against the old
practice of forcing excessive loans on borrowers and to assure the
floating of loans on equitable terms. 58 Granted that the loans are
floated on an equitable basis, that the use of force for the collection
of the loan is banned in case of default, that an International Loans
Tribunal is established to settle questions of interpretation of the con-
tract, the whole field may be taken out of the realm of diplomatic
interposition and intervention. If the borrower defaults, the loss will
fall on the investor as has long been true in the case of loans of some

57 Report of the Committee for International Loan Contracts, League Doc.
C. 145. M. 93. 1939. II. A; League Doc. II Economic and Financial 1939. II.
A. 10.

58 See address by the U. S. Secretary of the Treasury at the closing plenary
session of the Bretton Woods Conference, Dept. of State Pub. 2187, United
Nations Monetary and Financial Conference (1944), 7; ibid., Articles of
Agreement of the International Bank for Reconstruction and Development, An.
1,68.

Il6 A MODERN LAW OF NATIONS

of the states of the United States. 59 Refunding operations or other
measures to put the debtor back on its financial feet would again be
the concern of such international agencies as the International Bank,
the Monetary Fund, and perhaps the Economic and Social Council,
The bondholders' equities would not be ignored, but the procedures
for satisfying them would be brought under international legal con-
trol. The history of international loans and their use as an instrument
of imperialism demonstrate that this is a field to which the concept
of community interest should apply. 00 The recognition of the indi-
vidual as a subject of international law and the possibility envisaged
by the League Committee that groups of bondholders might resort
to an international tribunal without the interposition of their gov-
ernments would further remove this subject from its unsavory record
as a producer of international conflict.

A modernized international law of responsibility of states for in-
juries to individuals would, in the manner sketched, provide two sets
of rights for individuals, one qua individual and one qua alien. There
remains for discussion the question whether the traditional monopo-
lizer of such international rights the state should retain any rights
under this branch of international law.

It follows from what has already been said that the old Vattelian
fiction of the injury to the state through the injury to its national
should, in the ordinary claims case, be abandoned. It is not incon-
sistent with such abandonment to agree that the state retains the
right to represent its national, to be what has already been referred
to as his agent for collective bargaining. Just as the individual
worker is at a bargaining disadvantage in dealing with a great cor-
poration, so the individual traveler or business man or resident alien

80 Sec Randolph, "Foreign Bondholders and the Repudiated Debts of the
Southern States'* (1931), 25 Am. J. Int. L., 63, 77; the Florida Bonds case, (U. S.-
Great Britain Commission 1853), Hudson's Cases on International Law (id ed.
1936), 1104, 1105.

00 It should be observed that in this as in other respects the hypothesis of the
acceptance of the concept of community interest presupposes the development
of an effective and viable international organization. But even if such an organi-
zation is thought of hi terms of a 'Svorld government," there will be, at least in
"he transitional stage, inevitable delegation of rights and powers to die several
itates of the world. Effective international organization therefore does not pre-
clude the continued use of the state as an agent of the individual in his interna-
ional contacts.

THE RESPONSIBILITY OF STATES 117

worker is at a disadvantage in dealing with a foreign government.
The disadvantage of the individual in dealing with his own state for
recognition of his rights under an international bill of rights may be
met, as indicated in the preceding chapter, by provision for inter-
national procedures of petition to an international authority. Where
the individual seeks vindication of his rights as an alien, similar inter-
national procedures should be available, but these should be supple-
mentary to the traditional procedure of diplomatic interposition. If
the state declines to interpose, the individual is free to resort to the
international procedures. Under the contemplated changes in the
law, diplomatic interposition could not be extended without the con-
currence of the individual, since it is his right that is being protected
and not the right of his state. Such a situation would justify those
decisions of international tribunals which have held that the claim
must be dismissed where the individual has already reached a settle-
ment with the foreign government 61 or where he refuses to sign the
memorial or otherwise approve the claim. 62

It might still be true that the old practice of diplomatic interposi-
tion could be used as a device for securing economic or political
domination or supremacy in the life of another state, but any such
tendency should be checked by other rules controlling state action.
Economic imperialism is not consistent with the modern concepts on
which the United Nations is built and should function. Article
IV of the Atlantic Charter asserts the purpose "to further the
enjoyment by all states, great and small, victor and vanquished,
of access on equal terms to the trade and to the raw materials of the
world which are needed for their economic prosperity." Chapter IX
of the Charter of the United Nations contains a pledged program
for the development of international trade on the basis of economic
co-operation rather than economic cutthroat competition. The Eco-
nomic and Social Council, the Food and Agriculture Organization,
the ILO, the International Monetary Fund, the International Bank
for Reconstruction and Development, and probably other agencies
to be established under the United Nations have a joint task of
supervision of the economic development of the world through the

01 The Tattler, U. S.-Great Britain Claims Commission (1926), Hudson's
Cases on International Law (zd ed. 1936), 1183.
63 Feller, op. cit., supra note 41, 103.

Il8 A MODERN LAW OF NATIONS

co-operative interrelationships contemplated by the Charter, as Her-
man Finer has shown. 68 One may note as a precedent in the new
direction the establishment of the European Coal Organization in
1946 by the United States, Great Britain, Turkey, France, and six
other European states. According to Article 4 of the constitutive
agreement the "purpose of the Organization is to promote the supply
and equitable distribution of cbal and scarce items of coal-mining
supplies and equipment while safeguarding, as far as possible, the
interests of both producers and consumers." By Article 6 the prin-
ciple of generalization of such an agreement is recognized by the
provision that the Organization shall communicate with the Eco-
nomic and Social Council of the United Nations (which had not
been established when this agreement was concluded) to determine
the relationships which should exist "and, in particular, whether its
functions can and should be taken over by the Council." 64 In future,
under such a co-operative international system, the legitimate com-
mercial rights and interests of states are to be sought through inter-
national media 65 rather than through the traditional individualistic
espousal and protection of separate national interests by strong states
against their weaker comembers of the international community. The
special provisions of the Charter in Chapter XI regarding nonself-
governing territories, and in Chapters XII and XIII concerning the
Trusteeship system, envisage particularly the development of inter-
national standards and procedures for colonial areas, which have in
the past been such fruitful sources of international rivalry and of
economic exploitation.

Nevertheless, various situations in the history of international
claims reveal that in addition to the rights of its nationals a state has,
in its relations with other states, certain rights which appertain to it in
its collective or corporate capacity. The typical cases are those in
which injury is done to an official of the state, particularly a consular

63 Finer, The United Nations Economic and Social Council (1946), Chap.

n.

64 Treaties and Other International Acts Ser. ifo$ (Dept. of State, 1946), 4.
68 Cf. Dept. of State Pub. 2598, Suggested Charter for an International

Trade Organization of the United Nations (1946). In pointing to these trends in
international commerce and finance, it is not intended to suggest that statism on
an international scale is likely to supersede at once all forms of individual
enterprise.

THE RESPONSIBILITY OF STATES 1 19

or diplomatic official. The recognition accorded their special status in
traditional international law is extended because of their representa-
tive character and not because of their status as individuals, although
a supplementary claim may lie for the injury to the individual as
such. The fact that in the past states have taken advantage of such
situations to exact punitive damages from the state inflicting the
injury should not cloud the real equity of the state in seeking proper
satisfaction for injury to its official. In 1924 Robert Imbrie, a Vice
Consul of the United States in Persia, was murdered by a mob in
Teheran. The United States demanded and Persia accorded expres-
sions of "deepest regret"; Persia paid the cost of $110,000 to have
Imbrie's body transported to the United States on an American war-
ship; appropriate honors and salutes were rendered as the body left
Persia. In addition Persia paid an indemnity of $60,000 for the
benefit of the widow. 66 But in other cases of injuries to consular
officers the state has not made a claim on its own behalf, and mixed
claims commissions have made awards solely for the benefit of the
individual, recognizing at the same time that the defendant state was
responsible for not extending adequate protection to such officials. 67
On the other hand, the assassination of the British Governor General
of the Sudan, Sir Lee Stack, at Cairo in November 1924 resulted in
a British claim for 500,000 as a financial indemnity and also a demand
for an apology and Egyptian evacuation of the Sudan. 68 Similarly
the death of the German Ambassador in China and the siege of the
Legation Quarter in Pekin during the Boxer Rebellion in 1900 con-
tributed to the allied demands for an excessive indemnity and polit-
ical concessions. 69 The murder of the Italian General Tellini and
members of his suite at Janina in 1923, where they were engaged in
the delimitation of the Greco-Albanian frontier, resulted in Italian
demands for an official apology, a formal memorial service, honors
to the Italian flag, an inquiry by the Greek authorities within five
day capital punishment of the murderers, 50,000,000 lire indemnity

66 i Whiteman, op. cit., supra note 11, p. i36ff.

07 United States on behalf of William E. Chapman v. United Mexican
States, 1930 (1930-1931) General Claims Commission United States and Mexico,
12 1 ; The United Mexican States on behalf of Francisco Malign v. United States
(1927) General Claims Commission United States and Mexico, 254.

68 19 Am. J. Int. L. (1925), 384.

60 5 Moore's Digest of Int. L. (1906), Bees. 809-810.

120 A MODERN LAW OF NATIONS

to be paid within five days, military honors to the victims, and a
reply within twenty-four hours. When these demands were not met
within the time fixed in the ultimatum, Italian forces bombarded and
occupied the Greek island of Corfu. 70

International tribunals have frequently distinguished between a
general injury to a state and specific damage. Thus in the case of the
S.S. Wimbledon, the Permanent Court of International Justice
acknowledged the legal interest of Great Britain, Italy, and Japan as
parties to the peace treaty granting free passage through the Kiel
Canal, to join with France in submitting a case against Germany for
the denial of passage to a French ship, but the judgment was for
money damages to be paid to the French Government alone for the
losses sustained by the vessel. 71 In the Fm Alone arbitration between
the United States and Canada, the award, which held that the sink-
ing of the Canadian vessel by an American Coast Guard Cutter was
illegal, provided money damages for the losses suffered by the cap-
tain and crew and also called for an apology by the United States to
Canada plus the payment of $25,000 "as a material amend in respect
of the wrong." 72 In the Trail Smelter Arbitration between the
United States and Canada, damage from smelter fumes had been suf-
fered by properties located in the United States across the border
from the Canadian plant. Some of these properties were owned by
private persons and some were United States Government lands. The
Tribunal made an award of $350,000 for the injury to the private
property but noted that the United States had explicitly withdrawn
any claim for injury to its own lands. 73

It should be one of the tasks in the codification of international
law to catalogue the types of direct injuries to states for which the
state would be privileged to require another state to pay such indem-
nity as might be determined by an international tribunal to be appro-
priate to the case. Among these types, in addition to those which
have been illustrated by the cases just cited, should be those resulting
from direct injury to a state instrumentality engaged in the conduct
of commercial and other business activities. The modern practice of

70 i Whiteman, op. cit. 9 supra note u, pp. 714-15.

71 Case of the S. S. Wimbledon, P.CJ./., Ser. A, No. i ( 1923) .

72 "The Tm Alone' 9 Dept. of State Arbitration Ser. No. 2 (7), p. 4 (1935).
78 Trail Smelter Arbitration between United States and Canada, Dept. of
State Arbitration Ser. No. 8 (1941). Cf. 25 Am /. Int. L. (1931), 540.

THE RESPONSIBILITY OF STATES 121

states in organizing state corporations for the management of busi-
ness affairs such as shipping, railways, state monopolies, and the like
has caused confusion in the application of the traditional rules of
sovereign immunity in national courts. 74 Where state activities are
completely socialized as in the Soviet Union, the number of state
claims arising from the transactions of such governmental organs is
increased, but the principle is the same as that applicable to the
United States Emergency Fleet Corporation operating during and
after World War I, or such enterprises as the United States Rubber
Development Corporation in the Amazon Valley during World War
II. On the procedural side it may be found useful to provide special
international tribunals to hear such cases if satisfaction is not obtained
in national courts. It seems clear that in the development of these
aspects of the law of responsibility a difference should be made
between cases of injuries to such officials as diplomats and consuls
and those suffered by the managers of state commercial enterprises.
International law will also need to be developed in such a way as
to define the rights and duties of international agencies and their offi-
cials and personnel, particularly when a local development project or
the mining of uranium by an international authority is involved. It
is quite conceivable that, just as the financing of international devel-
opment projects is being assumed b'/ the International Bank for
Reconstruction and Development instead of by private bankers or
individual state loans, so such projects as that of the building of a
railroad in Iran, which was taken as an illustrative case above, might
be handled by an international agency. 75 Such an agency might let
sub-contracts to a private contractor, but might also employ its own
personnel and in any case would have direct contractual relations
with the Iranian Government. So far, international law has felt the
need to regulate the privileges and immunities of international offi-
cials by analogy with the traditional rights of diplomatic officials.
Thf Charter and the Constitutions of the various new United
Nations agencies contain provisions to this effect. 76 When such inter-

74 See Harvard Research in International Law, Draft Convention on Com-
petence of Courts in Regard to Foreign States (1932), 597.

75 Finer, "The T.VA.: Lessons for International Application" (1944),
/. L. O., Studies and Reports, ser. B, no. 37.

76 The United Nations Charter only provides for "necessary" privileges and
immunities. Charter of the United Nations, Art. 105; compare Statute of the

122 A MODERN LAW OF NATIONS

national agencies take on the administration and performance of
actual engineering and similar projects within states; it will be nec-
essary to develop new rules, just as the traditional international law
is in course of modification to meet the new situations presented by
the activities of the national state as trader, ship-owner, and general
business man in the international field.

International Court of Justice, Art. 19. For a full discussion of the problem see
Dept. of State Pub. 2349, Conference Series 71, Report to the President on the
Results of the San Francisco Conference, 1945, 158 et seq.\ see Preuss, "The
International Organizations Immunities Act," 40 Am. J. Int. L. (1946), 332.

CHAPTER VI

THE LAW OF CONTRACTUAL
AGREEMENTS

DIPLOMACY HAS DEVELOPED a large amount of f ormalistic ritual, much
of which is reflected in international law. The titles and ranking of
diplomats are the most striking example. Curiously enough, this
tendency is not wholly reflected in the modern law and practice of
treaty making. It is of no legal consequence, for example, whether
an agreement between or among states is called a treaty, a conven-
tion, a statute, an agreement, a protocol, or a covenant or charter. 1
Certain labels, such as "modus vivendi" and "exchange of notes," are
used with a degree of consistency to signify the informal or tempo-
rary character of an agreement, while others, such as "covenant^'
and "charter," have been utilized to suggest the basic and overall im-
portance of the instrument. The labels do not, however, indicate
whether the agreement registers a boundary settlement, the conclu-
sion of a peace, a political and military alliance, or provisions for the
extradition of fugitive criminals, arrangements for the distribution of
radio frequencies, adjustment of double taxation, respect for copy-
rights, or facilities for traveling salesmen. The applicable substantive
law similarly fails to distinguish among such diverse subjects and
covers them all with the same rules concerning conclusion, interpre-
tation, and termination. Such uniformity is convenient for the stu-
dent, the statesman, and the judge, but in some important respects
which will be discussed in this chapter it is not responsive to the
neea"s of the international community.

Agreements between and among states also reveal other important
basic differences. To use the analogous terminology of private or
national law, some agreements are essentially contracts, as, for exam-
ple, agreements for the sale of surplus war supplies, loan agree-

1 "Harvard Research in International Law, Draft Convention on the Law
of Treaties," 29 Am. J. Int. L. Supp. (1935), Introductory Comment, 667.

124 A MODERN LAW OF NATIONS

ments, and agreements for the maintenance of national monuments
or memorials. In a sense all international agreements are contractual
in that they derive their validity from the agreement of the parties,
but Judge Hudson has properly emphasized (as Lord Salisbury sug-
gested in 1 897)2 the ^ act that many such agreements are more closely
analogous to legislation, despite the nonexistence of any international
legislature. 8 This is true of many of the great multipartite instruments
which are becoming more and more characteristic of the international
legal order, such as those setting up permanent machinery and pro-
cedures for managing th& world's affairs in matters of communica-
tions, health, morals, and the like. Still other instruments are of a
quasi-constitutional nature, as the Covenant of the League of Nations
and the Charter of the United Nations.

The traditional discussions in the books about treaties are usually
concerned only with agreements to which states are parties. This is
the natural consequence of the accepted doctrine that only states are
subjects of international law. The acceptance of the hypothesis that
individuals are also subjects of international law necessitates consider-
ation here of agreements between states and individuals. 4 The rapid
development of international organizations with far-flung interests
and activities, and with relationships to states and to each other as
well as perhaps to individuals, requires consideration as well of all
types of agreements concluded by and with such international agen-
cies; and in this connection it will be recalled that colonies and other
political dependencies have already been accorded membership in
international unions.

It is a common lay error to draw a sharp distinction between
treaties and international law in general. Many who are not aware of
the operation of the international legal process are wont to assert that
"there isn't any international law," but that treaties are something
different. Some advocates of world government who maintain that
there can be no international law until international government is
established proceed, perhaps subconsciously, to suggest that states
should agree by treaty to establish such a government. This reason-
ing overlooks the fact that no agreement has legal significance except

2 i Westlake, International Law (jtd ed. 1910), 322.
8 i Hudson, International Legislation (1931), xiii.

4 Only some aspects of the law of treaties, selected with a view to illustrating
modern problems, are treated here.

THE LAW OF CONTRACTUAL AGREEMENTS 125

against the background of a system of law which attaches legal conse-
quences to the contractual act. In international law, some jurists have
maintained that the basic rule or principle of that law is the maxim
pacta sunt servanda. 5 But this primary duty to observe the obliga-
tions assumed in agreements would be difficult of operation if the law
did not also indicate when an agreement becomes binding, how it is
to be interpreted during its effective life, and how it may be termi-
nated. The confusion in the lay mind has not been dissipated by the
common practice in the United States of referring to international
law as embracing only customary law, which, to be sure, includes
the law of treaties but not the treaties themselves. Thus it is fre-
quently said that international conduct is regulated by international
law and treaties. 6 The European practice of distinguishing between
customary and contractual international law and including both
types when the term "international law" is used alone is more help-
ful. Similarly clarifying is the European practice of referring to
"general" or universal international law, partly customary and bind-
ing the international community as a whole, and "particular inter-
national law," which binds only certain members of the international
community.

THE CONCLUSION OF INTERNATIONAL AGREEMENTS

It is common practice to conclude treaties subject to ratification
by the contracting parties. Ratification is "the formal confirmation
and approval of the written instrument." 7 Such confirmation and
approval is given in accordance with the constitutional processes
and requirements of each state. In the United States, for example,
ratification of treaties is an executive function; the Senate "advises
and consents" to ratification where the agreement takes the formal
treaty character. 8 The popular assertion that the Senate "ratifies"

5 See Briggs, The Law of Nations (1938), 24; Kunz, "The Meaning and the
Randl of the Norm Pacta Sunt Servanda," 39 Am. J. Int. L. (1945), 180.

* The title of an able article by Prof. Quincy Wright illustrates the usual use
of the term: "Conflicts Between International Law and Treaties," u Am. J. Int.
L. (1917), 566.

7 2 Hyde, 1429.

8 For discussion of various methods that may constitutionally be utilized by
the United States in order to conclude an international agreement, see Mc-
Dougal and Lans, "Treaties and Congressional-Executive or Presidential Agree-
ments: Interchangeable Instruments of National Policy," 54 Yale L. J. (1945),
181, 534.

126 A MODERN LAW OF NATIONS

treaties may be ascribed to the fact that, particularly in the news-
papers, the longer constitutional phrase is found too awkward for
general use.

Ratification is not the final step requisite to bringing a treaty into
force. The final step is the reciprocal communication of the fact of
ratification, generally termed the "exchange of ratifications," or, as
is common in the case of multipartite instruments, the deposit of
ratifications with an agreed depositary, which may be the chancel-
lery of a single state or an international official such as the Secretary-
General of the United Nations.

Although it is usual to conclude agreements subject to ratifica-
tion, this is not the universal practice, and international law inter-
poses no obstacle to bringing an agreement into force on signature
by a duly authorized agent of the state. 9 It is a matter of the consti-
tutional law of the state whether any particular international agree-
ment or type of agreement may be thus concluded.

No change in the existing law regarding the ratification of agree-
ments or the exchange or deposit of ratifications seems to be neces^-
sary in connection with agreements to which all the parties are
states. It may be pertinent to note, however, the * provisions of
Article 102 of the Charter of the United Nations, which reads as
follows:

1. Every treaty and every international agreement entered
into by any member of the United Nations after the present
Charter comes into force shall as soon as possible be registered
with the Secretariat and published by it.

2. No party to any such treaty or international agreement
which has not been registered in accordance with the provi-
sions of paragraph i of this Article may invoke that treaty or
agreement before any organ of the United Nations.

At the San Francisco Conference the above phraseology was pre-
ferred to that found in Article 18 of the Covenant of the League of
Nations, which declared that unregistered treaties should not be
binding. The exact legal effect of that provision had not been made
clear in practice, and the Charter text avoids making registration a

See J. Mervyn Jones, "International Agreements Other than 'Interstate
Treaties': Modern Developments," 21 Brit. Y. B. Int. L. (1944), m.

THE LAW OF CONTRACTUAL AGREEMENTS 1*7

prerequisite to the coming into force of the agreement. 10 It may be
noted that Article 102 of the Charter applies to "every international
agreement entered into by any Member of the United Nations"; it
does not specify that both or all parties to the agreement shall be
states. It is doubtful whether the drafters paid particular attention
to agreements between a state on the one hand and an individual on
the other, or to agreements to which an international agency is a
party, but the language would cover such cases if one party were a
Member, assuming that the agreement in question could properly be
considered to fall within the term "international agreement." The
case considered at San Francisco was one in which a treaty or agree-
ment was concluded between a Member and a non-Member; in such
a case the Member is under an obligation to register. The same rule
should be applied in the case of international agreements between a
Member and an individual or an international organization.

The text of an agreement between a state and an international
organization might provide that it shall be subject to ratification by
the state and to "approval" by some designated body in the inter-
national organization. Under Article 43 of the Charter of the United
Nations all Members are required to conclude agreements with the
Security Council relative to the armed forces, assistance, and facili-
ties which the Member will supply when required. According to
paragraph 3 of that Article such agreements "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 constitu-
tional processes." Article 79 provides that Trusteeship Agreements
shall be concluded among "the states directly concerned," and under
Articles 83 and 85 the agreements shall be "approved" by the Gen-
eral Assembly or by the Security Council, depending on designation
in the agreement of a strategic area.

The Working Draft of an agreement between the United Nations
and the United States relative to the arrangements for the site of the

10 See Report to the President on the Results of the San Francisco Confer-
ence by the Chairman of the United States Delegation, Dept. of State Pub. 2349
(1945), 154. On Art. 18 of the Covenant, see Hudson in 19 Am. J. Int. L. (1925),
273, and 28 ibid. (1934), 546; 2 Oppenheim, 721 ff. See also claim of Pablo Na*-
jera, French-Mexican Mixed Claims Commission, An. Dig. (1927-28), Case. No,
171.

128 A MODERN LAW OF NATIONS

United Nations headquarters is in typical treaty form and provides
in Section 42 that the convention (or agreement) "shall be brought
into force by an exchange of notes between the Secretary-General,
duly authorized by a resolution of the General Assembly of the
United Nations, and the United States of America." 11 UNRRA
concluded agreements with various states regarding the distribution
of relief supplies. I have seen the text of one of these agreements
which was to take effect on signature by a Deputy Director-General
of UNRRA and by a cabinet minister of the government concerned;
no ratification was required. The modus vivendi of September 18,
1926 concerning diplomatic immunities of League of Nations officials
was agreed to by the Swiss Federal Government, the Secretary-
General of the League, and the Director of the International Labour
Office; it was taken note of by the League Council, but was not
subject to ratification. 12 Agreements between two or more interna-
tional organizations are contemplated by recent instruments. Ac-
cording to Article 63 of the Charter the Economic and Social Coun-
cil "may enter into agreements" with the various specialized agen-
cies. These agreements are "subject to approval by the General
Assembly." Under Article XII of the Constitution or the Food and
Agriculture Organization agreements may be made with other pub-
lic international organizations to define distribution of responsibilities
and methods of co-operation. The agreements are to be made by the
Conference, which is the general assembly of the FAO, with "the
competent authorities" of the other organization. Subject to control
by a decision of the Conference, the Director-General of FAO may
"enter into agreements with other public international organizations
for the maintenance of common services, for common arrangements
in regard to recruitment, training, conditions of service, and other
related matters, and for interchanges of staff." The FAO constitu-
tion was drafted before the United Nations came into existence, but
Article XIII contemplates that a relationship will be established be-
tween the two organizations. In this connection the Article speaks
not of "agreements" but of "arrangements"; these are subject to
approval by the Conference. 13 The World Health Organization may
enter into agreements with the United Nations or other ihtergov-

11 UN Doc. A/6;, * Sept. 1946.
lt i Hudson, op. cit., supra note 3, p. 224.

l *Food and Agriculture Organization, Report of the First Session of the
Conference (1946), 87.

THE LAW OF CONTRACTUAL AGREEMENTS 129

ernmental organizations; according to Articles 69 and 70 of the Con-
stitution, such agreements are subject to approval by a two-thirds
vote of the Health Assembly. Presumably the agreement would be
negotiated and signed by the Secretary-General. Under Article 71
"The Organization may, on matters within its competence, make
suitable arrangements for consultation and co-operation with non-
governmental international organizations and, with the consent of
the government concerned, with national organizations, govern-
mental or non-governmental." There is no indication of the proce-
dure for concluding such "arrangements." 14 UNESCO's Constitu-
tion in Article XI similarly provides for agreements with other
organizations; the Director-General makes the agreement subject to
the approval of the Executive Board. "Arrangements" may also be
made with nongovernmental international organizations. 16 The Sug-
gested Charter for an International Trade Organization of the United
Nations in Article 71 contains similar provisions; the agreement on
relationship to the UN "shall be concluded by the Director-General
and approved by the Conference." Relations with other interna-
tional organizations may be established by the Director-General,
and "Formal arrangements for cooperation" may be entered into by
the Executive Board. If the Conference and the competent authori-
ties of another organization believe that the ITO should absorb
functions of the other body, "the Director-General, subject to the
approval of the Conference, may enter into mutually acceptable
arrangements." 16 Under Article 64 of the Convention creating the
International Civil Aviation Organization, "the Organization" may
enter into appropriate arrangements with the UN "by vote of the
Assembly." Article 65 reads: "The Council, on behalf of the Organi-
zation, may enter into agreements with other international bodies for
the maintenance of common services and for common arrangements
concerning personnel and, with the approval of the Assembly, may
eflter into such other arrangements as may facilitate the work of the
Organization." 17

14 "Acts of the International Health Conference" (1946), UN Doc. 7155,
0.29.

15 "The Defenses of Peace" '-Documents Relating to UNESCO, Part I,
Dept. of State ?ub. 2457 (1946), 20.

16 Suggested Charter for an International Trade Organization of the United
Nations, Dept. of State Pub. 2598 (1946), 43.

17 International Civil Aviation Conference, Chicago, 1944, Final Act and
Related Documents, Dept. of State Pub. 2282 (1945)1 78.

130 A MODERN LAW OF NATIONS

It is evident that when an organization enters into an agreement
it will be necessary for the other contracting party to examine the
constitutional basis of the agreement-making power. It could not
properly be asserted, as it has been with reference to interstate agree-
ments, that the Director-General or Secretary-General had "appar-
ent authority" to conclude the agreement and that the organization
was accordingly bound by his act, though the constitution might
require ratification or approval by one of the other organs. It would
be convenient to develop a practice of reciprocal confirmation that
approval has been given the equivalent of the exchange of ratifica-
tions. It might be appropriate to provide generally in such agree-
ments that notice of approval should be deposited with the Secre-
tary-General of the United Nations and should take effect on his
receipt of the last required notice of approval. As Professor Finer
has pointed out, collaboration between international agencies will be
of great importance, and it is to be anticipated that there will be a
considerable volume of agreements among them. 18

The Regulations for the registration of treaties under Article 102
of the Charter, as adopted by the General Assembly on December
14, 1946, take account of the developments relative to 'the conclu-
sion of international agreements by international organizations.
Treaties and international agreements are to be registered only when
a state is a party to the agreement, and under Article 4 of the Regu-
lations one of the cases in which such a document is to be "registered
ex officio by the United Nations" is that in which "the United Na-
tions is a party to the treaty or agreement." Such a treaty or inter-
national agreement may be registered with the Secretariat by a
specialized agency in the following cases:

(a) Where the constituent instrument of the specialized
agency provides for such registration;

(b) Where the treaty or agreement has been registered
with the specialized agency pursuant to the terms of its con-
stituent instrument;

(c) Where the specialized agency has been authorized by
the treaty or agreement to effect registration.

18 Finer, The United Nations Economic and Social Council (1946).

THfe LAW OF CONTRACTUAL AGREEMENTS 131

Article 10 of the Regulations provides a special procedure for
treaties or international agreements entered into by the United Na-
tions or by one or more of the specialized agencies where a Member
of the United Nations is not a party; the Secretariat "shall file and
record" such documents. Both the registered treaties and those filed
and recorded are to be published in a single series. 10

International agreements between states and individuals may take
a variety of forms and cover a variety of subjects. As will be ex-
plained later, such agreements may be contracted with reference to
international law or to national law. Agreements made by the great
chartered companies with native chiefs and princes have been recog-
nized as important international documents even though not treaties
in the traditional sense. 20 An individual or a private group such as a
corporation may enter into an agreement with a state on a highly
important political question. Thus in 1940 an agreement was entered
into by the Dominican Government and the Dominican Republic
Settlement Association, Inc., a New York corporation, relative to the
settlement of refugees in Santo Domingo. 21 At the time the agree-
ment was concluded the corporation had no individual status under
international law, and it must be assumed that the agreement was a
contract concluded under Dominican law. With the acceptance of
the hypothesis that an individual (or corporation) is a subject of
international law, such an agreement could, if the parties so desired,
be an international law agreement. The agreement or contract actu-
ally provided in Article 'VI that it should be ratified by a resolution
of the Board of Directors of the Association and approved by the
Congress of the Dominican Republic. The signatures were affixed by
the President and Vice-President of the Association and by two
ministers of the Dominican Republic. It might be more convenient
in such cases to determine in advance the authority of the negotia-
tors, let us say the cabinet minister and the president or general
counsel of the company, and to provide that the agreement should
come into force on signature. The agents presumably would not

"UN Doc. A/266, 13 Dec. 1946.

90 See the opinion of Judge Huber, sole arbitrator in the Island of Palmas
Case, The Netherlands v. The United States (1918), Scott, The Hague Court
Reports (id. ser., 1932), 83, 115.

21 See "Refugee Settlement in the Dominican Republic," A Survey Con-
ducted Under the Auspices of the Brooking* Institution (1042).

132 A MODERN LAW OF NATIONS

affix their signatures until they had consulted their superiors in case
of necessity.

Agreements may also be made between international organiza-
tions and individuals, again including groups such as corporations
within the term "individuals." An obvious case would be that of an
employment contract between the United Nations and a member of
the Secretariat. 22 Such contracts might be made with reference to the
law of a particular state, such as that of the state in which the head-
quarters of the United Nations is located. It would seem more appro-
priate, given the acceptance of the position of the individual as a sub-
ject of international law, to conclude such agreements under inter-
national law and make that law applicable to disputes concerning in-
terpretation and the like. On the procedural side it is to be pre-
sumed that special tribunals will be established for the solution of
such controversies, but the law to be applied and developed by such
special tribunals should be a branch of international law, not of some
national law. Similarly the World Health Organization might enter
into an agreement with the Rockefeller Foundation concerning some
joint enterprise. In all such cases there may be developed formulae
and procedures for bringing the agreement into force on signature
Of on reciprocal confirmation of approval by designated authorities.

THIRD PARTY BENEFICIARIES

Under existing international law a treaty is a source of rights and
obligations only for the parties to it; pacta tertiis nee nocent nee
prosunt. 23 However, as the Permanent Court of International Justice
suggested in the Free Zones case, 24 it is legally possible for contract-
ing states to create a right in favor of a third state not a party to the
treaty. The practice is so unusual that such a result or the intention to
achieve such a result "cannot be lightly presumed." Professor Hyde
cites an excellent example in the case of the Hay-Pauncefote treaty
of 1901 between the United States and Great Britain, stipulating that
the Panama Canal "shall be free and open to the vessels of commerce

" Cf . Hudson, International Tribunals, Past and Future (1944), 220-22;
Schwarzenberger, i International Law (1945), 477.

** i Hyde, sec, 519 A, and i Oppenheim, sec. 522, and authorities there cited.

THE LAW OF CONTRACTUAL AGREEMENTS 133

and war of all nations observing these Rules, on terms of entire
equality, so that there shall be no discrimination against any such
nation, or its citizens or subjects, in respect of the conditions or
charges of traffic or otherwise." In 1921 Secretary of State Hughes
wrote that "other nations . . . not being parties to the treaty have
no rights under it." 2B In other words, the obligation of the United
States was an obligation to Great Britain only, and those two states
remained at all times free to change their agreement so as to elimi-
nate the clause in question. But the whole question of the rights of
third parties under treaties establishing the status of international
waterways is by no means free from controversy under international
law. 26 Usually, when two or more contracting states desire to make
the rights or privileges of a treaty available to other states, they
include a provision for the adhesion or accession of other states,
whereby they may become parties to the treaty and thus share its
rights and obligations. This type of subject matter illustrates the
utility of the adoption in a modern law of nations of the doctrine of
community interest.

There is a growing tendency in international practice to acknowl-
edge the existence of "law-making treaties." In terms of the tradi-
tional view the term is misleading, since in general it is used to sug-
gest merely the stipulation of general rules of conduct for the parties
to the treaty, but the trend in the use of the term supports the view
that in this respect there is a growing acknowledgment of a basic
community interest which contrasts with the traditional strict bi-
lateralism of law. Article 17 of the Covenant of the League of Nations
suggested something of an innovation. It provided that in case of a
dispute between a member and a nonmember the latter should be

25 See 2 Hyde, 1467, n. 9. Senator Root had taken the same position in 1914,
5 Hackworth, Digest Int. L., sec. 492.

26 Cf . Diena, "Der Plan eines neuen interozeanischen Kanals in Nicaragua,"
%f Zeitschrift fur Internationales Recht (1915), 19. The Convention of October
29, 1888, between nine > powers specified the freedom of the Suez Canal (79
British and Foreign State Papers, 18) but the United States was unwilling to take
the position that it derived rights or duties from the convention; Secretary of
State Day to Ambassador Hay, July 14, 1898, 3 Moore's Dig. (1906), 267. Cf. such
treaties as that between Bolivia and Brazil, August 12, 1910, 7 Martens Nouveau
recueil general, 3d Ser. (1913), 632, for the free navigation of the Paraguay
River; the Argentine-Chilean treaty of July 23, 1881, relative to the Straits of
Magellan, 3 Moore's Dig. 9 268, and the Treaty of London of March 13, 1871, on
the Black Sea, 61 British and Foreign State Papers, 7.

134 A MODERN LAW OF NATIONS

invited to accept the obligations of membership for the purpose
of the dispute. In case of refusal, Article 16, providing for sanctions,
might become applicable. Some writers have thought to find here a
juridical novelty and conclude that the Covenant imposes a legal
obligation on nonmembers, while others reconcile the provision with
the traditional law by asserting that Article 17 represents merely a
political program of the League. 27 In practice, thanks largely to the
political fact of the nonmembership of the United States, no attempt
was made to develop the idea that nonmembers were bound by the
Covenant. Nevertheless the principle behind Article 17 was different
from that behind some of the older "law-making" treaties, such as
the great maritime conventions. These agreements may be said to
have created law in the sense that they laid down rules found accept-
able to the majority of states rules which, as a matter of practice,
became embodied in the customary law of nations. 28 A combination
of arguments has been used to support the view that the Briand-Kel-
logg Pact of 1928 for the Renunciation of War as an Instrument of
National Policy created general law binding on signatories and non-
signatories alike. 29

* 7 See Hoijer, Le Pacte de la Societe des nations: Commentaire thSorique
et pratique (1926), 319 ff.; Schwarzenberger, The League of Nations and World
Order (1936), Chap. VI; Anzilotti, Corso di diritto internazionale (3d ed. 1928),
380; Schucking and Wehberg, i Die Satzung des Vb'lkerbundes ^d ed. 1931),
245 ff.; "Harvard Research in International Law, Draft Convention on the Law
of Treaties," 29 Am. J. Int. L. Supp. (1935), 921. German criticism of any
League claim to universality of legal power is expressed by Von Freytagh-
Lormghoven, Die Satzung des Volkerbundes (1926), 16-17, an( * 202 ** anc * Von
Biilow, Der Versailler Volkerbund (1923), 1831!. (The restrictive view is sup-
ported by citing the opinion of the Permanent Court of International Justice in
the Eastern Carelia case. P.CJ./., Ser. B, No. 5.)

88 Cf. 2 Hyde, 1466, and see the reasoning of the Supreme Court of the
United States in The Scotia, 14 Wall. 170 (1871), and of the Mixed Tribunal of
Port Said in Crichton v. Samos Navigation Co. and Others, Ann. Dig. (1925-26),
Case No. i.

ao "This pact altered the legal status of a war of aggression." "Opening State-
ment for the United States of America," by Mr. Justice Jackson, The Case
Against the Nazi War Criminals (1946), 75. See Wright, 'The Meaning of the
Pact of Paris," 27 Am. J. Int. L. (1933), 39. See also Schwarzenberger, op. cit.,
supra note 27; note from the Minister for Foreign Affairs of Egypt to the Secre-
tary-General of the League of Nations, League of Nations Off. J. Spec. Supp.
150 (1936), 328; "Budapest Articles of Interpretation," 38 Rep. Int. L. Assn.
(1935)* 66, and comments thereon by Lauterpacht in 20 Trans. Grotius Soc.
(1934), 178, and in "Harvard Research in International Law, Draft Convention
on Rights and Duties of States in Case of Aggression," 33 Am. /. Int. L. Supp.
(1939), 826.

THE LAW OF CONTRACTUAL AGREEMENTS 135

Paragraph 6 of Article 2 of the Charter of the United Nations is
the most recent basic statement of the kind illustrated by Article 17
of the Covenant. It provides: "The Organization shall ensure that
states which are not members of the United Nations act in accord-
ance with these Principles so far as may be necessary for the main-
tenance of international peace and security." It is to be noted that the
language employed does not suggest that non-Member states are
under obligation to comply with the Charter, but rather indicates a
warning to non-Members that under certain circumstances the
Organization will use the combined power of its Members to exact
compliance with the Charter in the interest of the world community
as a whole. Surely the Members intend to assert their legal right to
take such measures, but to admit also 6 that the right flows from their
assumption of the role of guardian of the world's peace rather than
from any theory of an obligation on non-Members derived from a
treaty to which they are not parties. In a sense, therefore, the United
Nations assumes a legislative role; but the frank assertion of the fact
must wait on the creation of an actual world legislature. 80

The instances in which states have agreed to be bound by
majority decisions in which they do not participate, or which they
oppose, suggests no change in the traditional rule that only parties
to a treaty derive rights or obligations from it. 81 The legal theory of
the binding force of a majority decision of an international body is
that the parties to the treaty have agreed in advance to be bound by
certain decisions even if at the time they do not acquiesce in
them.

The acceptance of the hypothesis of community interest would
pave the way to the development of an actual system of international
legislation under which an international body would have the legal
authority to prescribe rules binding the community as a whole.
Presumably the system would be created by an exercise of the will of
states in becoming parties to some basic agreement; but if such a
development takes place, it would not be long, as time is measured
in the lives of nations, before the original basis of mutual consent
would be submerged in the exercise of what was originally a dele-
gated authority. Law-making by the Congress of the United States

80 See Kelsen, "Membership in the United Nations," 46 Col. L. Rev. (1946),

39L 394-

81 See Riches, Majority Rule in International Organization

A MODERN LAW OF NATIONS

is theoretically based on the consent of the governed, because the
members of the Congress are elected by the free franchise of the
people, but in the experience of daily life the citizen thinks of the
law as laid down by a superior authority and not as flowing from an
exercise of his will or as being binding on him by his consent.

It is perhaps somewhat easier to contemplate the development of
the law of nations so as to assure to individuals, or to groups of indi-
viduals not constituting states, rights and duties under agreements to
which they are not parties. Despite the traditional concept that indi-
viduals are not subjects of international law, there has been acknowl-
edgment of their rights under treaties. 82 The result is illogical and
has been advanced as evidence of the unsoundness of the basic con-
cept of international law as a law solely between states. Thus in its
Advisory Opinion concerning the Jurisdiction of the Courts of
Danzig, the Permanent Court of International Justice said that
". . . it cannot be disputed that the very object of an international
agreement, according to the intention of the contracting Parties, may
be the adoption by the Parties of some definite rules creating individ-
ual rights and obligations and enforceable by the national courts." 33
In the case of Steiner and Gross v. Polish State, the Upper Silesian
Arbitral Tribunal in 1928 held that a citizen of Czechoslovakia,
which was not a party to the treaty establishing the tribunal, could
bring an action there against one of the parties to the treaty. 34

As has been noted in Chapter II, the acceptance of the hypothesis
that individuals are also subjects of international law would not re-
quire the extension of the doctrine of equality of states so as to give
parity of legal rights to individuals. It is thus possible to take the posi-
tion that, while in general international law will not recognize the
notion that duties may be imposed on third states by parties to a
treaty and that beneficiary rights of third states will not lightly be
presumed, the law will be receptive to rights and duties of individuals
created through agreements concluded by states or through deci-

3a See Kaufmann, Die Rechtskraft des internationalen Rechtes und das Ver-
haltnis des Staatsgesetzgebungen und der Staatsorgane zu demselben (1899),

23-7-

33 P.CJ./., Ser. B. No. 15, p. 17, and see Lauterpacht, The Development of
International Law by the Permanent Court of International Justice (1934), 50 ff.
But cf. i Schwarzenbercer. International Law dodc). 60.

THE LAW OF CONTRACTUAL AGREEMENTS 1 37

sions of international organizations. It should at the outset be agreed
that the Charter of the United Nations creates rights for individuals,
rights which are stated in the basic instrument in general terms and
which are to be defined more precisely in an International Bill of
Rights. Similarly, nonself-governing territories and dependent peo-
ples placed under trusteeships should be considered to possess rights
under the Charter and under the trusteeship agreements which are to
be concluded. At this writing it seems that an International Atomic
Energy Authority may be given power to establish rules binding on
individuals. The precedent of the war criminal trials in Germany and
Japan suggests that new international law relative to the use of force
in violation of the Charter or in violation of the rules of an Atomic
Energy Commission will be clearly stated in terms of the duties of
individuals. 85

With the acknowledgment of the individual as a person of inter-
national law, it will no longer be necessary to speak solely in terms
of rights of states when dealing with privileges and rights conferred
by commercial treaties and other treaties dealing with economic and
social rights. States may still conclude treaties on behalf of their
nationals; they may be, so to speak, convenient instruments for col-
lective bargaining. The state may retain its own right to proceed
against another state in case of a treaty breach, but the individual
citizen may likewise have his own procedures for vindication of his
own rights. Thus the infringement of a trademark or patent under
the protection of an international convention may be the basis for a
cause of action in an appropriate forum by the individual possessor
of the right, which he would derive immediately from the conven-
tion and not mediately through some national law passed for the im-
plementation of the treaty. Procedurally speaking, it may prove
advantageous to have suits instituted first in national courts, but there
might be subsequent review by an international tribunal, as already
dftcussed in claims cases. 86 Likewise the individual, black or white,
would have a cause of action in case he or she were the victim of a
breach of an international slavery convention. More prosaically, the
individual business man, airline, or steamship company would not
have to wait on the slow wheels of diplomacy to secure damages for

35 See Chap. VII.
88 See Chap. V.

A MODERN LAW OF NATIONS

a violation of rights under a bipartite treaty of commerce or a multi-
partite convention concerning commerce and navigation. It would
still be true, however, that, subject to respect for fundamental pro-
visions of the International Bill of Rights, a state might by national
law restrict the freedom of the individual in the national interest,
just as the world community may restrict the freedom of states in
the international interest. The international interest may require that
states shall not interpose any obstacles to the filing of petitions by a
national in a nonself -governing territory, a territory under trustee-
ship, or a territory to which minority treaties apply. So far, the
United Nations Charter provides for the hearing of individual peti-
tions only in the case of territories under trusteeship. 87 But the inter-
national interest might not require a state to refrain from ordering its
nationals to follow a designated procedure, such as notice to the for-
eign office, in pressing a claim against another state. A state might
equally be free to insist that the national interest takes precedence
over the individual interest and that in certain situations of interna-
tional tension no national shall press a claim without prior permission
from his government.

INTERPRETATION OF AGREEMENTS

The international law relative to the interpretation of treaties is
an example of the evils of excessive formalism. So-called "canons of
construction" have been utilized by foreign offices and international
and national courts. Professor Hyde has rendered a distinguished
service to international law in his outstanding contributions to the
clarification of this subject. He has pointed out that the function of
interpretation is to ascertain the design of the parties, always bearing
in mind that they are free to employ words in any sense they
choose. 88 A large amount of controversy, mainly based on the funda-
mental lack of appreciation of the simple basic principles to which
Professor Hyde draws attention, has revolved around the question
of the propriety of using preliminary materials, travaux prfparatoires,
to aid in the task of interpretation. The difficulty may derive in large

87 Sec Art. 87 of the Charter and (on right of petition of private persons)
Lauteroacht, "An International Bill of the Rights of Man" (1945), 199 ff.

88 See, in general, 2 Hyde, Title E., 1468 ft.

THE LAW OF CONTRACTUAL AGREEMENTS 1 39

part from a lawyerlike obsession with more familiar norms of domes-
tic law that have been developed for reasons which may have been
historically sound in the circumstances that led to their formulation.
Thus the familiar rule of the common law that extraneous data may
not be invoked to vary the terms of a written instrument may be
quite necessary to guard the character of a negotiable instrument, but
wholly inappropriate to a political treaty. Treaty law is a good
example of the point that international law was originally developed
largely by jurists trained in the civil law, and some civil law concepts
which seem strange to the lawyer trained in the common law have been
incorporated into international law. At this time the international
community has had enough experience of its own to justify the
development of the law on the basis of its own needs and not with
reference to some system of domestic law.

It may be asked whether there should be different rules of inter-
pretation for those agreements which are essentially of the nature of
bilateral contracts and those which have been called international legis-
lation. In national law there are familiar distinctions between the
interpretation of contracts and the construction of statutes. Except
that the relevant evidence to be marshaled may differ in character,
there is no reason why two sets of rules and principles should be
utilized in international law with this distinction in mind.

CHOICE OF LAW

When the term "international agreement" is used, as here, to em-
brace not only agreements between states but also agreements
between states and individuals, between states or individuals and in-
ternational organizations, and between two international organiza-
tions, it is important to ascertain what law governs the agreement,
since such agreements may be governed by international law or by
national law. 89 No general rule determines the choice of law by the
parties in such cases. State A, entering into a concession contract with
Corporation X from State B, may specify in the text of the document
that the contract is to be governed by the law of A. It may, on the

39 Cf . the excellent article by Mann, "The Law Governing State Contracts,"
21 Brit. Y. B. Int. L. (1944), n. See also Feilchenfeld in Am. Soc. Int. L., Proc.
(1932), 175.

140 A MODERN LAW OF NATIONS

other hand, specify that the contract shall be governed by interna-
tional law. The importance of the point may be illustrated by sug-
gesting a case in which, after the contract has been concluded, cer-
tain fundamental conditions undergo a change not contemplated by
the parties when they signed the agreement. Under such circum-
stances the law of State A may provide an equitable procedure for
the reformation of the contract by the court, but may declare that
the court cannot pronounce the contract at an end. On the other
hand, it may be assumed, for the purpose of argument, that inter-
national law contains no such procedure for the reformation of the
contract, but that under the doctrine of rebus sic stantibus a court
of competent jurisdiction may declare the obligations of the contract
terminated.

If the parties did not explicitly state which law was to govern,
the court would need to decide this point. In the field of national
law such decision would be reached by the application of private
international law or conflict of laws. The rules of private interna-
tional law are essentially part of the law of the state whose courts
apply them; they have no force derived from any external author-
ity. 40 The reluctance in the past to consider private international law
as part of or similar to public international law was due, at least in
large measure, to the fact that private international law dealt princi-
pally with the rights and duties of individuals and not of states. In
the federal system of the United States it is now undersood that a
large part of what was formerly considered conflict of laws is in
reality part of constitutional law. In other words, the conflicts rules
derive their validity from a constitutional norm. 41 Likewise in the in-
ternational field, many states have become parties to multipartite con-
ventions which lay down rules of private international law and thus
transform them into, or make the duty to observe them, an obligation
of public international law. Such are the several Hague Conventions
concluded by numbers of European states at a series of conferences
ranging from 1893 to 1928, the Montevideo Convention of 1899

40 Cf. the Serbian and Brazilian loans cases, P.C././., Ser. A. No. 20/21
(1929), 41. See also Lepaulle, "Nature et methode du droit international prive,"
63 Journal du droit international (1936), 284; Sauser-Hall, "Les Regies generates
des conflits de lois," 43 Die Friedens-Warte (1943), 35.

41 See Cheatham, "Sources of Rules for Conflict of Laws," 89 U. Pa. L. Rev.
{1941), 430, 437-39.

THE LAW OF CONTRACTUAL AGREEMENTS 14!

among the South American States, the Bustamante Code adopted at
Havana in 1928, and the Montevideo treaty of i94o. 42

The rapid growth of commercial arbitration, with the establish-
ment of many private arbitration tribunals which have alread)
achieved widespread international recognition and authority, suggest!
the procedural line that may be followed in dealing with agreement?
between individuals and states. The conclusion of international con-
ventions whereby states have agreed to recognize the binding force
of such arbitral awards is further evidence of their increasing inter-
national stature. 43 The special case of loan contracts between states
and private parties has received much attention, with varying sug-
gestions regarding an appropriate forum for the determination oi
applicable law and the solution of controversies. 44 Since states, as par-
ties to agreements with alien individuals, are reluctant to submit
disputes to the courts of the alien's country, and since the alien con-
tractor may be unwilling to leave adjudication to the courts of the
contracting state, some international forum is clearly requisite. Orig-
inal submission to private arbitration in some form or to a special
international loans tribunal with the possibility of appeal to the
International Court of Justice on general questions, might well afford
a satisfactory solution and tend to develop rather rapidly a most
useful body of jurisprudence.

It would be useful for the future to reach agreement that private
international law is a part of public international law. The result
might be achieved through the wide signature of a general conven-
tion embodying at least a minimum of agreed principles on the sub-
jects which would most frequently be involved in cases involving
some public international interest. Principles determining the choice
of law in the absence of explicit agreement by the parties might be
placed in this category.
*

43 On Inter-American developments in this field, see Carneiro, O Direito
international e a demo cr aria (1945), 381 ff.

43 For a concise summary of the development, see Sir Lynden Macassey
"International Commercial Arbitration: Its Origin, Development and " ^""
tance," 24 Trans. Grotius Soc. (1938), 179. See also "Report of the '
Committee on Commercial Arbitration," Int. Law Association, _^
(1938), 275; Rundstein, "L* Arbitrage international en matiere prive'e," 2j Hk
recueil des cours (1928), 331.

44 See Hudson, op. cit., supra note 22, pp. 204 ff.; supra, Chap. V, note 57.

142 A MODERN LAW OF NATIONS

When an agreement has been concluded between two or more
states on a subject traditionally recognized as a proper subject for a
treaty, a court would be justified, in the absence of other evidence, in
assuming that the parties intended to contract with reference to
international law. On the other hand, if an agreement between two
states regarding the lease of embassy property is couched in the
language and form of a contract under the law of the state where
the property is situated, that fact would be some evidence that the
parties intended to contract with reference to that law. If therefore
the law of the situs required any contract relating to real property to
be sealed or notarized or registered as a prerequisite to its validity,
the omission of the necessary formality would be held to invalidate
the contract, and neither party would be heard to argue that under
international law such formalities are not required. 45

To give another example, it may be recalled that the international
tribunal in the North Atlantic Coast Fisheries Arbitration rejected
the contention of the United States that an international servitude
had been constituted over the British territory. This conclusion was
reached partly on the ground that the British and American nego-
tiators in 1818 were apparently not conversant with the doctrine of
international servitudes and partly through an analysis of the nature
of an international servitude. If two states, or a state and an individ-
ual, or a state and an international organization such as an Inter-
national Atomic Energy Commission, chose to contract with refer-
ence to the law of the state of the situs, and if that state had a clearly
developed law concerning servitudes, the problem before a tribunal
in case of a disputed interpretation would be simplified.

An agreement between two or more international organizations
would in most instances be concluded with reference to international
law, since neither of the contracting parties would have a national
law of its own. But nothing would prevent one organization from
leasing office space to another organization through an instrument
intended to be governed by the law of the situs.

AMENDMENT AND TERMINATION OF AGREEMENTS

In considering the amendment of agreements it may be advan-
tageous to approach the subject from the procedural point of view.

4 * See Feilchenfeld, op cit., supra note 39, p. 177.

THE LAW OF CONTRACTUAL AGREEMENTS 143

Two procedures for change need to be contemplated, the one by
vote of the properly authorized organ of some international agency,
and the other by judicial decision. The ordinary process of amend-
ment by negotiation of the parties and the special problem of reserva-
tions, particularly to multipartite treaties, are not included in this
discussion.

Generally speaking, any amendment to an agreement creates a
new or different obligation to which the consent of the parties must
be obtained in the same way as their original consent. It has, how-
ever, been the practice for a considerable period for the parties to
an agreement establishing some international agency or organization
as a continuing instrument of their purpose, to agree that some desig-
nated organ of the agency may adopt specified types of changes by
majority vote and that decisions so reached shaU be binding on all
the parties to the treaty. Such decisions may result in actual modifica-
tions of the original treaty, or they may take the form of new rules
supplementary to the treaty. Authorization for this type of legisla-
tive process in international affairs has generally been confined to
technical details.

A striking development in ideas and national attitudes is to be
found in the provisions for the amendment of the Covenant of the
League of Nations and the Charter of the United Nations. Accord-
ing to Article 26 of the Covenant, amendments were to take effect
when ratified by the states represented in the Council and by a
majority of the states represented in the Assembly. If, however, a
state signified its dissent from the amendment, it would not be
bound, but it would cease to be a Member of the League. This
system imposed strong pressure on states to accept the will of the
majority but fundamentally retained the traditional rule that a state
could not be bound without its consent. At the same time it marked
a degjirture from the rule that a treaty could not be amended with-
out the consent of all the parties; states Members of the League had
no vested right to block a change in the treaty. The exception to
this last proposition is found in the special position accorded the
states members of the Council. Nonpermanent members had, as it
were, a transitory right to block amendments, a right which would
be lost when their terms of office expired. Permanent members or
the Council, on the other hand, always enjoyed this additional
feature of the recognition of their special position as great powers.

144 A MODERN LAW OF NATIONS

This special position of the great powers received in the Covenant
a legal recognition which actually merely put the stamp of general
acquiescence on a practice long familiar. As Tobin showed in tracing
the history of the great treaties of Vienna and of subsequent
European conferences of major political consequence, the supposed
rule that treaties could not be amended without the consent of all
parties was honored more in the breach than in the observance. 46
Under the system of the Covenant, the great powers were no longer
free to make changes on their own initiative and responsibility, but
they retained what became the exceptional power to block any
change of which they disapproved.

The issue was sharply drawn at the San Francisco Conference
in the drafting of the Charter of the United Nations. To the United
States Delegation the problem appeared in the following light:

Those who seek to develop procedures for the peaceful
settlement of international disputes always confront the hard
task of striking a balance between the necessity of assuring
stability and security on the one hand and of providing room
for growth and adaptation on the other. This difficulty was
present at San Francisco. If the possibility of Charter amend-
ment was to be one method of satisfying those who feared lest
the status quo be permanently frozen, how make sure that
the rights and duties of Members would not, in the process of
amendment, be brought into a different balance from that
which members had originally accepted? This was of serious
concern to the powers which were preparing to undertake
primary responsibility for the maintenance of peace and
security, even, if need be, by force of arms. It was also of
concern to all states whose constitutions require that amend-
ments to any treaty must secure parliamentary ratification.
In a third category of interested states were those which
feared that amendments might change the original relation-
ship set up among the great powers, or between them and the
smaller powers, and that such a change might adversely affect
their own interests. 47

4e Tobin, The Termination of Multipartite Treaties (1933); cf. Stephens,
Revisions of the Treaty of Versailles (1939).

47 Report to the President , op. cit., supra note 10, p. 166.

THE LAW OF CONTRACTUAL AGREEMENTS 145

The outcome of the long negotiations was the adoption of the text
of Article 108 of the Charter, which provides:

Amendments to the present Charter shall come into force
for all Members of the United Nations when they have been
adopted by a vote of two-thirds of the members of the
General Assembly and ratified in accordance with their re-
spective constitutional processes by two-thirds of the Mem-
bers of the United Nations, including all the permanent mem-
bers of the Security Council.

Article 109 was also adopted as part of the compromise solution; it
gives assurance to the states not permanent members of the Security
Council that those great powers cannot block the consideration
of amendments to the Charter if they are favored by a two-thirds
majority of the members of the General Assembly and by any seven
members of the Security Council.

No provision for the withdrawal or termination of the member-
ship of a state opposing an amendment was inserted in the Charter,
but the Conference adopted a Committee report that included the
following paragraph:

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 accept, or if an amendment duly accepted by
the necessary majority in the Assembly or in a general con-
ference fails to secure the ratification necessary to bring such
amendment into effect. 48

It would therefore appear to be the view of the Members of the
United Nations that they cannot be bound by an amendment in
whicb they have not concurred, although, as in the League system,
the penalty for dissent is termination of membership in the United
Nations. Again the great powers, which have permanent seats on
the Security Council, enjoy a privileged position in that any one
of them may exercise the veto power to prevent the adoption of an

4S UNIO, 7 Documents of the United Nations Conference on International
Organization, San Francisco, 1945 (1945), 267. Cf. Report to the President, op.
cit., supra note 10, p. 49.

146 A MODERN LAW OF NATIONS

amendment. The progress marked by Article 26 of the Covenant
in terminating the system whereunder the great powers could as a
matter of political reality bring about changes in multipartite treaties
without securing the consent of the lesser powers is preserved by
the Charter text.

Notwithstanding these formal provisions concerning amend-
ments, it is true under the United Nations Charter, as under the
League Covenant, that interpretative resolutions adopted by a ma-
jority vote of the General Assembly may have or come to have such
compelling force as to constitute in effect changes which will bind
all members. Compliance may be secured by political considerations,
and the interpretative "changes" may find legal justification in the
contention that they merely clarify the nature of the obligations
which states have already assumed by ratifying the Charter. 49 The
entire development is of interest in relation to the progress toward
a system of international legislation by majority rule. When such a
system is sufficiently familiar and has sufficiently justified itself in
practice the old obstacle of absolute sovereignty, which is at the
basis of the traditional rule that a treaty may not be modified with-
out the consent of all the original parties, may gradually disappear.

Another aspect of this same development of a legislative process
in international affairs is to be traced in connection with decisions
of an international organization such as the United Nations that
affect states not Members. During the League of Nations period,
the political importance of the non-membership of the United
States prevented such a process from attaining great significance.
As the United Nations approaches universality of membership
there may well be a growing tendency for the Organization to assert
its right to speak on behalf of the world community and to exact
the compliance of non-Members with its decisions. Some aspects
of this problem have already been noted in this Chapter in discussing
the question of the rights of third parties. The issue was raised at
San Francisco in considering the Statute of the International Court
of Justice. There was much sentiment in favor of continuing the
Permanent Court of International Justice, but there was general
acknowledgment of the need for making certain changes in its
Statute to bring the Court into gear with the other organs of the

40 Cf. Lauterpacht's note 3 in i Oppenheim, 311; supra, Chap. HI, note u.

THE LAW OF CONTRACTUAL AGREEMENTS 147

United Nations. Sixteen states, parties to the old Statute, were not
represented at San Francisco. It was believed that enemy states'
approval of changes in the Statute could be secured through the
peace treaties, 60 but such a solution would have left unsolved the
situation of the neutral states. Had the Conference decided to
"legislate" changes in the old Statute, the practical result would
probably have been that the amended Statute would have been
freely accepted by all the states parties to 'the old Statute. For various
reasons such a procedure did not appear to be advantageous, and
accordingly a new Statute was drawn up. 51

The same practical considerations did not prevent the Members
of the United Nations from terminating the existence of the Per-
manent Court of International Justice. This is technically what has
occurred, although "the chain of continuity with the past" has not
been broken and the International Court of Justice is in a very real
sense the continuation of the Permanent Court of International
Justice. Nevertheless the case illustrates a technical legal termination
of, and therefore change in, the Protocol of Signature of 1920 to
which the old Statute was annexed, without the participation of all
states that were parties to that agreement.

The termination of the existence of the League of Nations did
not require any such legislative step. The states which were Members
of the League and are also Members of the United Nations formed
a link between the two organizations. The matter was handled as
a negotiation between the United Nations and the League regard-
ing the transfer of assets and functions. 52 The actual dissolution of
the League will take place in accordance with a resolution of the
special League Assembly held in Geneva in April I946. 58

Again in solving the difficult problem of the "assumption" by

50 Art. 39 of the Peace Treaty with Italy as published in the New York
Tnnes^ January 18, 1947, provides as follows: "Italy undertakes to accept any
arrangements which have been or may be agreed for the liquidation of the
League of Nations, the Permanent Court of International Justice and also the
International Financial Commission in Greece."

51 See Report to the President, op. cit., supra note 10, pp. 140-41.

88 See ReifF, transition from League of Nations to United Nations," 14
Dept. of State Bulletin (1046), 691, 739; The League Hands Over, Series of
League of Nations Publications, General, 1946, i.

53 The League Hands Over, op. cit. y supra note 52, p. 97; League Doc. A.
32 (i). 1946. X, 12.

3UJ.8 A MODERN LAW OF NATIONS

the United Nations or its appropriate organs of various functions
attributed to the League and its organs by a variety of treaties, no
attempt was made to legislate on behalf of states not Members of
the United Nations. The Report of the League of Nations Com-
mittee to the General Assembly of the United Nations 54 includes
the following paragraphs, which reveal the principle utilized:

Under various treaties and international conventions,
agreements and other instruments, the League of Nations and
its organs exercise, or may be requested to exercise, numerous
functions or powers for the continuance of which, after the
dissolution of the League, it is, or may be, desirable that the
United Nations should provide. . . .

The General Assembly records that those Members of
the United Nations which are parties to the instruments re-
ferred to above assent by this resolution to the steps con-
templated below and express their resolve to use their good
offices to secure the co-operation of the other parties to the
instruments so far as this may be necessary.

It may well prove, as this process is followed, that some state or
states, not Members of the United Nations, may decline to acquiesce
in the substitution of the United Nations for the League of Nations
in one or more of the international agreements involved. In this
event it is to be anticipated that the rest of the states which are also
parties to such agreements will proceed to act under the revised
or amended instruments, regardless of the dissents. Dissenting states
would be justified in thereupon declaring that they were no longer
bound by such amended agreements, but the practical fact of amend-
ment would have taken place without their participation, thus
affording another example of what may properly be styled legisla-
tive action by the United Nations in the interest of the world com-
munity as a whole.

The Sixth (Legal) Committee of the General Assembly con-
sidered this general problem in connection with the proposals for
the transfer to the United Nations of powers exercised by the

54 UN Doc. A/zS, 4 Feb. 1946, Journal of the General Assembly, No. 30,
526-27; No. 34, 706-9.

THE LAW OF CONTRACTUAL AGREEMENTS 149

League of Nations under the six agreements, conventions, or
protocols providing for the international control of narcotic drugs.
A protocol containing provisions for the necessary amendments was
reviewed by the Sixth Committee in order to determine the legal
position of those parties to the original instruments which do not be-
come parties to the new protocol. The proposals submitted to the
General Assembly specifically provided that Spain, a party to the
earlier agreements, should not be invited to become a party to the
protocol; other states not Members of the United Nations had no
voice in the proposed changes. The Sixth Committee concluded that
any group of states parties to the earlier agreements could clearly
make amendments which would be binding as between themselves. As
to other states not becoming parties to the new protocol, the Com-
mittee concluded that they would remain bound by various obliga-
tions in the original instruments, although the actual machinery for
international control set up by the original instruments "will be
altogether dissolved" and the corresponding parts of those in-
struments "will thus be a dead letter." 65 The effect of these actions
and interpretations is that, while the states in the United Nations
have not asserted the right to impose new obligations on states not
freely accepting the new agreement, they have asserted the right to
make important changes in multipartite agreements without the con-
sent of all the parties and with the consequence of materially alter-
ing the nature of the obligations by which those other states remain
bound.

The second procedure for change which has been suggested is that
which takes place by judicial decision. Here the difficulties which
confront the development of a modern law of nations are far
greater, since states are still reluctant to confide broad powers to
international courts. The factual difficulty to be solved is the
existence of a situation in which a state, party to a treaty, feels that
its ndfricompliance with the treaty obligation is justified for one or
another reason. Under the traditional international system there was
no established court of general jurisdiction competent to pass on
such pleas justificatory of nonfulfillment of an obligation. On the
contrary, each sovereign state would assert for itself the legal right

55 UN Doc. A/194, 15 Nov. 1946; Journal of the UN, No. 38, 21. Nov. 1946,
Supp. A-A/P. V./49, 3*8.

150 A MODERN LAW OF NATIONS

on which it relied, and the other party to the treaty could merely
fall back upon procedures registering displeasure, which ranged all
the way from a note of protest, through the rupture of diplomatic
relations and retaliation, to war itself. True, the states might agree
to arbitration, and during the interwar period a large number of
states vested compulsory jurisdiction in the Permanent Court of
International Justice. The difficulty, as Lauterpacht has pointed out,
was in large measure procedural; the international community had
not attained that ripeness of legal development which would enable
national systems of law to entrust greater authority to courts. "The
rule that compacts must be kept," writes Lauterpacht, "is certainly
one of the bases of the legal relations between the members of any
community. But at the same time the notion that in certain cases the
law will refuse to continue to give effect to originally valid con-
tracts is common to all systems of jurisprudence." 66 He proceeds
to cite the rule ad impossibilia nemo tenetur in Roman law, the
doctrines of frustration and impossibility of performance in English
law, and comparable provisions in a number of European civil codes
and the jurisprudence of France and Germany.

In international law the doctrine rebus sic stantibus is the equiva-
lent exception to the maxim pacta sunt servanda. The doctrine con-
stitutes an attempt to formulate a legal principle which would justify
nonperformance of a treaty obligation if the conditions with
relation to which the parties contracted have changed so materially
and so unexpectedly as to create a situation in which the exaction
of performance would be unreasonable. Invoked unilaterally with-
out the opportunity for impartial review, the doctrine is anarchic;
in some form it is an essential part of any well-devejoped legal
system.

The doctrine rebus sic stantibus illustrates, perhaps better than
any other part of the law of treaties, the need for adopting distinc-
tions between different types of treaties. For political treaties and
for the invocation of political changes in the balance of power, the
doctrine is pernicious. In such situations it would amount to the
proposition that no peace treaty accepted by a defeated state re-
mains valid after that state recovers sufficiently or the victors weaker

86 Lauterpacht, The Function of Law in the International Community
. *73-

THE LAW OF CONTRACTUAL AGREEMENTS 151

sufficiently to make it politically possible for the defeated state to
throw off the burden without danger of another defeat. No more
unsettling legal principle could be imagined; but it would in fact,
if accepted, reflect what has frequently occurred. For this very
reason the doctrine rebus sic stantibus has been discredited. On the
other hand, suppose a commercial treaty in which special privileges
in the use of valuable port facilities are reciprocally exchanged by
States A and B; assume that in State B there is only one important
port, and that this port is later ceded by B to State C. It would be
unreasonable to require State A to continue to accord the treaty
privileges to B after it became impossible for B to perform its
reciprocal obligation. 57 In an organized world society any question
of the revision of a peace treaty should be resolved by the political
wisdom of a body such as the Security Council or the General
Assembly. Article 19 of the Covenant was a recognition of this fact,
as are the vaguer provisions of the Charter such as those in Articles
11, 14, and 34. It is not the type of question that should be resolved
by a court. On the other hand, a case such as that suggested, in-
volving reciprocal use of port facilities, might properly be weighed
and decided by the International Court ,of Justice. 58 If in the gradual
evolution of the law of nations it is necessary to make haste slowly,
it may be suggested that a first step might be agreement on a rule
of law that could be applied by an international court so as to relieve
a state from a continuing obligation to perform the duties imposed
by a treaty under certain defined circumstances, with the con-
sequence that the other party to the treaty would be simultaneously
freed. The result would be a judicial declaration that the treaty was
no longer binding on either party to it. This step would be far
short of one which would entrust to international tribunals the power
of equable reformation of a contract so as to require the perfor-
mance by a state of some obligation different from that originally
assumed.

The suggested principle could be applied without great difficulty

57 Cf. the case of Bremen v. Prussia, Ann. Dig. (1925-1926), Case No. 266,
cited by Lauterpacht, op. cit., supra note 56, p. 277-78; cf. also the distinction
naiie by 2 Hyde, sec. 544A.

18 See Sir John Fischer Williams, "The Permanence of Treaties," 22 Am. /,
int. L. (1928), 89, 103, and Potter, "Article XIX of the Covenant of the League
of Nations,'* 12 Geneva Studies No. 2, 1941.

152 A MODERN LAW OF NATIONS

to international agreements between states and individuals, as for
example in the case of a concession contract concluded by the parties
as an international law agreement. In such a case the judgment of
an international court might appropriately assess the financial recom-
pense to be paid by one or the other party to avoid unjust en-
richment, in addition to declaring the contract terminated.

Another principle of traditional international law justifies a state
in denouncing a treaty in the event of a material breach by the other
party. 69 But the Harvard Research in International Law pertinently
points out in the Comment to Article 27 of its Draft Convention on
the Law of Treaties that unilateral determination of what constitutes
a material breach makes for lawless conduct. 60 In such cases it is
highly suitable for an international tribunal to pass judgment on the
merits of the claim of the state which seeks to free itself from its
obligation. Again it is suggested that a distinction should be drawn
between political and other types of treaties, because the breach of
a political treaty so frequently involves considerations affecting the
peace of the world. In this respect the Charter fully recognizes the
idea of community interest, inasmuch as any state or the Secretary-
General may bring such a situation to the attention of the General
Assembly or of the Security Council under Article 1 1, 35, or 99.

Another principle of international law susceptible of application
by an international court is that which relates to the effect of war on
treaties. There has been dispute whether war terminates or merely
suspends the operation of treaties, but the basis for judicial decision
is clearly available. 61 Professor Hyde and Sir Cecil Hurst have
properly pointed out that in many instances the problem is merely
one of treaty interpretation, which is essentially a judicial function. 62
In a well-organized world system operating under a modernized law
of nations, war in its old sense will no longer escape legal regulation,
and the consequences of war upon treaties as well as upon other
legal relationships would stand in need of redefinition. But force

80 Sec 2 Hyde, sec. 546.

60 Op. cit., supra note 27, j>. 1077.

61 Cf. Judge Cardozo in Techt v. Hughes, 229 N.Y: 222 (1920)^.

ea 2 Hyde, sec. 547; Hurst, "The Effect of War on Treaties," 2 Brit. Y. B.
Inf. L. (1921-1922), 37, 39-40. This approach seems to have been adopted by the
Circuit Court of Appeals, Ninth Circuit, in Allen v. Markham, 156 F. (id) 653

THE LAW OF CONTRACTUAL AGREEMENTS 153

may still be used in case of necessity on behalf of the international
community, and the legal consequences of the use of force will
need to be determined. 63 For example, under Article 41 of the
Charter of the United Nations the Security Council may call upon
the Members to apply such measures as complete or partial inter-
ruption of economic relations and of international communications,
and the Members are under a duty to comply. It cannot be doubted
that action taken by a Member in compliance with such directions
of the Security Council would constitute justification for any in-
cidental breach of a treaty obligation calling for freedom of com-
mercial intercourse or of communications. This would be true not
only vis-a-vis the state against which the measures are taken, but also
vis-^-vis any third state, whether Member of the United Nations or
not, which might because of its geographical position be incidentally
affected. Such a result might ensue, for example, from the imposition
of a blockade that, to be effective, required limitation on free access
to a state bordering on the state against which the measure was
applied.

The need for some development of international law in such
cases is indicated by the conservative position which the Secretary-
General of the League of Nations felt obliged to take in his Report
in 1927 concerning the legal positions arising from the application
of sanctions. He concluded that the Covenant could not be in-
terpreted "as imposing on the Members of the League an obligation
to violate the rights" of a non-Member state. 84 He used the language
of hope in regard to the possible acquiescence of third states, which
would be conscious that the Members of the League were acting on
behalf of the peace of the world; further he was not prepared to
go. The view was sound under the existing international law. A
modernized law of nations should provide, not an obligation on
Members of the United Nations to violate the "rights" of non-
Members, but the right of the Organization to take action under
the Charter in the interest of world peace, and the duty of non-
Members to acquiesce. In other words, the old principle which the

w See Chaps. VII, VIII.

64 League Doc. A. 14. 1927. V. t V Legal, 1927, V. 14., p. 86. See also the cir-
cular letter of the Secretary-General of June 14, 1933, concerning measures pro-
posed relative to the non-recognition of "Manchukuo," League of Nations Off.
J.Spec.Supp. (1933), No. 113, p. io.

154 A MODERN LAW OF NATIONS

Secretary-General of the League of Nations felt obliged to cite,
pacta tertiis neque nocent neque prosunt, needs revision.

COMMUNITY INTEREST AND BREACHES OF AGREEMENTS

The acceptance of the hypothesis of community interest would
require an acknowledgment of the right of any state to take
cognizance of a breach of a treaty even if not directly affected by
the breach. This is probably true under existing international law
with reference to a multipartite treaty, any party to which would
be justified in protesting against a breach of the agreement, because
of its interest in the maintenance of the system which the treaty
establishes. This would be clearly true in regard to a breach of the
Charter and would be equally so in regard to a breach of an inter-
national sanitary convention, a postal convention, a convention on
radio, or particularly a treaty codifying some part of international
law. If the party directly affected should submit the case to the
International Court of Justice, any other party to the treaty might
appropriately apply to the Court under Article 62 of the Statute for
permission to intervene on the ground that "it has an interest of a
legal nature which may be affected by the decision in the case."
If the state directly affected should take no step to vindicate its
rights, another party to the treaty might itself apply to the Court
or might bring the matter to the attention of the General Assembly
or the Security Council with a view to inducing one of those bodies
to make a request to the Court for an advisory opinion.

More broadly, the acceptance of the hypothesis of community
interest should be considered to vest in all members of the inter-
national community a legal interest in respect for treaties. 65 Despite
the development of general international law, it is to be anticipated
that much of the world's affairs will continue to be governed by
agreements concluded by two or more states. Respect for the maxim
pacta sunt servanda and the development of treaty law will be mat-
ters of concern to all states, and an infringement of the law will
affect the interests of all.

A modernized law of nations would also accord enlarged recog-

68 Cf. Wright, "Collective Rights and Duties for the Enforcement of Treaty
Obligations/' Am. Soc. Int. L., Proc. (1932), 101.

THE LAW OF CONTRACTUAL AGREEMENTS 155

nition of the right of international organizations to take legal steps
in any case in which the constitution of the organization or any
convention concluded under its auspices is breached. This principle
is already in part recognized in the Charter through the provisions
in Article 96 which authorize the General Assembly or the Security
Council to request an advisory opinion from the Court. At San
Francisco attempts were made to accord a like privilege to other
international organizations such as the International Labour Office.
The Conference was not prepared to go so far, but the point was
met by the second paragraph of Article 96, which states: "Other
organs of the United Nations and specialized agencies, which may
at any time be so authorized by the General Assembly, may also
request advisory opinions of the Court on legal questions arising
within the scope of their activities." 66 As part of the same discussion
in the Conference, there were included in Article 34 of the Statute
of the International Court of Justice the following two paragraphs,
which follow the statement that "Only states may be parties in cases
before the Court":

2. The Court, subject to and in conformity with its rules,
may request of public international organizations information
relevant to cases before it, and shall receive such information
presented by such organizations on their own initiative.

3. Whenever the construction of the constituent in-
strument of a public international organization or of an inter-
national convention adopted thereunder is in question in a
case before the Court, the Registrar shall so notify the public
international organization concerned and shall communicate
to it copies of all the written proceedings.

It should not be long before the personality of international
organizations is fully recognized and they are accorded, through
an amendment to the Statute, the full right to be parties in cases
before the Court. 67

The acceptance of the hypothesis that individuals are also

60 Under the authority of Art. 96 of the Charter the General Assembly on
December n, 1946, adopted a resolution authorizing the Economic and Social
Council to request advisory opinions. UN Doc. A/zoi. See also supra Chap. II,
note 43.

67 See Chap. II.

156 A MODERN LAW OF NATIONS

subjects of international law would not necessarily involve ac-
cording the right to individuals to appear as parties before the
International Court of Justice. As already suggested, it will become
necessary to limit the types of cases which will be taken to that high
tribunal, at least in the first instance, and other tribunals will be
needed for the handling of cases in which one of the parties is an
individual. In treaty cases such international tribunals will be needed,
since under the hypothesis, as stated earlier in this chapter, in-
dividuals themselves may have rights under treaties, and in the event
of breach of such rights an individual should not be left to find
satisfaction only in the courts of the state which would be the other
party to the litigation. The same considerations would apply to
cases involving agreements between individuals and states or
between individuals and international organizations.

CHAPTER VII

THE LEGAL REGULATION OF THE
USE OF FORCE

THE MOST DRAMATIC WEAKNESS of traditional international law has
been its admission that a state may use force to compel compliance
with its will. 1 This weakness has been the inevitable consequence of
two factors: (i) the concept of absolute sovereignty, and (2) the
lack of a well-developed international organization with competent
powers. 2 Both are in course of losing their old significance. The
United Nations as an organization for the maintenance of peace
reveals progress over the League of Nations. As is pointed out in
the introductory chapter, the concept of absolute sovereignty is
under vigorous attack and has already lost much of its magic. The
adoption of the two hypotheses on which this book is based will be
utilized to examine ways in which the law of nations may develop
in order to place legal limitation on the use of force.

It sometimes appears strange that traditional international law,
while leaving untouched the ultimate right to resort to war, achieved
some regulation of use of force short of war. But this apparent
paradox should not cause surprise; it is illustrative of the manner in
which international law has developed over the centuries in a world
of sovereign states. The regulation of the resort to war itself con-
stitutes the ultimate problem toward the solution of which the world
has ]peen groping. Along the way it has been possible to secure a
measure of agreement on lesser problems. The resort to war was
difficult to control because states have not in modern times made
war for frivolous reasons, but only when a conviction of some large
interest to be served seemed to afford a justification, at least in
their own eyes. The interest might be and usually was purely selfish,

1 See * Hyde, 1686.

a Cf . 2 Oppenheim, 145.

158 A MODERN LAW OF NATIONS

but in the eyes of the warmaker it was not insignificant. If the in-
terest involved was not sufficiently great to justify, from a domestic
or from an international point of view, actual resort to war, it was
of a degree of magnitude susceptible of legal regulation* Local feel-
ing or general Pan-American policy might induce the United States
to avoid making war on Nicaragua but would not preclude the send-
ing of a cruiser and the landing of marines. National justifications for
the lesser uses of force have been generally couched in legal terms
self-defense, defense of national lives and property, reprisals, re-
taliation and the customary law developed tests of the propriety
of such conduct. National justifications for war itself have more
frequently been placed on moral grounds or high political aspirations
and ideals, and the customary law has at best characterized war as
un-legal neither legal nor illegal. 8 Utilizing humanitarian sentiment
an^d, more effectively, the notions of military utility and anticipa-
tion of retaliation, international law developed rules for the conduct
of warfare, as in the prohibition of explosive bullets and the poison-
ing of wells and the regulations for the treatment of prisoners of war. 4
Because of the coexistence of clashing interests which needed to
be reconciled and which, by and large, represented sufficient elements
of balance of power to bring about reconciliation, the law of neutral
rights and duties grew into a body of highly developed jural
doctrine, aided by the functioning of prize courts, which built up a
large body of case law. 5

The Charter of the United Nations is the latest milestone on the
road to the legal regulation of war and, in general, of the use of
force in international relations. According to the fourth paragraph
of Article 2: "All Members shall refrain in their international
relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations."
This statement derives added significance from its context. The first
principle stated in this same article is "the principle of the sovereign

3 See "Harvard Research in International Law, Draft Convention on Rights
and Duties of States in Case of Aggression," 33 Am. /. Int. L. Supp. (1939), 857;
cf. 2 Oppenheim, 145.

4 See Royse, Aerial Bombardment and the International Regulation of War-
fare (1928), Chaps. I, IV.

8 Sec Neutrality, Its History , Economics and Law, 4 vols. ( 1935-36) .

THE LEGAL REGULATION OF THE USE OF FORCE 159

equality" of all the members of the Organization, which is "based**
on that principle. From the coexistence of these two principles it is
to be deduced that the regulation of the threat or use of force is not
inconsistent with the principle of sovereign equality. A resort to war
can, therefore, no longer be justified by an invocation of the old
concept of absolute sovereignty, which in the last analysis left every
state the final judge in its own cause. In the next place, the third
principle is that "All Members shall settle their disputes by peaceful
means in such a manner that international peace and security, and
justice, are not endangered." The coexistence of this third and the
fourth principle require the conclusion that there are alternatives
to war and that these alternatives are peaceful ones. The fifth
principle states the obligation of all Members to co-operate in
measures taken by the United Nations to preserve the peace,
measures already indicated in the first stated Purpose of the
Organization in Article i. The significance of this principle, together
with the others, is that the alternatives to war are not merely those
pacific methods of a state's own choosing, but also the "police"
action of the international community marshaled in the common
interest to preserve the peace.

Of equal if not of greater importance from the standpoint of
the progress of the world toward a basis of organized peace are
those provisions of the Charter designed to make effective the second
and third Purposes stated in Article i. These purposes are:

2. To develop friendly relations among nations based on
respect for the principle of equal rights and self-determination
of peoples, and to take other appropriate measures to
strengthen universal peace;

3. To achieve international cooperation in solving inter-
national problems of an economic, social, cultural, or humani-
tifirian character, and in promoting and encouraging respect
for human rights and for fundamental freedoms for all with-
out distinction as to race, sex, language or religion.

Obviously law must be developed for the regulation of human
activities in all of these fields as a part of the process of establishing
and maintaining peace, but such fields of legal regulation do not
form part of the subject of this chapter, and many of them are

l6o A MODERN LAW OF NATIONS

beyond the scope of this introduction to a modern law of nations.
It is necessary to observe that peace will never be secure if progress
is confined to putting an international lid on a national boiling pot.
When there is a strong national feeling of injustice, resentment will
eventually produce conflict unless there is some assurance that there
is a peaceful substitute for resort to violence. This is the perennial
problem of "peaceful change," which has so far defied all the efforts
devoted to its solution. 6

With respect to the central problem of war itself, the United
Nations has already taken an important step to supplement the pro-
visions of the Charter. On December 13, 1946 the General Assembly
unanimously adopted a resolution in which it affirmed "the principles
of international law recognized by the Charter of the Nurnberg
Tribunal and the judgment of the Tribunal." 7 That Charter, in
Article 6, declared that certain acts 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 ac-
complishment of any of the foregoing. . . . 8

The General Assembly took note of the fact that "similar
principles have been adopted in the Charter of the International
Military Tribunal for the trial of the major war criminals in the
Far East. . . ." The comparable Article 5 of that Charter employs a
slightly different phraseology:

(a) Crimes against Peace: Namely, the planning, prepara-
tion, initiation or waging of a declared or undeclared war of
aggression, or a war in violation of international law, treaties,
agreements or assurances, or participation in a common plan

See Dunn, Peaceful Change (1937); Dulles, War, Peace and Change
(1939); Wood, Peaceful Change and the Colonial Problem (1940); Manning
(ed.), Peaceful Change, an International Problem (1937); "International Studies
Conference, Peaceful Change," Tenth Int. Stud. Conf., Proc. (1037).

7 Journal of the General Assembly, No. 58 t Supp. A-A/P; V*/55, p. 485,
of War Criwjnals> Dept. of State Pub. 2420 (i945> 16.

THE LEGAL REGULATION OF THE USE OF FORCE l6l

or conspiracy for the accomplishment of any of the fore-
going. 9

The General Assembly went on to direct the Committee on the
Codification of International Law "to treat as a matter of primary
importance plans for the formulation, in the context of a general
codification of offenses against the peace and security of mankind,
or of an International Criminal Code, of the principles" so recog-
nized. Although this affirmation does not have the binding force of
a treaty, it has the legal importance already discussed in Chapter III
with reference to resolutions of such a representative international
body.

It is true to say that the trial of the war criminals and the resolu-
tion of the General Assembly affirming the bases of those trials
involves the rejection of the theory that the state itself is guilty and
can be punished for waging aggressive war. Reparation payments
are being considered more as compensatory damages in a civil suit
than as fines in a criminal action. 10 The net result of the war trials,
however, particularly in the light of the discussions attending them,
must lead to the conclusion that the waging of aggressive war is
considered an international crime regardless of whether the anthro-
pomorphic fiction of the state or the flesh-and-blood cabinet or
military officer is held liable to punishment. Under the traditional
law the full acceptance of the illegality of war would have led to
the conclusion that the state which waged war would be guilty of an
illegal act; under the current development it is the individual
who is held to have committed an internationally criminal act. The
traditional system would have put the burden on the state to re-
strain the individual, whereas the precedent of the war trials suggests
that pressure in the form of fear of punishment would be put on

9 Trial of Japanese War Criminals, Dept. of State Pub. 2613 (1946), 40.

10 The Potsdam Agreement declared: 'In accordance with the Crimea Deci-
sion that Germany be compelled to compensate to the greatest possible extent
for the loss and suffering that she has caused to die United Nations and for
which the German people cannot escape responsibility, the following agreement
on reparations was reached. . . ." 13 Dept. of State Bulletin (1945), 157. In con-
trast, Art. 23 1 of the Treaty of Versailles contains die "war-guilt" clause whereby
the Allies affirmed and Germany accepted responsibility for the damage i&ffered
as a consequence of the war imposed by the aggression of Germany and hif
allies.

1 62 A MODERN LAW OF NATIONS

individuals to restrain the state. As international organization de-
velops and is perfected, it may be assumed that collective force will
be used in case of necessity to restrain states or other groups in
advance, but that punishment after the event will be visited on
individuals and not on the group.

In relatively minor cases of the illegal use of force, provision
might be made for the imposition of a pecuniary penalty on the
offending state. Although the terminology differed, this was in
effect the outcome of the excessive use of force by a United States
Coast Guard Cutter against the Canadian rum-smuggling vessel
Fm Alone. The Commissioners to whom the issue was referred con-
cluded that the United States should apologize to the Canadian
Government and "that as a material amend in respect of the wrong
the United States should pay the sum of $25,000 to His Majesty's
Canadian Government." This amount was in addition to the sums
to be paid for the benefit of the captain and crew. 11

It will also be desirable, within a new framework, to build on the
theory of the Stimson nonrecognition doctrine, which was thought
of as a deterrent to the use of aggression, especially in the conquest
of territory. Because of the weakness of world organization the
doctrine was not effective, but it should be utilized in the future
as a sanction that denies to an aggressor the fruits of aggression. It
seems unnecessary to describe here in detail a doctrine so generally
.familiar, 12 and it is referred to merely as an indication of a precedent
which may be inspired with reality in a more adequately organized
international community.

Returning to the terms of the Charter of the United Nations, it
may be noted that Article 2, paragraph 4, is not an absolute prohibi-
tion of the use of force. If force can be used in a manner which does
not threaten the territorial integrity or political independence of a
state, it escapes the restriction of the first clause. But it must then be
established that it is not "in any other; manner inconsistent with the

11 "Pm Alone" Case, Joint Final Report of the Commissioners, Dept. of State
Pub. 711 (1935)* 4*

18 The basic documents illustrating the historic developments of the non-
recognition doctrine are collected in the "Harvard Research in International
Law, Draft Convention on the Rights and Duties of States in Case of Aggres-
sion/' op. cit., supra note 3, 889. An excellent comprehensive study will be found
in Lanjrer, Seizure of Territory (1047).

THE LEGAL REGULATION OF THE USE OF FORCE 163

Purposes of the United Nations." It seems clear at once that the use
of force under direction of the Security Council and its Military
Staff Committee, as provided for in Chapter VII of the Charter, is
free of such inconsistency. Does there remain any other area in
which the threat or use of force is legal? The answer to that
question may be sought through a re-examination of the traditional
practices of forceful action as they are listed in nearly every treatise
on international law.

SELF-DEFENSE

International law recognizes the right of a state to resort to force
in self-defense. Where the use of force has this justification, the
incidental or consequent infringement of the rights of another
state is excused, although the other state may be legally privileged to
resist. 13 A forcible act of self-defense may amount to or may result
in war, but it may frequently be a single incident of short duration,
especially when the two states involved are of unequal strength.
Self-defense has also been a commonly invoked political justification
on moral grounds for resort to war.

When, in 1928, states renounced war as an instrument of national
policy and agreed that they would not seek to settle their disputes
by other than peaceful means, the right of self-defense was expressly
reserved. Thus the United States note of June 23, 1928 declared that
the proposed treaty did not in any way restrict or impair the right of
self-defense. "That right is inherent in every sovereign state and is
implicit in every treaty. Every nation is free at all times and regard-
less of treaty provisions to defend its territory from attack or in-
vasion and it alone is competent to decide whether circumstances
require recourse to war in self-defense." 14 Such a statement suggests
that the right of self-defense by its very nature must escape legal
regulation. In one sense this is true. Secretary of State Daniel
Webster, in the course of discussions with the British Government
concerning the celebrated affair of the Caroline, stated in 1842 that
action in self-defense was justified only when the necessity for
action is "instant, overwhelming, and leaving no choice of means,

18 See i Oppenheim, 242 if., and i Hyde, 237 ff.

14 Treaty for the Renunciation of War, Dept. of State Pub. 468 (193$), 57.

164 A MODERN LAW OF NATIONS

and no moment for deliberation." 15 This definition is obviously
drawn from consideration of the right of self-defense in domestic
law; the cases are rare indeed in which it would exactly fit an inter-
national situation. It is an accurate definition for international law,
however, in the sense that the exceptional right of self-defense can
be exercised only if the end cannot be otherwise obtained. In 1926,
when League of Nations experts were studying the problems which
would result from the application of sanctions under Article 16 of
the Covenant, a Belgian jurist noted that "Legitimate defense implies
the adoption of measures proportionate to the seriousness of the
attack and justified by the imminence of the danger." 16 When an
individual is set upon by an armed thug who threatens his life,
instantaneous action is clearly requisite and it can be said that there
is "no moment for deliberation." When a state anticipates a
threatened injury from another state or from a lawless band, there is
usually opportunity for deliberation in a chancellery or war office,
and an officer on the spot does not act until he has received instruc-
tions from a higher command. Telegraphic or radio communication
between the officer and his superiors can be taken as a counterpart
of the impulses in the nervous system of the individual whose brain
instructs his arm to strike.

Granted the necessary degree of immediacy and urgency, it is
of course true, as Lauterpacht has pointed out, that every state must
be the judge in its own cause, since it would be impossible to await
the decision of an international authority and since, if such decision
were secured, the act of the state would constitute the execution
of the decision rather than an act of self-defense. 17

The provisions of the Charter of the United Nations are in
accord with this reasoning. According to Article 51:

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

18 2 Moore's Digest of Int. L., 412-.

16 M. Louis de Brouck^re, Rapporteur, Reports and Resolutions on .the
Subject of Article 16 of the Covenant, League of Nations Doc. A. 14. 1927
V. V. Legal 1927. V. 14, pp. 60, 69. In general see Reitzer, La Reparation contme
consequence de Vacte ilticite en droit international (1938), 91 if.

1T Lauterpacht, The Function of Law in the International Community
'79-

THE LEGAL REGULATION OF THE USE OF FORCE 165

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 italicized words and the following sentence bring out the point
at which the law regulates the act of self-defense. The actor
invokes the right at his peril, and his conduct is subject to sub-
sequent review. As the Niirnberg Tribunal asserted: ". . . whether
action taken under the claim of self-defense was in fact aggressive
or defensive must ultimately be subject to investigation and adjudica-
tion if international law is ever to be enforced." 18 Should the
Security Council decide that the act was not justified, it might im-
pose its measures of forcible restraint on the state that had claimed
to act in self-defense instead of on the state alleged to be the
aggressor.

The reference in Article 51 to "collective self-defense" was
designed to safeguard the inter-American system of mutual defense
as outlined in the Declaration of Lima in 1938, the Act of Havana
of 1940, and the Act of Chapultepec of I945- 19 Such regional collec-
tive measures are also subordinated to the world authority vested in
the Security Council. The Charter and the Organization of the
United Nations thus supply the mechanics for international review
that were missing from the system of the Briand-Kellogg Pact, the
absence of which constituted its chief weakness. It was indeed the
weakness of the entire international policy of the United States
throughout the League of Nations period.

Article 51 of the Charter suggests a further limitation on the
right of self-defense: it may be exercised only "if an armed attack
occurs." The classical case of the seizure of the Danish fleet in

19 See Fite, "The Niirnberg Judgment: A Summary," 16 Dept. of State
Bulletin (1947), 9, 10.

19 See Report to the President on the Results of the San Francisco Con-
ference by the Chairman of the United States Delegation, Dept. of State, Pub.
2349

1 66 A MODERN LAW OF NATIONS

Copenhagen by the British in 1807 because of fear that the Danes
would be coerced into surrendering the fleet to the French would
not be the type of case justified by Article 51. Neither would the
case of Amelia Island in 1817, wherein President Monroe ordered
a United States vessel of war to wipe out a nest of marauders
established on that island, which was then in Spanish territory. 20
The case of the Caroline in 1837 an ^ that of the pursuit of Villa by
United States Army forces in 1916 might come within the per-
mitted cases, 21 but it would seem that Article 51 has rather in mind
such a position as that of China when Japan attacked Manchuria in
1931; Japan's allegation that it acted in self-defense could not be
supported under traditional law or under Article 5i 22 This restric-
tion in Article 51 very definitely narrows the freedom of action
which states had under traditional law. A case could be made out
for self-defense under the traditional law where the injury was
threatened but no attack had yet taken place. Under the Charter,
alarming military preparations by a neighboring state would justify
a resort to the Security Council, but would not justify resort to
anticipatory force by the state which believed itself threatened.

The documentary record of the discussions at San Fraitcisco does
not afford conclusive evidence that the suggested interpretation of
the words "armed attack" in Article 51 is correct, but the general
tenor of the discussions, as well as the careful choice of words
throughout Chapters VI and VII of the Charter relative to various
stages of aggravation of dangers to the peace, support the view
stated. The interpretation is, moreover, supported by the views of
the United States with respect to proposals for control of atomic
warfare. In United States Memorandum No. 3, of July 12, 1946,
after quoting the text of Article 51 of the Charter, the following
significant statement is made:

Interpreting its provisions with respect to atomic energy
matters, it is clear that if atomic weapons were employed as
part of an "armed attack," the rights reserved by the nations
to themselves under article 51 would be applicable. It is

a See i Oppenheim, 245-6.
* l See i Hyde, sees. 66, 67.

M i Oppenheim, 248. In general reference to Art. 51, see Goodrich and
Hambro, Charter of the United Nations (1946), 174-81.

THE LEGAL REGULATION OF THE USE pF FORCE 167

equally clear that an "armed attack" is now something en-
tirely different from what it was prior to the discovery of
atomic weapons. It would therefore seem to be both im-
portant and appropriate under present conditions that the
treaty define "armed attack" in a manner appropriate to
atomic weapons and include in the definition not simply the
actual dropping of an atomic bomb, but also certain steps in
themselves preliminary to such action. 28

The "treaty" referred to in this passage is the proposed agree-
ment relative to the control of atomic warfare and the functions
and powers of an Atomic Development Authority. If Article 51
justified the use of force in self-defense in anticipation of an armed
attack but before such an attack had actually been made, the
suggested clarification would not be necessary. The First Report of
the Atomic Energy Commission to the Security Council of Decem-
ber 30, 1946 is less conclusive and suggests the possibility that in
connection with atomic warfare something short of armed attack
might justify resort to measures of self-defense under Article 51.
In Part III of the Report it is said: "In consideration of the problem
of violation of the terms of the treaty or convention, it should also
be borne in mind that a violation might be of so grave a character
as to give rise to the inherent right of self-defense recognized in
Article 51 of the Charter of the United Nations." 24 The point may
well become one of utmost importance, but the view may be
hazarded that, because of the political difficulties involved, no forth-
right interpretation or clarification, will be achieved in the course of
the negotiations. It is to be hoped that the occasion will not arise for
individual states to resort to their individual interpretations in some
great crisis.

Article 51 is also restricted to defining the rights of Members
of th United Nations and does not seek to lay down a general
principle, since it refers only to "an armed attack . . . against a
Member of the United Nations." A non-Member state would ac-
cordingly still look to general international law for a definition of

88 International Control of Atomic Energy: Growth of a Policy, Dept. of
State Pub. 2702 (1946), 164.

14 16 Dept. of State Bulletin (1947). 112.

1 68 A MODERN LAW OF NATIONS

its right of self-defense. It is not to be assumed, however, that the
United Nations, particularly as it approaches closer to universality,
would tolerate a resort to force in self-defense by a non-Member
against a Member, or by one non-Member against another under
circumstances wherein the act would be a violation of Article 5 1 of
the Charter if performed by a Member. Any such use of force
is in one sense a "breach of the peace" within the meaning of
Chapter VII of the Charter, even where it is a justifiable breach.
The language used throughout Chapter VII indicates an assertion
of the right of the Security Council to take or require action even
against a non-Member; such steps would be in accord with the sixth
Principle stated in Article 2: "The Organization shall ensure that
states which are not Members of the United Nations act in ac-
cordance with these principles so far as may be necessary for the
maintenance of international peace nd security." Under traditional
international law, such treaty provisions do not bind a third state,
but a third state would be politically alive to the possible con-
sequences of action in defiance of the United Nations. The ac-
ceptance of the hypothesis of community interest would unite the
practical and formally legal points of view and expand the rule
of self-defense stated in the Charter to a rule of general applica-
tion.

An armed attack on a state which would justify that state in
using force in self-defense would clearly itself be an illegal act.
Accepting the hypothesis that individuals are directly bound by in-
ternational law would result in the conclusion that the individual
or individuals responsible for such an attack would themselves be
liable to punishment under international law. Thus if such acts as
the pursuit of Villa and the destruction of the Caroline were justifi-
able acts of self-defense, Villa in the one case and the American
sympathizers with the Canadian insurgents in the other case would
themselves be liable to such trial and punishment. This conclusion
leaves open the answer to the procedural question of the proper
forum, national or international, in which such offenders should be
tried. It may be suggested that, in cases such as that here discussed,
international law should recognize the competence of the jurisdic-
tion of any state, as it does today in trials for piracy. If an Inter-
national Criminal Court were established, that Court might have

THE LEGAL REGULATION OF THE USE OF FORCE itfp

jurisdiction, and procedures akin to extradition might be established
to bring about the delivery of the offenders to the custody of the
Court.

DEFENSE OF NATIONAL LIVES AND PROPERTY

Traditional international law has recognized the right of a state
to employ its armed forces for the protection of the lives and
property of its nationals abroad in situations where the state of
their residence, because of revolutionary disturbances or other
reasons, is unable or unwilling to grant them the protection to which
they are entitled. Such action by a protecting state is not properly
classified as self-defense, and it may fall short of intervention as
that term is narrowly defined. 25 The United States has taken such
protective action on a large number of occasions, which have been
listed in a publication of the Department of State. 26

Since such use of force for the protection of nationals may be
free of an interventional attempt to impair the political independence
or territorial integrity of another state, it may escape the prohibition
of the first clause of Article 2 of the Charter. Is it, however, "in-
consistent with the Purposes of the United Nations"? The answer
must be yes. The first Purpose of the Organization as stated in
Article i is "To maintain international peace and security, and to
that end: to take effective collective measures for the prevention
and removal of threats to the peace, and for the suppression of acts
of aggression or other breaches of the peace, and to bring about by
peaceful means, and in conformity with the principles of justice
and international law, adjustment or settlement of international dis-
putes or situations which might lead to a breach of the peace." The
landing of armed forces of one state in another state is a "breach
of the peace" or "threat to the peace" even though under traditional
international law it is a lawful act. It is a measure of forcible self-
help, legalized by international law because there has been no inter-
national organization competent to act in an emergency. The
organizational defect has now been at least partially remedied

95 See i Hyde, sec. 69.

38 Clark, Right to Protect Citizens in Foreign Countries by Landing Forces
(1929, id rev. ed.) f Dept. of State.

170 A MODERN LAW OF NATIONS

through the adoption of the Charter, and a modernized law of
nations should insist that the collective measures envisaged by
Article i of the Charter shall supplant the individual measures
approved by traditional international law. Typical cases of the use
of force for the protection of nationals may be examined to test
the new procedure.

In 1900 there occurred the incidents of the Boxer Rebellion in
China, which led to the joint use of armed forces by a group of
states whose diplomatic representatives were threatened by the seige
of the Legation Quarter in Peking. 27 This was a case of "collective"
measures undertaken before the existence of a competent inter-
national organization. Under comparable circumstances today, the
necessary action should be undertaken by the direction of the
Security Council utilizing the national contingents to be placed at
its disposal.

In 1926-27 there was civil war in Nicaragua. United States armed
forces were landed. "As a means of insuring the maintenance of
communications between the Legation and the Legation guard at
Managua and the seacoast, United States naval forces declared
neutral the zone along the Pacific Railway, including the cities
through which the railway passed, and prohibited fighting in that
zone. . . . After an attack by unknown parties on the American
Consular Agent at Matagalpa, that city was declared a neutral zone
and American marines stationed there. By March 15 a total of 2,000
naval and military forces had been landed in Nicaragua to maintain
the neutral zones and protect American and other foreign lives and
property." 28 Under comparable circumstances today, any necessary
action should be undertaken by the direction of the Security
Council, and not on the unilateral decision of any one Member of
the Organization.

It would seem that the only possible argument against the sub-
stitution of collective measures under the Security Council for
individual measures by a single state would be the inability of the
international organization to act with the speed requisite to preserve
life. It may take some time before the Security Council, with its

27 5 Moore's Digest of Int. L., 476 ff.

28 The United States and Nicaragua: A Survey of the Relations from
to 1932, Dept. Q $tt Pub. 339 (1932), 71-2.

THE LEGAL REGULATION OF THE USE OF FORCE 171

Military Staff Committee, and the pledged national contingents ate
in a state of readiness to act in such cases, but the Charter con-
templates that international action shall be timely as well as powerful.
The use of air-force contingents, which are specially provided for in
Article 45 of the Charter, suggests an instance in which modern
military science may prove effective as an instrument of international
measures for the preservation of the peace.

It might be argued that the provisions of Chapter VII of the
Charter, relating to Action with Respect to Threats to the Peace,
Breaches of the Peace, and Acts of Aggression, were drafted with
an eye to cases in which it was necessary to apply collective measures
of force against a state which had begun or was about to begin a
forcible attack on another state's territory, and that they are not
applicable to a situation such as the Nicaraguan incident of 1926,
where the territorial safety of the United States was never en-
dangered. But the language of the articles in Chapter VII is not so
limited, and significance may be attached to the use of the term
"threats to the peace" and "breaches of the peace" in addition to the
term "acts of aggression." Peace may be threatened by the need of
the individual state to use self-help for the protection of its nationals
as well as by the aggression of one state against another. It would
be a narrow and stultifying interpretation of the Charter to assert
that "peace" is used in that instrument only as the antonym of "war"
and that therefore peace is not threatened or breached unless war
is in the offing or has broken out. It should not be anticipated, there-
fore, that a Committee of Jurists appointed by the Security Council
of the United Nations would need to be evasive, as was the similar
Committee appointed by the League Council to report on the Corfu
case in 1923. It will be recalled that, after the assassination of Italian
members of the group charged with the delimitation of the Greco-
Albanian frontier, Italian forces bombarded the Greek island of
Corfu and then occupied it. The Committee of Jurists was asked the
question: "Are measures of coercion which are not meant to con-
stitute acts of war consistent with the terms of Article 12 to 15 of
the Covenant when they are taken by one Member of the League of
Nations against another Member of the League without prior re-
course to the procedure laid down in those articles?" The Jurists
replied that such coercive measures "may or may not be consistent

172 A MODERN LAW OF NATIONS

with the stated articles of the Covenant." 2 * Reading the Charter
as a whole, it is impossible to escape the conclusion that the
Organization is responsible for the substitution of collective measures
for the individual measures of self-help which were legalized by inter-
national law before the world community was organized. The one
exception is the case of self-defense, already discussed.

In Chapter V attention was drawn to the special case of inter-
national loans and the effect of the Drago Doctrine and the Porter
Convention. It was there pointed out that, since under Article 103
of the Charter the obligations of that treaty take precedence over
any conflicting obligation, the loophole in the Porter Convention
could now be considered to be filled. In other words, states are not
now free to use force for the collection of contract debts, even
where the resort to arbitration fails to bring about a settlement.

It may accordingly be stated as a conclusion that the Charter
has already achieved a modernization of the international law
relative to the use of armed forces by a state for the protection of
its nationals abroad. The generalization of the treaty rule embodied
in the Charter under traditional international legal concepts would
need to await the Organization's approach to universality, but from
the standpoint of the acceptance of the hypothesis of community
interest the Charter rule may be posited as a rule of the modern law
of nations.

INTERVENTION

As already suggested, the term "intervention" may be used
broadly to cover cases of the use of armed forces for the protection
of nationals and other cases of self-help, as well as instances of actual
interference with the political independence of another state. Pro-
fessor Hyde's limitation of the term to embrace only the last
category of acts is useful and is adopted for the purpose of this dis-
cussion. 80 Intervention may or may not involve the use of force.
It is frequently possible for a powerful state to impair the political
independence of another weaker state without actually utilizing its
armed forces. This result may be accomplished by lending open

89 League of Nations, Off. J. (1924), 524.
30 See i Hyde, 246.

THE LEGAL REGULATION OF THE USE OF FORCE 173

approval, as by the relaxation of an arms embargo, to a revolutionary
group headed by individuals ready to accept the political or
economic dominance of the intervening state. 81 It may be accom-
plished by the withholding of recognition of a new government,
combined with various forms of economic and financial pressure
until the will of the stronger state prevails through the resignation
or overthrow of the government disapproved. Examples of such
intervention may be found in the history of various parts of the
world and rather particularly in the history (fortunately now
ancient history) of the relations between the United States and the
Republics of the Caribbean area.

Because interventions have played so vivid a part in inter-
American relations, the movement to secure agreement by treaty on
the illegality of intervention gathered momentum in the Inter-
American Conferences. In 1928 at Havana the United States was not
prepared to agree to the renunciation of what it considered its right
under international law, but with the development of the Good
Neighbor Policy under the administrations of President Franklin D.
Roosevelt agreement was finally secured. When Secretary Hull first
gave consent at the Seventh International Conference of American
States in 1933, he attached a reservation couched in broad and rather
indefinite language. This reservation was not repeated at the Buenos
Aires Conference of 1936 in accepting the Additional Protocol
Relative to Non-Intervention, which provides in Article i that "the
high contracting parties declare inadmissible the intervention of any
one of them, directly or indirectly, and for whatever reason, in the
internal or external affairs of any other of the parties." 82

The latest formulation of this doctrine is contained in the Report
on the Draft Declaration of the Rights and Duties of American
States approved by the Governing Board of the Pan American
Union on July 17, 1946. It reads: "Intervention by any one or more
s&tes, directly or indirectly, and for whatever reasons in the in-
ternal or external affairs of another state is inadmissible." One of the
first tasks of the General Assembly of the United Nations in dis-
charging its duty to encourage "the progressive development of
international law and its codification" (Article 13 of the Charter)

31 Cf. i Hyde, 271, for a discussion of the Nicaraguan situation in 1926-27.
82 Sec i Hyde, sec. 838.

174 A MODERN LAW OF NATIONS

might be to secure the universalization of this inter-American agree-
ment. But the phraseology of the text approved by the Governing
Board of the Pan American Union stands in need of revision to avoid
the implication that, in its reference to action by "one or more
States," it contemplates a limitation on the powers of the United
Nations under the Charter. Collective intervention by the United
Nations itself is contemplated by the Charter in the Sixth Principle,
stated in Article 2, relative to exacting the compliance of non-
Members in the interest of the maintenance of peace. As already ex-
plained in Chapters III and VI, the League Covenant afforded a
precedent in this respect. 88 Without repeating what has already been
said on this point, the conclusion may be stated that the acceptance
of the hypothesis of community interest contemplates the admission
of the right of the organized international community to intervene
in the general interest. The discussions in the Security Council and
in the General Assembly of the position of the Franco Government
in Spain are illustrative of the point. Intervention in the affairs of a
Member state which had brought about a condition threatening the
peace of the world would also be possible under^ the Charter, as in
situations such as those to be discussed in the following Chapter.

RETALIATION OR REPRISALS

International law has recognized the right of a state to resort to
reprisals or retaliation as a means of vindication of rights infringed
by another state. The early history of the development of the law of
reprisals shows the rigid formalism of the law. In the sixteenth and
seventeenth centuries, for example, when wars were constantly re-
current and there was no suggestion except in the books of jurists
that the waging of war might itself be illegal, there developed a prac-
tice regarding reprisals which was highly legalistic. If, for example,
the Spanish fleet seized the ships of an English merchant, he might
apply to his king for letters of reprisal which authorized him in
meticulous legal terms to go forth and seize Spanish ships of equal
value to compensate him for his loss. If after the seizure of such
Spanish ships as he could lay his hands on, their value was in excess
of his claim, the balance had to be accounted for, turned over to the

"See a Oppenheim, 131 ff.

THE LEGAL REGULATION OF THE USE OF FORGE 175

English Government, and returned by it to Spain. The remarkable
fact is that the requirements of this law of reprisals were observed
with all the punctilio of the coda duello. The practice, in its highly
organized form, fell into desuetude with the growth of national
navies, which substituted state action for the action of the in-
dividual. 85 Perhaps it may be said that the international society is
now entering on the third period, wherein collective international
measures are taking the place of state action. Certainly all that has
been said in regard to other forms of self-help under a modernized
law of nations applies equally to the use of reprisals or retaliation.
An aggrieved state is now under a duty, if it is a Member of the
United Nations, to refer its case to the Security Council and not to
take forceful action on its own behalf.

The practice of the Governments of the United States and
Great Britain since the formation of the United Nations contains
notable examples of respect for the new procedures. In August 1946
the United States protested to Yugoslavia regarding aggressive action
taken against American aircraft flying over Yugoslav territory when
forced out of their courses by stress of weather. The United States
made certain demands relative to planes and their crews which had
been forced to land and couched its demands in the form of an
ultimatum, requiring compliance within forty-eight hours. How-
ever, instead of the traditional threat of forceful action in case of
noncompliance, the United States declared that if its demands were
not complied with it would "call upon the Security Council of the
United Nations to meet promptly and to take appropriate action.'* 8e
The matter was adjusted by direct negotiations between the two
governments and therefore did not come before the Security
Council.

On December 9, 1946 the British Government addressed a note
to the Albanian Government concerning incidents in Corfu Channel;
01? May 15 British warships had been fired on by Albanian coastal
batteries, and on October 22 two British destroyers struck mines
with serious damage to both vessels and with the loss of the lives of

84 See Clark, 'The English Practice with Regard to Reprisals by Private
Persons," 27 Am. J. Int. L. (1933), 694.

80 Neutrality: Its History, Economics and Law, Vol. I: Jessup and Deft,
The Origins (1935), izflF.

99 15 Dept. of State Bulletin (1946), 417.

176 A MODERN LAW OF NATIONS

forty-four officers and seamen. After arguing the liability of the
Albanian Government under international law, the British Govern-
ment demanded an apology, reparation for the damage to the ships,
and full compensation for the relatives of the men killed. The note
continued: "If no satisfactory reply is received within fourteen days
of the delivery of this note, His Majesty's Government will have
no alternative but to bring the matter before the Security Council of
the United Nations as a serious threat to, and a breach of, interna-
tional peace and security, showing criminal disregard of the safety
of innocent seamen of any nationality lawfully using an international
highway." The reply of the Albanian Government, dated December
21, not being considered satisfactory, the British representative on
January 10, 1947 transmitted the correspondence to the Secretary-
General of the United Nations for submission to the Security
Council under Article 35 of the Charter. 37

PACIFIC BLOCKADE

Pacific blockade is another form of self-help rjegulated by inter-
national law. Its use has illustrated the old bilateral nature of inter-
national law. An aggrieved state might seek to bring another state
to terms by blockading its ports "peacefully"; that is, without
declaring war and establishing a belligerent blockade. If the latter
course were followed, the blockading state would be vested with
the rights of a belligerent, which include the privilege of intercepting
and condemning the vessels of third states or neutrals which might
attempt to run the blockade. In a pacific blockade the blockader had
no such privilege and was bound to confine its efforts to the inter-
ception of the vessels of the blockaded state. Thus when in 1902
Great Britain, Germany, and Italy sought to compel Venezuela to
honor its financial obligations, they established a pacific blockade
of the Venezuelan coast. The United States gave notice that under
such a blockade there was no right to interfere with vessels flying
the flag of the United States. The blockading powers, yielding to

37 UN Doc. 8/247, 10 January 1947. For the suggestion that resort to an
international authority should not be used as a "threat in the course of diplo-
matic negotiations, see the authorities discussed in Morgenthau, "Diplomacy,"
55 Yale L. J. (1946), 1067, 1072.

THE LEGAL REGULATION OF THE USE OF FORCE 177

the United States view, thereupon asserted that their blockade
"created ipso facto a state of war" and thus gave them belligerent
rights. 88 This action well illustrates the point made earlier that inter-
national law regulated lesser uses of force but not the resort to war
itself.

The affair led to an interesting case submitted to the Permanent
Court of Arbitration. The three blockading powers as well as the
United States, France, Belgium, Mexico, the Netherlands, Spain,
Sweden, and Norway signed agreements with Venezuela concerning
the satisfaction of their respective claims against the latter state.
Arrangements were made for the application of certain Venezuelan
revenues to the discharge of the claims. The three blockading powers
claimed preferential treatment in the allocation of the funds avail-
able, on the ground that their blockade had brought about the
settlement. This claim to preferential treatment was contested by
the other states and submitted by agreement to the Permanent Court
of Arbitration. The tribunal carefully avoided committing itself on
the question of the legality of the blockade, but decided in favor of
the claim of the blockading powers. 89 It has been natural for com-
mentators to deduce an implied approval of the blockading act, and
this point of view was foreshadowed in the arguments before the
tribunal. According to the Report of the Agent of the United States:
"The force and value of the award as a precedent cannot yet be
justly measured. By some it may be approved as giving to the block-
ading powers the just reward of their military exertions by securing
the prompt payment of their claims, while leaving the other creditor
States free to secure in their own way the payment of their claims.
By others the award may be regarded as a premium on war, as in-
consistent with the spirit of the Hague Convention, and as tending
to incite armed conflicts between creditor States having claims
against a common debtor. If the latter view, which was urged to
th6 tribunal by the counsel for the United States, is correct, the
injurious effects of the award as a precedent will be limited by other
and later arbitral decisions and by the action of public opinion." 40

88 See 2 Hyde, 1669.

39 Scott, Hague Court Reports (1916), 55.

40 The Venezuelan Arbitration before the Hague Tribunal, 1903, Sen. Doc.
119, 58th Cong. 3d Sess., 15.

178 A MODERN LAW OF NATIONS

USE OF FORCE BY INDIVIDUALS

The acceptance of the hypothesis that individuals are subjects
of international law and are bound directly by it necessitates the
consideration here of certain examples of the use of force by indi-
viduals.

The matter of piracy, as already mentioned, is the one case in
which it has been generally said that international law imposed duties
directly on individuals, but the actual legal situation has been also
explained in terms of state rights. The explanation is that interna-
tional law in case of piracy removes usual limitations on the juris-
diction of states and permits any state which apprehends a pirate to
punish him. 41 /With the acceptance of the hypothesis that the indi-
vidual is a subject of international law, such reconciliation with the
{traditional basis of international law is no longer necessary. Accord-
ingly it may be stated that under a modernized law of nations un-
authorized acts of violence on the high seas committed by individuals
are violations of international law. On the procedural side, practice
already provides a solution in that each state remains free to inflict
such punishment as it may choose to provide by its local law. Inter-
national law might itself assert the death penalty, or life imprison-
ment in states where capital punishment is forbidden.

The basic theoretical hurdle having been jumped, there would
be no obstacle in the way of agreement on other individual acts which
should be assimilated to acts of piracy or treated in the same way.
The Washington Conference on Limitation of Armaments in 1922
proposed a convention which would have used this formula for sink-
ings of merchant vessels by submarines, but the convention never
entered into force. The problem of international law would be to
catalogue those acts of individuals which have sufficient international
significance to warrant placing their punishment under international
auspices. Some of these would involve the illegal use of force and
others would not. They might include terroristic activities, assassina-
tion of heads of states, counterfeiting of foreign currencies, the slave
trade, traffic in narcotics, and unauthorized manufacture of atomic
or other weapons.

41 "Harvard Research in International Law, Draft Convention on Piracy,"
26 Am. J. Int. L. Supp. (1932), 743.

THE LEGAL REGULATION OF THE USE OF FORCE 179

:}

It has already been noted that the trial of the major war crimi-
nals has set a pattern for the future in* regard to the substantive law
4nd the general theory in accord with which procedures will need
to be established. 42 Among the precedents which will be utilized will
undoubtedly be the conference convened under League of Nations
auspices to study the international suppression and punishment of
terroristic crimes. This effort was the result of the assassination of
King Alexander of Yugoslavia in Marseilles in 1934. It led to the
drafting of two conventions dealing with the definition of such
crimes and the trials of their perpetrators before an international
criminal court, but the conventions were never brought into
force. 48

One of the difficulties which will confront the enforcement of an
international criminal code will be the fact that punishment cannot
take place until the criminals have been detected and apprehended.
If they are successful in initiating a war, they must first be defeated
by the use of collective international action. If their conspiracy to
initiate a war is to be detected before the war breaks out, one must
contemplate the existence of an international Bureau of Investiga-
tion and international power to arrest persons who may be directing
the government of one of the states which is a member of the inter-
national organization. It is hardly necessary to point out that the
organization of the world for peace has not yet progressed to the
point at which a solution of such difficulties seems feasible.

Antiforeign sentiment has inspired numerous instances of mob
violence against particular alien groups. Some of the most lamentable
cases have taken place in the United States with Chinese and Italian
nationals as the victims. 44 Such cases have been considered in inter-

42 In view of the position taken in this book, as explained in the Introduc-
tory Chap, and Chap. II, it is unnecessary to argue here the accuracy of the
statement of the Nurnberg Tribunal that it has long been recognized that
international law imposes duties and liabilities on individuals as well as on states.
The Tribunal cited in support of its view the decision of the Supreme Court
of the United States in Ex parte Quirin, 317 17.S. i (1942); see Fite, op. cit. 9
supra note 18, p. 12.

43 See League of Nations Doc. A.24(b). 1936. V., V. Legal 1938. V. 2. and
C. 94. M. 47. 1938. V., V. Legal 1938. V. 3; Hudson, International Tribunals,
Past and Future (1944), 185; Sottile, "Le Terrorisme international," 65 Recueil
des cours (1938), 91.

44 See 2 Hyde, sec. 290.

l8o A MODERN LAW OF NATIONS

national law with reference to the responsibility of the state in whose
territory the atrocity takes place. The state is considered responsible
When it has failed to use the means at its disposal to prevent the out-
rage or to punish leaders of the mob. The question of state responsi-
bility for injury to aliens has been considered in Chapter V and will
not be reconsidered here. The procedure for the punishment of the
individual leaders of the mob would not be different in principle
from the procedure for punishing individuals for violations of other
rules of international law. In mob violence cases, where th? mob is
definitely inspired by hostility to persons of another nationality, inter-
national law should posit the liability of the individual for a breach
of that law. The practical difficulty is that in such cases it is fre-
quently difficult to identify the members of the mob or to find wit-
nesses who are willing to testify to such identity. The established
procedure of holding the state responsible in such cases is probably
the only way in which atonement can be made to the injured indi-
viduals or their families. In most countries it may be assumed that if
the guilty individuals can be identified, the injured person or his
representative can institute a civil suit and may recover damages.
The problem from the point of view of a revised international law
recognizing the position of the individual is rather one of the juris-
diction of the courts of other countries on the principle of univer-
salism which is utilized in case of piracy, or one of the establishment
of international criminal courts. The general arguments in favor of
the territorial theory of criminal jurisdiction, such as the availability
of witnesses, lose their force when it is apparent that an antif oreign
bias pervades a community and makes it impossible to find locally a
jury which will convict or even a judge who will impartially preside
and sentence in case of conviction. But given the difficulties of proof
and the natural reactions of judge or jury in the state of which the
victims were nationals, it is by no means certain that a fair trial would
be obtained in that state if the crime of mob violence were made an
extraditable one from the state where the outrage occurred to the
state of which the victims were nationals. It is, indeed, the distrust
of the impartiality of the courts of other states that frequently in-
spires the unwillingness of governments to remit their citizens to the
final judgment of such courts. The problem of the establishment of
international criminal courts has already been considered, and nothing

LEGAL REGULATION OF THE USE OF FORCE l8l

needs to be added with reference to this particular type of inter-
national crime.

Where antif oreign bias results in outbreaks of mob violence, there
is little occasion for sympathy with the members of the mob or the
motives that inspire them. The situation is different in a number of
historic instances of boycotting foreign goods and commercial estab-
lishments. The most familiar cases are those of the Chinese boycotts
of Americans, British, and Japanese and the Turkish boycotts of
Austrians and Greeks. 45

There seems to be general agreement that where individuals
merely exercise their liberty to refrain from buying particular goods
or from working at particular tasks, and do not accompany their
acts with violence or intimidation, international law cannot charac-
terize the acts as illegal or hold the government responsible. If
the government supports or instigates the action, it may be re-
sponsible, particularly under usual obligations expressed in treaties
of commerce. In 1901 Secretary of State Hay denied liability
of the United States for injuries suffered by Chinese in boycotts
in Montana on the ground that the remedies available through
the courts were adequate. 46 Chinese boycotting of Japan was
found by the League of Nations Committee of Nineteen to be
justified as a legitimate use of reprisals. 47 Incidents have been re-
ported in the press of longshoremen declining to load ships with
cargoes for the Franco Government of Spain or for the British and
Dutch forces engaged in hostilities with the nationalists in Java, a
type of pressure used in the Turkish boycotts of 1908 and 1909.
From the standpoint of new international law characterizing certain
violent acts of individuals as criminal, it may be suggested that an
appropriate standard would be that which the local law utilizes for
determining illegality in such cases. In Anglo-American law the

48 T|^e cases are all reviewed in Takayanagi, Comparative Study of
Boycotts (Tentative Draft), Japanese Council, Institute of Pacific Relations
(1933). The Chinese boycotts are discussed by Bouve, "The National Boycott
as an International Delinquency," 28 Am. J. Int. L. (1934)* 19^ The Turkish
boycotts of 1008 and 1009 are described in Laferriere, "Le Boycott et le droit
international," 17 Revue generale de droit international public (1910), 288;
see also Sefe*riades, Reflexions sur le boy cottage en droit international (1912).

48 6 Moore, op. cit., supra note 15, p. 675.

47 League of Nations, Doc. A (Extr.). 22. 1933. Vn, VH. Political 1933.

vn. 2.

1 82 A MODERN LAW OF NATIONS

criterion is the use of coercion of other individuals to bring about a
loss of trade. 48 The injured individual may bring a civil action for
damages and may secure an injunction to restrain the conspiratorial
action; but unless violence is used the boycotting action will prob-
ably not be the basis of a criminal prosecution.

From the viewpoint of international relations it is clear that
organized boycotts are generally likely to be attended by violence
and to have a directly injurious effect on international relations. It
is doubtful whether in such cases a modernized international law
should seek to distinguish between tort and criminal law. If individ-
uals resort to any form of violence inspired by hostility to another
people or government, their acts should be characterized as illegal
and they should be subject to trial in whatever international forum
is established for that purpose. In the case of a boycott, procedures
might be adopted whereby the action could be instituted by the
persons damaged, and if the boycotters were found guilty any fine
assessed might be collected for the benefit of the injured party.
Realistically, however, it must be recognized that in cases of boycott
and of mob violence the guilty persons may be judgipent-proof so
far as adequate compensation to the damaged party is concerned,
and that if punishment is to serve as a deterrent some penalty other
than a fine may be necessary.

On the substantive side it is necessary to ask whether a modern-
ized international law should content itself with cognizance of cases
of violence inspired by an antiforeign bias. The international reper-
cussions of such cases give them a special character, but history indi-
cates that anti-racial bias as the instigation of group violence is
equally likely to rouse international issues irrespective of nationality.
This has been due in part to a general humanitarian sentiment which
is shocked by such outrages and in part to the distribution of mem-
ber^ of racial groups through a number of countries. Thus the lynch-
ing of Negroes in the southern states of the United States may arouse
a humanitarian revulsion in other countries as well as in the United
States itself, but there are not large, organized, politically active
groups of Negroes in other states to take up the cudgels on behalf
of the fellow members of their race. On the other hand, anti- Jewish
pogroms in any part of the world stir other Jewish groups sufficiently

41 Bouv, op. cit., supra note 45, p. 24.

THE LEGAL REGULATION OF THE USE OF FORCE 183

well organized to make their voices heard. Aside from any racial
bond, the religious factor may have the same consequences, as in the
response of Christian groups in various countries to the massacres
of Christian Armenians in Turkey.

Granted the acknowledgment of individual rights protected ,by
international law, all such cases must be considered to be matters of
international concern, and those who use violence against national,
racial, or religious minorities should be considered "violators of the
laws of nations," to use the old phrase of the famous Act of 7 Anne,
which in 1708 provided penalties for those who violated the immuni-
ties of ambassadors and other public ministers.

A major step was taken in this direction by another resolution of
the General Assembly of the United Nations adopted on December
13, 1946 relative to the crime of genocide. This term has attained
wide currency since it was coined by Dr. Lemkin and described in
his book "Axis Rule in Occupied Europe," published by the Car-
negie Endowment for International Peace in 1944. Lemkin defined
the term as meaning "the destruction of a nation or of an ethnic
group." The General Assembly expanded the definition in declar-
ing:

Genocide is a denial of the right of existence of entire
human groups, as homicide is a denial of the right to live of
individual human beings; such denial of the right of existence
shocks the conscience of mankind, results in great losses to
humanity in the f ornj of cultural and other contributions rep-
resented by these human groups, and is contrary to moral law
and to the spirit and aims of the United Nations.

Many instances of such crimes of genocide have occurred
when racial, religious, political and other groups have been
destroyed, entirely or in part.

The punishment of the crime of genocide is a matter of
international concern.

The General Assembly therefore

Affirms that genocide is a crime under international law
which the civilized world condemns, and for the commission
of which principals and accomplices whether private individ-
uals, public officials or statesmen, and whether the crime is

184 A MODERN LAW OF NATIONS

committed on religious, racial, political or any other grounds
are punishable;

Invites the Member States to enact the necessary legisla-
tion for the prevention and punishment of this crime;

Recommends that international cooperation be organized
between States with a view to facilitating the speedy preven-
' tion and punishment of the crime of genocide; and, to this
end,

Requests the Economic and Social Council to undertake
the necessary studies, with a view to drawing up a draft con-
vention on the crime of genocide to be submitted to the next
regular session of the General Assembly. 4 * 1

The fact that this resolution mentions "political groups" as well
as racial and religious groups among those which may be the victims
of genocide suggests very broad applications of the principle. There
is also much significance in the fact that the task of elaborating a
convention on the subject is entrusted to the Economic and Social
Council, perhaps for consideration by its Commissioji on Human
Rights. But it is also notable that at this stage the General Assembly
suggested that enforcement and punishment should be left to the
states, which are urged to enact national laws on the subject. It is
true that "international cooperation" is also recommended, but there
is no repetition of the language used in the resolution on the crime of
aggressive war relative to an International Criminal Code. It remains
to be seen whether proposals will be submitted for the trial before
an international tribunal of persons or groups accused of committing
or plotting genocide.

CIVIL WARS AND REVOLUTION

As suggested in Chapter III, the problem of international legal
regulation of civil war and revolution is a difficult one. As organized
societies gain in stability the suppression of forcible changes in gov-
ernment becomes a normal and natural task of the community. Thus,
in the United States, political leaders no longer repeat the words of
Thomas Jefferson: "I hold it that a little rebellion now and then is a

49 UN Journal, No. 58 Supp. A-A/P.V./55, 476.

THE LEGAL REGULATION OF THE USE OF FORCE 185

good thing. . . . God forbid we should ever be 20 years without
such a rebellion." 60 But the right of resistance against autocratic
suppression is deeply ingrained in the human spirit and has had
the blessing of great political theorists such as Vattel and Locke. 61
Should it be an international crime, like piracy, for an individual
to revolt against oppression? To answer this question in the affirma-
tive is to assert that the international community should be based
on the principle of mutual assistance to suppress internal dis-
turbances of the magnitude of revolution or civil war. The Havana
Convention of 1928 on Rights and Duties of States in the Event of
Civil Strife is a partial acceptance of that principle, although the
treaty does not go so far as to provide for collective interven-
tion. ^'1

The problem may be examined from the point of view of the
establishment of a world state. When this result is achieved the
world government, unless it presents a complete reversal of all its
human prototypes, will enact law and will take steps to suppress
armed rebellion against its authority. As is sometimes said, after the
establishment of a world state all war would be civil war, and in such
a world civil war the power of world government would be directed
to the suppression of all resistance against its authority. The right of
resistance would not be recognized. The denial of the right of
resistance must be predicated on the same consideration that attends
the outlawing of war in an international community of sovereign
states: namely, provision of peaceful substitutes for war. The estab-
lishment of world government assumes the creation of governmental
organs and processes adequate to remedy wrongs and to provide
justice for all people. The law of a world state would therefore deny
the "right of revolution."

In the present state of the world in which the sovereign state per-
sists, albeit each state is bound to the others through a still primitive
form of international governmental organization, it must be held that
the interest of the world community in peace is greater than the
assertion of an individual or group of individuals that his or their

80 Ford (ed.), The Writings of Thomas Jefferson, Vol. IV, 1784-1787,
(1894), 362, 467; see Goebel, The Recognition Policy of the United States

(1915).

51 Lauterpacht, An International Bill of the Rights of Man (1945), 43, 46,
58.

1 86 A MODERN LAW OF NATIONS

rights are being disregarded. If the state has relinquished its right to
resort to war, so the individual must relinquish any right to over-
throw his o^jm government by force. This, in pragmatic terms,
means merely that he adds to the usual risks of rebellion the risk of
international aid to the government he attacks. From the point of
view of the ethical right of revolution, the right is inalienable; its
exercise is forgone when government provides the processes for cor-
recting abuses by nonviolent means. Such a conclusion would throw
upon the international community, now organized in the United
Nations, a heavy burden. The international community would have
to take cognizance of and remedy situations within states which are
provocative of rebellion. It would have to be prepared, as the federal
government of the United States is prepared, to render armed assist-
ance to any of its members whose local forces are inadequate to pre-
serve domestic peace and tranquillity. But, as has been pointed out
in Chapter III, the history of the recognition policy of states, and
particularly of modern trends toward collective interest in the non-
recognition of governments which assume or maintain power by
violence, teaches that international interference in such imatters may
lead to undesirable domination of the internal situation in a state and
be productive of more international friction than it eliminates. The
difficulty is one of organization and procedures; as these develop,
desirable international results may be achieved through such collec-
tive interventions. The United Nations as now organized is not
capable of exercising such a role. The recent debates on Franco
Spain are illustrative of this weakness. Until international organiza-
tion or international government reaches a stage of greater political
maturity, international law must avoid stretching its arm into a state
in case of civil war. As under traditional international law, the situa-
tion may come under legal regulation when in its preparation or in
its operation it projects its disturbing influence outside the bound-
aries of a single state. Such a situation may be said to exist where a
territory is already under a form of delegated international control
e.g. the mandated territory of Palestine or where the case in-
volves nonself-governing peoples to whom the obligations of 'Chapter
XI or XII of the Charter apply. Even the first rudimentary forms of
world government, as that term is commonly used by its proponents,
would necessarily leave to the subordinate political units a large

THE LEGAL REGULATION OF THE USE OF FORCE 187

measure of responsibility for the maintenance of local peace. In a
political unit as large and complex as is this terrestrial globe, a local
civil war might well be conceived to have only the magnitude of an
individual murder in the United States today.

CHAPTER VIII

RIGHTS AND DUTIES IN CASE OF
ILLEGAL USE OF FORCE

IN THE PRECEDING CHAPTER an attempt was made to indicate the
instances in which, under a modernized law of nations, force may be
lawfully used by a state. It was concluded that force could be used
only in self-defense and then only as a preliminary matter until the
organized power of the international community could be brought
to bear. If the resort to force in self-defense is of a high order of
magnitude, involving the use of air, land, and sea forces, even though
it continue for only a short period of time before the international
forces begin to operate or obtain the victory, the position of third
parties may be affected. Armed forces of the state acting in self-
defense may need to continue their operations under the International
Staff Committee of the United Nations or with its authority in order
to avoid giving military advantage to the aggressor. After the national
contingents made available to the United Nations are put into the field
against the aggressor, it is necessary to envisage the duration of conflict
over a period of time sufficiently prolonged to involve the conduct of
individuals and states indirectly affected. Commercial intercourse
may be interrupted, damage may be inflicted by inaccurate bomb-
ing or on property in the line of fire, property may be requisitioned
for the use of the international force. It is a mistake to assume that
the acceptance of the concept of international police forces and
their use against an "outlaw," with its consequent abolition of the
concept of "war" in a legal sense, eliminates the necessity for the
legal regulation of the rights and duties of those whp are active par-
ticipants in the struggle and of those who for geographical or other
reasons are not called on to take an active part. The need is clouded
by the metaphor of "the policeman," as if some single strong-armed
guardian of the law could pick a nation up by the scruff of its neck
and haul it to the lockup. If a nation goes berserk, force is let loose.

188

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE Of FORGE 1 89

and if the international community seeks to restore order, it must use
greater force. We may cease to call it war, but there will be fighting,
and people will be killed. The analogy is not to the single citizen
who assaults and kills, but rather to major rioting or civil war which
requires the troops to be called out.

This picture is not changed if one envisages the creation of a
world state with organized forces for the suppression of violence!
John Bassett Moore pointed out in 1924 that the elimination of inter-
national war could not be expected until the world had ceased to see
recurrences of civil war. 1 Civil war, revolution, mob violence are
more frequent manifestations of man's unruly and still savage will
than are wars between states. It may well be, as advocates of world
government are wont to maintain, that it is better to have blood
spilled to preserve and perfect the union than merely to shift once
again the balance of power among sovereign states, but this fact does
not alter the point under consideration here, which is the determina-
tion of legal rights and duties when sizable armed forces are fighting.

When the United States was torn by civil war lasting four years
there was some tendency to argue that all the soldiers and officials
of the Confederacy were rebels and traitors and should be dealt
with as such, but actually so severe a policy was not followed con-
sistently. The Federal Annies promulgated General Orders 100 for
the Conduct of the Armies in the Field, embodying the suggestion
of Francis Lieber, Professor of International Law at Columbia
University, and thus laid the foundations of the modern rules of
international law on belligerent occupation. The Supreme Court
of the United States acknowledged that the Confederacy was a
de facto government whose status of belligerency was recognized
by the Federal Government. 2

As the Civil War cases signalized, the gradual advances of the
armies ^presenting established government led to the occupation
of territory which was held while the war still went on. Assume such
an occupation by international "police" forces, and a multitude of
legal problems arise at once: What law applies in the occupied
territory is the law of the group in revolt to be re-established at

1 Moore, International Law and Some Current Illusions (1924), 37.
*Cf. inter alia, U.S. v. Pacific Railroad, 120 ILS. 227, 233 (1887); Thoring-
ton v. Smith, 8 Watt. 10 (1868), and other citations in 2 Hyde, sec, 48*

A MODERN LAW OF NATIONS

once, even if it contains such provisions as those of Hitler's Niirn-
berg laws? If it is not, what law is to apply to determine the rights
and duties of the people inheritance, purchase and sale, marriage,
civil rights? Are the local officials to continue to function, the post-
men, the firemen, the mayors and city magistrates? Can the inter-
national police forces requisition private automobiles and trucks to
transport men and materiel, and if so are they to make compensation,
and when and how? Can the residents of a town be turned out of
their homes to afford billets to the international police? Are the
sins of their leaders to be visited on all the population, or how are
the latter to be treated? All these and many more are problems which
commonly confront the military occupant, and for convenience in
meeting them international law has developed rules which secured a
large measure of codification in the Hague Conventions. The same
type of factual problems would confront an international police
force; and a* modernized law of nations will need to provide rules
for their orderly and equitable solution. Similar are the problems of
the treatment of prisoners: is an international police force to be
governed by the Geneva Conventions, which had remarkable vitality
even during World War II? Municipal police in the United States
are subject to laws concerning abusive use of force and third-degree
methods; 8 are international police forces to be governed by rules
designed to check needless suffering and excessive violence? Is it to
be understood that international police forces may follow recent
precedents and engage in indiscriminate aerial bombardment which
cannot distinguish between innocent civilians and guilty leaders or
combatant troops? Are they to use gas and bacteria? Are women
and children to be raped and killed and their homes looted, or are
the traditional rules regarding the sanctity of the home and the
person to be re-enacted and actually enforced by the world
authority?

It has been argued that atomic warfare has brought about such
a change that there is no longer any reality in talking in terms of
old-fashioned drawn-out struggles. The international police force is
envisaged as swooping down on the people who have resorted to
arms in defiance of world government and with one or two shatter-

Bonahoon v. Indiana, 178 N. 570 (i9Jf); Brooks v. Fidelity and De-
posit Co n 147 Md. 194 (1935).

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORGE Ipl

ing blasts eliminating the evildoers and all their works. Two points
need to be considered in contemplating such a picture, which is far
more horrible than encouraging. In the first place, the highly indis-
criminate nature of atomic bombing suggests that any world gov-
ernment to which decent people would wish to owe allegiance
would not lightly resort to this most potent weapon, but would
hold it in reserve for the most serious of outbreaks. 4 In the second
place, assuming that the territory of the "rebels" has been seared
and devastated and their whole organization of local government
and supply utterly crushed, is the world government to set up a
cordon around the area and allow it slowly to fester away, or will
occupation forces then move in to restore normal life to the area?
One may argue again that world government contemplates national
disarmament to such low levels and international armament of such
superior might as to make impossible a full-scale military operation
of long duration. But surely human history does not teach that it is
fantastic to assume that some officer of the international forces
might betray his trust and carry with him to the revolting party a
contingent of air or other forces, perhaps including atomic bombs.

All of these considerations are advanced, not as arguments against
the continuous effort to achieve world government, but merely to
point out the need for law to govern men and armies when armed
force is being used, no matter whether that force is wielded by a
municipality, a member of a federal state, a national state, or a
world government. Since that is the topic being discussed here, con-
sideration is not devoted to that vital problem of the veto under the
Charter of the United Nations. It must be assumed for the purposes
of this discussion that this problem did not arise, or that it has been
solved, and that international forces are put into the field against
a lawbreaking state in the present world of the United Nations, or
against some local governmental group under a world government.

Tlie preceding part of this discussion has dealt with the need for
law to govern the conduct of international forces in their relations
with individuals who may be residents of the territory in which the
illegal use of force erupts or of other territory utilized or affected
by the international military operations. A modernized law of nations

4 Brodie (ed.), The Absolute Weapon: Atomip Power and World Order
), 98.

A MODERN LAW OF NATIONS

must also review and develop the law defining "war crimes" and
fixing the penalties for their punishment. 5 Perhaps the precedents
of the war trials in Germany and Japan are to be adopted en bloc;
perhaps, in view of their rather hasty improvisation, they stand in
need of revision. In any case it may be asserted that just as the
Federal Government during the Civil War in the United States
found it necessary to have relationships with the organized rebels
governed by rules, so the international community will find it neces-
sary to have laid down in advance rules determining the liability of
leaders of the revolting group and of the subordinate officers and
individuals engaged in the conflict.

An attempt was made by the Harvard Research in International
Law from 1935 to 1939 to suggest, in the form of a Draft Conven-
tion with Comment, certain rules of law which might be made appli-
cable in cases where a state resorted to the use of armed force in
violation of a treaty agreement. 6 The proposals were companion
pieces to a Draft Convention on Rights and Duties of Neutral States
in Naval and Aerial War. 7 The latter draft dealt in terms of the
traditional law, with certain suggestions for its development within
the framework of the classical system of war and neutrality. The
Draft on Aggression frankly spoke de lege ferenda, and was written
in terms of the progress which seemed to have been made up to the
time of its drafting by the community of states. Its publication
actually occurred a few weeks after the outbreak of World War II,
but the work had been completed before that conflict broke out
and according to a prefatory note "is not to be attributed to the
international events of that period." Contenting itself with a legal
sample, it concentrated chiefly on events which might be anticipated
in war at sea, although certain more general rules were also included.
The Draft Convention took as its starting point the hypothesis that
a resort to force in violation of a treaty obligation of the type which
it defined would not result in war in the old legal sense, with its
consequent legal conditions of "belligerency" and "neutrality." In
that respect it is similar to the approach utilized here. It also assumed

9 See Chap. VII.

6 "Harvard Research in International Law, Draft Convention on Rights
and Duties of States in Case of Aggression/' 33 Am. J. Int. L. Supp. (1939),
823 ff.

175 ff.

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORCE I9J

(properly for its purposes) that the hypothetical agreement not to
resort to the use of force was accompanied by a further treaty pro-
vision for the determination by a "competent international author-
ity" of the fact that there had been an "aggression" as that term
was used in the Draft Convention. It was envisaged that such an
authority might be the Permanent Court of International Justice
or the Council or Assembly of the League of Nations or some similar
body. It was not assumed that the League of Nations had a universal
membership, and provisions were included to define the rights and
duties of states which were neither "aggressors" nor participants in
the international measures of suppression of violence. The discus-
sion in this book, it must be recalled, rests on the two hypotheses of
the acceptance of the doctrine of community interest and the accept-
ance of the doctrine that individuals are subjects of international
law.. It would no doubt be convenient if there were an automatic
test of aggression which would enable or require the Security Council
to act promptly when a predefined condition existed. Numerous
attempts were made in the interwar period to agree upon a satisfac-
tory definition. The attempt was renewed at the United Nations
Conference in San Francisco, but no formula was found to be
acceptable and none was included in the Charter. 8

The Harvard Research Draft on Rights and Duties of States in
Case of Aggression properly envisaged two stages after fighting had
commenced. The immediate stage would necessarily precede the
determination of the "competent international authority" as to
whether there had been an illegal resort to force. The second stage
would commence when that determination had been made. It was
suggested that during the first stage the traditional law governing
the rights and duties of neutrals would perforce apply; the suggested
new rules would become applicable when the second stage was
reached. Here also two such stages must be contemplated. It may
be a&umed that, when fighting breaks out, one or both parties will
assert that action has been taken in self-defense. There may be a

8 Report to the President on the Remits of the San Francisco Conference
By the Chairman of the United States Delegation, Dept. of State Pub. 2349
(1945), 9 1. For the use of the term "aggression" in treaties and for bibliographical
references, see "Harvard Research in International Law, Draft Convention on
Rights and Duties of States in Case of Aggression,** op cit. 9 supra note 6,
p. 848 ff.

194 A MODERN LAW OF NATIONS

lapse of time before the Security Council convenes, discusses, and
decides. The Comment on the Harvard Draft noted with reference
to this time lag that "It was twenty-nine months after the outbreak
of the war in the Chaco before the League decided that Paraguay
was the aggressor. The Japanese attack on Mukden occurred on
September 18, 1931; the League resolution which censured Japan
was adopted on February 24, 1933. In the Greco-Bulgar frontier
incident of 1925, the Council of the League appointed a commission
of investigation seven days after the first outbreak. The report came
before the Council about five weeks later."

The Charter of the United Nations seeks to minimize such
delays. According to Article 28 "The Security Council shall be so
organized as to be able to function continuously. Each member of
the Security Council shall for this purpose be represented at all
times at the seat of the Organization." The Military Staff Committee
provided for in Article 47 is designed to enable the Security Council
to act quickly. The agreements of the Members under Article 43
for the supplying of contingents of armed forces and other facilities
have a similar aim. Article 45 states that "In order, to enable the
United Nations to take urgent military measures, Members shall
hold immediately available national air-force contingents for com-
bined international enforcement action." Most important are those
provisions in Articles 24, 25, 41, and 48 which require the Members to
act on the decision of the Security Council. These are enormous
advances over the old system of the League of Nations, but possi-
bility of delay has not been eliminated. The veto power of the five
permanent members of the Security Council hangs over its delibera-
tions, and it may be assumed that the representatives of these five
members will want information before they decide whether or not
to exercise their power. If the Security Council wishes to utilize the
pledged forces of a Member not represented on the Council, that
Member must, under Article 44, be given an opportunity to partici-
pate in the decisions concerning the employment of those forces.
Amendments to the Charter eliminating the veto may be envisaged,
or one may contemplate the transformation of the Security Council
into a still more powerful executive agency of the world community
with its own forces at its call. Unless one anticipates the election of
9 Ibid., 877. Cf. Jessup, International Security (1935), 145-47.

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORCE 195

a world president who, like the governor of one of the states of the
United States, may call out the militia or, like the President of the
United States, may call out the federal forces in an emergency, 10
one must still contemplate the need for deliberations of a group of
men drawn from different parts of the world and perhaps sitting at
a spot thousands of miles from the scene of the conflict.

Recently the Siamese Government appealed to the United
Nations in connection with clashes between French and Siamese
forces on the border of Indo-China. 11 Neither party admitted that
it was the aggressor; detailed information was not available in New
York, where the Security Council sat. Even if there were a world
government, the same factual difficulties would be present. The
international authority might issue a cease-and-desist order; airborne
divisions might be flown to the spot; but short of indiscriminate and
overwhelming aerial bombardment of both parties (one of whom
presumably is acting innocently in self-defense) the time lag will
not be absent. Is the merchant in San Francisco or London or Paris
or the state corporation in Moscow subsequently to be held guilty
of a war crime if he or it does not interrupt an aerial shipment to
Saigon or Bangkok of raw materials which might normally have an
innocent character? What is the legal position of a Belgian mining
company or a scientific expedition from the University of Copen-
hagen whose representatives find themselves in the midst of the
troubled area, faced with military requisitions of men and transport
equipment or accidentally injured by chancing to be in the line of
fire?

Perhaps the answers to all such questions are simple. It may be
easy later to assess responsibility and require compensation; but the
readiness with which the answer comes does not mean that no
answer should be provided in advance. The history of private law
sho^s that it should. No attempt is made here to write an exhaustive
treatise on the law which might be made applicable in all such situa-
tions. The attempt is to take certain illustrative examples to suggest
certain underlying principles and specific rules that might be useful.
For convenience two time-situations are envisaged: the first begins

10 See Rankin, When Civil Law Fails (1939); Corwin, The President:
Office and Powers (1940); Fairman, The Law of Martial Rule (1930).

11 UN Doc. A/93, 3 Oct.

A MODERN LAW OF NATIONS

with a resort to force and ends when some decision has been made
by the Security Council or other "competent international author-
ity"; the second begins when that decision has been made and ends
when peace is re-established. In order to deal with a precise and
known situation, the existing structure and functioning of the
United* Nations will be utilized for illustrative purposes.

THE SITUATION BEFORE ACTION BY THE INTERNATIONAL AUTHORITY

Let it be assumed that armed forces of State A attack the frontier
guard of State B in a remote region of the world. Assume that B
immediately radios the Secretary-General of the United Nations
asserting that the attack has been made without provocation and
appealing for help. Nothing is said as to whether its frontier guards
are resisting in self-defense. The Secretary-General receives the mes-
sage on Saturday, March i, and a meeting of the Security Council is
called for March 3. The message from B is immediately considered
and A is instructed to desist. At the same time representatives of the
Military Staff Committee are ordered to proceed to B to investigate
on the spot. The representatives leave on March 4 and arrive in B
on March 6. The nearest available landing field is separated by fifty
miles of mountainous terrain from the frontier. En route the repre-
sentatives have flown over the frontier and identified the spot at
which fighting is taking place, but are able to determine little from
their aerial observation. They reach the spot on March 8 and find
sizable forces engaged on both sides. They are able to get into
contact with the commanders on both sides and are told by each
that the other party began the attack. They get a message back to
the Security Council on March 10. Meanwhile A has informed the
Security Council that B's forces began the attack on February 28
and that A J s forces are resisting in self-defense. These messages are
considered by the Security Council on March 11. It is still impos-
sible to decide whether A or B is in the right. A warning is sent to
A and B that international forces will bombard both positions on
March 14 unless word is received that both parties have withdrawn
behind their frontiers and have ceased fighting. This warning would
constitute a "provisional measure" under Article 40 of the Charter,
which is "without prejudice to the rights, claims, or position of the

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORCE 197

parties concerned." On March 13 messages are received from both
A and B that the orders of the Security Council have been complied
with; but that night a radio from the representative of the Military
Staff Committee advises that fighting still continues. International
air contingents are dispatched on the i5th and bomb the positions
on the 1 7th. On the i8th the representatives of the Military Staff
Committee report that fighting nevertheless continues. Eighteen days
have already elapsed since the first outbreak, and the international
machinery has worked with all possible dispatch; the conflict is still
unchecked, and there is as yet no information which would enable the
Security Council to decide in favor of A or B.

Without continuing such specification of detail, it may be con-
cluded that the lapse of three or four weeks before a decision could
be reached would be by no means abnormal and might even repre-
sent remarkably rapid action. If the disturbance broke out in Europe,
the facilities for rapid investigation and action would be greater and
international decision might be quickly reached. Yet in the current
situation in Greece, where disturbed conditions were alleged to exist
along the frontiers with Bulgaria, Yugoslavia, and Albania, the time
lag was much in evidence. The Greek appeal to the Security Council
was dated December 3, 1946; on December 19 the Security Council
adopted a revised resolution for the appointment of a Commission
of Investigation. The resolution provided that the Commission should
proceed to the area not later than January 15, 1947 and should
report its findings to the Security Council at the earliest possible
date. 12 At this writing it would not appear possible that the report
could be received until some ten weeks after the date of the Greek
appeal; this would be twice the time which elapsed before the League
of Nations Council received a report on the Greco-Bulgar frontier
incident of 1925 to which reference has already been made, but in
that case the circumstances demanded and stimulated most urgent
action.

It may be suggested that the Security Council might develop a
procedure somewhat as follows: Immediately on the receipt of such
a notice as that from State B in the hypothetical case, the Security
Council might announce the existence of a state of emergency. Such

13 See UN Doc. 8/214, 13 Dec. 1946, par. 7; 15 Dept. of State Bulletin
(1946), 1172; 16 ibid. (1947). 2 3

198 A MODERN LAW OF NATIONS

an announcement would be made under Article 39. of the Charter,
which empowers and requires the Security Council to "determine
the existence of any threat to the peace, breach of the peace, or act
of aggression" and to "make recommendations, or decide what meas-
ures shall be taken in accordance with Articles 41 and 42, to maintain
or restore international peace and security." It would be a reasonable
conclusion that the sending of such a notice as that from State B
established at least the existence of a "threat to the peace," even if it
should later be established that fi's allegations were not true. The
receipt of the report on March 10 from the representatives of the
Military Staff Committee would establish that there was an actual
breach of the peace. Since the bare fact of conflict might be estab-
lished by the first preliminary aerial survey it might be argued that
the Security Council should not. issue the announcement of a state
of emergency until it is possible to assert that there has been such
a breach of the peace. Such announcement would not in any way
seek to assess responsibility, but would merely indicate the location
and the parties involved.

The legal consequence of such an announcement would be to
put all states on notice. The announcement should indicate the
geographical area affected. In such a case as that of the Greco-Bulgar
frontier incident of 1925 the area would necessarily include the entire
territory of the two states involved. In a case like that of the
Siamese frontier incident of 1946 the area would include all of Siam
and Indo-China, but not metropolitan France or other French col-
onies. The Security Council might make, under Article 41 of the
Charter, a general decision of automatic application 1B that on the

18 Even though the Security Council has broad powers under Art. 41, it
might be desirable in so vital a matter to embody the proposed rules in an
international convention submitted to the Members of the united Nations for
ratification. That such a convention is not, however, necessary is indicated by
legislation already passed in the United States which declares that "whenever
the United States is called upon by the Security Council to apply measures
which said Council has decided, pursuant to Article 41 of said Charter, are to
be employed to give effect to its decisions under said Charter, the President
may . . . investigate, regulate, or prohibit, in whole or in part, economic
relations or rail, sea, air, postal, telegraphic, radio, and other means of com-
munication between any foreign country or any national thereof or any
person therein and the United States or any person subject to the jurisdiction
thereof or involving any property subject to the jurisdiction of the United
States." United Nations Participation Act of 1045, 59 Stat. 619, 620 (1945).

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORCE 199

announcement of a state of emergency it should become unlawful
for any state (including the two states involved) or for any indi-
vidual to deliver any goods to the area defined. It should also be
unlawful for any person to enter the area. The elaborate mechanics
devised to meet the requirements of modern total war should be
utilized, including the freezing of foreign balances, prohibition of
loans and credits, shutting off of radio, cable, and postal communica-
tions, and access by rail, ship, or airplane. All ships, aircraf t, or trains
would be required to turn back or deviate. Exception would have to
be made for agents of the United Nations, such as the representa-
tives of the Military Staff Committee. This same exception should
extend to accredited representatives of the world press and radio.
Special provision would need to be made for the exception of the
transportation used by such exempted persons. Exception might also
be desirable for diplomatic and consular representatives of other
states whose presence might be needed to assure the welfare of their
nationals, but the dispatch by other states of special military observ-
ers should not be authorized, for in this respect the agents of the
United Nations should be able to serve the needs of all. When
committees of the League of Nations considered the measures neces-
sary to establish a blockade against a Covenant-breaking state,
there was difference of opinion concerning the severance of "per-
sonal" relations. The International Blockade Committee thought that
it would not be necessary, for example, "to forbid a father whose
daughter might have married an inhabitant of the defaulting state
to hold a communication with her on purely personal affairs." But
the Third Committee of the Assembly thought that even such con-
tacts should be cut off. 14

In short, a blockade by land, sea, and air would be established.
This blockade would be in the first instance what used to be known
as a "paper blockade," with no validity under the traditional law
of war. Since in this state of emergency there is no question of
balancing 'the convenience of belligerents and neutrals, but merely
a question of taking the first steps toward bringing about general
co-operation in the maintenance or restoration of peace, the bare
notice is sufficient. All states should be required to enact in advance
appropriate laws, comparable to the neutrality statutes of the United

14 Jessup, American Neutrality and International Police (1928), 78-80.

ZOO A MODERN LAW OF NATIONS

States and other countries, 15 which would take effect on the issu-
ance of the Security Council's announcement of a state of emer-
gency. Such laws should provide appropriate penalties under the
national law for any individual contravening the regulations of the
Security Council. They should provide that compliance with the
"blockade" would constitute a defense in any civil action, as for
breach of contract to deliver goods within the defined area. At this
stage the old problem of "continuous voyage," involving a delivery
of goods to adjacent territory for transshipment to the blockaded
area, should be handled through the duty imposed on adjacent states.

It is to be remarked that tinder the traditional law of neutrality
a neutral state was not under a duty to prevent its nationals from
engaging in the contraband traffic or running a blockade. Under the
proposed plan all states would have such a duty, and moreover all
individuals would be bound both by the international rule and by
the national law. Thus voluntary enlistment of an individual from
State C in the armed forces of A or B would constitute both a
national and an international offense.

It may well be objected that any elaborate system* of controls of
trade which would take effect automatically on the declaration of a
state of emergency would be unduly complicated and would place
undue limitations on world commerce if the conflict which evoked the
declaration was of a minor nature or so located geographically as to
justify more limited measures. This objection might be met by
provision for flexibility under special rules to be adopted by the
Security Council; but it should also be pointed out that minor
conflicts have frequently developed into major ones and that even
considerable sacrifices endured for the sake of avoiding a general
war are justifiable.

Obviously such a blockade, applied impartially to the area where

15 For the type of statutes in force under the traditional system of
neutrality, see Deak and Jessup, A Collection of Neutrality Laws, Regulations
and Treaties of. Various Countries 9 2 vols. (1939). It may be pardonable for
one of the editors of these volumes to recall that Alwyn V. Freeman, in re-
viewing them, suggested that they might some day contribute to the develop-
ment of an organized system of law for the international community that
would supersede the traditional law of neutrality; 89 U. of Pa. L. Rev. 6941),
414-15. The positions taken in this chapter are inspired by the view that die
historic experience with neutrality may now be utilized to assist in meeting
the new situations envisaged.

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORCE 2OI

the conflict is located and to both parties, would be hard on the state
which is actually fighting in self-defense. But until there has been time
for determination of the right and wrong of the case, no alternative
is possible. The parallel must be the situation within a state in which
police or militia restore order before the rights of the parties can be
determined. 16 Under Article 40 of the Charter "The Security Coun-
cil shall duly take account of failure to comply with such provisional
measures" as the parties have been called on to take. Account might
be taken by imposing on the party ultimately determined to be the
aggressor full responsibility to make compensation for all damage
and injury caused to the attacked state and its nationals and to third
states and their nationals by the unlawful use of force. Granted
that the state actually defending itself against an attack may be
put at a military disadvantage by the blockade order, justification
must be found in the anticipation of the subsequent and early
availability of international forces sufficiently powerful to redress
the balance.

Another legal consequence of the announcement of a state of
emergency would be that neither contending party would possess a
right of military requisition; either would be held to full account-
ability for any damage to persons or property injured. The liability
bf the party ultimately found to be acting in lawful self-defense
would subsequently have to be assumed by the aggressor as part of
the damages it would be required to pay.

The state of emergency should be terminated by the Security
Council as soon as it is satisfied that order has been restored and
that the situation is under control. In reaching such a decision it
would presumably act on all available evidence, including especially
the report of its representatives on the spot. The question of modi-
fying the announcement to make measures applicable to only one
party after a decision is reached on the merits will be considered
below. *

The foregoing hypothetical situation does not consider the

ie Corwin, op. cit., supra note 10, pp. 167-70; Rankin, op. cit., supra note
10, p. 204. Although the current controversy in the state of Georgia regarding
the governorship did not lead to federal intervention, it recalls earlier instances
of a similar type, especially that in Arkansas in 1872; Secretary of War, Annual
Report, 1873-74, H. R. Exec. Doc. No. 220, 43d Cong., ist Sess. (1874). Cf.
New York Times, Jan. 17, 1947, p. 10.

2O2 A MODERN LAW OF NATIONS

added involvement of "regional arrangements or agencies for deal-
ing with such matters relating to the maintenance of interna-
tional peace and security as are appropriate for regional action,"
which under Articles 52 and 51 of the Charter are legitimate. For
example, if the supposed conflict between A and B takes place in
the Western Hemisphere and if the American Republics perfect a
permanent treaty for mutual assistance along the lines of the Act of
Chapultepec, all of the parties to such a regional arrangement will
be entitled to resort to "collective self-defense," "until the Security
Council has taken the measures necessary to maintain international
peace and security." It is doubtful whether the announcement of a
state of emergency would constitute such necessary measures.
Whether or not logical, it would hardly be practicable to have the
suggested blockade made applicable to the whole Western Hemi-
sphere in case joint action were taken in such a conflict. The alter-
native would be to consider the states parties to such a regional pact,
aside from the two states immediately involved in the conflict, as
agents of the Security Council and therefore exempted from the
blockade. This would be consistent with the general ^intent of the
provisions of the Charter concerning regional arrangements, since
those provisions contemplate that the regional group would act on
behalf of the world community or the United Nations.

THE SITUATION AFTER DECISION BY THE INTERNATIONAL AUTHORITY

I. Negative Decisions

In terms of this discussion, the decision of the international
authority, that is of the Security Council, may be either affirmative
or negative. A negative decision would result if one of the permanent
members of the Security Council, for reasons which seemed good to it,
chose to exercise its veto, thus preventing the Security Council from
taking enforcement action or even from reaching a decision that
State A or B was the aggressor. The power of the veto may stretch
farther back into the time sequence and prevent the Security Council
from ordering an investigation on the spot. It cannot prevent the
consideration and discussion of the question in the Security Council.
The situation has already been illustrated by the Iranian question

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORGE 20}

before the Security Council, 17 and the point here made is clear from
the Joint Statement of the Sponsoring Powers, with which France
associated herself at San Francisco. The statement notes that beyond
the point of consideration and discussion "decisions and actions by
the Security Council may well have major political consequences
and may even initiate a chain of events which might, in the end,
require the Council under its responsibilities to invoke measures of
enforcement. . . . This chain of events begins when the Council
decides to make an investigation, or determines that the time has
come to call upon states to settle their differences, or makes recom-
mendations to the parties. It is to such decisions and actions that
unanimity of the permanent members applies, with the important
proviso ... for abstention from voting by parties to a dispute." 18
The abstention from voting by parties to a dispute, be it noted, does
not apply to decisions regarding measures of enforcement under
Chapter VII of the Charter.

This is the gap in the Charter which may become as notorious as
the gap in the Covenant which, under Article 12, left the Members of
the League free to go to war three months after an arbitral award, a
judicial decision, or a report by the League Council. It must always
be borne in mind that the veto may be exercised not only when one
of the permanent members of the Security Council is a party to a
dispute, but also in any case in which such a member desires to
block action, perhaps because of sympathy with one of the parties.

If the veto is exercised and action by the United Nations is thus
blocked, completely or for a period of time, fighting between the
parties may continue over a period of any duration permitted by the
conditions of the contest and the contestants. During such a period,
what is to be the legal position of third states and their nationals?

The official British commentary on the Charter suggests that in
such casgs "the Members will resume their liberty of action." It is
further stated that if "a Great, Power refuses to accept a judgment
concurred in by all the other Great Powers not parties to the dis-
pute and at least three other Members of the Security Council, and
resolves to defy the public opinion of the world which such a

17 See Eagleton, "The Jurisdiction of the Security Council over Disputes,"
40 Am. /. Int. L. (1946), 513, 5i6ff.

18 Report to the President, op. cit., supra note 8, p. 74.

2O4 A MODERN LAW OF NATIONS

judgment would express, it is impossible to predict the outcome
or to lay down rules as to what ought to be done." 18ft The view
taken here is the opposite of the conclusion reached by the British
Secretary of State for Foreign Affairs. It is not likely that the "gap"
in the Charter will soon be filled. Neither, it is believed, is it likely
that the United Nations will soon collapse through a crucial exercise
of the veto. But the possibility should be envisaged, and those who
are, in the words of the Foreign Secretary, "working together in
close co-operation for the maintenance of international peace and
security," should predetermine the rules that should be applicable
in such a tragic event,

One possible solution wqpld be to say that in such circumstances
it must be recognized that war exists and that the traditional law
concerning the rights and duties of belligerents and neutrals, with
such changes in detail as might be agreed on through general con-
vention, would be in force. That traditional law was on the whole
well adapted to the situations which existed when the resort to war
was unregulated by law. But it cannot be assumed that a return to that
traditional law would recommend itself to the peoples of the world.
The hopes which the Charter has raised would be dashed if there were
agreement now that war retains its old position in the international
community, even in what one may hope would be the exceptional
case of the use of the veto. Although the efforts of such stalwarts
as the Australian Minister for External Affairs, Mr. Evatt, will not
be immediately productive of any amendment to the Charter modi-
fying the veto power, the problem can be handled by supplementary
convention, just as the proposals of the United States with regard
to the control of atomic energy contemplate such a device for regu-
lating that danger through agreement supplementary to the Charter. 19
Aside from the question of the veto it would presumably be neces-
sary in any body to muster a majority vote, and the possibility of a
deadlock cannot be ignored. In any case proposals looking toward a
modern law of nations must rest on the illegality of resort to war.
The problem is far broader than the defects in the Charter. Because

18m A Commentary on the Charter of the United Nations, Cmd. 6666, Mis-
cellaneous No. 9 (1945), 1 6 and 17.

19 The International Control of Atomic Energy: Growth of a Policy, Dept.
of State Pub. 2702 (1946), 58.

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORGE 105

of the sheer size and complexity of the world treated as a single
political unit, the problem would not be obviated by the establish*
ment of world government, with the qualification already noted
< If the legal position of nonparticipants in the conflict is to be
regulated by some international agreement short of a return to the
old status of war and neutrality, it would be disastrous to agree that
every state may decide for itself which of the two contestants is in
the right and may govern its conduct according to its own decision,
even if it were agreed that they would not actually support one or
the other side by force. The ensuing conflict among Members of
the United Nations would be destructive of the ordered world
community which the Charter and any modern law of nations must
seek to preserve. State C would be shipping or permitting its nation-
als to ship war supplies to A, while State D would be assisting State
B. The history of neutrality teaches that out of such situations con-
flict between nonparticipants and contestants readily results, 20 and it
would not be long before C and D would be enmeshed in the strug-
gle out of "self-defense." If the Security Council had been unable
to act on the respective merits of A and B, it is hardly to be antici-
pated that it would secure the necessary unanimity as to the position
of C or D.

There is no alternative except to extend throughout the duration
of the conflict the system of impartial blockade against both parties
to the fighting. The problems then arising would differ in magnitude
but not in principle from those already discussed. This difference in
degree may, however, entail serious consequences. If, for example,
the conflict between A and B continues over a long period of time
and the international blockade of both parties is stringently enforced,
it may well be anticipated that sympathizers with A or B through-
out the world will become agitated by reports of starvation condi-
tions in the one or the other country. Heart-rending accounts of the
condition of innocent civilians will appear in the press of the world.
Famine and its attendant diseases and all the horrors of civilian life
under conditions of modern war will be graphically portrayed.
Committees and Associations of the Friends of A (or B) will be

20 The history of the period of American neutrality from 1914 to 1917
is illustrative; see Morrissey, The American Defense of Neutral Rights,
1917

2O6 A MODERN LAW OF NATIONS

formed Pressure will be brought to alleviate the blockade by per*
mitting shipments of food, medicines, and medical personnel. If the
blockade system be adopted under rules of the Security Council,
the pressures will be directed toward inducing the members of the
Council to modify those rules. If the system has been set up under
general convention, the General Assembly, perhaps meeting in
special session, may recommend modification of the convention, a
slow and laborious process at best. Perhaps a resolution of the Gen-
eral Assembly passed by a large majority might declare that the
parties to the convention were justified in making an exception for
humanitarian reasons. The Economic and Social Council, or a spe-
cialized agency such as the Food and Agriculture Organization or
the World Health Organization, might be charged with the duty of
bringing in supplies and supervising their distribution. Such action
of the General Assembly would probably be at best extralegal; it
might well be a violation of Article 1 2 of the Charter, which forbids
the General Assembly to make any recommendation with regard to
a dispute or situation which is under consideration by the Security
Council unless the Security Council so requests. Under the stresses
of a situation such as that here envisaged, it is not unlikely that seven
members of the Security Council might insist that such a request is
a procedural matter to which the veto power does not apply, not-
withstanding the view of the Four Sponsoring Powers and France
at San Francisco that "the decision regarding the preliminary ques-
tion as to whether or not ... a matter is procedural must be taken
by a vote of seven members of the Security Council, including the
concurring votes of the permanent members." 21 Over the protest
of one or more dissident members of the Security Council a resolu-
tion containing such a request might be passed and the General
Assembly might act on it. It may well be that the Charter and the
system of the United Nations as a whole will develop and evolve
through some such emergency steps in time of crisis, but the crisis
might also culminate in the destruction of the Organization.

It is worth noting at this point that generalizations on hypo-
thetical disputes between A's and fi's necessarily eliminate the im-

"UNIO, ii Documents of the United Nations Conference on Inter*
national Organization, San Francisco, 194$ (1945)9 714; Conf. Doc. 852, HI/ 1/3 7
(i) f June 8, 1945.

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORGE 207

portant factor of the factual differences between actual cases. With-
out any invidious implications, the hypothetical situation may be
tested by identifying 4 and B in terms of historic cases or current
points of friction. For example, if A were identified as Paraguay
and B as Bolivia, and conflict again broke out in the Gran Chaco
as it did in 1928, world opinion would probably not reach fever
pitch, because the interests of the countries of the world at large
would not be vitally affected and because there are not important
groups throughout the world with close familial, national, or eco-
nomic ties with Paraguay and Bolivia. On the other hand, if A is
identified as Italy and B as Yugoslavia, brought into conflict over
the disposition of Venezia Giulia, the international repercussions
would be violent. Moreover, access to the two countries is such that
unless there were international supervision of enforcement of the
blockade, violation of it would be relatively easy. Given the dead-
lock in the Security Council that has been assumed, it is not to be
supposed that international enforcement of the blockade would be
ordered.

It might well be that in such situations the provisions of the
Charter concerning regional arrangements for the maintenance of
international peace and security would prove to be the best solution.
It has already been suggested that a regional agency might be con-
sidered the agent of the United Nations in these cases. Such a
regional agency might be able to function without encountering the
obstacle of the veto and might operate throughout the conflict as the
international body charged with the duty of enforcing the blockade
or of alleviating it and supervising any permitted passage of food
and medical supplies. Again, for the sake of illustration, it may be
suggested that the world community would not be averse to allow-
ing an inter-American regional agency of this type to assume and
discharge such responsibilities in a situation in the Western Hemi-
sphere. But in the hypothetical case of an Italian-Yugoslav conflict
so facile an answer might not be given, even assuming that some
comparable European regional agency is established. The break-
down of such a system might be envisaged if there should come into
existence a regional arrangement for Western Europe and another
regional arrangement for Eastern Europe; the two regional agencies
might clash with each other and precipitate world conflict. It is true

208 A MODERN LAW OF NATIONS

that, under Article 53 of the Charter, regional agencies may not
take "enforcement" action without the authorization of the Secu-
rity Council except in the case of action against the "enemy" states
in World War II. While this transitory provision is still in force,
action might be taken against Italy, but not against Yugoslavia, It
would remain true that a regional arrangement such as that contem-
plated by the American Republics might justify its action on the
basis of collective self-defense so long as the Security Council found
itself unable to act.

The so-called Non-intervention System of 1936 developed
among twenty-eight European states with reference to the Spanish
Civil War is an experiment of unhappy memory, since it is now
generally regarded as having assisted the Axis Powers in their
preparations for the international war which began in 1939. It has a
certain illustrative value. 22 In the first place, it is an instance of joint
action designed to impose an international quarantine on a conflict
without judgment as to the merits of the cause of either contending
faction. If it had been rigorously carried out and the actual inter-
vention of third states had not actually taken place, it might have
localized the conflict, and the outcome might have been different.
It developed certain international procedures for the supervision of
the plan of nonintercourse with Spain, such as the presence of
"neutral" observers on vessels and the Nyon agreement concerning
submarine activities. It was accompanied by such policies as those
of Great Britain in declining to recognize the belligerency of either
party. In the second place, it reveals the human difficulty of admin-
istering any such plan when emotions are involved and when there
exists in other parts of the world a passionate conviction of the
righteousness of one cause and the iniquity of the other. No plan
should be suggested as a desideratum which fails to take into account
this emotional factor.

The difficulties envisaged justify a reconsideration of the argu-
ment against a return to the traditional system of neutrality. The
theoretical, and in some cases the practical, advantage of that system
was that it drew a line between the rights and duties of states and
t|j| rights and duties of individuals. A neutral state was bound to use

a detailed description, see Padelford, International Law and
Diplomacy in the Spanish Cwtl Strife (1939), Chap. III.

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORCE 2 Op

the means at its disposal to prevent certain acts, such as those which
would make its territory a base of operations for a belligerent. A
neutral state was not bound to restrain its nationals from dealing in
contraband, running a blockade, or individually enlisting in a bellig-
erent army. Theoretically, the conduct of the individual in assisting
one side or the other would not involve the state, but actually the
state's interest in protecting the interests of its nationals and its own
commercial interest, broadly viewed, frequently brought the neutral
into conflict with the belligerent. The question is whether the risk
of generalization of the conflict would be greater under such pro-
cedures or under the suggested international blockade of both par-
ties. Even under the traditional law of neutrality the individual could
be penalized for the acts which his state was not bound to prevent
him from performing, as by the seizure and condemnation of his
ships and cargoes. Under the suggested law of international blockade
one of the fictions of the old law would be removed, and it would
be acknowledged that the individual was directly bound by the
international law and could be penalized for a breach of the rule.

It was suggested in the preceding chapter that a modern law of
nations operating in a world organized for collective enforcement
of the law is compelled to characterize a resort to civil war as an
illegal use of force. If this be true, at least until an international
authority may have reviewed the situation and reached a contrary
conclusion, then the same international measures should be applied
to civil wars as to armed conflicts between states. This means a
utilization of the device employed so unsuccessfully in the Spanish
Civil War, 1936-59. The emotional factor to which attention has
been called would operate powerfully. But again it is a question of
choice between unhappy alternatives. In the history of labor rela-
tions in the United States the employment of federal troops for the
suppression of conditions of violence with which the state forces
have been unable to cope has generally been denounced in labor
circles as being inspired by antagonism to the rights and interests
of labor. 28 The denunciation may be historically true in some cases
and false in others. It remains true, however, that when violence
breaks out forces of government frequently see it as their first duty
to restore and maintain peace in order that peaceful processes of

98 See 13 Neb. L. Bulletin (1934), 292, 302; 36 Col. L. Rev. (1936), 494.

2IO A MODERN LAW OF NATIONS

negotiation, mediation, arbitration, and the like may be utilized.
Judgment on the merits cannot precede the use of police forces. If
this analogy be followed, the rule of law in international relations,
and the inevitable international interest in civil strife because of its
international repercussions, suggest that the policy of suppression of
force must be followed in the first instance. As in the illustrative
cases of international conflict, if the international authority is pre-
vented by failure to secure the necessary unanimity or majority
from ordering investigation and the dispatch of international con-
tingents that is, from actually intervening in the struggle with
adequate force the alternative is the resort to collective blockade
or quarantine of the state in which the civil war has broken out. The
factual circumstances of each case will vary, and such quarantine
may in some cases sustain the "right" and in some cases the "wrong."
How can it be otherwise until right and wrong are identified in
terms of the clashing factions? As already suggested, the general
interest of the world community, and therefore eventually of the
"right," would not be better served if each outside state or each
group of individuals in such outside states were free to reach its
own conclusion and to intervene on one side or the other.

THE SITUATION AFTER ACTION BY THE INTERNATIONAL AUTHORITY

II. Affirmative Decisions

The preceding discussion has concerned itself with the problem
that might arise where the international authority is unable to act
because of a split in opinion blocking the necessary vote. Such
inaction has been termed a negative decision. An affirmative decision
would be made where the necessary majority could be secured.
Such a decision might involve several stages investigation, orders
to thfe contending parties, orders to all other Members of the United
Nations, use of international forces. It has been suggested that as
soon as a threat to the peace is found to exist through an appeal to
the Security Council alleging an armed attack, a state of emergency
might be proclaimed, and the legal consequences of such a condition
have been sketched. The stage that will now be considered is that
begins with the operttions of international forces. What are

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORCE 211

the rights and duties of those forces in carrying out their mission?
This discussion is not concerned with the obligation of states to
contribute contingents to such forces.

Under Article 43 of the Charter one of the facilities which Mem-
bers are to accord to the Security Council in the agreements to be
concluded with that body are rights of passage. 24 If international
land forces, for example, need to proceed over the territory of a
state adjacent to an aggressor, they will be accorded permission to
pass. Traditional international law has asserted that in case of the
permitted passage of the armed forces of one state across the territory
of another those forces enjoy an immunity from the jurisdiction of
the state traversed. 25 The same rule would be applicable to armed
forces composed of national contingents under international com-
mand./ There will be need to state the rule precisely and to ensure
its application to the flight of military aircraft and to the free
admission of war vessels, transports, and supply ships and their
cargoes to the ports of a state. It makes no legal difference whether
immunities are extended to them because they are national forces
despite their international command, or because they are United
Nations forces despite their composition from national contingents.
As a matter of precedent and principle it would be preferable to
agree that the immunities are accorded to and for the Organization.
The recognition of the international personality of the Organiza-
tion 2e would remove any theoretical obstacle to such an agreement.

While operating in the territory of an attacked state or of an
adjacent state through which the international forces pass and in
which they may be compelled to resist counterattack by the "aggres-
sor," the international forces must have the usual freedom of an
army to disregard private rights which might otherwise hinder mili-
tary operations. Thus there would be a right to cross private prop-
erty, even though it involved destruction of crops. Buildings might be
utilized as cover, as artillery posts, or as billets; they might be

24 Cf. the special position of Switzerland in the League of Nations as
illustrated in her refusal to allow the passage of international contingents at
the time of the Vilna incident in 1920; Bonj^ur, Swiss Neutrality, Its History
and Meaning (1946), 115.

95 The Schooner Exchange v. McFaddon, 7 Cranch 116 (1812); Hudson,
Cases and Other Materials on International Law (ad ed. 1036), {26. note n.

a See Chap. II,

a 12 A MODERN LAW OF NATIONS

destroyed to clear a line of fire. Under traditional international law,
damage resulting from necessary military operations does not subject
the state whose forces do the damage to responsibility to pay com-
pensation, but requisition of property, as for billets or food, involves
a liability to pay. 27 It is unnecessary to discuss the distinctions which
exist under the traditional law, since under a modern law of nations
it should be agreed that the burden should be shared and should
not fall upon the hapless individual or state. The international forces
should be required to keep careful account of all such damage, and
machinery should be provided for the proof of claims at the earliest
possible date. There should be delegated to responsible officers the
power to pass on and settle claims in the field up to a specified
amount, as was authorized for United States Military Government
detachments. 28 Payment should be made by the United Nations as
part of the cost of the enforcement measures. If some authority
under the Charter is needed, although it probably is not, reference
may be made to Article 50, which suggests that the Security Council
shall aid any state to solve "special economic problems" arising from
the carrying out of enforcement measures. The destructipn of build-
ings and crops in a state whose territory is a field of military opera-
tions may be deemed to be such a special economic problem,
although the article relates more generally to measures of blockade
and other economic and financial controls. In this respect the
Charter will need to be supplemented by a convention along the
lines of the Convention on Financial Assistance drafted by the
League of Nations. 29

Problems which arose during World War II as the result of the
occupation or use of allied territory by armed forces of various
countries could not be solved by automatic application of the Fourth
Hague Convention, which was drafted with an eye to the occupa-
tion of enemy territory. A convention will need to be drafted deal-
ing with such questions as the continued functioning of local courts
and the jurisdiction of military tribunals for the trial of offences by
and against members of the international force. The several agree-

* T 2 Hyde, sec. 295; Feilchenfeld, The International Economic Law of
Belligerent Occupation (1942), 32.

88 United States Army and Navy Manual & Military Government and
Cw7 Affairs, FM 27-5, OPNAV 5<>E-3 (i94&3*tti.

20 5 Hudson, International Legislation dpfsff 751.

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORCE ZI3

ments on this subject concluded by the United States during World
War II may offer precedents. 80

When operating against the "aggressor" or in its territory the
international forces should be governed by rules relating to the
conduct of hostilities and the treatment of prisoners of war. This
is not a matter of sentiment, but of military necessity. A restudy
and revision of the Fourth Hague Convention would be called for
in any case, as experience during World War II demonstrated. In
1907 the members of the Hague Conference did not have in mind
the complex problems involved in modern industrial organization
and in the participation of the state directly or indirectly in many
forms of commercial and financial transactions and enterprises. 81
Among other types of problems, it should be agreed that the tradi-
tional rules concerning the sanctity of the home and of the individual
should be respected. Exceptions in terms of requisition of billets
and supplies and services will need to be restated. Particularly, it
should be determined whether the ancient practice of taking hos-
tages is to remain legal and whether hostages may be shot or placed
in positions of danger or must be treated as prisoners of war. The
United States Army Manual was not clear on this point and seemed
to recognize the legality of putting hostages to death, 82 but killing
hostages was listed as a war crime in the Charter of the International
Military Tribunal for the trial of the major war criminals. 88 There
will also be need to reconsider the rule of Article 52 of the Hague
Convention relative to the use of civilian personnel on tasks contrib-
uting directly to military operations. Under traditional law enemy

30 For discussion of the applicable law and citations to the applicable
documents, see King, "Jurisdiction over Friendly Foreign Armed Forces,"
36 Am. J. Int. L. (15^2), 539, and "Further Developments Concerning Jurisdic-
tion over Friendly Foreign Armed Forces," 40 id. (1946), 257.

31 See Feilchenfeld, op. cit., supra note 27, and Freeman, "General Note
on the La^r of War Booty," 40 Am. J. Int. L. (1946), 795.

33 War Department, Basic Field Manual, Rules of Land Warfare, FM 27-10
(1940), states in sec. 358 on reprisals: "Hostages taken and held for the declared
purpose of insuring against unlawful acts by the enemy forces or people may
be punished or put to death if the unlawful acts are nevertheless committed.
Reprisals against prisoners of war are expressly forbidden by the Geneva
Convention of 1929." But in the comment ori the Geneva Convention in seq$
76 of the Manual it is said: "When a hostage is accepted he is treated as i
prisoner of war."
33 Trial of War Criminals, Dept. of State, Pub. 2420 (1945), 16.

214 A MODERN LAW OF NATIONS

civilians could be required to work on roads and railroads used
exclusively for military transport, but they could not be required to
build fortifications. There was no certainty as to whether they could
properly be forced to labor on the construction of a military airport.

Agreement should also be reached as to the legitimacy of various
means of conducting hostilities. Much of the opposition to the
attempts to frame such regulations has stemmed from the belief that
the attempts were futile and that since war itself was a lawless situa-
tion it was illogical to provide that it should be waged "lawfully."
These arguments have no applicability to the regulation of the con-
duct of international forces. The occasion for thek use will be
determined by the Charter or other applicable convention, and there
is no reason to assume that the United Nations should be impotent
or unwilling to govern its forces by such rules as are found suitable.
The applicability of the same or even more stringent rules to the
state against which the international forces are being used would
have the sanction of regulations for the trial of war criminals. Such
trials could be conducted more efficiently and more justly if the
crimes are clearly defined in advance.

It is to be noted that the regulations to govern the conduct of
international forces of the United Nations need not be embodied
in a convention requiring the ratification of the Members. The
Security Council, on the recommendation of its Military Staff Com-
mittee, might adopt regulations to govern such forces. It is true that
Article 47 of the Charter places on the Military Staff Committee
under the Security Council responsibility only for the strategic
direction of the forces placed at the Security Council's disposal and
that "Questions relating to the command of such forces shall be
worked out subsequently." The phrases used in this book suggesting
international command may therefore be premature, although in one
sense it may be said that there is international command even if
actual command of the various contingents is entrusted or delegated
to national officers. If the regulations governing the conduct of such
forces in the field were drawn up by the Security Council and
submitted by it to the General Assembly and approved by that
body, there would be no reason to question their legal efficacy for the
purpose. The General Assembly might well recommend to the
Members that they adopt such regulations for the governance of

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORCE

any contingents which they might subsequently supply, and that,
mutatis mutandis, they make them equally applicable to the conduct
of their forces should these be used in self-defense.

It is to be anticipated that as the work of the United Nations
Atomic Energy Commission progresses and the use of atomic
weapons by a single state is outlawed, agreement will also be reached
on the use of such weapons by international forces. Such agreement
might include the principle that atomic weapons are never to be
used, or that they are not to be used except in case of great necessity;
that before the dropping of atomic bombs, reasonable notice shall
be given so as to afford opportunity for the evacuation of civilians
from the area. Such bombs would presumably be utilized for the
destruction of industrial buildings, docks, fortifications, supply
dumps, and the like rather than primarily against bodies of troops
except as these might be massed in a fortified area. Notice would
'therefore not be inconsistent with military effectiveness.

The experience of World War II suggests that, so far as general
aerial bombardment is concerned, attempts to define objectives in
terms of their military use or by the old test of "fortified" places
will not be continued, and that the indiscriminate killing of civilians
in a state that has resorted to force in violation of the law, and
against which international enforcement measures are taken, must be
anticipated. It is erroneous to deduce from this conclusion, as is
sometimes done, that the old distinction between civilians and mili-
tary personnel has been abandoned. Women and children are not
deliberately shot when an attacking force enters a town, as are
members of the enemy armed forces who do not surrender. In gen-
eral, such civilian personnel are not made prisoners of war, although
some civilians may be. 84 The distinction never did exist when a city
was under siege, in the sense that the starvation of civilians and their
destruction by gunfire was not a violation of the rules of war. The
distinction did not exist in World War II ia case of aerial bombard-
ment; it is unnecessary here to discuss whether allied bombardments
were justified by the right of reprisal. But there are still limits which
a modern law of nations should impose on man's inhumanity to
man. International forces should be forbidden to use poison gas or
bacteriological warfare. Poisoned weapons, dumdum and explosivi

84 Basic Field Manual, op cit., supra note 32, p. 18.

2l6 A MODERN LAW OF NATIONS

bullets, and the poisoning of wells should be banned. Despite the
discussion above, the possession or use of atomic bombs, even by an
international authority, may also be prohibited. Previous regulations
on some of these subjects have been sustained and widely observed
because of the hard-boiled military conclusion that their military
efficiency did not overweigh the possible disadvantages of retaliation
and the needless additional suffering caused. The military efficiency
of the modern flame-thrower apparently does overweigh the oppos-
ing considerations, and it is to be anticipated that its use will be
permitted to international forces. But in regard to any particular
weapon, the decision will be made by the military expert, whose
decision will be reviewed by civilians into whose final conclusions
will enter countervailing considerations of humanity. Three prin-
ciples might be accepted as the basis for final decision:

1. An illegal use of force should be suppressed with the
utmost dispatch by the international forces.

2. In the observance of the first principle, international
forces should refrain from measures which cause additional
suffering to military and civilian personnel without compen-
sating military advantage to an overwhelming degree.

3. International enforcement measures should be carried
out under the first principle with a view to the earliest pos-
sible resumption of normal civilian life in the "aggressor"
country after the illegal use of force has been suppressed.

The adoption of such principles would deny the propriety of purely
punitive measures or steps taken in revenge. The punishment of the
guilty should be in accordance with procedures for proper trial by
military courts in the field for individual atrocities and by appro-
priate international tribunals for the subsequent punishment of war
crimes.

Among other existing rules for belligerent occupation there
should be retained those which dictate that the normal life of the
occupied area should continue in so far as it is not inconsistent with
military necessity. This conclusion, dictated primarily by military
convenience, is in accord with the third principle stated above. Thus
the local law would continue to govern normal civilian transactions,
save as the occupant expressly modifies such laws. Subordinate local

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORCE 217

officials should continue to discharge their civil functions unless
replaced. So far as is consistent with any necessity for limiting large
assemblies of persons, religious life and .instruction in schools and
universities should not be interrupted. The right of requisition, it
has been noted, would need to be retained as well as the right of
billeting. Because the international forces are operating for the entire
world community, attempts to defray the expense of the military
operations through forced loans and similar devices should be pro-
hibited. Available assets should subsequently be marshaled under
international auspices and the various states that contributed forces
should receive pro rata shares. Local taxes might, however, be
collected by the occupant and utilized, as required under the Hague
Convention, for local purposes. 35 The old relic of the ancient right
of booty which is found in the stipulation that the occupant may
take property of the enemy government, should similarly be waived
in favor of such subsequent international steps as may be taken. This
would eliminate the present difficult legal problems of determining
whether property belonging to corporations over which a govern-
ment exercises varying degrees of control is to be considered
public or private property. The old safeguards surrounding historic
monuments and charitable, religious, and philanthropic enterprises
should be maintained. There is some doubt of the importance of the
old rule which included municipal property in this classification. 86
In general, the principle of respect for private property and the
sanctity of the home should be observed.

Although it may seem futile to prescribe that the same or similar
rules shall bind the forces of a state which has already revealed its
lawlessness by resorting to the illegal use of force, experience does
not indicate that it is actually futile. The same arguments of military
convenience and necessity which underlie existing rules will be appli-
cable to the aggressor's forces, and the relative assurance of punish-
ment for defined war crimes may act as an additional deterrent. It
must be contemplated also that such rules will be binding on the
forces of a state which resorts to war in self-defense before the inter-

85 Art. 48 of the Hague Regulations; cf. Feilchenfeld, op. cit., supra note
27> p. 48.

36 Franklin, "Municipal Property under Belligerent Occupation," 38 Am.
Int. L. (1944), 383.

2l8 A MODERN LAW OF NATIONS

national decision prerequisite to international enforcement measures
has been made.

If the Security Council should decide to establish a blockade as
a measure of enforcement, the application of blockade measures
might be left to the Member states, each of whom would be obli-
gated to embargo shipments from its ports or in its vessels or air-
craft to the blockaded state. The co-operation of non-Member states
might be obtained, as that of Egypt and the United States was to
some extent in the application of League sanctions when Italy
attacked Ethiopia in I93S- 37 To ensure effectiveness, however, the
Security Council might call on certain Members to supply naval and
air forces to patrol the blockaded area. Such enforcement measures
are not considered to be "war" under the Charter, and the blockad-
ing forces would not be entitled, by invoking traditional inter-
national law, to claim the belligerent rights of visit, search, and
capture. But comparable rights would have to be given to such
blockading forces, or their presence would be futile. As among
Members, it should be agreed that these rights exist. If that be the
international rule and if it be accepted that the rule binds individuals
as well as states, the situation presents no special difficulties. Ships
approaching the blockaded area could be stopped and their papers
and cargo examined. If there were suspicious circumstances which,
under traditional prize law, would constitute "probable cause" for
capture, the ship might be seized. The question would then arise
whether each state contributing forces to the blockading squadron
would set up its own prize court to determine whether the ship and
cargo should be condemned and forfeited. If forfeited, should the
prize go to the capturing state? What rules would the prize court
apply in reaching its decision?

The most equitable and satisfactory solution would be to have
a condemned prize sold and the proceeds placed in a special fund
to be turned over to the United Nations. At the close of the enforce-
ment measures the fund might be used as partial compensation to
the states which had supplied the blockading forces. If the Court de-
termined that the captain or other personnel had been guilty of par-

87 See "League of Nations," Official Journal, Spec. Supp. 151 (1936), 83-92.
At least "passive co-operation" might be secured; see Jessup, op. cit., supra
note 14, p. ip>

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORCE 219

ticipation in the attempt to breach the blockade, such persons might
be turned over to the authorities of the state of which they were
nationals, or to the state whose flag the captured ship flew, for trial
and punishment. A record of the prize proceedings with all pertinent
evidence would be turned over at the same time. Such results might
be achieved if the trial of the case were conducted in a national
prize court. It would be more generally conformable to an organized
world community to establish in convenient locations international
prize courts, which might be composed of a bench of judges re-
cruited from the several states participating in the blockade. The
arrangement would be similar to that under the convention of 1862
between the United States and^Great Britain for the suppression of
the African slave trade. 38 Under that agreement the two parties
agreed to allow their respective war vessels to seize suspected slave
ships and send them in for adjudication before mixed courts. The
experiment was short-lived, and subsequent conventions, both bi-
partite and multipartite, reverted to the more usual procedure uti-
lized in several fishery conventions, whereby the right of search and
capture was, so to speak, internationalized, but the captured vessel
in each case would be delivered to the authorities of its own country
for adjudication. 39 At the present time international organization
has progressed to a point at which the establishment of international
courts of the type indicated would be practicable. 40

The rules of law to govern the right of visit, search, and capture
and to guide an international prize court in its judgments would need
to be restated. As in the case of the rules governing the conduct of
hostilities on land, the Hague Conventions and, in this case, the
Declaration of London of 1909 would be a convenient basis for dis-
cussion. With the elimination of the old clashes between neutral
and belligerent interests, agreement should be much more readily
reached than in the past. The doctrine of contraband might be elimi-
nated iif favor of an expanded doctrine of blockade. Destruction of

88 i Malloy, Treaties, 674; 2 Moore, Digest of Int. L. (1906), 946.

89 i Hyde 756; Leonard, International Regulation of Fisheries (1944), 144.
40 The failure to create an International Prize Court in 1907 was due

chiefly to the inability of the principal . maritime states to agree on what law
it would apply; see Hudson, International Tribunals Past and Future (1944), 166.
The experience emphasizes the necessity for agreement on the substantive law
before appropriate procedures are developed.

220 A MODERN LAW OF NATIONS

prizes at sea should be prohibited. The manner in which aircraft
might be utilized against surface merchant ships and against other
aircraft attempting to breach the blockade needs technical study and
careful statement. The rules suggested on these still novel points by
the Harvard Research Draft Convention on Neutrality may merit
consideration. 41 Attention may be directed especially to the pro-
posals there made for a system of neutral certificates designed to
meet some of the traditional difficulties in visit and search on the
high seas. 42

It should be agreed that the state against which international
enforcement action is taken shall have no right of interference with
ships or aircraft of other states. Any act of force by the war vessels
or aircraft of that state on or over the high seas should be considered
an act of piracy. It is to be assumed that the blockading forces would
have the right and the duty to prevent by force the commission of
any such act of piracy.

These situations seem simple enough when the "aggressor" state
is a minor power and overwhelming force can be mustered against
it. If on the other hand that state is a major power and ways are
found to secure international enforcement measures, it is clear that
conflict on a large scale may result. 43 This would probably mean a
widening of the field of action, with a necessity for action by the
blockading forces at considerable distances from the state blockaded.
As history shows, this expansion would increase the number of cases
in which overzealous blockading vessels would interfere with inno-
cent commerce, and the task of the international prize court would
be greater; but the principles would not be altered, and the same
rules could be applicable.

If enforcement measures are being carried on by a regional group
acting under the right of self-defense as determined by the Charter
and as discussed earlier in this Chapter, the group might establish
mixed prize courts on the model already envisaged. Here the need
for detailed rules of substantive law and of prize procedure would

41 "Harvard Research in International Law, Draft Convention on Rights
and Duties of Neutral States in Naval and Aerial War," 33 Am. J. Int. L. Supp.

<*939) *75-

4a 7^,505 ff.

48 A major power would in all probability marshal satellites or allies in its
train; Lippmann, New York Herald Tribune, Dec. 31, 1046.

RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORCE 221

be the greater, for the commerce of several great powers not
engaged in the blockading effort would be involved. The situation
may be pictured as one in which an inter-American regional group,
utilizing chiefly United States forces, would interrupt the commerce
of such states as the Soviet Union, the United Kingdom, and France,
not to mention the large merchant fleets of such states as Norway,
Sweden, and the Netherlands. If it be agreed that the regional group
is acting as the agent of the United Nations, the principles remain
the same, although the practical difficulties are much greater.

As in other situations described, the lack of universality of the
United Nations presents the problem of the rights of third states.
Under the hypothesis of the acceptance of the principle of com-
munity interest, the proposed law would be considered to be law of
general application, and non-Member states might be invited to
adhere to the conventions embodying the rules. But, for the reasons
explained in Chapter VI, the rules should be deemed applicable to
third states even if they do not adhere.

The development of the United Nations into a World Govern-
ment would facilitate measures of enforcement but would not elimi-
nate the need for law governing the conduct of the international
forces. As, under the law of the United States, the individual is
protected against unreasonable searches and seizures, so the indi-
vidual ship- or aircraft-owner would need like protection against an
abuse of power by international forces. The limitation of national
armaments and the development of a standing international force
would eliminate such problems as the distribution of prizes and
would reduce the scale of operations, but there would still be
activities which may be likened rather to smuggling than to blockade-
running. Again the operations of government on a world scale would
result in factual difficulties so different in magnitude as to be differ-
ent in character from those confronted in the law within national
states tocfty.

Law and governmental organization are interdependent. A mod-
ern law of nations cannot function without proper organization.
Even world government cannot function without proper law. "The
law, like the traveler, must be ready for the morrow. It must have a
principle of growth." 44

44 Cardozo, The Growth of the Law (1927), 20.

INDEX

Acquisition of territory, 46

Adjudication, 112, 141, 165, 219

Admiralty law, Anglo-American, 85.
See also Law

Advisory Committee of Jurists. See
Permanent Court of International
Justice

Advisory opinions, 26, 63, 136, 154, 155

Aggression, 171, 175, 192, 193, 194, 195,
198, 202

Agreements. See Contracts; Treaties

Agriculture. See International Insti-
tute of Agriculture

Aircraft, 175, 188, 100, 192, 194, 195,
196, 197, 199, 215, 220, 221; national-
ity of, 85-86

Albania, 197; frontier with Greece,
119, 171; government of, 175, 176

Alienage, 9, 68

Aliens, 74, 79, 86, 95, 97, 98, 103, 117,
141, 179; admission of, 80; appro-
priate treatment of, 101; equal treat-
ment with nationals, 34, 101, 102;
expulsion of, 82; privileged position
of, 89; subject to local law, 104. See
also State responsibility

Allegiance, transfer of, 76, 78

Allied and Associated Powers (World
War I), 45

Amazon Valley, 121

Amelia Island incident, 166

American citizens, 98, 103

American-German Claims Commis-
sion, 95

American-Mexican Claims Commis-
sion, 95

American republics, 11, 43, 46, 58, 60,
89, 95, in, 202, 208. See also Latin
America

American Revolution, Fathers of, 91

Anarchy, 3

Anglo-American law, 181

Anglo-Saxon law, 107
Anti-Semitism, 82, 83
Arbitral Tribunals, 18, 33, 95, 109
Arbitration, 112, 113, 114, 141, 150,

210. See also Arbitral Tribunals;

Private arbitration tribunals
Argentina, 58, 113
Armed attack, 166, 167, 168, 210. See

also United Nations Charter, Article

5 1
Armed neutrality, 39

Armenia, 58

Asia, 80, 8 1

Assassination of heads of states, 178,
179

Assembly of League of Nations, 26,
45, 59, 143, 147, 193, 199

Associations of individuals. See Cor-
porations; International law, subjects
of

Asylum, 78-84; right of, 82, 83; state
privilege to grant, 82. See also Emi-
gration, Immigration

Atlantic Charter, 117

Atomic energy, 13, 21; international
regulation of, 167, 204; unauthorized
manufacture, 178; warfare, i, 166,
167, 190, 191; weapons, i, 19 and n.,
166, 167, 191, 215, 216. See also In-
ternational Atomic Energy Author-
ity; United Nations Atomic Energy
Commission

Atrocities, 180

Austinian concept of law, 4

Australia, 81, 82

Austria, 181

Autonomy, 51; economic, 97; of col-
onies, 43

Axis Powers, 208

Bacteriological warfare, 215
Balance of power, 28, 150, 158, 189

224

INDEX

Balkan states, 44

Bangkok, 195

Bankruptcy, 36

Baruch, Bernard, 13

Belgium, 95, 177, 195

Belligerent occupation, 189, 216

Belligerents, 192, 199, 209, 219; and
neutrals, 54; recognition of, 43, 51-
55, 60, 61, 208; rights of, 35, 85, 176,
204, 218; status of, 189

Berlin Treaty (1878), 45, 51

Bilateralism in international law, 10,

i33 17"

Bill of Rights (See International Bill
of Rights)

Elaine, James G., 82

Blockades, 53, 153, 200, 202, 206, 212,
218; belligerent, 113, 176; breach of,
219, 220 221; collective, 210; doc-
trine of, 219; impartial, 205; inter-
national, 205, 207, 209; pacific, 113,
176-177; "paper/* 199

Bolivia, 207

Borneo, 81

Boxer Rebellion, 119, 170

Boycotts, 1 8 1, 182

Brazil, 61, 114

Bretton Woods agreement, 30. See
also International Bank for Recon-
struction and Development; Inter-
national Monetary Fund

Briand-Kellogg Pact, n, 134, 163

British-American Claims Commission,

35

British dominions, 23
British East India Company, 22
Bryan, William Jennings, 7
Buenos Aires Conference (1936), 173
Bulgaria, 51, 115; incident with

Greece, 194, 197, 198
Burgos government, 59
Business organizations, 96. See also

Corporations

California, 72

Calvo Clause, no, in. See also State

responsibility
Canada, 120, 168; government of, 162;

public policy of, 89
Cardozo, Benjamin, 4, 57, 152 n., 221 n.

Caribbean Republics, 55, 173

Caribbean Tourist Development Asso-
ciation, 21

Carnegie Endowment for Interna-
tional Peace, 183

Caroline case, 163, 166, 168

Cartels, 84

Carthage case, 40

Case law, 94, 158

Cayuga Indians, 22

Central American Court of Justice, 18

Central American Treaties of 1007
and 1923, 58

Central Commission for the Naviga-
tion of the Rhine, 18

Chaco War, 194, 207

Chapultepec Conference (1945), 114;
Act of, 165, 202

Charter of the United Nations. See
United Nations Charter.

Chartered companies, 22, 131

Chile, 95

China, 40, 72, 78, 89, 119, 166, 170,
179, 181

Christian Armenians, 183

Citizens. See Nationals

Citizenship. See Nationality

Civil Aviation Organization, Interna-
tional, 24 n., 64, 65, 129

Civil service, international, 32

Civil war, 2, 5, 53, 54, 56, 59, 184-187,
1 88, 209, 210; American, 95, 189, 192;
in Nicaragua, 170; international legal
regulation of, 184

Claims, 34, 95, 96, 105, 110, 117, 118,
119, 137, 138, 177, 212; contractual,
108; international adjudication of, 9,
86, 94; nationality of, 86, 09; prose-
cution of, 86, 98; state, 121

Claims commissions. See Mixed claims
commissions

Collective measures. See Enforcement

Colombia, 95

Colonies, 22, 37, 96, 118, 124; as sub-
jects of international law, 51; revolt-
ing* 43 5 2 5 settlement of, 81;
struggle for independence of, 52

Commercial treaties, 84, 137, 138, 151,
181

Commission of Investigation, U.N., 197

INDEX

Commission on Human Rights, 19, 92,
93, 102, 184. See also International
Bill of Rights; Rights of man

Committee on die Codification of In-
ternational Law, U.N., 161

Common law, 4, 70, 94, 139

Communities not recognized as states,
51-64

Community interest. See International
law, community interest in

Compulsory jurisdiction, 31, 112

Concert of Europe, 39, 44, 48, 49,

^ 8j .

Concession contracts, 27, 112, 139
Confederacy, in American Civil War,

189

Conference for the Progressive Codi-
fication of International Law, 68, 73,

75, 94

Conflict of laws, 67, 84, 85, 140, 141

Congress, U.S., 75, 78, 135, 136

Congress of Berlin (1878), 44-45, 51

Congress of Vienna (1815), 29

Constitution, U.S., 71-72, 92

Constitutional law, 18, 41, 126

Continuous voyage, 200

Contraband, doctrine of, 219

Contracts, 121; and agreements, 123;
breaches of, 104, 109, no, 200; com-
mercial, 112; concession, 27, 112, 139;
employment, 132; interpretation of,
139; law governing, 123-156 passim;
loan, 27, 113, 114, 115, 141; obliga-
tion of, 140; termination of, 152

Conventions. See Treaties

Corfu incident, 171

Corporations, 26, 27, 33, 34, 85, 97, 108,
109, no, in, 112, 217; as subjects of
international law, 20, 84, 131; auton-
omous, 25; government, 20, 121;
Swiet, 21

Costa Rica, 55, 56

Counterfeiting of foreign currency, 6,
178

Coup d'etat, 58, 60, 62

Covenant of the League of Nations.
See League of Nations Covenant

Credentials Committees, 59

Creditors, 36

Criminal law, 10, 12, 182

Custom, international, 68, 125
Czechoslovakia, 67, 136

Damages, measure of, 9

Danish fleet, 165

Danube, 18, 29

Danzig, 115

Declaration of Human Rights, 92-93

Declaration of Independence, 90

Declaration of London, 219

Declaration of Montevideo (1933), 43,

4<5 77

Declaration of the Rights of Man
(1789), 91

Defense of national lives and property,
160-172

Definitions, 4, 70; of "aggression," 193;
of "denial of justice, 105; of "law,"
4; of "self-defense," 164. See also
International law, definition of; Res-
idence, definition of

Delaware, 72

Delegation of state power, 18, 19

Democracy, 71

Denial of justice, 104, 108, 109, 112

Denmark, 166

Department of State, 98, 109, in, 113,
169

Dependencies, 26, 27, 53, 124, 137;
government of, 52

Diplomacy, 3, 123

Diplomatic immunities, 6, 183; law of,
12; of international officials, 121, 128

Diplomatic protection, 98, 90, 117; ex-
tension of, 84; of citizens abroad, 9.
See also Aliens

Diplomatic relations, 55-56, 150

Diplomatic representative, 62

Disarmament, 28, 191, 221

Discrimination, 35, 36

Displaced persons, resettlement of, 101

Domestic law. See Municipal law

Dorrtestic questions, 41, 52, 68, 82, 86,
87, 88; and colonial questions, 53.
See also Nationality

Domicile, 70

Dominican Republic, 131

Draft Declaration of die Rights and
Duties of American States (1946),
173. 174

226

INDEX

Drago Doctrine, 113, 172
Dual nationality, 69, 70, 73-74, 100
Dumbarton Oaks proposals, 87
Dunn, Frederick S., 4, 96, 97, 98, 101,

106, 107, 107 n., 108
Dutch citizens, 79
Dutch East India Company, 22
Dutch East Indies, 52

Economic and Social Council, U.N.,
26 n., 63, 77, 84, 116, 117, 118, 128,
184, 206

Economic imperialism, 95-97, 116, 117,
118

Educational organizations, 96

Egypt, 218; British demand for evacu-
ation of Sudan, 1 19

Eire, 49

Emigration, 78-84; control of, 79-,
limitations on right of, 78-79, 80;
obligation of, 84; prohibition of, 79;
right of, 78, 80, 8 1, 82

Enemy states, 49

Enforcement, international measures
of, 6, 19, 72, 89, 90, 169, 170, 171,
172, 175, 179, 184, 193, 194, 203, 208,

212, 215, 216, 2l8, 220, 221

English law, 150

Equal protection of the laws, 27, 29,
31, 80

Equal rights, 26, 27-28, 31

Equality, 26-36, 37, 40; legal and polit-
ical principle of, 28, 31, 72; of states,
27, 31, 61, 106, 136, 159

Equity, 35

Estonia, 115

Estrada Doctrine, 60, 61, 62. See also
Recognition

Ethiopia, 59, 218

European Coal Organization, 118

European Commission of the Danube,
18

Evatt, Herbert V., 204

Exchange control, 79

Exchange of notes, 123

Exclusiveness of jurisdiction, 41

Expatriation, forced, 76; legal conse-
quences of, 76; right of, 74, 75, 78,
70, 80, 82; voluntary, 77. See also
Rationality

Expulsion, right of, 82; from United
Nations, 50. See also Aliens; Na-
tionals

Extradition treaties, 83

FAO. See United Nations Food and
Agriculture Organization

Fiction, legal, 13, 15, 85

Fisheries, 19

Food and Agriculture Organization,
24, 63, 117, 128, 206

Force. See Use of force

Foreign-exchange controls, 79

Foreign offices, 98, 138; legal advisers
to, 7

Formalism in international law, 138

France, 38, 48, 95, 114, 118, 120, 166,
i?7 *95 198, 203, 206, 221; govern-
ment of, 40, 113; jurisprudence of,
150

Franco regime, 50, 58, 174, 181, 186

Free Zones case, 132

Freedom, 88. See also Individuals;
Rights of man ,

Freedom of the seas, 38 '

French-German Arbitral Tribunal, 95

Function of law, 2, 40

General Assembly, U.N., 13, 26, 31,
46, 47, 49, 50-51, 52, 54, 58, 63, 87,
127, 128, 130, 145, 146, 148, 149, 151,
'5 2 154, *55 160, i?i, 173, 174, 183,
184, 206, 214; jurisdiction of, 88

General Orders 100, U.S. Army, 189

Geneva Conventions, 18, 190

Genocide, 183, 184

German- Venezuelan Claims Commis-
sion, 1 10

German-Polish Arbitral Tribunal, 95

Germany, 18, 23, 38, 48, 95, 113, 120,
137, 161 n., 176; anti-Semitism in, 83;
jurisprudence of, 150

Good Neighbor Policy, 30, 173

Government corporations, 20, 121

Government monopoly, 20

Governments, 114, 180, 181, 184, 209;
changes of, 56, 61, 62; de facto and
de jure, 61; enemy, 217; judicial
branch of, 108; machinery of, 86,

INDEX

227

96; officials of, 106, 107, 121; polit-
ical branch of, 65; recognition of,
43 55-64* 173; representative, 71;
responsibility of, 71

Gran Chaco, 194, 207

Great Britain, 38, 48, 56, 65, 82, 95,
118, 120, 132, 133, 142, 166, 174, 181,
208, 219, 221; Foreign Secretary of,
204; government of, 113, 163, 175,
176; nationals of, 104-, warships of,

175
Great Powers, 29, 30, 31, 30, 45, 144,

146, 203, 220, 221. See also Middle

powers; Small powers
Greece, 39, 115, 120, 171, 181; frontier

with Albania, 119, 171; incident

with Bulgaria, 194, 197, 198
Groups, as subjects of international

law, 19

Hague Codification Conference
(1930), 68, 73, 75, 94

Hague Conventions, 140, 190, 212, 213,
217, 219

Hague Peace Conference (1907), 29,
113, 114, 213

Harrison, Benjamin, 82, 83

Harvard Research in International
Law, Draft Convention on Law of
Treaties, 152; Draft Convention on
Nationality, 68; Draft Convention
on Rights and Duties of Neutral
States in Naval and Aerial War,
220; Draft Convention on Rights
and Duties of States in Case of Ag-
gression, 192, 193, 104

Havana, Act of (1940), 165

Havana Conference (1928), 141, 173;
Convention on Rights and Duties of
States, 185

Hayjfohn, 181

Hay-Pauncefote treaty (1901), 132

High seas, 53, 85, 220; violence on,
178; visit, search, and seizure on,
219, 220

Hitler, Adolf, 190

Holland. See Netherlands

Holy See, 22

Homicide, 183

Honduras, 113

House of Commons, 58

Hudson, Manley O., viii, 6, 95, 124

Hughes, Charles Evans, 133

Hull, Cordell, 101, 173

Human rights, 19, 92-93, 102, 184. See

also Rights of man
Hungary, 115
Hurst, Sir Cecil, 152
Hyde, Charles C, 132, 138, 152,

172

ILO. See International Labour Organ-
ization

ITO. See United Nations International
Trade Organization

Tm Alone arbitration case, 120, 162

Iceland, 49, 72

Imbrie, Robert, 119

Immigration, 78-84; Act (U.S., 1924),
35, 80; denial of right of, 80; policy
of Australia, 81; quotas, 81; regula-
tion of, 81; restriction of, 81; right
of, 80

Immunity, diplomatic, 6, 12, 121, 128,
183; sovereign, 20, 121

Imperialism, economic, 95-97, 116, 117,
118

Independence, 36-40

India, 22, 23; controversy with South
Africa, 87, 88; government of, 87

Indian tribes in the U.S., 22

Individuals, 27, 32, 41, 69, 84, 86, HI,
119, 124, 164, 168, 185, 186, 188, 192,
199, 200, 209, 210; and state interest,
98; as aliens, 101; effect of recogni-
tion on, 64-65; international rule for
the protection of, 72, 103; political
development of, 71; rights of, 70, 71,
75 7 6 77 7 8 79 80, 100, 102, 116,
117, 136, 137, 138, 140, 156, 183, 208;
use of force by, 178-184. See also
Persons; Rights of man

Indo-China, 195, 198

Infringements of patents and trade-
marks, 137

Insurgents, recognition of, 43, 51-55$
60

Inter-Allied Loans, 27

Inter- American agreement (1946), 173,
'74

228

INDEX

Inter-American Conferences, 46, 89,

*73
Inter- American Convention (1933),

43 4<*i 77

Inter- American relations, 173, 207,
221 ,

Interdependence, 36-40

Interference. See Intervention

Inter-Governmental Maritime Con-
sultative Organization, 24 n.

Internal law. See Municipal law

International agencies, 121-122, 124,
127, 143; collaboration between, 130;
rights and duties of, 121

International agreements, 131, 152. See
also Treaties

International Atomic Energy Author-
ity, 137, 142, 167. See also United
Nations Atomic Energy Commission

International Authority, 193, 195; af-
firmative decisions of, 210-221; nega-
tive decisions of, 202-210; proposed,
for mining of uranium, 121; situa-
tion after action by, 202-221; situa-
tion before action by, 196-202

International Bank for Reconstruction
and Development, 21, 24 n., 30, 63,
115, 116, 117, 121. See also Interna-
tional Monetary Fund

International Bill of Rights, 65, 69, 71,
72, 75, 90, 92, 101, 102, 103, 117, 137,
138

International Blockade Committee, 199

International Bureau of Investigation,
proposed, 179

International Civil Aviation Organiza-
tion, 24 n., 129

International civil service, 32

International claims commissions. See
Mixed Claims Commissions

International Commission on Human
Rights, 70

International Community, 53, 55, 123,

5 '35 *39 '5 '53, *54 '59. i***
174, 175, 185, 186, 188, 189, 192, 204;
development of organized, 12, 13,
ji; government agencies as instru-
mentalities of, 65; lack of organiza-
tion of, 44; members of, 43, 44, 51.
See also International law, commu-

nity interest in; World community;

World government
International conventions. See Treaties
International corporations, 21, 34
International Court of Arbitral Justice,

*9

International Court of Justice, 5, 50,
63, 64, 112, 141, 147, 151, 156; com-
pulsory jurisdiction of, 31, 112;
President of, 26, 146; Statute of, 12,
25, 26, 27, 28 n., 154, 155

International crimes, i9n., 161, 181;
codification of, 161. See also War
criminals

International criminal code, 161, 179,
184

International criminal courts, 83, 168,
169, 179, 1 80. See also International
tribunals

International custom, 68, 125

International disputes, pacific settle-
ment of, 48

International forum, 141, 168, 182

International government. See World
government

International Institute of Agriculture,

29

International Institute of Refrigera-
tion, 23

International Labour Organization, 25,
117, 128, 155

International law, 56, 64, 67, 71, 94, 97,

104, 100, 121, 125, 126, 140, 141, 142,
150, 158, 164, 165, 167, 176, 179-180,
183, 189; administration of, 86; bi-
lateralism in, 10, 133, 176; breaches
of, 102, 178, 1 80, 215; codification
of, 70, 1 20, 154, 173; comihunity in-
terest in, 2, 10, 12, 31, 37, 39, 41, 44,
53. 55. 58 79 103, 106, 116, 133, 135,
138, 152, 154^156, 168, 172, 174, 193,
221; defects in, i; definition of, 5,
15, 17; development of, 87, 06, 136,
i39> 151. i53 *54 i.57 173; effective-
ness of, 95; formalism in, 138; func-
tion of, 16; modern, 82, 85, 91, 103,

105, 116, 123, 133, 149, 152, 153, 154,
160, 170, 172, 175, 178, 180, 181, 182,
1 88, 190, 191, 205, 209, 212, 221; ob-
jects of, 23; popular view of, 124;

INDEX

positivist view of, 91; reality of,
1-14 passim; subjects of, 2, 8, 10,
15-42 passim, 51, 52, 64, 65, 68, 69,
74, 75, 84, 98, 102, 103, in, 116, 124,
131, 132, 136, 137, 155-156, 1781 180,
193, 209, 218; supremacy of, 42; tra-
ditional, 53, 68, 76, 80, 82, 88, 89,
99, 100, 101, 103, in, 119, 122, 133,

*35 i3* H3 *49 *5 2 i X 57* K* 1 ' I(56
168, 169, 170, 172, 178, 186, 192, 193,
204, 2ii, 212, 213, 2 1 8; treatises on,
163; weakness in, 157. See also Con-
flict of laws; Contracts; Persons
International legal process, 124
International legislation, 91, 133, 134,

*35i '39i H<5, 148

International Loans Tribunal, pro-
posed, 115, 141

International Military Tribunal, Char-
ter of, 1 60, 213. See also War Crim-
inals

International Monetary Fund, 21, 24 n.,
30, 63, 116, 117. See also Interna-
tional Bank for Reconstruction and
Development

International organization, i, 37, 44,
55, 157, 162, 169, 170, 185, 186, 219,
221. See also World government *

International organizations, 23, 30, 34,
52, 58, 64, 65, 90, 124, 127, 130, 137,
143; majority rule in, 41, 135, 204;
members of, 179; personality of, 155;
status before International Court of
Justice, 25; universality principle in,
49 50, 83, 146

International personality of the indi-
vidual. See Persons

International police force, 3, 28, 162,
1 88, 189, 196, 197, 201, 210, 211, 212,
213, 216, 217; abuse of power by,
22 rules for, 190, 191, 214, 215, 221

International politics, 31, 57

International public policy, 112

International quarantine, 208, ijo

International relations, 16, 21, 37, 39,
58, 60, 82, 84, 101, 142, 159, 182,
210

International restraint of trade, 84-85

International rivers, navigation of, 38,
133

International servitudes, 142

International society. See International
community

International standard, 34, 101, 102,
103, 105

International systems, 71

International trade, 97, 101

International Trade Organization,
U.N., 24 n., 36, 71, 129

International tribunals, 27, 85, 86, 90,
95, 90, 105, 106, 109, in, 112, 114,
116, 117, 120, 121, 132, 137, 138, 142,
149, 151, 152, 156, 177, 184, 216, 219.
See also International Court of
Justice; Permanent Court of Inter-
national Justice

Interruption of economic relations,

*53

Intervention, 52, 90, 113, 115, 169,
172-174, 208; collective, 174, 185, 186;
illegality of, 173

Iran, 118, 202; courts of, 109; govern-
ment of, 1 08, 109, 12 1 ; law of, 100,
no; nationals of, no

Italian-Venezuelan Claims Commis-
sion, no

Italy, 38, 40, 48, 59, 90, 95, 113, 119,
120, 147 n., 171, 176, 179, 207, 208,
218

Japan, 38, 43, 120, 137, 166, 181, 194;
government of, 80; objects to exclu-
sion of nationals from United States,
35,80

Java, 181

Jefferson, Thomas, 91, 184; his view of
recognition, 56

Jewish Emigres, 82

Jewish groups, 182

Judges, 105, 1 06. See also International
tribunals

Judgments, 109, in, 120, 210; enforce-
ments of, 5

Jurisdiction, 150, 168; exclusiveness of,
41; international, 109, 112; of mili-
tary tribunals, 212; of states, 178;
territorial theory of criminal, 180

Juristic persons, 20, 84-85. See also
Persons

Jury trials, 92

230

INDEX

Juf gentium, 17

Jus sanguinis, 69, 73. See also Nation-
ality

Jus sol^ 69, 73. See also Nationality
Justice, 86, 169, 185

Kellogg Pact, u, 134, 163
Kiel Canal, 38, 120

Labor relations, 209; parallelisms to
international relations, 7. See also
International Labour Organization

Latin America, 95; commentators of,
61, 62; governments of, 101; jurists
of, 101; spokesmen for, 113. See also
American republics

Lauterpacht, H., 69, 71, 75, 78, 84,
150, 164

Law, 3, 150, 159, 195, 219, 221; admin-
istration, 105; Ausrinian concept of,
4; case, 94, 158; choice of, 130^142;
common, 4, 70, 94, 139; definition
of, 4; enforcement of, 3, 209; func-
tion of, 2, 40; need for, 191; rule of,
46, 210. See also Admiralty law;
Conflict of laws; Constitutional law;
Criminal law; English law; Interna-
tional law; Municipal law; Tort law

"Law habit," 8

Law of Nations. See International
law

Law of responsibility. See State re-
sponsibility

League of Nations, 23, 23 n., 29, 30,
38, 94, 145, 146, 149, 157, 165, 179,
212, 218; Assembly, 26, 45, 59, 143,
147, 193, 199; Committee for Inter-
national Loan Contracts, 115, 116;
Committee of Jurists, 171; Commit-
tee of Nineteen, 181; Council, 26,
128, 143, 171, 193* '94* '97 *3'
Credentials Committee, 59; Eco-
nomic Committee, 64 n.; experts,
164; International Blockade Commit-
tee, 199; loans, 115; members, 133,
134, 143, 147, 153, 171, 203; nonmem-
bers, 133, 134, 153; officials, 128;
Permanent Mandates Commission,
45, 46; Report on, to United Na-
tions, 148; S^cretary-Qenand, 128,

153, 154. See also Permanent Com
of International Justice

League of Nations Covenant, 40, 41,
124, 153, 172, 174; amendment of, 143;
Article i of, 23, 45; Article n of,
n; Articles 12-15 ^ I 7 l * Article 16
of, 134, 164; Article 17 of, 133, 134,
135; Article 18 of, 126; Article 19
of, 151; Article 26 of, 143, 146; gap
in, 203

League to Enforce Peace, 30

Leagues of neutrals, 39

Legal fiction, 13, 55, 85

Legal interest, 12, 29, 154

Legal personality, Food and Agricul-
ture Organization as, 24; interna-
tional, of corporate and other bodies,
21. See also Persons

Legislation, international, 17, 19

Lena Goldfields Company Ltd., 33

Lima Conference (1938), 11, 46; Dec-
laration of, 165

Loans, international, 112, 116, 172; de-
fault on, 113, 115; intergovernmental,
115; state, 121, See also Contracts,
loan

Local law. See Municipal law

Local remedies, 109-111. See also State
responsibility

Locke, John, 185

London, 195; Declaration of (1909),
219

Lynching, 182

McKinley, William, 92

Major Powers. See Great Powers

Majority rule, in international organ-
izations, 41, 135, 204

Managua, 170

Manchukuo, 45

Manchuria, i6d.

Mandated territories, 45, 99, 186

Manouba case, 40

Maritime Consultative Organization,
24 n.

Maritime conventions, 134

Maritime state, 38

Mediation, 210

Mexico, 95, no, 113, 177; citizens of,
103; government of, 60, 61, 101, 112,

INDEX

114; laws of, 76; nationalization pro-
gram of, 96

Middle powers, 29, 31

Minor powers, 29, 31, 220

Minorities, 89, 138; protection of, 33,

89
Minority groups, 32, 183; as possible

subjects of international law, 22
Mixed Arbitral Tribunals, 18, 33, 95,

109
Mixed Claims Commissions, 6, 27, 35,

86, 94, 95, 101, no, in, 119
Modus vivendi) 123, 128
Monopoly, government, 20
Monroe, James, 166
Montevideo, Convention of 1899, 140;

Declaration of 1933, 43, 46, 77;

Treaty of 1940, 141
Moore, John Bassett, 7, 66, 189
Most-favored-nation clauses, 35
Multipartite treaties, 89, 124, 126, 138,

140, 143, 146, 149, 219
Municipal courts, 120, 121, 137; indi-
viduals in, 64
Municipal law, 75, 84, 98, 103, 104, 105,

109, no, 123, 131, 132, 137, 138, 139,

140, 142, 164, 178, 181, 184, 200, 216,

221; and international law, 6;

changes in, 78; contracts, 27. See

also Contracts
Municipal property, 217

Narcotics traffic, 19, 178
National honor, 99
National law. See Municipal law
National treatment clause, 34
Nationality, 9, 36, 65, 68-93 P*ssw*>
103, 1 80; acquisition of different, 69;
American, 73; and citizenship, 73;
changes of, 73, 74, 77, 83; concept
of, 68, 85; conflicts of, 68-69, 86 i
deprivation of, 69; dual, 69, 70, 73-
74, 100; French, 73; laws, 73, 77, 86;
loss of, as political penalty, 75, 76;
loss of, by parents and children, 78;
obligations on states to grant, 69; of
aircraft, 85-86; of claims, -86, 99; of
corporations, 84; of juristic persons,
84-85; of married women, 77; of
ships, 85-86; questions of, 86, 101;

right to, 69, 71, 72; significance of,
72. See also Emigration; Expatria-
tion; Immigration; Individuals; Nat-
uralization; Option; Statelessness
Nationalization decrees, 66, 67
Nationals, 19, 41, 74, 77, 97, m, 116,

137, 180, 199, 200, 201, 209, 219; ex-
pulsion of, 82; international duty of
states to, 102; political rights of, 73,
76, lox. See also' Individuals, rights
of; State responsibility

Natural law, 91

Natural persons, 19. See also Corpora-
tions; Persons

Naturalization, 74, 77; by marriage, 76;
forced, 76; UJS. laws on, 80; of
Chinese, Filipinos and East Indians,
80; of parents and children, 78;
privilege of, 80; purchase of land
and, 76; requirements for, 75

Negotiation, 175, 210

Netherlands, 82, 95, 177, 181, 221;
citizens of, 79

Netherlands East Indies, 52
/Neutral states, 39

Neutrality, 64, 192, 109, 219; armed,
39; history of, 205; laws of, 85, 200,
209; legal, 54; obligations of, 53, 61;
rights of, 39, 158, 193, 204; status of,
53; traditional system of, 208

Neutralization, 39

Nicaragua, 158, 170, 171

Non-intervention, 53, 64; system of
1936, 208

Non-self governing territories, 37, 137,

138, 1 86

North Atlantic Coast Fisheries Arbi-
tration, 142
Norway, 177, 221
Niirnberg laws, 190
Niirnberg trials, 92, 160, 165
Nyon Agreement, 208

Objects of international law. See Inter-
national law, objects of
Occupation of territory. See Territory
"Open door," 40
Option, right of, 76, 84
Ottoman Empire, 39, 44
Outer Mongolia, 49

INDEX

PICAO (Permanent International Gvil
Aviation Organization), 129

Pacta sunt seruanda, 125, 150, 154

Palestine, 186

Palmas Island case, 22

Panama, 95

Panama Canal, 132

Pan-American Conference (1906), 113

Pan-American policy, 158

Pan American Union, 55; Governing
Board of, 173, 174

Paraguay, 194, 207

Paris Pact (Briand-Kellogg Pact), n,

134. **3

Paris Peace Conference (1919), 29, 55

Paris Treaty (1856), 18, 39, 44, 47

Partnerships, as subjects of interna-
tional law, 20

Patents, 137

Peace, 159, 165, 187, 199, 202, 209;
breach of, 168, 169, 171, 176, 198;
crimes against 160; organization of
the world for, 179; preservation of,
171; threats to, 54, 169, 171, 176, 198,
210

"Peace-loving" states, 47, 48, 49, 50

Peaceful change, 160

Permanent Court of Arbitration, 35,

4<> *77

Permanent Court of International
Justice, 6, 38, 63, 68, 86, 95, 114, 120,
132, 136, 146, 156, 193; Advisory
Committee of Jurists of, 74; Statute
of, 25, 26, 74, 147

Permanent International Civil Avia-
tion Organization, 129

Permanent Mandates Commission, 45,
46

Persons, in international law, 2, 8, 10,
15-42 passim, 64, 65, 68, 69, 75, 84,
98, 102, 103, in, 116, 124, 131, 132,
136, 137, 155-15^. *7 8 l8 '93. *<>9.
218

Philippines, 22 n., 92, 93

Piracy. 9. 53. *<&, 178, 220

Pogroms, 182

Poland, 1 8; recognition of, 45

Police force. See International police
force

Political subdivisions, 22

Porter Convention, 113, 114, 172
Positivism and international law, 9$
Potsdam agreement, 161 n.
Power, in international relations: 28.

97

Prestige, 21, 97, 98 u

Priority, contrasted with equality^ 36

177 r

Prisoners of war, 158, 190, 213, 215 ^

Private arbitration tribunals, 141. See
also Mixed Arbitral Tribunals ,

Private international law. See confiict
of laws

Privateering, 47

Prize courts, 158; international, 218,
219, 220

Prize law, 218; and procedure, 220 $

Protectorate, 37, 51

Protocol on Dual Nationality, 73-74

Protocol Relative to Non-interven-
tion (1936), 173 , s

Psychological factor in international
politics, 28

Public law of America, 46

Public law of Europe, 39, 44

Public policy, international, 112

Quarantine, international, 208, 210

Railway administration, 21

Ratification of treaties, 125, 126, 127,
128

Rebus sic stantibus, 140, 150, 151 -

Recognition, 43-57 passim, 186; and
nonrecognition, 43, 55, 56, 65, 18$;
as political act, weapon, function,
43, 57, 65; by United Nations, 49;
changed character of, 56; collective,
60, 66; community interest in, 45,
58; "conditional," 48, 57, 58; de jure,
58; denial of, to Manchukuo, 45;
distinguished from establishment of
diplomatic relations, 55-56; effect
of, on individuals, 64-65; essence of,
48, 62; Jefferson's view of, 56; legal
character of, 44, 65; nature of, 43,
66; of belligerents, 43, 51-55, 60, 61,
208; of de facto governments, 57, 60,
61; of governments, 43, 55-64, 173;
of insurgents, 43, 51-55, 60; of new

INDEX

states, 43, 48, 54, 57, 60, 62; prema-
ture, 52; problem of, 51; process of,
66; retroactivity of, 66-67; types of,
45; unilateral, 56, 60, 66; withdrawal
of, 57, 57-58. See also Estrada Doc-
tr'ne
Regional arrangements, 30, 165, 202,

207, 208, 220, 221

Reparations, 161
Reparations Commission, 23
Representative governments, 71
Reprisals, 158, 174-176, 181, 215
Residence, 36, 72-73, 75, 169; test of,

70. See also Nationality
Responsibility of States. See State re-
sponsibility

1 straint of trade, international, 84-85
Retaliation, 158, 174-176, 216
Revolution, 2, 18, 58, 60, 61, 66, 108,

no, 169, 173, 189, 192; colonial, 53;

international legal regulation of, 184;

leaders of, 62; right of, 71, 185, 186;

unsuccessful, 109
Rhine River, 18
Rhode Island, 72
Rights of man, 33; and nationality,

68-93 passim; Declaration of the

(1789), 91; duty to respect, 97;

international guarantees of, 87, 90
Risk allocation, 107, 108, 109, no, 114
Rivers, international, 18, 29, 38, 133
Roman law, 150
Roosevelt, Franklin D., 173
Roosevelt, Theodore, 105 n.
Root, Elihu, 10, 12, 92, 113
Rule of law, 46, 210
Rumania, 44, 45
Russia, 44; anti-Semitism in, 82, 83.

See also Soviet Union

San "francisco, 195

San Francisco Conference (1945), 24,
25, 29, 126, 127, 144, 146, 147, 155,
1 66, 193; sponsoring powers of, 203,
206

San Marino, 72

Sanctions, 134, 162, 164, 218

Santo Domingo, 131

Search and seizure, unreasonable, 221

Security Council, U.N n 5, n, 10, 26,

30, 31. 4'> 47. 5<>, 5' 54* 5* 7 *45t
151, 152, 153, 154, 155, 163, 165, 166,
167, 168, 170, 171, 174, 175, 176, 193,
194, 195, 196, 197, 198, 200, 201, 202,

205, 207, 208, 2IO, 211, 212, 214, 2l8;

members of, 203, 206

Self-defense, 158, 163-169, 172, 188,
193, 195, 201, 205, 215, 217; collec-
tive, 165, 202, 208; legal regulation
of, 163, 165; right of, 164, 165, 168,
220

"Semi-independent" political entities,

, 37

Serbia, 45, 114; recognition of, 48

Servitudes, international, 142

Seventh International Conference of
American States, 173

Ships, 120, 174, 176, 178, 181, 199, 211,
218, 220, 221; applicability of na-
tional laws to, 85; nationality of, 85-
86; slave, 219

Siam, 195, 198

Slave trade, 19, 178, 219

Small powers, 29, 31, 220

Smuts, Jan Christian, 87, 88

Socialized state, 20; government activ-
ities of, 121. See also Corporations;
Soviet Union

South Africa, 87, 88

"Sovereign dependency," 37

Sovereign immunity, 20, 121

Sovereign state, 40, 185

Sovereignty, i, 2, 12, 13, 25, 34, 40-42,
61, 103, 106, 146, 157, 159

Soviet corporations, 21

Soviet Union, 25, 33, 57, 58, 72, 121,
221; nationalization program of,
66

Spain, 95, 149, 165, 175, 177, 208; Bur-
gos government of, 59; Franco
regime of, 50, 58, 174, 181, 186

Spanish civil war, 52, 208, 209. See
also Franco regime

Stack, Sir Lee, 119

State corporations, 20, 121

State Department, 98, 109, m, 113,
169

State responsibility, 62; for injuries to
aliens, 9, 34, 94, 96, 97, 101, 103, 104,
105, 106, 1 10, in, 169, 170, 172, 180,

234 INDEX

209; for injuries to individuals, 94-
122 passim-, law of, 94, 95, 121
Statehood, 21, 47, 48, 50; attributes of,

43 44. 4*

Statelessness, o, 65, 69, 70, 73, 76, 100.
See also Nationality

States, 102, 103, xi2, 114, 134, 149, 150,
157, 163, 164, 169, 174, 186, 188, 109,
200, 220; admission of new, to com-
munity of nations, 49; as intermedi-
aries between international measures
and the individual, 19^ 86; as basis
for organization of the world, 71;
as international persons, 27; as sub-
jects of international law, 8, 15-42,
68, 74, in, 124, 218; continuity of,
55, 61; equality of, 27, 31, 61, 106,

136, 159; essential characteristics of,
47; existing system of, 72; govern-
ments of, 86; injuries to, 120; recog-
nition of, 43-67 passim; right of, to
naturalize aliens, 74; rights of, 118,

137, 208; treatment of nationals by,
88, 89, 100, 106

Stimson nonrecognition doctrine, 162
Stockholders, 20

Subjects of international law. See In-
ternational law, subjects of
Submarines, 178, 208
Super-state, 23

Supreme Court, U.S., 66, 85, 189
Sweden, 49, 95, 177, 221
Switzerland, 39, 59, 128

Taft, William H., 56

Territorial integrity, 37, 40, 162, 169

Territorial waters, 46

Territoriality of vessels, 85

Territory, 211, 213; acquisition of, 46;
attack upon, 171; cession of, 76, 83;
change of sovereignty of, 76; con-
quest of, 162; non-self-governing, 37,
137, 138, 1 86; occupation of, 46, 189,
190, 216; of "rebels" against world
government, 191; transfer of, 83

Terrorism, 178, 179

Texas, 72, 103

Tinoco Arbitration, 56, 62

Tort law, to, 12, 182

Tortious interference, 109

Trade barrier, $v

Trademarks, 137

Trail Smelter Arbitration case, 120

Trans- Jordan, 49

Treaties, 22, 25, 27, 34, 38, 46, 64, 6
73, 78, 85, 87, 91, no, 113, 123, 15
160, 161, 163, 167, 172, 193, 205, 2*
212, 214, 221; amendment of, 44;
154; between internat'l organization
128, 139, 142; between internat'l 01
ganizations and individuals, 132, 156.
between states and individuals, 131,
139, 141, 151, 156; between states and
internat'l organizations, 127, 139; bi-
lateral, 74, 138; 139, 219; breach of,
137, 152, 153, i54-'5 6 i*7i '9*V
commercial, 84, 137, 138, 151, 181;
conclusion of, 125-132-, denunciation
of, 152; effect of war on, 152; extra-
dition, 83; fishery, 219; general, 141;
implementation of, 137; interpreta-
tion of, 125, 138-139, 152; "law-
making," 133, 134; law of, 125, 139.
150, 152, 154; making of, 123; man
time, 134; minorities, 89, 138; multi
partite, 89, 124, 126, 138, 140, 143
146, 149, 219; privileges of, 133
provisions of, 85, 86; ratification of
125, 126, 127, 128; registration of
130, 131; respect for, 154; termina
tion of, 125, 142-154; third-part}
beneficiaries of, 132-138, 146; types
of, 152. See also Berlin treaty;
Briand-Kellogg Pact; Contracts;
Paris Treaty; Versailles Treaty

Trent Affair, 39

Trusteeship Council, U.N., 19, 30, 37
86

Trusteeship system, 37, 53, 86, 118.

1 07, '38

Tunis-Morocco Nationality Decrees,
86

Turkey, 39, 40, 44, 45, 118, 181, 183

UNESCO, 24 n., 129

Union of International Transport by

Rail, 21

Union of South Africa, 87, 88
United Fruit Company, 33

INDEX

oited Nations, i, 131 18, 3 3* 45 4 s *
58, 63, 65, 77, 81, 83, 84, 90, 117, 118,
*55 *57 l6o '7 1 ' ! 73. 183, 186, 188,
191, 195, 202, 203, 204, 206, 212; ad-
mission of new members, 47, 49;
agencies of, 121; agents of, 199, 207,
221; evolution of, 51, 221; expulsion
from, 50; headquarters site agree-
ment, 25, 26, 27-28, 59 n.; interna-
tional personality of, 211; legislative
role or, 135; members of, 26 n., 47,
49 S 2 * 53~54> 59 87, 88, 91, 126, 127,
i3* *35* *44 H5 *47 A ! 49 '53
158, 159, 164, 165, 167, 168, 170, 174,
i75 184, 194, 205, 210, 214, 218; non-
members of, 146, 153, 167, 168, 218,
221; organizations, legal status of,
24; permanent seat of, 59, 132; pur-
poses of, 158, 159, 163, 169; Secre-
tariat, 130, 131, 132; Secretary-Gen-
eral of, 52, 59, 126, 128, 129, 130, 152,
176, 196. See also under names of
organs and specialized agencies

U.N. Atomic Energy Commission, 13,
19 and n., 21, 137, 167, 215. See also
International Atomic Energy Au-
thority ,

U.N. Charter, 3, 26, 28, 30, 32, 40, 53,
91, 121, 124, 137, 144, 146, 160, 191,
193, 205, 207, 218; amendment of,
143, 145, 194, 204; Art. i, 89, 159, 169,
170; Art. 2, 12, 87, 135, 158, 162, 168,
169, 174; Art. 4, 47, 49; Arts. 5 and
6, 50; Art. u, 151, 152; Art, 12, 54,
198, 206; Art. 13, 13, 173; Art. 14,
151; Art. 18, 47; Arts. 24, 25 and 28,
194; Art. 34, u, 151; Art. 35, 152,
176; Art. 39, 54; Art. 40, 196, 201;
Art. 4i,*i53 *94i 198; Art. 42, 198;
Art. 43, 127, 194, 211; Art. 44, 194;
Art. 45, 171, 194; Art. 47, 194, 214;
Art. 48, 194; Art. 50, 212; Art. 51,

51, 164, 165, 166, 167, 168, 202; Ait.

52, 202; An. 53, 208; Art. 55, 89; Art.
63, 128; Arts. 73 and 74, 52; Arts. 79,
83 and 85, 127; Art. 04, 5; Art. 96,
155; Art. 99, 152; Art. 101, 34; Art.
102, 126, 127, 130; Art. 103, 114, 172;
Art. 104, 24; Arts. 108 and 100, 145;
breach bf, 154; British commentary

on, 203; Chap. IV, 47; Chap. VI, 166;
Chap. VII, 41, 163, 166, 168, 171,
203; Chap. VIU, 54; Chap. IX, 117;
Chap. XI, 37, 52, 1 1 8; Chaps. XII
and, XIII, 37, 118; gap in, 203, 204;
legal obligations under, 88; preamble
of; 77 89; principles of, 48, 135

U.N. Commission of Investigation, 197

U.N. Commission on Human Rights,
19, 92, 93, 103, 184

U.N. Committee of Jurists, 25, 171

U.N. Committee on the Codification
of International Law, 161

U.N. Educational, Scientific, and Cul-
tural Organization, 24 n., 129

U.N. Food and Agriculture Organiza-
tion, 24, 63, 117, 128, 206

U.N. International Trade Organiza-
tion, 24 n., 36, 129

U.N. Military Staff Committee, 163,
171, 188, 194, 196, 197, 198, 199,
214

U.N. Relief and Rehabilitation Ad-
ministration, 32, 128

United States, 5, 7, 30, 34, 45, 46, 55,
57, 59, 61, 62, 65, 74, 83, 95, 101, 104,
105, 106, in, 113, 116, 118, 119, 128,
132, 133, 142, 146, 158, 162, 165, 166,
160, 171, 173, 176, 179, 181, 182, 184,
187, 190, 199-200, 204, 209, 213, 218,
219; admission of Asiatics to, 81;
citizens of, 98, 103; Congress of, 75,
78, 135, 136; Constitution, 71-72, 92;
constitutional law of, 6, 29, 41, 140,
221; delegation at Hague Codifica-
tion Conference, 75; delegation at
San Francisco Conference, 144;
denial of protection of, to certain
aliens, 79; Emergency Fleet Cor-
poration, 121; federal system of,
90, 97, 140; government of, 70, 100,
114, 120, 175, 1 86; Immigration laws
of, 35, 80, 81; Marines, 170; military
government, 212; President, 195;
racial discrimination hi, 89; ratifica-
tion of treaties, 125; report on Vene-
zuelan claims, 177; Rubber Devel-
opment Corporation, 121; statutory
law of, 73, 70, 85, 112; Supreme
Court, 66, 85, 189

INDEX

Universal Postal Union, d, 23, 52
Universality, in international organua-

tions, 49, 50, 83, 146
Upper Silesia, 18, 32, 136
Use of force, 41, 46, 97, 113, 114, 115,

137, 152-1^3; by individuals, 178-184;

by international bodies, 188, 189;

iUegal, 162, 178, 188-221 passim;

legal regulation of, 157-187 passim;

lesser, 158; limitation on, 157.

See also International police

force

Vassal, 37

Vattel, E. de, 9, 116, 185

Venezia Giulia, 207

Venezuela, 35, 36, 95, no, 113, 176,

J 77
Versailles Treaty, 23, 38, 120, 161 n.

Vessels. See ships

Veto power, 145, 191, 194, 202, 203,

204, 207
Vienna, 18, 28
Villa, Francisco, 166, 168

WHO. See World Health Organiza-
tion

War, 2, 5, 7, 41, 150, 152, 160, 174, 179,
184, 188, 192, 200, 204, 205, 218; al-
ternatives to, 159, 160, 185; illegality
of, 161, 214; international, 53, 54,
189, 208, 210; justification for, 157,
158; laws of, 53, 199; outlawing of,
185; prisoners of, 158, 190, 213, 215;

resort to, 157, 158, 159, 163, 177, j

rules for conduct of, 158
War criminals, 195, 216; German,

192; Japanese, 137, 192; punishm

.of, 192; trials of, 10, 137, 161

213, 214
Washington Conference on Limitat

of Armaments (1922), 178
Webster, Daniel, 163
Western Hemisphere, 202, 207
Wilson, Woodrow, 30
Wimbledon c? e, 38, 120
World community, 33, 43, 83, 101

138, 148, 15*, 172, 18;, *94, 20-

207, 209, 210, 219

World government, i 2, 3, 28,
36, 40, 51, 72, *T, 97, 124, ibj,
189, 190, 191 , .05, 217, 221
also Intern* community

World Health - ganization, 24 n.
129, 132, 20

World law, ;, 97. See also Inter|
tional law

World parliamei ^17, 72, 91

World preside^ c, 195

World War I, 18, 45, 121; pe.
treaties after, 23, 33, 38, 95, 120, K '

World War II, 49, 115, 121, 190,

208, 212, 213, 215

Yale Institute of International Si

ies, 7
Yugoslavia, 175, 179, 197, 207, 208