The Day After Russia Attacks
What War in Ukraine Would Look Like—and How America Should Respond
THERE is more agreement today than at any earlier period upon the need for some change in the traditional international system of a community of sovereign states. Unlimited sovereignty is no longer automatically accepted everywhere as the most prized possession or even as a desirable attribute of states. The revulsion against war and an international system in which war is not only possible but tolerated has been strengthened by our most recent frightful experience. The potentialities of atomic warfare further increase the demand for greater ingenuity, greater effectiveness, in the science of politics. Some naturally seek a complete and immediate change through the creation of a world government. Others would prefer to build more slowly through the medium of what is generally called international organization or administration, now typified by the United Nations. One point of agreement may be found in all plans and proposals, whether they come from statesmen or laymen, experts or novices. That common point is the necessity for an adequate international law. Under Article 13 of the Charter, the General Assembly is directed to encourage "the progressive development of international law and its codification" -- a task which it will presumably undertake at its coming meeting.
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 therefore not enough 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 making war illegal. Such rules, even if backed by an adequate form of international organization, would fail to create the well-ordered society which is a prerequisite to the successful functioning of any legal system. If there be no deeply-rooted body of law governing the solution of the conflicts which are inherent in any human relations, frictions and tensions will become so strong that rules about weapons and wars will be broken.
It is impossible to deal in this article with all the significant problems confronting any attempt to sketch the outlines of a modern law of nations.[i] The basic problem of controlling the use of force in international relations is the only topic considered here.
The dramatic weakness of traditional international law has been its admission that a state may use force to compel compliance with its will. This weakness has been the inevitable consequence of two factors -- one, the concept of absolute sovereignty, and two, the lack of a well-developed international organization with competent powers. Both of these factors are losing their old significance.
It sometimes appears strange that traditional international law, while leaving untouched the right to resort to war, achieved some regulation of the use of force short of war. But this apparent paradox should not cause surprise; it illustrates the manner in which international law has developed over the centuries in a world of sovereign states. The regulation of the resort to war is the ultimate problem toward the solution of which the world has been groping. Along the way it has been possible to secure a measure of agreement upon lesser problems. The resort to war was difficult to control because, in modern times, states have not made war for frivolous reasons, but only when some large interest seemed to afford a justification. The interest might be and usually was selfish, but in the eyes of the war-maker it was not insignificant. If it was not sufficiently great to justify actual resort to war, then it was susceptible of legal regulation. For example, local feeling or general Pan American policy might induce the United States to avoid making war upon Nicaragua but would not deter the sending of a cruiser and the landing of marines.[ii] National justifications for the lesser uses of force have generally been couched in legal terms -- self-defense, defense of national lives and property, reprisals, retaliation -- and customary international law developed tests of the propriety of such conduct. National justifications for war itself have more frequently been placed upon moral grounds, or couched in terms of high political aspirations and ideals; and the customary law has at best characterized war as un-legal -- neither legal nor illegal. Utilizing humanitarian sentiment and, more effectively, the notions of military utility and retaliation, international law developed such rules for the conduct of warfare as the prohibition of explosive bullets and the poisoning of wells, and the regulations for the treatment of prisoners of war. Because clashing interests needed to be reconciled, and because the power of neutrals and belligerents balanced each other, the law of neutral rights and duties grew into a body of highly developed jural doctrine, aided by the prize courts which built up a large body of case-law.
The Charter of the United Nations is the latest milestone on the road to the legal regulation of war, and of the use of force in international relations. According to the fourth paragraph, or "principle," 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 equality" of all the members of the organization which is "based" on that principle. From 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.
Moreover, 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 third and fourth principles require the conclusion that there are alternatives to war and that these alternatives are peaceful. The fifth principle states the obligation of all members to cooperate in measures taken by the United Nations to preserve the peace, measures already indicated in the purpose stated in Article 1. The significance of this principle 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 marshalled in the common interest to preserve the peace.
Of equal if not of greater importance are those provisions of the Charter designed to make effective the second and third purposes stated in Article I:
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 coöperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without 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 are beyond the scope of this article.
Article 2, paragraph 4, it will be noted, is not an absolute prohibition 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 this use of force is not "in any other manner inconsistent with the Purposes of the United Nations." Obviously, 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 not inconsistent with the purposes of the United Nations. 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 reëxamination of the traditional practices of forceful action as they are listed in nearly every treatise on international law.
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. Though a forcible act of self-defense may amount to war, it may frequently be only a single incident of short duration -- especially when the two states involved are of unequal strength. Self-defense has been commonly invoked as a moral justification 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 regardless of treaty provisions to defend its territory from attack or invasion and it alone is competent to decide whether circumstances require recourse to war in self-defense."
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 -- a vessel supplying Canadian insurrectionists which the British seized when moored on the American side of the Niagara River -- 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 and no moment for deliberation." 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 precisely fit an international 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 the League of Nations experts were studying the problems which would result from the application of sanctions under Article 16 of the Covenant, M. de Brouckère of Belgium noted that "Legitimate defense implies the adoption of measures proportionate to the seriousness of the attack and justified by the imminence of the danger." 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 expects an injury from another state or from a lawless band, there is usually opportunity for deliberation in a chancellery or war office; an officer on the spot usually does not act until he has received instructions.
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. It would be impossible to await the decision of an international authority; and if such decision were obtained, the act of the state would constitute the execution of the decision rather than an act of self-defense[iii]. The provisions of the Charter of the United Nations are in accord with this reasoning. Article 51 states:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
The two sentences bring out the point at which the law regulates the act of self-defense. The nation invokes the right at its peril, and its conduct is subject to review. Should the Security Council decide that the act was not justified, it might impose its measures of forcible restraint upon the state which had claimed to act in self-defense, instead of upon 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 of 1938, the Act of Havana of 1940 and the Act of Chapultepec of 1945. Such regional collective measures are also subordinated to the world authority vested in the Security Council. The United Nations thus possesses the mechanics for international review of any use of force in alleged self-defense. The lack of such machinery was the chief weakness of the Briand-Kellogg Pact. It was indeed the weakness of the entire international policy of the United States throughout the League of Nations period.[iv]
Article 51 of the Charter suggests a further limitation upon the right of self-defense; the right may be exercised only "if an armed attack occurs." The classical case of the seizure of the Danish fleet in 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 justified by Article 51. Neither would the Amelia Island case of 1817, when 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. The seizure of the Caroline and the pursuit of Villa by United States Army forces in 1916 might come within the category of permitted cases. It would seem, however, that Article 51 has rather in mind such a position as China's, when Japan attacked Manchuria in 1931: Japan's claim to be acting in self-defense was not valid under traditional law and could not have been supported under Article 51. This restriction 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 when there was a threat of injury, even if 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 to be threatened.
Article 51 does not seek to lay down a general principle; it refers only to "an armed attack . . . against a Member of the United Nations." A non-member state would accordingly still look for a definition of its right of self-defense to general international law. It is not to be assumed, however, that the United Nations, particularly as it approaches 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 which would make the act a violation of Article 51 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 that "The Organization shall ensure that states which are not Members of the United Nations act in accordance with these principles so far as may be necessary for the maintenance of international peace and 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 consequences of action in defiance of the United Nations.
A modern law of nations should be based on the acceptance of the principle of community interest which justifies the community as such to take cognizance of breaches of the peace. The difference is between the private law notions of tort as distinguished from crime. If the suggested principle were universally adopted, the practical and the formally legal points of view would be united and the rule of self-defense under the Charter would be expanded into a rule of universal application.
An armed attack upon a state which would justify the latter in using force in self-defense would clearly itself be an illegal act. A modern law of nations must also reject the traditional notion that international law is law only between and among states; it must accept the principle that international law directly binds the individual.[v] Under this principle, the individual or individuals responsible for an attack which justified counteraction in self-defense 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 justifiable acts of self-defense, Villa, and the American sympathizers with the Canadian insurgents, would themselves be liable to such trial and punishment. This conclusion leaves open the answer to the procedural question whether such offenders should be tried in a national or international court. In such cases as these, it may be suggested that international law should recognize the competence of the jurisdiction of any state, as in trials for piracy today. If an International Criminal Court were established, that court might have jurisdiction, and procedures akin to extradition might be established to bring about the delivery of the offenders to its custody. A state which failed to use the means at its disposal to check the individual outbreak of violence might also be held legally responsible as under traditional international law.
Traditional international law has recognized the right of a state to employ its armed forces to protect the lives and property of its nationals abroad when the state in which they are residing is unable or unwilling to do so, because of revolutionary disturbances or otherwise. 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. The United States has taken such protective action on a large number of occasions.
Since such use of force for the protection of nationals may be free of an 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, "inconsistent with the Purposes of the United Nations?" The answer must be yes. The first purpose of the organization as stated in Article 1 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 disputes 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" even though under traditional international law it is a lawful breach of the peace. It is a measure of forcible self-help, legalized by international law because there has been no international organization competent to act in an emergency. The defect has now been at least partially remedied 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 should supplant the individual measures approved by the traditional international law.
For example, 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 siege of the Legation Quarter in Peking. This was a case of "collective" measures undertaken before the existence of a competent international organization. Under comparable circumstances today, the necessary action should be undertaken by the direction of the Security Council utilizing the national contingents which are to be placed at its disposal.
In 1926-1927 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. 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."[vi] 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 reasonable argument against the substitution of collective measures under the Security Council for measures by a single state would be one based on the inability of the international organization to act with the necessary speed. It may take some time before the Military Staff Committee and the pledged national contingents of the Security Council are in a state of readiness to act, but the Charter contemplates that international action shall be timely as well as powerful. Air-force contingents are specially provided for in Article 45 of the Charter.
It might be argued that the provisions of Chapter VII of the Charter, "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 upon 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 endangered. But the language of the articles in Chapter VII is not so limited, and significance may be attached to the use of the terms "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 a state to protect its nationals in another country, as well as by aggression. To assert that "peace" is used in the Charter 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, would be a narrow and stultifying interpretation.
It should not be expected, therefore, that a Committee of Jurists appointed by the Security Council of the United Nations would need to be evasive, as was the committee appointed by the League Council to report on the Corfu case in 1923. Reading the Charter as a whole, one finds it 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 international law before the world community was organized. The one exception is the question of self-defense which has already been discussed.
We may conclude that the Charter has already modernized international law relative to the use of armed forces by a state for the protection of its nationals abroad. The treaty rule embodied in the Charter cannot be made general, under traditional international legal concepts, until the organization approaches universality; but from the standpoint of community interest the Charter rule may be taken as the modern law of nations.
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. The last narrow use of the term is adopted here. Intervention as thus defined 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 armed forces. This result may be accomplished by lending open approval -- by the relaxation of an arms embargo, for example -- to a revolutionary group headed by individuals ready to accept the political or economic dominance of the intervening state. It may be accomplished by the withholding of recognition of a new government, combined with various forms of economic and financial pressure. Many examples of such intervention may be found, particularly in the history -- fortunately now ancient history -- of the relations between the United States and the republics of the Caribbean area. Regardless of any justifications for intervention under traditional international law, and even though Article 2, Paragraph 4, of the Charter would not be violated if actual force were not employed, this form of international pressure should also be brought under legal control, as through the generalization of the inter-American convention.
International law has recognized the right of a state under certain circumstances to use other forms of forcible self-help. The terms reprisal, retaliation and retorsion have been used to describe situations in which a state resorts to force in reply to some hostile act of another state. The paradoxical label "pacific blockade" has been applied to cases in which states have used superior power to compel other states to comply with what are unilaterally asserted to be its legal obligations. Through the process described at the beginning of this article, international law has succeeded in regulating such uses of force short of war. The Porter Convention, inspired by the doctrine enunciated by the Argentine Foreign Minister Drago, and signed at the Second Hague Peace Conference of 1907, prohibited the use of force for the collection of contract debts. The Convention was so drafted as to leave a large loophole, but revision now would be unimportant. Such use of force, like the employment of reprisals or retaliation or retorsion or pacific blockade, now comes under the control of Article 2, Paragraph 4 of the Charter. Moreover, from a practical rather than a legal angle, there is considerable change in the old method of negotiating and extending foreign loans which were the "contract debts" Drago specifically had in mind.
The acceptance of the hypothesis that individuals are subjects of international law and are bound directly by it necessitates the consideration of certain examples of the use of force by individuals. The matter of piracy is the one case in which it has been generally said that international law imposed duties directly upon individuals, but the actual legal situation has been also explained in terms of state rights by asserting that international law in regard to piracy removes usual limitations upon the jurisdiction of states and permits any state which apprehends a pirate to punish him. The hypothesis that the individual is a subject of international law makes such reconciliation with the traditional basis of international law no longer necessary. Accordingly, it may be stated that under a modernized law of nations, unauthorized 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. International law might itself assert the death penalty, or life imprisonment in states where capital punishment is forbidden.
The basic theoretical hurdle having been jumped, there would be no obstacle in the way of agreement upon 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 sinking of merchant vessels by submarines, but the convention never entered into force. The problem of international law would be to catalog 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. Among them are terroristic activities, assassination of heads of states, plotting to overthrow a foreign government, counterfeiting of foreign currencies, the slave trade, traffic in narcotics and unauthorized manufacture of atomic or other weapons.
Anti-foreign sentiment has frequently inspired 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. Such cases have been considered in international 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 outrage or to punish leaders of the mob. The question of state responsibility for injury to aliens will not be examined 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.
Where mob violence is definitely inspired by hostility to persons of another nationality, international law should assert the liability of the individual for a breach of international law. The practical difficulty is that in such cases it is frequently impossible to identify the members of the mob or to find witnesses who are willing to testify. In most countries it may be assumed that if the guilty individuals can be identified, the injured person or his representative could institute a civil suit and might recover damages. The established procedure of holding the state responsible in such cases is probably the only way in which atonement could be made to the injured individuals or their families. From the point of view of a revised international law recognizing the position of the individual, the problem is rather one of the jurisdiction of the courts of other countries on the principle of universalism which is utilized in case of piracy, or 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 anti-foreign 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 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. It is indeed the distrust of the impartiality of the courts of other states which frequently inspires the unwillingness of governments to remit their citizens to the judgment of foreign courts.
On the substantive side it is necessary to ask whether a modernized international law should content itself with cognizance of cases of violence inspired by an anti-foreign bias. The international repercussions of such cases give them a special character. History indicates that group violence instigated by anti-racial bias is likely to rouse international issues, aside from questions 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 members of racial groups through a number of countries. Thus the lynching 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 countries to take up 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 who are sufficiently 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 historic massacres of Christian Armenians in Turkey.
If it is granted that individual rights are protected by international law,[vii] all such cases must be considered matters of international concern, and those who use violence against national or racial or religious minorities 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 immunities of ambassadors and other public ministers.
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 government 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 good thing . . . God forbid that we should even be twenty years without such a rebellion." But the right of resistance against autocratic oppression is deeply ingrained in the human spirit and has had the blessing of great political theorists such as Grotius and Locke. Should it be an international crime, like piracy, for an individual to revolt against oppression? To answer this question in the affirmative is to assert that the international community should be based on the principle of mutual assistance to suppress internal disturbances 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 intervention.
After the establishment of a world state, it is sometimes said, all war would be civil war. The power of world government would be directed to the suppression of all resistance against its authority. The denial of the right of resistance must be predicated upon the same consideration which attends the outlawing of war in an international community of sovereign states, namely, provision of peaceful substitutes for war. A world government would have to assume the responsibility for remedying wrongs and providing justice for all people.
In today's world, although the sovereign state persists, each state is bound to the others through a still primitive form of international governmental organization, and in logic 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 rights are being disregarded. If the state has relinquished its right to resort to war, so the individual must relinquish any right to overthrow his own government by force. This in effect means merely that, to the usual risks of rebellion, he adds the risk of international aid to the government he attacks. In practice, such a conclusion would throw a heavy burden upon the United Nations. The international community would have to take cognizance of and remedy situations within states which were provocative of rebellion. It would have to be prepared, as is the federal government of the United States, to render armed assistance to any of its members whose local forces are inadequate to preserve domestic peace and tranquillity. But the history of the recognition policy of states, and particularly of modern trends toward collective refusal to recognize governments which take or hold power by violence, teaches that international interference in such matters may lead to undesirable domination of the affairs of 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 collective interventions.
The United Nations as now organized is not capable of playing such a rôle. The recent debates concerning the Franco Government in Spain illustrate this weakness. Until international government is more mature, international law must avoid stretching its arm into a state in case of civil war. The situation may come under legal regulation, as in traditional international law, when a civil war projects its disturbing influence outside the boundaries 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 it involves non-self-governing peoples to whom the obligations of Chapter XI or Chapter XII of the Charter apply. Even the rudimentary forms of world government, as that term is commonly used by its proponents, would necessarily leave to the subordinate political units a large 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.
Law and governmental organization are interdependent. A modern law of nations cannot function without proper organization. Even world government cannot function without proper law.
[i] An attempt to deal with the most significant ones is being made by the writer in a book to be published during 1947 by the Macmillan Company.
[ii] Now after several futile attempts, the American Republics have concluded a treaty banning intervention in the internal or external affairs of any other party. One of the first objectives of the General Assembly of the United Nations under Article 13 of the Charter might be to make this inter-American agreement general.
[iii] Hersch Lauterpacht, "The Function of Law in the International Community." Oxford: Clarendon Press, 1933, p. 179.
[iv] The weakness of the Charter, with its sanctification of the veto power of the permanent members of the Security Council, is another story. This article deals in general with the existing system under the Charter.
[v] No attempt is made here to continue the argument whether international law today does in any case apply directly to the individual. The acceptance of the principle for the future is taken by way of hypothesis as a point of departure.
[vi] "The United States and Nicaragua: A Survey of the Relations from 1909 to 1932." Department of State, Latin American Series No. 6, p. 71-72.
[vii] The question of an International Bill of Rights to be drafted by the United Nations Commission cannot be explored here.