The Day After Russia Attacks
What War in Ukraine Would Look Like—and How America Should Respond
"The law had been broken by a sea Power but was still the law; it was necessary that this should be brought before the public mind. The law was not like a teacup or a pitcher which, once broken, was irretrievably ruined." -- Elihu Root at the Washington Disarmament Conference of 1921.
THE City of Flint, flying the American flag, sailing from New York to England, was captured in October 1939 by a German warship and taken by a German prize crew to a neutral port. The case raised serious questions involving the interests of Great Powers. As this article is written, the four governments concerned -- the United States, Germany, Norway and Russia -- have been arguing the case not in terms of force or power, but on principles of law -- international law. Throughout modern history, similar cases have arisen on the high seas over and again, and for three hundred years governments have habitually argued them on the basis of the applicable rules of international law. For three hundred years, belligerents have habitually established "prize courts" to adjudicate the lawfulness of such captures. The Belgian prize court, dealing with a World War case, remarked that "although it has not been codified, prize law is nevertheless governed by certain essential and precise rules . . . ." "A Prize Court must of course deal judicially with all questions which come before it for determination," said the Judicial Committee of the British Privy Council in Great Britain in 1916. ". . . the law which the Prize Court is to administer is not the national . . . law, but the law of nations -- in other words, international law." Search the published records of governments and you find them full of questions and answers about problems of international law.
Why do Foreign Ministers and Secretaries of State consult legal advisers about international law?
In the Department of State in Washington there is a Legal Adviser with a staff of some two dozen lawyers to assist him. It would not be an unfair estimate to say that 90 percent of the business of the Department passes over the desk of one of the legal staff. Of that 90 percent, about an equal percentage involves questions of international law; the 10 percent balance is made up of questions of domestic statutory and other branches of private law. The situation is much the same in the Foreign Offices in Downing Street, the Wilhelmstrasse, the Quai d'Orsay, and in the other capitals of the world.
The layman and the common lawyer who find it difficult to fit international law into their concept of "law" -- a concept which is generally of the Austinian type -- usually are alike in asserting that there isn't any international law. They forget that law has many meanings. There is the law of gravity, the Sherman Anti-Trust law, the law of supply and demand, international law. There is an old Chinese proverb which runs something like this: "One should always have in the background of one's mind a multiplicity of definitions covering the subject at hand, in order to prevent oneself from accepting the most obvious." And Cardozo said: "If the result of a definition is to make . . . [facts] seem to be illusions, so much the worse for the definition; we must enlarge it till it is broad enough to answer to realities."
In most cases the layman is impressed by the reality of breaches of international law and is not sufficiently aware of the reality of reliance upon it. He does not pause to wonder why foreign offices bother to maintain legal staffs, which are an expense and sometimes a hindrance to the execution of policy. A distinguished student has remarked that in the seventeenth century "state papers are full of allusions and appeals not merely to reasons of policy but to principles of right, of justice and of equity -- to the authority of public law and to those principles and rules by which the rights of the weak are protected against the invasion of superior force by the union of all who are interested in the common danger."
Why has this been true for three centuries? Why have the nations been willing for nearly twenty years to subscribe to a budget of over half a million dollars for the maintenance of the Permanent Court of International Justice? Why did the German Government bother to make a legal argument in support of its refusal to accept the demand of the United States that it assume the obligation to pay the bonded obligations of Austria after that country was "absorbed"? Why have the governments of the United States and Mexico filled reams of paper with legal arguments concerning the property rights of American citizens in the latter country? Why does the Constitution of the United States, which, according to Chief Justice Marshall, cannot be presumed to contain any clause which "is intended to be without effect," give Congress the power "to define and punish . . . offenses against the law of nations"? Why has the United States Supreme Court, like the courts of most other countries, asserted that "international law is part of our law"? Why do people commonly emphasize the "lawlessness" of certain nations which have come to be known as "aggressors"? Why was our entry into the World War in 1917 justified in part by President Wilson on the ground that Germany had "swept aside" the rules of "international law"?
There must be some reason for this habitual invocation of international law -- an invocation which is even more frequent than the assertion of its non-existence. Perhaps a subconscious human urge, a variety of wishful thinking, seeks to give reality to the ancient maxim: ubi societas, ibi ius. Perhaps "international law" is merely a slogan of diplomacy, like "manifest destiny," "the white man's burden," or "Lebensraum." Surely it is often a convenient weapon for a ministry of propaganda anxious to win the support of world opinion. Yet if international law has no reality, what is the use of convincing peoples in other lands that one's opponent is a violator of that law? Shall we chorus with the Pirate King: "A paradox, a paradox, a most ingenious paradox"? One would scarcely deny that international law is a comparatively weak sister of private law. Yet a great lawyer -- John Bassett Moore -- bears testimony as the result of wide experience and study that "international law is on the whole as well observed as municipal law."
The view opposed to Judge Moore's is usually inspired by ignorance of the uncertainties of municipal law and of the broad scope of international law. Two years ago Judge Hutcheson of the United States Circuit Court of Appeals, Fifth Judicial Circuit, was called upon to act as sole arbitrator in a case involving the international law governing belligerent and neutral rights. "It might be expected," Judge Hutcheson wrote, "that the Arbitrator, newly come to the house of international law, would stand hesitant and confused upon the threshold, unwilling to enter. . . . Especially might it be expected that because of his long accustomedness to and observance of the common law practice of precedent following, the Arbitrator might find himself, for want of binding precedents, lost in the maze of opinion and assertion of those who, having no authority by international mandate, either to bind or loose, freely and without reserve, attempt to do both . . . . One of those who has long believed that in 'the glorious uncertainty of law,' its ever changing content under the steady pressure of the changing life it serves, its continuous, though slow, progression from the actual to the ideal, is to be found its greatest source of strength, the Arbitrator has stepped confidently over the threshold into a new wonderland of law, fascinated equally by 'the glorious uncertainty' of international law, the delicacy and precision of its formal adjustments, and by the greatness of its unquestioned testimony to the fact that not force, but just opinion, is at last the source of law, at least with lawminded nations and peoples, and particularly with the United States and Great Britain."
It is true, as Professor Goebel has noted, that international adjudication in the twentieth century is in the primitive stage of development which one finds in the law of the Franks in the seventh century. And this is necessary and proper because the international society is still in a primitive stage struggling slowly through the centuries to lift itself from the bog of national superstitions and taboos -- the taboo of "absolute sovereignty," for example. It still lacks an effective system of law courts, it lacks sheriffs and police forces, it lacks a legislature. It is often flouted and often the lawbreaker pays no penalty. Sir Austen Chamberlain told the House of Commons in 1929 that international law is "indeterminate in the first instance, and in the second it is a changing law." It also has loopholes. Lord Napier, British Minister in Washington, reported to the Earl of Malmesbury in 1858 that Secretary of State Cass "has admitted to me that the course of action . . . [of the United States] may not be strictly consistent with the principles of international law as commonly laid down . . . but he pleads a high expediency and necessity. He has observed to me that international law is 'not a stationary law,' intimating that it must be expanded and accommodated to the increasing necessities and altered views of the civilized world." But General Cass did not go so far as to deny the existence of international law.
Pass over the seventeenth, eighteenth and nineteenth centuries, if you will, as three months in which the infant international society was learning to crawl. Be amazed at the prodigy which is able to take its first steps. Let your amazement be of the type which Dr. Johnson believed applicable to the dog who walked on his hind legs. The layman's severest criticism is directed to international law's frailty in what we are beginning to call the First World War. Some would admit that there may have been some international law before the war, but assert that the law of nations was surely one of the war casualties. What is the record? Have governments acted on that assumption since 1919? What progress, if any, was made in that "postwar" peace which now looks like merely a long armistice?
Let it be said at once that it is absurd to assert that governmental policies of any nation are determined solely by reference to legal considerations. Only a doting parent would make a claim so patently oblivious to the infant's obvious defects; and Grotius, who is called the "Father of International Law," is not here to speak.
Attention has already been called to the fact that in every war prize courts function in belligerent countries. At times the judges have revealed bias and the influence of patriotic emotion. Comparable revelations have appeared in the decisions of ordinary national courts; read, for example, the history of the Dred Scott case in Charles Warren's history of the Supreme Court. By and large, prize court judges have acted judicially and some prize court judges, like Stowell, Story and Portalis, have become great figures in legal annals. It is curious but true that prize law which is applicable only in time of war is that branch of international law most similar to national law in that it is regularly interpreted, applied and enforced by national courts.
There is also an extensive body of international law regarding the treatment of prisoners of war. This law is largely embodied in great multipartite treaties signed at Geneva and The Hague. Surely such rules were disregarded in the World War? On the contrary, despite numerous cases in which mistreatment of prisoners was charged, the legal system operated effectively under the auspices of the International Red Cross and various neutral governments. Don't take the word of theoretical international lawyers; read "Prisoners of War" by Major Herbert C. Fooks of the A.E.F. It may be surprising to find, for instance, that during the World War, in accordance with The Hague regulations, Germany paid to captured French officers their monthly salaries and France similarly paid the captured German officers. The United States and Germany made an agreement during the war on the rate of pay for all grades.
The Preamble of the Covenant of the League of Nations recites that the Covenant is accepted "In order to promote international co-operation and to achieve international peace and security . . . by the firm establishment of the understandings of international law as the actual rule of conduct among Governments." A first step was the establishment of the Permanent Court of International Justice. The jurists who framed the Court's Statute in 1920 urged that the League take steps to secure the codification of international law. After careful preliminary explorations, the First Conference for the Progressive Codification of International Law met at The Hague in 1930. The subjects on the agenda were Territorial Waters, Responsibility of States for Injuries to Aliens and Nationality. The results were very meagre, to say the least, and discouraged the convocation of a second conference. Yet the process continued. It continued along two lines, both of them familiar, both unspectacular, both slow. One line was the treaty line which has come to enjoy the name of "international legislation." The other was the line of private endeavor whose course we may trace first.
Private initiative in developing international law, as distinguished from governmental initiative, has long been a familiar phenomenon to students of the subject. The Institut de Droit International had labored long and diligently before the First Hague Peace Conference met in 1899 as a first notable general international conference of government representatives seeking to bring certainty to some of the rules of international law. "I think it is not generally understood," Elihu Root told the American Society of International Law in 1915, "that the first conference at The Hague would have been a complete failure if it had not been for the accomplished work of the Institut de Droit International. . . . It would have been impossible for the Hague Conference to do that work or one tithe of it if they had not had the material already provided." Common lawyers in the Admiralty field had known the process. They could trace the evolution of the familiar York-Antwerp Rules of General Average from the efforts of the Association for the Reform and Codification of the Law of Nations through the coöperation of underwriters, shippers and shipowners. The field of maritime law offers other striking instances of the same process. One example may be adduced since it illustrates a combination of forces in the international legal field. The French steamship Lotus collided on the high seas with the Turkish steamer Boz-Kourt in 1926. Several Turks were killed and Turkey instituted criminal proceedings against the officer of the Lotus. France protested and finally agreed with the Turkish Government to submit to the World Court the question whether Turkey had violated international law by thus assuming jurisdiction with reference to the acts of a Frenchman on a French ship on the high seas. The Court decided in Turkey's favor. The International Association of Mercantile Marine Officers did not like the result and, just as happens so often in the field of domestic law, set about to have the law, as declared by the Court, changed. There was no international legislature in whose lobbies they could argue, but they appealed to the League of Nations, the International Labor Organization and the International Maritime Committee. The last, a private group, set the wheels to grinding and finally prepared a draft treaty which would provide that in such a collision case in the future, it would be the State in the position of France which would have the sole jurisdiction. The treaty has not yet received the ratifications which would make it a part of the general law of the sea, but the awkward, badly oiled machinery of international legislation is in motion.
In other fields, the Institut and other private organizations have continued their work. In the United States, the Research in International Law under the Auspices of the Harvard Law School has made, over a period of twelve years, contributions which cannot yet be measured. The Pan American movement, less ambitious than the League of Nations and perhaps for that reason less afflicted by setbacks, includes the work of codification committees composed of scholars but working under governmental planning. Some of the results of this work are already to be found in treaty form; more is in process of gestation.
The lines merge, since private endeavor usually has found its outlet in treaties. The postwar international agreements which have been registered with the League of Nations and which are published in the League's "Treaty Series," occupy about thirty feet of shelf space. Those of the treaties which have been broken would fill perhaps six inches of shelf. An absurd mechanistic comparison no doubt: the Briand-Kellogg Pact takes but 3 pages, while the Madrid Telecommunication Convention of 1932 requires 480 pages. Yet the comparison has its meaning, for the process of international legislation since the war has developed enormously. Within its scope are treaties on Unification of Pharmacopœial Formulas for Potent Drugs; on the Regulation of Plaice and Flounder Fishing in the Baltic Sea; on Reparations; on the Conflict of Nationality Laws; on Arbitration; on the Regulation of Hours of Work in Commerce and Offices; on Radio and on Aircraft; on Automotive Transport and on Facilitating the Procedure in the case of Undischarged or Lost Triptychs. In short, the index to a collection like the six volumes of Hudson's "International Legislation" reveals as much variety of subject matter as the index to the United States Statutes at Large. Scarcely a field of human endeavor is left untouched, be it art, labor, health, transport by air, land or sea, communications by post, wire or radio, science or politics. Moreover, the widely unappreciated fact is that these treaties embody rules by which all these phases of the life of the world are governed day in and day out. That statement will be challenged as being too broad. Surely the most devoted international lawyer will not assert that the politics of the world are governed habitually by these treaties. Perhaps not. Certainly many of them have been violently cast aside and others have been evaded -- just as was the Volstead Act and all too often the Sherman Anti-Trust Act.
Grant, however, the multitudinous instances of broken treaties in the affairs of large moment. They emphasize again the weaknesses of international law and the defects of the international society. They do not obliterate, although they do overshadow, the humdrum routine application of international law to the ordinary life of the world, much of which is as uninteresting to the newspaper reading public as the trespass of Farmer Smith's cows or John Jones' breach of his contract to buy a washing machine.
The picture is not complete without some reference to the scores of ad hoc international courts which have functioned in the years since 1920. In the year 1929-1930, for example, thirty separate international tribunals were functioning. The German-American Mixed Claims Commission, set up under the agreement of 1922, dealt with a docket of some 13,500 cases involving about one and a half billions of dollars. By and large, judgments for money damages have been paid although the record of the United States-Mexican Claims Commissions has been distinctly spotty. The sovereignty of Denmark over the vast area of Eastern Greenland has been judicially established and acquiesced in by the rival claimant, Norway. Other important boundaries have been fixed and accepted.
This is no place to trace the development of many rules of customary international law which have been discussed by governments and by national courts. Some of these rules have run the course which the late Mr. Justice Cardozo described when speaking for the Supreme Court in New Jersey v. Delaware (291 U. S. 361): "International law, or the law that governs between states, has at times, like the common law within states, a twilight existence during which it is hardly distinguishable from morality or justice, till at length the imprimatur of a court attests its jural quality." Other rules remain in or have been plunged into a state of uncertainty.
In an address before the Council on Foreign Relations on August 8, 1932, Secretary of State Stimson reviewed three years of development of the Pact of Paris for the Renunciation of War. He sketched the parlous condition of international relations which had led to the conclusion that another war would mark the end of our civilization. In 1928, he said, by this Briand-Kellogg Pact, "War between nations was renounced. . . ." He added: "This means that it has become illegal throughout practically the entire world . . . . Hereafter when two nations engage in armed conflict either one or both of them must be wrongdoers -- violators of this general treaty law. We no longer draw a circle about them and treat them with the punctilios of the duelist's code. Instead we denounce them as lawbreakers. By that very act we have made obsolete many legal precedents and have given the legal profession the task of reëxamining many of its codes and treatises."
In 1932 this analysis of the Pact of Paris had just begun to be tested in Manchuria and Mr. Stimson's name was attached to the non-recognition doctrine which was designed to confirm the analysis. In 1939 "Manchukuo" still exists. Japanese forces are in control of large areas of China. League sanctions have failed to save Ethiopia. Albania, Austria and Czecho-Slovakia no longer exist to be members of the League. War is raging in Europe and governments are not treating the war as illegal; they are proceeding as in the past to "treat them with the punctilios of the duelist's code" -- though the figure may be a trifle extreme.
Great Britain and Germany have issued their contraband lists in the traditional manner of belligerents. Non-participating states have proclaimed their neutrality. In the United States, President Roosevelt has urged Congress to get back to international law. Secretary Hull has formally declared that "The Government of the United States has not abandoned any of its rights as a neutral under international law." The British have charged that Germany sank the Athenia in violation of international law. Germany denies the charge and points to the numerous reports of courteous submarine commanders who have observed the letter and spirit of the London treaty of 1936, to which some forty-seven states are parties, regulating the operations of submarines against merchant vessels. The old argument about the status of armed merchantmen has been revived. The Northern European governments have acted in concert as they did in 1914 and in the promulgation of their joint neutrality rules of 1938. Prize courts have begun to apply their concepts of international law in the adjudication of controversies over captured or sunk ships and cargoes. It is all very well to pooh-pooh these legal phenomena or more learnedly to say inter arma leges silent. They remain facts which bear testimony to the human resort to law even in the midst of lawlessness.
The Kellogg Pact has not fulfilled the high hopes of its sponsors. The Eighteenth Amendment was once called "a noble experiment"; repeal brought it to an ignoble end. History has demonstrated that war cannot be abolished by fiat so long as the underlying conditions producing war are not cured and alternatives to war are not provided. Had the Covenant of the League initiated viable procedures for "peaceful change," the Kellogg Pact would have had a real place in the international system. "Vaulting ambition o'erleaps itself" in affairs of kings and nations. None doubts the need for improvement in the organization of the international society, but few have the patience to build it slowly for posterity.
Impotent to restrain a great nation which has no decent respect for the opinion of mankind, failing in its severest test of serving as a substitute for war, international law plods on its way, followed automatically in routine affairs, invoked, flouted, codified, flouted again but yet again invoked. The Legal Adviser of the United States Department of State still sits at his desk in the old State, War and Navy Building in Washington and his counterpart sits at Downing Street, the Quai d'Orsay and the Wilhelmstrasse. It is not their task to frame policies. But can one say that the international law with which they deal has no reality?