The International Law of the Future (1944)

Foreword

This material, drawn from the Canadian Bar Review, Vol. XXII April, 1944 No. 4, documents preparations actively underway to set up the UN and “world law” before the end of WWII.

It is intriguing that the World Map of future Soviet Socialist Republics was copyrighted and published by Maurice Gomberg in Philadelphia, PA. in 1942 — about a month before one in the series of Canada-US meetings described below on the “International Law of the Future”, took place.  The list of participants in these meetings of the early 1940s (further below) contains many names from Philadelphia, although not that of Mr. Gomberg.

It is interesting to speculate, however, whether anyone attending these meetings might have had the Gomberg Map at their disposal.

It would be a useful exercise for someone with the time to check the names against membership in the CFR, Rhodes scholarships, Vincent Massey scholarships (similar to the Rhodes), Communist Party of America, leftist think-tanks and various organizations and foundations of that nature.  I am Canadian, so I have highlighted the Canadian attendees.

I hope this article will be useful to researchers.

Admin Gomberg Map
 

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THE CANADIAN BAR REVIEW

VOL. XXII April, 1944 No. 4
THE INTERNATIONAL LAW OF THE FUTURE

THE CANADIAN BAR REVIEW feels privileged to have the opportunity of bringing to members of the Canadian profession the results of two years’ deliberations in Canada and the United States on The International Law of the Future. Cooperation with the American Bar Association Journal resulting in simultaneous publication to the Canadian and American professions is tangible evidence of the desire of the two Bar Associations, always bound closely by common professional and spiritual ties, to perform that service to the public which is their raison d’être.

Naturally, neither the American nor Canadian Association, by the mere fact of publication, can be considered as endorsing wholly or partially the views here set forth. What is important, however, is that both bodies, realizing that the vitality of democracy lies in knowledge and better understanding, are anxious to assist in the clarification of issues on the solution of which depends the security of world peace and the maintenance of civilization. No greater task has ever challenged the intelligence of man.

If our belief in law and a legal ordering of the relations of men and of communities is to be more than an empty shibboleth, the legal profession must now face and meet squarely the most exacting demands ever made upon it to answer that challenge.

In the belief and hope that the labour which has produced the present statement will help to prepare lawyers to face that challenge from which they dare not shrink, the Canadian Bar Association dedicates this issue of the REVIEW.

C.A.W.
 

278 The Canadian Bar Review [Vol. XXII

FOREWORD

Having courteously arranged to publish the Canadian-American statement on “The International Law of the Future”, the Editor of the CANADIAN BAR REVIEW has graciously asked me to write a brief foreword. I feel sure that this statement, representing as it does the result of a collaboration between Canadians and Americans, will have an interest for the legal profession of Canada.

Two world wars in a single generation have brought a staggering challenge to our generation. The United Nations have stated it as our common aim in this war to “lay the basis of a just and enduring world peace securing order under law to all nations.” The Moscow Declaration of October 30, 1943, calls for “the reestablishment of law and order and the inauguration of a system of general security.” These high purposes give proper emphasis to the role of law in international affairs.

Two years ago a number of Canadians and Americans actively interested in international law began a series of discussions concerning the direction which might be taken in its future development. We felt it a duty to seek to make some contribution toward meeting the need signalized in statements made by the Secretary of State of the United States and the Secretary of State for External Affairs of Canada in 1937[1], when they called for a “revitalizing and strengthening of international law.”

In thirty conferences held in various North American centres, judges, lawyers, professors, and officials came together to hammer out the community of views embodied in this statement. It is therefore not the product of a lone thinker working in the privacy of his study.[2] Instead, it presents considered and carefully wrought conclusions, based upon the experience of the past and framed to take account of the dire needs of our immediate future.

On this side of the border we have esteemed it a high privilege to work with so many able colleagues from various provinces of Canada. The unity of our national outlook created between us a sympathetic understanding, and where our approaches diverged we found advantage on both sides in taking account of the differences of view.

We venture to hope that the statement will serve to stimulate discussion among members of the legal profession, not merely in North America but also in other parts of the world.

Its simultaneous publication in the official journals of the Canadian Bar Association and the American Bar Association will greatly contribute to that end.

MANLEY O. HUDSON.
 

[1] KM:  Neither is it the product of democratic government or public debate. These people elected themselves to draft the basic notions of a world government, without apparently bothering to first investigate who was actually causing and bankrolling the wars. On the other hand, perhaps they knew.

[2] KM:  Prime Minister of Canada, William Lyon Mackenzie King, served as his own Secretary of State for External Affairs (foreign minister). Vincent Massey was a great friend of MacKenzie King. Massey was a member of the inner circle of initiates of the secret society of Cecil Rhodes, whose goal still is world government. The tactic of the Rhodes society was to penetrate domestic governments in order to influence foreign affairs and move the nations towards world government. Here, we see Prime Minister King — whom we know to be under the direct influence of a Rhodes initiate, Vincent Massey — retaining control over the External Affairs portfolio for Canada and issuing a call, at a strategic moment, for the “revitalizing and strengthening of international law”. A “call” this self-appointed committee of some 200 men conveniently purport to answer in drafting the “principles and postulates” that will underlie the Charter of the United Nations, intended basis of world government (as we learn from a tape of future Prime Minister Louis Stephen Saint-Laurent, addressing the U.N. in 1946.)

In other words, the noose of world government is being tightened around the nations in answer to a “call” from a controlee of the Rhodes secret society: the U.N. is about to be set up with a Charter based on the principles derived from these private meetings on “The International Law of the Future”. As will be seen below, these “principles” and the U.N. Charter which adopts them, will contain the germ of “regionalism” required to convert the world map of nation-states to a map of continental unions strongly resembling the Gomberg Map completed in Philadelphia in October of 1941.

There is as yet no direct evidence of a link between this meeting and “the map”, but the facts, as we will see, make it unwise to reject the inference. King then helped found the United Nations in 1945 and attended the opening meetings in San Francisco.
 

1944] The International Law of the Future 279

PREFATORY NOTE

Early in 1942, a number of Americans and Canadians began to consider the possibility of arriving at a community of views with reference to the steps which might be taken at the end of the war to increase the usefulness of international law. The discussions led to numerous investigations, and to a series of exploratory meetings held at Washington, April 24, 1942; at New York, May 30-31 and June 27-28, 1942; at Washington, July 26, 1942; and at Boston, August 8-9, 1942.

A draft then prepared was considered at a second series of meetings held at New York, September 20, 1942; at Washington, September 26-27, 1942; at Chicago, October 10-11, 1942; at Philadelphia, October 17-18, 1942 [FN1]; and at Montreal, November 14-15, 1942.

A second draft, with an extensive comment, was considered at a third series of meetings held at Boston, January 24, 1943; at New York, February 6-7, 1943; at Philadelphia, February 13-14, 1943; at Washington (two groups), February 26 and February 27-28, 1943; at Chicago, March 6-7, 1943; at Ottawa, March 27-28, 1943; at Los Angeles, April 10-11, 1943; at San Francisco, April 16-17, 1943; and at Denver, April 23-24, 1943.

In the course of the preparation of a third draft, a tentative sketch was submitted for comment to the participants in the discussions, and a further meeting was held at Boston and Annisquam, July 3-5, 1943. A third draft was circulated on August 7, 1943.

The meetings were attended by different groups of men, but continuity was maintained by the presence of a few individuals at all of the meetings. Each of the groups was composed of men, chiefly Americans and Canadians, who were known to have an active interest in international law. The participants in the discussions, almost two hundred in number, were invited without regard to their political affiliations or their special views. They included judges, practicing lawyers, professors, government officials and men of special international experience.

The statement which follows is presented as a community of views, formulated after thorough and repeated consultation.

Different features of the statement are due to contributions by different men, and some of the participants who accepted the Postulates and Principles did not subscribe to all of the Proposals. The statement in its entirety reflects the views of a large number
 

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of the participants, but it is not to be taken either in whole or in part to represent the individual views of any particular person who participated in the discussions.

The participants in the discussions included, among others, the following:

W. LEWIS ABBOTT, Colorado Springs, Colorado
Professor of Economics and Sociology, Colorado College

RICARDO J. ALFARO, Washington, D.C.
Secretary General, American Institute of International Law

L. WARD BANNISTER, Denver, Colorado
Member of Bannister, Bannister & Welter

OLIVER BENSON, Norman, Oklahoma
Associate Professor of Government, University of Oklahoma

CLARENCE A. BERDAHL, Urbana, Illinois
Professor of Political Science, University of Illinois

O. M. BIGGAR, C.M.G., K.C., Ottawa, Ontario Chairman of the Canadian Section, Permanent Joint Board on Defence, Canada-United States

JOSEPH WALTER BINGHAM, Palo Alto, California
Professor of Law, Stanford University

GEORGE H. BLAKESLEE, Worcester, Massachusetts
Professor of History and International Relations, Clark University

PERCY BORDWELL, Iowa City, Iowa
Professor of Law, State University of Iowa

HERBERT W. BRIGGS, Ithaca, NewYork
Professor of Government, Cornell University

PHILIP MARSHALL BROWN, Washington, D.C.
President, American Peace Society

ROY E. BROWN, Denver, Colorado
Director of the Department of Government Management,
University of Denver

HOWARD B. CALDERWOOD, Ann Arbor, Michigan
Assistant Professor of Political Science, University of Michigan

FARRINGTON R. CARPENTER, Hayden, Colorado
Counselor at Law

W. CLAYTON CARPENTER, Denver, Colorado
Counselor at Law

MITCHELL B. CARROLL, NewYork City
Chairman of the Section of International and Comparative Law,
American Bar Association

BEN M. CHERRINGTON, Denver, Colorado
Director of the Social Science Foundation, University of Denver

BROOKE CLAYTON, K.C., Montreal, Quebec Member of Parliament, Dominion of Canada [Claxton?]

KENNETH COLEGROVE, Evanston, Illinois
Professor of Political Science, Northwestern University

W. HENRY COOKE, Claremont, California
Professor of History, Claremont Colleges
 

[1944] The International Law of the Future 281

P. E. CORBETT, Montreal, Quebec Professor of International Law and Jurisprudence, McGill University

FREDERIC R. COUDERT, New York City
President, American Society of International Law

LEONARD W. CRONKHITE, Boston, Massachusetts
Trustee, World Peace Foundation

HOMER D. CROTTY, Los Angeles, California
Member of Gibson, Dunn & Crutcher

GEORGE F. CURTIS, Halifax, Nova Scotia Professor of Law, Dalhousie University

O. K. CUSHING, San Francisco, California
Counselor at Law

JOHN W. DAVIS, New York City

WILLIAM DENMAN, San Francisco, California
United States Circuit Judge

WILLIAM CULLEN DENNIS, Richmond, Indiana
President, Earlham College

MONROE E. DEUTSCH, Berkeley, California
Vice-President and Provost, University of California

HENRY I. DOCKWEILWER, Los Angeles, California
Counselor at Law; formerly Officer of the American
Foreign Service

JOHN FOSTER DULLES, New York City
Member of Sullivan & Cromwell

FREDERICK S. DUNN, New Haven, Connecticut
Professor of International Relations and Director of the
Institute of International Studies, Yale University

CLYDE EAGLETON, New York City
Professor of International Law, New York University

LEON HUBBARD ELLIS, Los Angeles, California
Professor and Head of the Department of International
Relations, University of Southern California

A. H. FELLER, Washington, D.C.
General Counsel, Office of War Information

CHARLES G. FENWICK, Bryn Mawr, Pennsylvania
Member, Inter-American Juridical Commission

GEORGE A. FINCH, Washington, D.C.
Director of the Division of International Law,
Carnegie Endowment for International Peace

FREDERICK C. FISHER, San Anselmo, California
Formerly Associate Justice, Supreme Court of the Philippines

WALTER T. FISHER, Chicago, Illinois
Member of Bell, Boyd & Marshall

RUSSELL H. FITZGIBBON, Los Angeles, California
Associate Professor of Political Science, University of California

RICHARD W. FLOURNOY, Chevy Chase, Maryland

ALEXANDER HAMILTON FREY, Philadelphia, Pennsylvania
Professor of Law, University of Pennsylvania

CARTER GOODRICH, New York City
Professor of Economics, Columbia University; Chairman
of the Governing Body, International Labor Office
 

282 The Canadian Bar Review [Vol. XXII

LELAND M. GOODRICH, Providence, Rhode Island
Associate Professor of Political Science, Brown University;
Director, World Peace Foundation

LÉON M. GOUIN, K.C., Montreal, Quebec Member of the Senate, Dominion of Canada

MALBONE W. GRAHAM, Los Angeles, California
Professor of Political Science, University of California

J. A. C. GRANT, Los Angeles, California
Professor of Political Science, University of California

WILLIAM W. GRANT, JR., Denver, Colorado
Member of Grant, Shafroth & Toll

FARNHAM P. GRIFFITHS, San Francisco, California
Member of McCutcheon, Thomas, Matthew, Griffiths & Greene

LEO GROSS, Wellesley, Massachusetts
Lecturer in International Law, Wellesley College

CHARLES GROVE HAINES, Los Angeles, California
Professor of Political Science, University of California

J. EUGENE HARLEY, Los Angeles, California
Professor of Political Science and International Law,
University of Southern California

ALBERT J. HARNO, Urbana, Illinois
Dean of the College of Law and Provost, University of Illinois

ARTHUR HENRY, Denver, Colorado
Counselor at Law

CHRISTIAN A. HERTER, Washington, D.C.
Member of the House of Representatives, Congress
of the United States

NORMAN HILL, Lincoln, Nebraska
Professor of Political Science, University of Nebraska

FRANK E. HINCKLEY, San Francisco, California
Counselor at Law

WILBUR J. HINDMAN, Los Angeles, California
Assistant Professor of Political Science, University of
Southern California

RUDOLF HOLSTI, Palo Alto, California
Acting Professor of Political Science, Stanford University;
formerly Minister of Foreign Affairs of Finland

MANLEY O. HUDSON, Cambridge Massachusetts
Judge of the Permanent Court of International Justice;
Member of the Permanent Court of Arbitration

JOHN P. HUMPHREY, Montreal, Quebec Associate Professor of Law, McGill University

JOSEPH C. HUTCHESON, JR., Houston, Texas
United States Circuit Judge

ROBERT H. JACKSON, Washington, D.C.
Justice of the United States Supreme Court

C. WILFRED JENKS, Montreal, Quebec Legal Adviser, International Labor Office

PHILIP C. JESSUP, NewYork City
Professor of International Law, Columbia University

JACOB J. KAPLAN, Boston, Massachusetts
Member of Nutter, McClennen & Fish
 

1944] The International Law of the Future 283

EDWIN R. KEEDY, Philadelphia, Pennsylvania
Dean of the Law School, University of Pennsylvania

HANS KELSEN, Berkeley, California
Lecturer on Jurisprudence, University of California

CHARLES E. KENWORTHEY, Philadelphia, Pennsylvania
Judge of the Superior Court of Pennsylvania

C. EDGAR KETTERING, Denver, Colorado
Judge of the County Court

WILLIAM H. KING, JR., Chicago, Illinois
Member of Cassels, Potter &Bentley

ARTHUR H. KUHN, NewYork City
Associate of the Institut de droit international

JOSEF L. KUNZ, Toledo, Ohio
Professor of International Law, University o£ Toledo
College of Law

STÉPHEN P. LADAS, New York City
Member of Langner, Parry, Card & Langner

BORA LASKIN, Toronto, Ontario Assistant Professor of Law, University of Toronto

WILLIAM DRAPER LEWIS, Philadelphia, Pennsylvania
Director, American Law Institute

IRA S. LILLICK, San Francisco, California
Member of Lillick, Geary, Olson & Charles

JOSEPH B. LOCKEY, Los Angeles, California –
Professor of History, University of California

HECTOR MACKAY, K.C., Montreal, Quebec Professor o£ Law, University of Montreal

NORMAN A. M. MACKENZIE, K.C., Fredericton, New Brunswick, President and Lecturer in International and Constitutional Law, University of New Brunswick

SAYRE MACNEIL, Los Angeles, California
Dean of the School of Law, Loyola University

LINDER A. MANDER, Seattle, Washington
Professor of Political Science, University of Washington

CHARLES E. MARTIN, Seattle, Washington
Professor of International Law and Political Science,
University of Washington

PAUL MARTIN, K.C., Windsor, Ontario Member of Parliament, Dominion of Canada

WILLIAM E. MASTERSON, Philadelphia, Pennsylvania
Professor of Law, Temple University; Chairman of the Committee on International Legal War Problems, American Bar Association

HUGH MCKINNON-WOOD, Minneapolis, Minnesota
Formerly Counselor in the Secretariat, League of Nations

ROLLIN L. McNITT, Los Angeles, California
President, Lawyers’ Club of Los Angeles

CHARLES P. MEGAN, Chicago, Illinois
Counselor at Law

HUNTER MILLER, Victoria, British Columbia

PAIGE MONTEAGLE, San Francisco, California
Counselor at Law

EDMUND M. MORGAN, Cambridge, Massachusetts
Royall Professor of Law, Harvard Law School
 

284 The Canadian Bar Review [Vol. XXII

FELIX MORLEY, Haverford, Pennsylvania
President, Haverford College

ROLAND S. MORRIS, Philadelphia, Pennsylvania

STANLEY MORRISON, Los Angeles, California
Member of Miller, Chevalier, Peeler & Wilson;
Professor of Law, Stanford University

WILLIAM B. MUNRO, Pasadena, California
Member of the Executive Council, California Institute
of Technology

JAMES OLIVER MURDOCK, Washington, D.C.
Secretary, American Society of International Law

NORMAN J. PADELFORD, Medford, Massachusetts
Professor of International Law, Fletcher School of
Law and Diplomacy

JOHN J. PARKER, Charlotte, North Carolina
United States Circuit Judge

AMOS J. PEASLEE, Clarksboro, New Jersey
Formerly President of the American Branch, International
Law Association

EMERIC PFLUEGL, Boston, Massachusetts
Formerly Representative of Austria to the League of Nations

JOSEPH P. POLLARD, Denver, Colorado
Assistant Professor of Political Science, University of Denver

PITMAN B. POTTER, Oberlin, Ohio
Professor of Political Science, Oberlin College

ROSCOE POUND, Cambridge, Massachusetts
University Professor, Harvard University; formerly
Member of the American-British Claims Tribunal

MAX RADIN, Berkeley, California
Professor of Law, University of California

LUDWIK RAJCHMAN, Washington, D.C.
Formerly Director of the Health Organization,
League of Nations

JACKSON H. RALSTON, Palo Alto, California
Formerly Umpire, Italian-Venezuelan Claims Commission

MAX RHEINSTEIN, Chicago, Illinois
Max Pam Professor of Comparative Law, University of Chicago

WILLIAM GORHAM RICE, JR., Madison, Wisconsin
Professor of Law, University of Wisconsin

CROMWELL A. RICHES, Washington, D.C.
Fiscal Analyst, Bureau of the Budget

L. S. ROWE, Washington, D.C.
Director General, Pan American Union

GEORGE RUBLES, Washington, D.C.
Member of Covington, Burling, Rublee, Acheson & Shorb

FRANK M. RUSSELL, Berkeley, California
Professor of Political Science, University of California

ALEXANDER N. SACK, New York City
Counselor at Law; formerly Professor of Law, New York University

EDWARD McCHESNEY SAIT,* Claremont, California
Professor of Government, Pomona College

* Deceased
 

1944] The International Law of the Future 285

CHARLES CHAUNCEY SAVAGE, JR.,
Philadelphia, Pennsylvania
Counselor at Law

F. R. SCOTT, Montreal, Quebec Professor of Civil Law, McGill University

GEORGE WINFIELD SCOTT, Los Angeles, California
Counselor at Law; formerly Professor of International Law
and Diplomacy, University of Pennsylvania and Columbia University

ARTHUR E. SIMON, Seattle, Washington
Member of Wright, Innis & Simon

M. C. SLOSS, San Francisco, California
Formerly Justice of the Supreme Court of California

LOUIS B. SOHN, Cambridge, Massachusetts

CHARLES STEIN, Ottawa, Ontario Member of the Quebec Bar

MARSHALL STIMSON, Los Angeles, California
Counselor at Law

J. E. WALLACE STIRLING, Pasadena, California
Professor of History, California Institute of Technology

IVAN M. STONE, Beloit, Wisconsin
Professor of Government, Beloit College

SILAS H. STRAWN, Chicago, Illinois
Formerly President, American Bar Association

GRAHAM H. STUART, Stanford University, California
Professor of Political Science, Stanford University

ARTHUR SWEETSER, Washington, D.C.
Formerly Director in the Secretariat, League of Nations

HENRY W. TOLL, Denver, Colorado
Honorary President, Council of State Governments

EDGAR TURLINGTON, Washington, D.C.
Secretary of the Section of International and Comparative

ARTHUR E. SIMON, Seattle, Washington
Member of Wright, Innis & Simon

M. C. SLOSS, San Francisco, California
Formerly Justice of the Supreme Court of California

LOUIS B. SOHN, Cambridge, Massachusetts

J. E. WALLACE STIRLING, Pasadena, California
Professor of History, California Institute of Technology

IVAN M. STONE, Beloit, Wisconsin
Professor of Government, Beloit College

SILAS H. STRAWN, Chicago, Illinois
Formerly President, American Bar Association

GRAHAM H. STUART, Stanford University, California
Professor of Political Science, Stanford University

ARTHUR SWEETSER, Washington, D.C.
Formerly Director in the Secretariat, League of Nations

HENRY W. TOLL, Denver, Colorado
Honorary President, Council of State Governments

EDGAR TURLINGTON, Washington, D.C.
Secretary of the Section of International and Comparative
Law, American Bar Association

ROBERT B. WALKINSHAW, Seattle, Washington
Counselor at Law

SARAH WAMBAUGH, Cambridge, Massachusetts
Formerly Technical Adviser and Deputy Member,
Saar Plebiscite Commission

CHARLES WARREN, Washington, D.C.

ALLEN HUNTER WHITE, Philadelphia, Pennsylvania
Member of Ballard, Spahr, Andrews & Ingersoll

THOMAS RAEBURN WHITE, Philadelphia, Pennsylvania
Member of White & Staples

JOHN B. WHITTON, Princeton, New Jersey
Professor of International Law, Princeton University

JOHN H. WIGMORE,* Chicago, Illinois
Formerly Professor of Law, Northwestern University

FRANCIS O. WILCOX, Louisville, Kentucky
Associate Professor of Political Science, University of Louisville

PAYSON S. WILD, Cambridge, Massachusetts
Associate Professor of Government, Harvard University

GEORGE GRAFTON WILSON, Cambridge, Massachusetts
Professor of International Law, Harvard University

* Deceased
 

286 The Canadian Bar Review [Vol. XXII

ROBERT R. WILSON, Durham, North Carolina
Professor of Political Science, Duke University

ROBERT GALE WOOLBERT, Denver, Colorado
Professor of History, University of Denver

LESTER H. WOOLSEY, Washington, D.C.
Formerly Solicitor for the Department of State

QUINCY WRIGHT, Chicago, Illinois
Professor of International Law, University of Chicago

JAMES FULTON ZIMMERMAN, Albuquerque, New Mexico
President, University of New Mexico
 

1944 The International Law of the Future 287

INTRODUCTION

For the second time in a single generation; most of the peoples of the world have become engaged in a world war.

The fact offers an insistent challenge to the intelligence of mankind. Unless escape can be found from the recurrence of such struggles, constructive effort will remain subject to periodical frustration, and energy which might be devoted to advancing the general welfare and to relieving peoples from want and distress, will continue to be directed into channels of destruction. The spirit of man cries out for a better way of life.

In days of crisis, it is a temptation to confine discussion to immediate questions of policy and expediency. Important as such questions now are, consideration must be given at the same time to the long-term conditions upon which an enduring peace will depend.

The search for means and methods of attaining security from war encounters problems of many aspects — economic, ethical, legal, political, psychological and social. If no one profession can supply the skill and imagination required for their solution, no profession can evade responsibility for making its contribution. A special responsibility would seem to rest on the legal profession, and particularly on members of the legal profession who have had experience in international law. For security depends upon the maintenance of an effective legal order.

The modern system of international law represents a continuous development over a period of more than three hundred years. The last hundred years have seen a remarkable progress of the law governing the relations of States. As changes have been wrought in world society, as the population of the world has grown, and as technological advances have brought peoples closer together, international law has been greatly enlarged in its content, and greatly extended in its operation. Yet, as a system, it has hardly passed out of the stage of primitive law. As an instrument for meeting the needs of the twentieth century, it has remained lamentably weak.

The development of international law has been retarded both by the lack of international organization and by the insistence of States upon a freedom to use force to accomplish their ends. It was only in the middle of the nineteenth century that States abandoned their prejudice against attempts to meet their common problems by general and concerted effort. A process of international legislation was begun with reference to problems which could not be solved by measures taken by individual
 

288 The Canadian Bar Review [Vol. XXII

States, and the latter part of the century was marked by the formation of several successful leagues of nations for specific purposes. At the turn of the century, efforts were made to reduce armaments and to restrict the use of force, but with disappointing
results.

When a world war came to an end in 1918, disposition existed to push out along new lines, and remarkable progress was made over a period of years. Intelligence and zeal were devoted to current problems of international life on an unprecedented scale, and some advance was made toward a proscription of force. If a larger measure of success did not attend these efforts, it was due to a variety of causes-to the halting participation of some States, to the pursuit of national policies antagonistic to the general interest, and to dissatisfaction with the territorial and economic arrangements which had been established. The experience demonstrated that no scheme of organization and no method of procedure can be enough in itself. Enduring progress requires a sustained willingness of peoples to pursue common effort.

With the United Nations playing the dominant role at the end of a second world war, with large power concentrated in the hands of peoples who desire to seek escape from the recurrent necessity of mobilizing for destruction, a world situation may exist in which the further progress of organized effort can be assured.

To this end, departures will have to be made, new methods will have to be tried, new institutions will have to be created, and sound legal foundations will have to be laid. The task must be approached not only with a knowledge of the history of the past, but also with a willingness to appreciate the lessons of that history.

Lines which might be followed in shaping the international Law of the future are set forth here under three headings: Postulates, Principles, and Proposals.

The Postulates are included to indicate the premises which are essential for the establishment and maintenance of an effective legal order in a world of States. They are the foundations on which the Principles and Proposals have been drafted. Derived from the experience of the past, they present also an outlook on the future.

The Principles are offered as a draft of a declaration concerning the international law of the future which might be adopted by a competent international authority. Many precedents exist for such a declaration. Great international conferences have frequently promulgated principles of international law, and some
 

1944 The International Law of the Future 289

of the declarations made during the past hundred years have had enduring influence. Such formulations in the past have usually emphasized the rights of States; in these Principles the emphasis is placed on the duties of States to which their rights are correlative.

The Proposals are presented, not as a draft of an international instrument, but as indications of measures which might be adopted to implement the Principles. They do not purport to forecast the precise political conditions which will prevail at the close of the war, nor are they intended to deal with the vexing problems which will need to be faced in the course of the transition from war to peace. They are confined to the dispositions which might be adopted and the institutions which might be maintained for the ordering of the future world society.

They propose agencies and methods and procedures by which the solution of recurring problems can be sought, rather than the precise solutions to be given to such problems.

Following the text of the Postulates, Principles and Proposals, a comment is added which reviews the history of the past and explains the needs of the future.
 

290 The Canadian Bar Review [Vol. XXII

POSTULATES FOR THE
INTERNATIONAL LAW OF THE FUTURE

These Postulates set forth essential premises of an effective legal order for the world of States. They are intended to indicate the basic conceptions upon which the present statement proceeds, and to furnish a guide to the spirit in which the following Principles and Proposals have been drafted.

POSTULATE 1

The States of the world form a community, and the protection and advancement of the common interests of their peoples require effective organization of the Community of States.

COMMENT

It is to be assumed that the State system which has grown up over a period of several centuries will continue to exist in the future.

Seventy-three States may be said to have existed in 1937, each enjoying a considerable measure of independence in its relations with the others. Most of these States will doubtless continue to exist in the future, despite changes which may be wrought during the war.

The maintenance of peace and the furtherance of international cooperation have to do, for the most part, with the relations of States. It is chiefly through States that peoples conduct their relations with other peoples. One may conceive of a world community which is not composed, or not exclusively composed, of States. Unofficial contacts between individuals and between groups of individuals in different countries extend into almost every field of human activity, and numerous unofficial associations are maintained to keep such contacts alive and fruitful. Yet the problems which arise in such relations have not the same urgency as those which arise in the relations of States.

Most wars are waged by States, and recent changes in the character of warfare have made it impossible for any but powerful States to conduct war efficiently. Moreover, the recent extension of governmental activity in many countries has narrowed the field of private enterprise, and though States and private groups are sometimes associated in international organizations, it is chiefly through inter-governmental action that the consequences of the interdependence of peoples must be faced. In our time peace and the advancement of world-wide human interests are mainly dependent, therefore, upon inter-State relations.
 

1944] The International Law of the Future 291

The States of the world have long been considered to form a community, and the description of this community as the Community of States has been frequently employed in the literature of international law. Even before the modern improvements in the means of communication and transportation, peoples had many interests in common and not infrequently, the protection of such interests was sought by the common action of a number of States. With the shrinking of the world during the past hundred years, the interests common to various peoples have multiplied many fold; a community feeling among peoples and an appreciation of their interdependence have become more firmly established; and efforts to meet their common problems by common action have been much more frequent. In consequence, no State in the world any longer desires to be considered as outside the Community of States — even Nepal has ceased to regard itself as a hermit State.

The organization of the Community of States has been developing over a period of almost one hundred years. In the middle of the nineteenth century it began to be recognized that the protection of peoples’ common interests called for continuous organized effort. Improvements in means of communication and transportation had given rise to problems which could not be met by one State acting alone, or even by a few States acting in concert. Unions of States were formed for special purposes, and in time some of them came to embrace most of the States of the world. The International Telegraphic Union, founded in 1865, and reorganized as the International Telecommunication Union in 1932, includes sixty-eight States; the Universal Postal Union, organized in 1874, united various countries as “a single postal territory” and, more than seventy States are included in its membership. Official unions were created for numerous other purposes — as examples, a European union for international transport by rail, a union for standardizing weights and measures, a union for the protection of industrial property, a copyright union, and a union for the publication of customs tariffs, may be mentioned. In 1905, the International Institute of Agriculture was established. The International Office of Public Health has functioned since 1907. The United States of America currently participates in the work of some fifty international bodies.

Nor has organized cooperation been confined to technical fields. In 1889, the republics of the western hemisphere organized the International Union of American Republics, which has had a fruitful history throughout the years. In 1899, a series of Peace
 

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Conferences was inaugurated at The Hague, and that city has
continued to serve as a center for efforts devoted to the development of international law. In 1919, the League of Nations was founded. Sixty-three States eventually became members of the League, and almost all of the States of the world have participated in some measure in its work over a period of twenty years. The efforts “to achieve international peace and security” through the League were attended with success in some notable instances, but in the general world situation which prevailed after 1931 they were balked by the secession and defiance of certain large States which were seeking territorial aggrandizement. On the other hand, the efforts “to promote international cooperation” through the League achieved such remarkable results that one may say, as the Secretary of State of the United States declared in a letter to the Secretary-General on February 2, 1939, “the League has been responsible for the development of mutual exchange and discussion of ideas and methods to a greater extent and in more fields of humanitarian and scientific endeavor than any other organization in history.” The International Labor Organization, which began its work in 1919, has numbered sixty-four States in its membership, and with the cooperation of employers and workers it has produced in twenty years a great volume of international legislation. The Permanent Court of
International Justice, which opened its doors in 1922, has functioned with the support of more than fifty States, and its handling of the sixty disputes which came before it over a period of eighteen years produced, in most of the cases at any rate, a very general satisfaction.

This brief sketch of a hundred years of history indicates appreciation of the need for a common approach to the problems of the modern world. No people today wishes to lead its life without enjoying advantages which are possible only if contributions by other people can be drawn upon, without trade beyond its frontiers, without availing itself of the fruits of scientific endeavor, or without contact with other cultures. Even if it wished, no people is any longer able to supply all that is needed for its own wants. A complete autarchy is impossible for any country. The common interests of peoples, their interest in peace and in the efficacy of daily effort, oblige them to work together through established agencies, and the protection and advancement of their interests require effective organization of the Community of States.
 

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POSTULATE 2

The law of the Community of States is international law. The development of an adequate system of international law depends upon continuous collaboration by States to promote the common welfare of all peoples and to maintain just and peaceful relations between all States.

COMMENT

Western and even European in origin, international law was long conceived to be a law for Christian States, the law of the family of Christian nations. During the course of the nineteenth century, however, the wider intercourse of peoples led to the abandonment of that limitation, and today it is universally admitted to apply, as the Permanent Court of International Justice has said, “between all nations belonging to the community of States.” It is, indeed, the law of the Community of States.

International law embodies the rules and principles established by international legislation, by international judicial decisions, and by the practice of States.

International legislation, often referred to as conventional law, includes the, rules and principles contained in multipartite treaties and conventions, the number of which has greatly increased during the past fifty years. Rules and principles of international law may even become established as a consequence of their embodiment in a great number of bipartite treaties; thus, recent American and British treaties with China refer to “the principles of international law and practice as reflected in the modern international procedure and in the modern treaties” concluded by the parties with other States. International legislation may also include some of the acts promulgated by organs of the Community of States, to the extent that such organs have been empowered to make dispositions which are binding on States; thus, in the Mavrommatis Case, Judge John Bassett Moore referred to the Palestine mandate as being “in a sense a legislative act of the Council” of the League of Nations.

The judicial decisions of international tribunals may also, in some cases, establish rules and principles of international law. All international tribunals are not on the same plane in this regard, however, the decisions of mixed bipartite commissions being obviously of less weight than those of tribunals of a more general character. In the past, few tribunals have had the support of a large number of States, and few have been permitted to function sufficiently continuously to develop a system of case-law;
 

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a great advance came with the establishment of the Permanent Court of International Justice. The decisions of national courts have had influence on the development of international law, but as such courts function subject to national authority their decisions play a secondary role and cannot be said to establish rules and principles of law binding upon all States.

The practice of States, evidenced by the pronouncements of executive, diplomatic, and at times judicial agencies, is the basis of the customary international law. Before it can be said to establish a rule or principle of international law, a practice must be concordant and general, and it must be to some extent continuous. The practice of one State or the practice of several States, even though continuous, may not result in establishing rules and principles of international law.

The sources to be drawn upon in finding international law have been stated in the Statute of the Permanent Court of International Justice in the direction to the Court to apply (1) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States, (2) international custom, as evidence of a general practice accepted as law, (3) the general principles of law recognized by civilized nations, and (4) judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Law cannot exist in a vacuum. It must always be related to the society which it serves. Nor can public law be divorced from political and social movements. International law depends upon, is conditioned by, the general character of international relations. If it is to be an efficient instrument for protecting and advancing the common interests of peoples, if it is to serve adequately the needs of the Community of States, it cannot remain subject to being set aside by States’ going to war. Nor is it possible to maintain a stable legal order if the attention of States is not being continuously given to meeting new conditions and to solving the problems to which they give rise. To be respected, to serve as an instrument of justice and peace, international law must be brought up to date and must be kept up to date in a twentieth century world. It therefore seems essential to the “revitalizing and strengthening of international law” that States collaborate continuously to promote the common welfare of all peoples and to maintain friendly relations between all States.

This has been recognized in the Atlantic Charter in its emphasis on “the fullest collaboration between all nations in the
 

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economic field.” The collaboration must be even wider, however. It must be so organized that it may extend into all of the fields which may be related to the maintenance of justice and peace. The development of international law must proceed hand in hand with the development of international collaboration.
 

POSTULATE 3

The conduct of each State in its relations with other States and with the Community of States is subject to international law, and the sovereignty of a State is subject to the limitations of international law.

COMMENT

Generally, within the realm of its internal affairs, each State may exercise its powers without restraint by international law. Nor can it be said that international law applies to all matters which arise in States’ external affairs, that is in relations between States; just as municipal law does not cover the entire gamut of relations between individuals, so international law may not be complete enough at any given time to cover the entire range of inter-State relations.

It was recognized in the Covenant of the League of Nations that some disputes between States may relate to matters which lie “solely within the domestic jurisdiction” of a State, or as it is put in the French version, which are left by international law to the exclusive jurisdiction of a State; but in the case relating to Nationality Decrees in Tunis and Morocco, the Permanent Court of International-Justice declared that “the question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question,” depending upon “the development of international relations.”

The conception of a Community of States involves the supremacy of international law in inter-State relations. All conduct of States in their relations with other States is subject to being regulated by international law, hence subject to the applicable law.

A State may have relations with the collectivity of the States which form the Community of States. It may owe duties to the Community, such as a duty to refrain from starting a war; and it may have rights which the Community is bound to respect, such as the right of existence. International law regulates not only relations between States, but also the relations of each State with the whole Community. To the extent that it pertains to the competence, functions and procedure of agencies of the Com-
 

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munity of States, and governs the relations of such agencies with States, it may be proper to speak of constitutional international law.

In the past, emphasis has too frequently been placed on sovereignty in connection with the application of international law. States have often asserted their will without regard for any legal limitations; they have sometimes endeavored to impose their will on others, and have even denied the existence of any Community interest in their relations with other States. Such action by States is a negation of the Community of States and of all international legal order. Its result has been to retard the development of international law, and to frustrate the attempted extension of organized effort. No concept of sovereignty can be acceptable which leads to such a result.

States living in a Community of States are sovereign, can be guided by their own will, only within the limitations of the Community law. As it was put by Judge Anzilotti of the Permanent Court of International Justice, in the case relating to the Austro-German Customs Regime, sovereignty can mean only “that the State has over it no other authority than that of international law.” Exaggerated claims of sovereignty are so frequently made in international dealings that it seems desirable to include such a statement in the Postulate, though it may seem to be only a deduction from the subjection of inter-State relations to international law.
 

POSTULATE 4

Any failure by a State to carry out its obligations under international law is a matter of concern to the Community of
States.

COMMENT

Since international law is the law of the Community of States, the Community has an interest in its observance and in its integrity. The rights conferred by international law, and the duties which it imposes, are not merely the concern of the two or more States directly involved in a given situation. In many situations a State may dispose of its rights, and thereby relieve another State of correlative duties, without infringing upon Community interests. Yet the Community of States must always be in a position to deal with any situation which jeopardizes good understanding between States, and any failure by a State to perform the duties imposed upon it by international law may call for such action.
 

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The existence of a community interest in the observance of international obligations has frequently been recognized in the past. Certain treaties have been said, for example, to have created European or general law, and they were therefore regarded as having an interest for European States not parties. In 1872, in appealing on behalf of the Jews in Moldavia and Wallachia, the United States of America relied upon a treaty between European States to which it was not a party, because of the “cosmopolitan character” of the treaty. In 1920, the Committee of Jurists which dealt with the Aaland Islands dispute declared that provisions in the Convention of 1856 between France, Great Britain and Russia had been “laid down in European interests,” and that the Convention had a “European character” and was intended to create “European law.”

The International (Inter-American) Commission of Jurists, which met at Rio de Janeiro in 1927, proposed as one of the fundamental bases of international law that “States, even though not directly injured, have the right to protest against violations of international law”; and the Inter-American , Juridical Committee has recently recommended a declaration that “nations have a common and joint obligation to watch over the observance of the fundamental principles of international law.”

The Postulate is limited to an assertion of the Community Interest and of the possibility, of interposition by the Community to protect that interest. It merely lays the foundation for a protection of the Community interest in a proper case. It does not mean that agencies of the Community of States would interpose in every case in which the conduct of a State is found to be contrary to legal imperatives. Some cases might be trivial, and others might not be thought to call for any action. Each situation would have to be appreciated on its facts, and no attempt can be made to forecast what the wisdom of the time may dictate. Procedures would need to be established for determining that a State has failed to carry out its obligations under international law, and that interposition by the Community of States is desirable. The Postulate does not specify the nature of the action to be taken in the course of such interposition.
 

POSTULATE 5

Any use of force or any threat to use force by a State in its relations with another State is a matter of concern to the Community of States.

 

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COMMENT

It is only in quite recent years that international law has begun to grapple with the use of force by States. For centuries States felt themselves free to go to war when they pleased for reasons satisfactory to themselves. In doing so, they usually conceived of themselves as exercising a “right to take such action as they shall consider necessary for the maintenance of right and justice.” On certain conditions, this “right” was “reserved” by Members of the League of Nations in the Covenant. The “right” was not conferred on States by international law; yet despite occasional efforts to distinguish between just and unjust wars, international law did not forbid such “action”.

In former times, if one State went to war against another, its action was commonly regarded as a matter of concern to the States involved and to them alone. Quite different is the attitude which has grown up in the twentieth century. The Covenant of the League of Nations declared that “any war or any threat of war, whether immediately affecting any of the Members of the League or not is a matter of concern to the whole League.” This was a clear recognition of the Community interest in any war or threat of war; and though it ran counter to a general attitude which had prevailed for centuries, the recognition was accepted by the sixty-three States which joined the League of Nations, and in repeated declarations by the Secretary of State of the United States it was made a cornerstone of the policy of the United States of America which did not join the League o£ Nations. In 1937, numerous Governments united with the Government of the United States of America in declaring that “any situation in which armed hostilities are in progress or are threatened is a situation wherein rights and interests of all nations either are or maybe seriously affected.” More recently an Under-Secretary of State of the United States has urged a recognition by all States that a “threat of war anywhere throughout the globe threatens their own security.”

The Postulate refers to the situation created by any use of force, or any threat to use force, rather than to the situation created by “any war or threat of war.” The historic conception of “war” has become bogged in a morass of distinctions which have grown out of attempted definitions of “war,” and it tends to obscure the real danger which is the use of force. Only the use or threat of force by a State in its relations with another State is covered, for an employment of force by a State to Maintain order within its own territory is outside the present purview.
 

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The force envisaged is physical, armed force; other forms of pressure employed by one State against another may be disturbing to a legal order maintained by the Community of States, but they involve consideration of so many factors that they cannot be covered by a general statement.

The Postulate is limited to the assertion of a community interest in any situation in which force is used, or a threat to use force is made, by one State against another. That interest may lead to an interposition by the Community of States to protect itself. Clearly it would be necessary to maintain proper procedures by which it may be established that force has been used or its use threatened by a State, before interposition by the Community of States would be undertaken.
 

POSTULATE 6

The maintenance of just and peaceful relations between States requires orderly procedures by which international situations can be readjusted as need arises.

COMMENT

The history of international relations is a history of continuous change and of efforts to meet new conditions.

In former times, treaties between States frequently stipulated that their provisions should be “perpetual”; e.g., the treaty between the United States of America and France in 1778. The earliest treaties between the United States of America and Great Britain followed a style of the day in providing for a “perpetual peace.” More recent treaties are usually concluded for fixed periods of years. The conventions drawn up by the International Labor Conferences all provide for a periodical consideration of the need for their revision.

Notable changes in historic treaty situations have frequently been made by the agreement of the interested States. A striking example was the superseding of the American-British Convention of April 19, 1850 by the Treaty of November 18, 1901, with reference to the construction of a canal to connect the Atlantic and Pacific Oceans. Significant changes were effected in quite recent years in 1936 by the Montreux Convention on the Regime of the Straits, in 1937 by the Montreux Convention on Abolition of Capitulations in Egypt and by the exchanges of notes relating to house-taxes in Japan, and in 1943 by bipartite treaties abrogating extraterritoriality in China.
 

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Stability is an important factor in international relations, yet it is attainable only if new conditions can be faced as they arise. Orderly procedures for the readjustments which may be needed seem to be essential if friendly relations are to be maintained between all States, and such procedures cannot be left to wait upon the free concurrence of the interested States. The statement of fundamental principles of international policy which was made by the Government of the United States of America and approved by numerous other Governments in 1937, emphasized both “the sanctity of treaties” and the importance of their modification “when need therefor arises, by orderly processes carried out in a spirit of mutual helpfulness and accommodation.”
 

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PRINCIPLES FOR THE
INTERNATIONAL LAW OF THE FUTURE

This statement of Principles is presented as a draft of a declaration concerning the international law of the future, which is suggested for promulgation by the statesmen who will build the future peace. Numerous precedents for such an official declaration might be cited, but it will suffice to refer to a few examples.

In 1815 the Congress of Vienna was not content to confine itself to current problems in the situation which followed the Napoleonic wars. Two important declarations were annexed to the Act of the Congress, one dealing with the free navigation of rivers, and the other dealing with the rank of diplomatic agents; each of these declarations exercised a formative influence on international law for more than a century. The Congress of Vienna also assumed to act in behalf of all Governments in promulgating a declaration with reference to the universal abolition of traffic in African slaves. In 1856, the Conference of Paris which re-established peace after the close of the Crimean War promulgated a declaration on maritime law which has since come to be a generally accepted formulation.

At the Paris Peace Conference in 1919, a declaration of “Fundamental Principles of Justice and Rules of Law” was proposed in the American Commission to Negotiate Peace as a preamble to the treaty of peace; and it was in part due to American initiative that the Treaty of Versailles contained a significant declaration concerning “methods and principles for regulating labor conditions,” to “guide the policy of the League of Nations.”

The 1922 Washington Conference on Naval Armaments adopted a declaration of rules concerning the use of gases in warfare to form “a part of international law binding alike the conscience and practice of nations,” and forty-one States accepted the declaration as it was later embodied in a Geneva Protocol of 1925.

An important “Declaration of American Principles” was adopted by the Eighth International Conference of American States at Lima in 1938, and a declaration on “Fundamental Principles of International Law” was recommended by the Inter-American Juridical Committee in 1942. Many unofficial declarations have been formulated in the past, also, a notable example being the “Declaration of the Rights and Duties of States” proposed by the American Institute of International Law in 1916.
 

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The Principles are confined to the legal order of the future. They do not purport to state the preexisting law, though some of the duties stated maybe said to have existed under the international law of the past. The duties of States are described in each case as legal duties. The proposed declaration would invest them with the character of duties under general international law.

A principle of law, promulgated and accepted as such, may serve as a useful guide for conduct, it may furnish a standard for the appraisal of conduct, even without any attempt to ordain the consequences of its non-observance. A failure by a State to perform a legal duty is a matter of concern to the Community of States, and it may call for interposition to protect the interests of the Community of States. Yet action taken on behalf of the Community of States should be taken for protective and not for punitive purposes, and it should be entrusted to bodies endowed with judgment and discretion. The later Proposals contain suggestions for implementing the Principles, covering the creation of the necessary agencies and the powers with which they should be invested.
 

PRINCIPLE 1

Each State has a legal duty to carry out in full good faith its obligations under international law, and it may not invoke limitations contained in its own constitution or laws as an excuse for a failure to perform this duty.

COMMENT

Underlying the modern international law is the principle that States must carry out their legal obligations in full good faith. Without it, States could not live together in a Community of States. Good faith is “the great moral ligament which binds together” the States of the world in a system of law.

Each State is free to determine the nature of its own government, and it is free to develop its own institutions in conformity with the genius of its people. The international law of the future must safeguard this freedom which every State should enjoy. The Atlantic Charter therefore proclaims “the right of all peoples to choose the form of government under which they will live.” Yet it is a right to be exercised with due regard for the interests of the Community of States, and each State has a duty to organize its institutions in such a way that it will be in a position to perform its obligations under international law.
 

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Failure by a. State to perform its obligations can never be justified by invoking limitations which it has imposed upon itself by its own constitution or laws. Some fifty years ago, in correspondence with Mexico relating to the Cutting Case, the Government of the United States declared that “if a Government could set up its own municipal laws as the final test of its international rights and obligations, then the rules of international law would be but the shadow of a name and would afford no protection either to States or to individuals. It has been constantly maintained and also admitted by the Government of the United States that a government can not appeal to its municipal regulations as an answer to demands for the fulfilment of international duties.”

In several occasions, the Permanent Court of International Justice has declared that “a State cannot adduce as against another State its own constitution with a view to evading obligations incumbent upon it under international law or treaties in force”; indeed it has gone further and stated the principle to be “self-evident” that “a State which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligations undertaken.” At the Conference on Codification of International Law held at The Hague in 1930, the principle was generally accepted that “a State cannot avoid international responsibility [for an injury to an alien] by invoking its municipal law.”

No particular distribution of power within a State’s governmental system is required. In a federal State, no particular division of power between the federal and local governments is prescribed, and in neither a federal nor a unitary State is interference involved with a separation of legislative, executive and judicial powers.

Yet it is essential that by some arrangement of its governmental system each State, whatever the structure of its government, should maintain itself in aposition to carry out its international obligations, and a failure to place itself in that position will not excuse its non-performance of those obligations.

The enunciation of the Principle would seem to be particularly important at the present time. Recent challenges to accepted philosophies of government as ‘well as dislocations caused by war may lead to the revision of the constitutions of many States, and extensive shifts of governmental power, both internal and external, are to be anticipated.
 

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PRINCIPLE 2

Each State has a legal duty to see that conditions prevailing within its own territory do not menace international peace and order, and to this end it must treat its own population in a way which will not violate the dictates of humanity and justice or shock the conscience of mankind.

COMMENT

International law is principally concerned with relations Between States. Generally, it does not deal with relations between a State and its own people. So important are the local considerations which shape those relations, so difficult is the appreciation of them by other peoples, that each State must be permitted to order them without external interference. Yet this precept of State freedom cannot be absolute.

A State cannot be free to permit conditions to prevail within its own territory which menace international peace and order, and it cannot be free to treat any part of its population in such a way as to produce that menace. Living as a good neighbor in a Community of States, it may be called upon to place its own house in order. “The right of self-determination,” as the President of the United States of America has declared, “does not carry with it the right of any government to commit wholesale murder or the right to make slaves of its own people.”

Not infrequently in the past, conditions prevailing in one part of the world have been so violative of the dictates of humanity and justice and so shocking to the conscience of mankind, that peoples generally have been unwilling to tolerate them. During the course of the nineteenth century, trade in African slaves came to be generally condemned, and Conferences of States at Berlin in 1885, at Brussels in 1890, and at St. Germain in 1919, devoted their efforts to its suppression. Slavery in any part of the world has come to be regarded as inimical to a world standard of humanity. This was evidenced by the enquiries made when Ethiopia was admitted to the League of Nations in 1923; by the Slavery Convention of 1926 in which the parties undertook “to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms”; and by the Forced Labor Convention of 1930 in which the parties undertook “to suppress the use of forced or compulsory labor in all its forms within the shortest possible period.”

Instances are numerous in which States have assumed international obligations with respect to the treatment of their
 

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own nationals. Such obligations have often been included in treaties dealing with the transfer of territory. In a treaty with Spain in 1898, the United States of America undertook to assure to the inhabitants of certain relinquished or ceded territories “the free exercise of their religion.” The treaties made in 1919 and 1920 for the protection of racial, linguistic and religious minorities in certain European States are outstanding examples; if these treaties are to be explained as consequences of the creation of new States or of accretions of territory, it is to be noted that similar obligations were also assumed by certain States upon their admission to membership in the League of Nations. The underlying principle has been expressed in, a declaration by the Eighth International Conference of American States in 1938 that “any persecution on account of racial or religions motives which makes it impossible for a group of human beings to live decently, is contrary to the political and, juridical systems of America.”

Nor is the protection of minorities an isolated example. The labor charter in the Treaty of Versailles declared that “the failure of any nation to adopt humane conditions of labor is an obstacle in the way of other nations which desire to improve the conditions in their own countries.”

The Principle would require of each State a minimum protection of its own population, that is of all inhabitants of its territory. International law has long prescribed standards for a State’s protection of aliens within its territory. Nationals too should have the benefit of the standard which the dictates of humanity and justice impose. In some instances in the past, States have withheld their nationality from groups of their population in order to justify a special treatment which fell short of a general standard; hence the Principle is not confined to the treatment of nations, but extends to the treatment of, all elements of a State’s population.

The standard of conduct to be required of each State can be defined only in general .terms. Modern civilization has proceeded upon the possibility of laying down some criteria which are of universal acceptance. The 1907 Hague Convention on laws and customs of war on land refers to the “laws of humanity” and the “dictates of the public conscience.” In 1937, the Council of the League of Nations adopted a resolution concerning conditions in Spain, in which it noted “that attacks have taken place in violation of the most elementary dictates of humanity underlying the established rules of international law,” and declared that such attacks were “repugnant to the conscience of the civilized
 

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nations.” Precedent is therefore not lacking for including in the Principle the standard of “the dictates of humanity” and “the conscience of mankind.”

The enunciation of this Principle seems particularly important at the present time, when shocking efforts are being made in more than one part of the world to exterminate whole groups of human beings. It is important, also, because new situations have arisen which will require attention to be given to the future welfare of certain dependent peoples, and the world must be assured that such atrocities as the decimation of the Herreros in Southwest Africa forty years ago are not to be repeated. The dictates of humanity and justice must serve as a cornerstone of any permanent world order. They should serve to indicate a general standard of conduct to which each State has a duty to conform, and from which any departure is to be judged by the whole Community of States; but they are not to be used as an excuse for intervention by any State, acting on its own authority, in the affairs of another State.
 

PRINCIPLE 3

Each State has a legal duty to refrain from intervention in the internal affairs of any other State.

COMMENT

It is a corollary of the general precept that each of the States which form the Community of States must be responsible for the conduct of its own household, that in its internal affairs each State must be free from interference by other States acting on their own authority.

Instances have not been rare in the past in which a powerful State has sought to impose its will on a less powerful State in the latter’s disposition of its own economy, and the fear engendered by such action has been a disturbing factor in relations between many States. Such interference became so frequent that efforts were made to justify it by tentatives of law permitting intervention, and these tentatives even derived a semblance of authority from an award of a tribunal of the Permanent Court of Arbitration in the Venezuela Preferential Claims Case. Some of the American States which had been the victims of such interference have long urged its emphatic condemnation, and their efforts led to the inclusion in the Convention on Rights and Duties of States, adopted at Montevideo in1933, of a provision that “no State has a right to intervene in the internal or external
 

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affairs of another State,” That Convention, ratified by sixteen American States, has been supplemented by a Protocol adopted, at Buenos Aires in 1936, and by the Declaration of American Principles adopted at Lima in 1933, both of which reaffirmed the principle. To the extent that such provisions apply to intervention in external affairs, they are to be understood to forbid any attempt by one State, acting on its own authority, to control relations between other States. They do not seek to prevent a State’s asserting an interest in a matter which other States may have under discussion. Nor do they prevent an effort by the Community of States to protect a community interest in relations between two States, such as the interest in peace which nineteen American States sought to protect by the declaration of August 3, 1932, with reference to the Chaco dispute between Bolivia and Paraguay.

Escape from the dangers of intervention has also been sought by States in other parts of the world. In declarations attached to the Conventions defining Aggression, of July 3 and 4, 1933, the Soviet Union and its neighbors declared that no act of aggression as defined could be justified on the ground of “the internal condition of a State, for example, its political, economic or social structure; alleged defects in its administration; disturbances due to strikes, revolutions, counter-revolutions, or civil war.” In 1933 the United States of America and the Soviet Union entered into an agreement by which each undertook “to refrain from interfering in any manner in the internal affairs” of the other.

The1937 Brussels Conference declared that “there exists no warrant in law, for the use of armed force by any country for the purpose of intervening in the internal regime of another country.” Quite recently, also, in the 1942 Treaty of Mutual Assistance, Great Britain and the Soviet Union pledged themselves to act in accordance with the principle of “non-interference in the internal affairs of other States.”

The Principle would reaffirm a precept of the existing law.It would condemn any State’s acting on its own authority to intervene in the internal affairs of another State. It would not preclude action taken on behalf of the Community of States and with the mandate of- a competent agency of the Community of States, in the event that conditions prevailing in a State’s territory should be found, to menace international peace, and order.

Enunciation of the Principle at the present time would not only be in accordance with the trend of world opinion. It would
 

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furnish a needed guarantee to smaller States that the world of the future will be a world in which they can live according to their own aspirations and remain unmolested. It would generalize the declaration made by the Ministers of Foreign Affairs of the American Republics, at their meeting at Rio de Janeiro in 1942, that “the principle that international conduct must be inspired by the policy of the good neighbor is a norm of international law of the American Continent.”
 

PRINCIPLE 4

Each State has a legal duty to prevent the organization within its territory of activities calculated to foment civil strife in the territory of any other State.

COMMENT

If States are to live together as good neighbours in the Community of States, it is not enough that they be obligated to refrain from official intervention in the internal affairs of other States. It is necessary, also, that each State be assured of its internal security, free from subversive influence due to non-official activities in other States. Governments themselves must refrain from participation in the internal political contests to which other Governments are subjected. But they should do more. They should see that activities are not organized within their territory which are calculated to foment civil strife in the territory of other States.

The foundations of this Principle may be traced to the action taken by States throughout the nineteenth century to prevent the organization in their territory of filibustering expeditions designed to operate in the territory of other States.

In some States national legislation was enacted to prevent armed preparations or enlistment for waging civil strife in the territory of other States; in the United States of America, for example, such legislation has existed since 1794, and it was framed to carry out what was conceived to be an obligation of international law.

Recent international legislation has given precision to the obligation. An agreement concluded in 1911 between five South American States -Bolivia, Colombia, Ecuador, Peru, and Venezuela – required the parties to “take suitable steps to prevent at all times, in the territory under their jurisdiction, the promotion of revolutions, attempts to raise levies or preparations for the despatch of expeditions, and the execution of
 

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Any of these acts to the prejudice” of any other party. Thirteen American States became parties to the 1928 1:Iabana xxxxxxx Convention on Civil Strife, by which they obligated themselves “to use all means at their disposal to prevent the inhabitants of their territory, nationals or aliens, from participating in, gathering elements, crossing the boundary or sailing from their territory for the purpose of starting or promoting civil strife.” A similar obligation was proclaimed by Central American States in treaties of 1907, 1923 and 1934, by States of the Near East in the Saadabad act of 1937, and by the Ministers of Foreign Affairs of the American. Republics in the. Final Act of the xxxxxx Iiabana Conference
in 1940.

Efforts to extend the principle have been proceeding in ecent years. Some of them have taken the form of bipartite agreements between States. For example, in 1933 the United States of America and the Soviet Union entered into an agreement by which each undertook “not to permit the formation or residence on its territory of any organization or group a . o o. xxxxxxxxxxxxxxxxxxxxx

which has as its aim the overthrow or the preparation for the overthrow of, or the bringing about by force of a change in the political or social order” of the other. Similar agreements were made by the Soviet Union with other States.

Newer means of communication call for attention in this connection. The advent of the radio has brought in new possibilities of disturbances in the political life of peoples, and as recent experience has shown propaganda broadcast from the territory of one State to people living in the territory of another State may be as effective in fomenting political strife, as the despatch of armed ships and armed forces. Two significant efforts have been made to cope with this problem by international legislation. The 1936 Geneva Convention on the Use of Broadcasting in the Cause of Peace, to which twenty-one States became parties, obligates these States to prohibit “the broadcasting within their respective territories of any transmission which to the detriment of good international understanding
is of such a character as to incite the population of any territory to acts incompatible with the internal order or the security of a territory” of another State which is also a party to the Convention. In the 1937 Geneva Convention on the Prevention of Terrorism, it was reaffirmed as a principle of international law that “it, is the duty of every State to refrain from any act designed to encourage terrorist activities directed against another, State and to prevent the acts in which such activities take shape.”
 

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It will be understood that the Principle is not to be applied in such a way as to obligate any State to curb the activities of individuals in the exercise of personal liberties accorded by law. Freedom of speech is one of man’s most prized possessions, and it can be protected only if individuals remain free to criticize the Government of their own or of any other country. Nor should the Principle be applied in such a way as to prevent a State from giving asylum and hospitality to individual apostles of freedom who may be fleeing from tyranny in other lands. It is the organization of activities which should be prevented, and the Principle has no application unless the organized activities are of such a character that they must be said to be, objectively as well as subjectively, calculated to foment civil strife in other countries.

The enunciation of this Principle at this time would serve as an assurance to States of the security of their own institutions, social as well as political, especially to those States which by recent events have been placed in special need of that assurance. It seems significant in this connection that when it declared, on the occasion of the murder of King Alexander and M. Barthou at Marseilles in 1934, that “it is the duty of every State neither to encourage nor tolerate on its territory any terrorist activity with a political purpose,” the Council of the League of Nations linked its action with the obligation of Members of the League of Nations “to respect the territorial integrity and the existing political independence of the other Members.”
 

PRINCIPLE 5

Each State has a legal duty to cooperate with other States in establishing and maintaining agencies of the Community of States for dealing with matters of concern to the Community, and to collaborate in the work of such agencies.

COMMENT

Matters which are of concern to the Community of States must be dealt with by agencies empowered to deliberate and act on behalf of the Community. As the creation and maintenance of such agencies must be effected by the States which form the Community of States, a failure of any State to cooperate in creating or maintaining them, or in collaborating in their work, would mean a crippling of the Community itself. Progress in building a world order on secure legal foundations is conditioned upon such cooperation and collaboration. For this reason,
 

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the Inter-American Juridical Committee has recently declared that “no nation is privileged to remain aloof from the organization of the international, community”; and the Ministers of Foreign Affairs of the American Republics, meeting at Habana in 1940, pledged their Governments . to “coordinate their own interests with the duties of universal cooperation.”

The imposition of a legal duty on States to meet this necessity is more than a pious aspiration.While it is not possible to state in advance precisely the steps which any State ought to take, it can be affirmed as a principle of law that States may not ignore the agencies of the, Community of States, and that they ;have a positive legal duty to take part in the common effort which will enable the agencies to function toward the ends for which they were created. Precedents are not lacking for a statement of a legal duty in these terms. For example, the abortive Geneva Protocol on Pacific Settlement of International Disputes of 1924 referred to the obligations of certain States as requiring them “to cooperate loyally and effectively in support of the Covenant of the League of Nations and in resistance to any act of aggression.”

A useful analogy may be found -=-xxxxxxxxxxxx here as so often in dealing with inter-State relations -in national efforts to regulate relations between employers and workers. Certain States have not hesitated to impose on employers and workers. a duty to negotiate and to engage in collective bargaining; a law of the United States of America,-for example, imposesa legal.duty on various public carriers and their- employees “to exert every reasonable effort to make and maintain agreements” on certain matters. Such duties are rigorously enforced by national courts. Under such laws, the persons on whom reciprocal duties are imposed are not constrained to reach an agreement, and they are not compelled to accede to demands made; yet they cannot lawfully decline to negotiate and :their own proposals must be in the spirit of an effort to arrive at an understanding.

Similarly, a State may have a duty to take part in the common effort, to cooperate in maintaining the necessary agencies and to collaborate in their work. It would not be obliged to support any specific proposal which may be advanced, nor to enter into any agreement which in its judgment fails to take account of its special interests. Yet it would not be living up to its duty if it sought ‘to remain entirely aloof and to ignore the common effort.

It is an historical fact that in some fields international cooperation has been well-nigh universal. Of the seventy-three
 

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States existing in 1937, seventy-two States have collaborated in the work of the Universal Postal Union; sixty-eight States are parties to the 1932 Telecommunication Convention, and to one or other of the various conventions dealing with the traffic in opium and drugs. Moreover, most of the States of the world — Nepal and Yemen being the chief exceptions — took part in some of the activities of the League of Nations. In 1939, the Secretary of State of the United States of America stated to the Secretary-General of the League of Nations that “the United States Government looks forward to the development and expansion of the League’s machinery for dealing with the problems” in the social, economic and financial fields, “and to the participation by all nations in active efforts to solve them.”

The Principle does not deal with the method of conducting the cooperation, nor with the specific agencies which must be established. Future developments which cannot be forecast will be controlling, but some specific suggestions are advanced in the later Proposals.

Nor is it possible to enumerate the matters which may be dealt with as matters of concern to the Community of States. Some matters which fall very closely into that category are referred to in these Postulates, Principles, and Proposals. No list of them can be exhaustive. From time to time matters previously left to the exclusive competence of States may, as a result of the development of inter-State relations, become matters of concern to the Community of States. In general, all matters which concern two or more States, which have to do , with inter-State relations, must be regarded as potentially matters of concern to the Community of States.

The enunciation of the Principle is needed as a foundation for the better organization of the Community of States. If it involves an extension of international law, the extension is based upon historical development, and it is in line with the necessities of a legal order.
 

PRINCIPLE 6

Each State has a legal duty to employ pacific means and none but pacific means in seeking to settle its disputes with other States, and failing settlement by other pacific means to accept the settlement of its disputes by the competent agency of the Community of States.

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COMMENT

In the past, war was not forbidden as one of the possible means of seeking the settlement of a dispute. A change in the general attitude on this point began to stir in the last century, and it has been formulated andwidely accepted in this century.

The principle that only pacific means may be employed for the settlement of disputes has recently been “enunciated in two great international instruments, and practically all of the States of the world have become parties to one or the other, or to both, of these instruments. By the Treaty of Paris of August 27, 1925, sixty-three States agree& “that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they maybe, which may arise among them, shall never be sought except by pacific means.” By the Treaty of Rio de Janeiro of October 10, 1933, twenty American, and eight ) European States agreed “that the settlement of disputes or controversies of any kind that may arise among them shall be effected only by the pacific means which have the sanction of international law.”

The Principle requires that pacific means be employed if the settlement of a dispute is sought, but it does not require that a settlement be sought. It happens not infrequently that all of the States engaged in a dispute prefer no settlement to any which appears to be attainable. It is notorious that some international disputes-usually territorial disputes have been allowed to simmer for generations. From the point, of view of the Community of States it may be more desirable that a settlement should be effected, and this will certainly be true where the dispute is a menace to peace or to the good understanding between States upon which their cooperation depends. The 1933 Montevideo Convention on Rights and Duties of States, to which sixteen American States are parties, provides that “differences of any nature which arise between them should be settled by recognized pacific methods.” Yet the primary duty of each State relates not to settling its disputes with other States, but to the means and methods which it may employ in seeking a settlement.

The pacific means available to States for seeking the settlement of disputes are numerous and various. The chief means is direct diplomatic negotiation between the parties, and in fact most disputes are settled by this means. Since 1556, a formal basis has existed for recourse by a disputant State to the good offices of a third State. The law relating to good offices and
 

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mediation was codified in the 1899 and 1907 Hague Conventions on the Pacific Settlement of Disputes, and these conventions are supplemented by an Inter-American Treaty of 1936 to which fifteen States are parties. Numerous States havejoined with others in formulating procedures for enquiry and investigation and in establishing permanent commissions of conciliation, and the procedure of arbitration has been elaborated in scores of recent treaties, both multipartite and bipartite.With the creation of the Permanent Court of International Justice, the adjudication of disputes by impartial judges has been placed upon a firm basis. Pacific means are not lacking, therefore, to States which are willing to employ them.

The duty to seek settlement of disputes only by pacific means does not meet the need entirely, however. If one party to a dispute insists upon a settlement, if it is to be bound to refrain from employing non-pacific means to that end, and if the other party does not agree upon a method of dealing with the dispute, an agency of the Community of States must be available to it as a forum, and such agency should be invested with the necessary competence; or if the interests of the Community of States demand that the dispute be settled, an authority should be at hand and competent for that purpose. Hence, the duty to employ only pacific means in seeking settlement of a dispute must be complemented by a duty to accept settlement by a competent authority of the Community of States. The Principle would establish both duties, and Proposals are later made for implementing it.

The parties to a dispute would always remain free to agree upon any method of pacific settlement. It is only when they fail to agree, or when the method upon which they have agreed breaks down without a settlement, that the duty to accept a settlement by the competent authority of the Community of States would be operative.

The Principle goes beyond the obligations embodied in the Covenant of the League of Nations.Under the system of the Covenant, sixty-three States agreed that they would submit to arbitration or judicial settlement disputes which they recognized to be suitable for such submission; that if the dispute was “likely to lead to a rupture,” they would “submit the matter either to arbitration or judicial settlement or to enquiry by the Council,” and that if the dispute was not submitted to arbitration or judicial settlement and if it was “likely to lead to a rupture,” either party might submit it to the Council. If the dispute was submitted
 

1944] The International Law of the Future 315

to arbitration or judicial settlement, the parties were bound to “carry out in, full good faith any award or,decision” rendered; if the dispute was submitted to the Council and if a report was unanimously adopted by the Council, though the parties had no obligation to accept the recommendation of the report, all members of the League, covenanted “not to go to war with any party” which complied with the recommendation.

Such remarkable progress has been made during the past quarter-century, both in creating agencies for the pacific settlement of disputes and in building a law relating to pacific settlement, that the time now seems to be ripe for the enunciation of a clear principle of law that if settlement is not reached by other pacific means, each State must accept the settlement of its disputes by the competent agency of the Community of States.
 

PRINCIPLE 7

Each State has a legal duty to refrain from any use of force and from any threat to use force in its relations with another State, except as authorized by the competent agency of the Community of States; but subject to immediate reference to and approval by the competent agency of the Community of States; a State may oppose by force an unauthorized use of force made against it by another State.

COMMENT

The maintenance of a peaceful legal order cannot be sufficiently assured by provision for the peaceful settlement of disputes between States. Recent experience has shown that conflicts are possible even when situations have not been formalized as disputes. It seems essential to lay down a broad principle as to the use of force, and to move as far as possible toward the elimination of force as a means to be employed for the attainment of States objectives. Whatever the situation, no State should be permitted to resort to force to impose its will upon another State.

It should be proclaimed as a legal duty of States to refrain from using force, as well as from threats to use it.

The Principle deals with the use of force rather than with xxxxxxxxxxxxx agar, because of the many artificial distinctions which have grown out of attempts to define war. The force referred to is physical force; this limitation is’ necessary to the clarity and definiteness with which the duty must be stated. Other forms of pressure, such as discriminations in trade relations, raise complications which cannot easily be encompassed by a simple statement of
 

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legal duty, and they may require adjustments which only continuing legislative processes can supply.

It is the use of force by a State in its relations with other States which must be forbidden; the employment of force by a State to suppress an insurrection among its own people, or to quell a riot, or to prevent individuals from resorting to violence, does not ordinarily impinge upon interests of other States, and it does not call into play the authority of the Community of States.

The general principle must be stated with the exception of any use of or threat to use force authorized by the competent agency of the Community of States. Situations may arise in which a use of force will be thought to be necessary for the protection of the interests of the Community of States, and in which it may be entrusted toaStateor agroup of States by amandate given by a competent agency of the Community of States. Moreover, in developing the international law which will be applicable, the Community of States may lay down conditions under which a State’s useofforcewithout aspecial mandatewould be authorized.

The statement of the Principle recognizes, also, the necessity of admitting the possibility of a State’s using force to oppose an unauthorized useof force against it by another State. When the Treaty of Paris was being negotiated in 1928, reference was made to a “natural right of self-defense,” and the renunciation of war “as an instrument of national policy” was made with the understanding that this “right” was not to be affected. The existence of such a “right” has been proclaimed so repeatedly that in the minds of many people it has achieved the status of alegal axiom.

Yet the plea of self-defense has been greatly overworked, and in many cases it has been merely specious. In modern times, the psychology of peoples has been such that every war has seemed to all the peoples engaged to be a war in self-defense. Any conception which lends itself to such general misuse must be employed with sparing and discrimination. A blanket exception of self-defense would rob a formulation of the duty to refrain from a use of force of much of its utility. What is necessary is to admit that a State may use force to oppose an unauthorized use of force by another State; but the interests of the Community of States clearly require that any such use of force should be permitted only subject to immediate reference to and approval by the competent agency of the Community of States. If the situation in which a State finds itself called upon to oppose an unauthorized use of force is clear and unmistakable, that State can count upon such
 

1944] The International Lawof the Future 317

approval to legitimate its action; in any other situation, it should refrain from using force, except as authorization may be or may have been given by the competent agency of the Community of States.

A precedent for this provision exists in the 1921 Convention neutralizing the Aaland Islands. This instrument provided that in the event of a sudden attack upon the Aaland Islands Finland should take the necessary measures for checking and repelling the aggressor until the other parties to the Convention could intervene; but in such, a case Finland was required to “refer the matter immediately to the Council” of the Leagueof Nations.

The Principle is clearly in line with current thinking about international relations. Two generations ago; a Peace Conference at The Hague deemed it “important, in order to ensure the main tenance of pacific relations, that hostilities should not commence without previous warning,” and more than forty States became parties to a convention providing that hostilities between them should not “commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war.”If this provision marked some advance at the time, it was not destined to serve a large role in ensuring peace even if the requirement had been complied with; and with the passing of less than two decades effort carne to be directed into a different channel. In the Covenant of the Leagueof Nations, “anywar or threat or war, whether any immediately affecting of the Members of the League or not,” was “declared a matter of concern to the whole League,”: that is, States and the Members of the to the organized community of; League undertook “to respect and preserve as against external aggression .the territorial integrity and existing political independence of all Membersof the League.” However,the Covenant also provided that in the event that a dispute “likely to, lead to a rupture” had beensubmitted to arbitration or judicial settlement or enquiry by the Council, the Members of the League should not “resort to war until three months after the award of, the arbitrator or the judicial “decision or the report by the Council”; and after a submission to the Council and its failure to arrive at a unanimous report, the Members of the League reserved to themselves “the right to take such action as they shall consider necessary for the maintenance bfright andjustice .”

Nor were these, “gaps in the Covenant” repaired by theParis Treaty for the Renunciation of War of 1928, in which most of the States of the world joined in a renunciation of war as an
 

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instrument of national policy. That step was to a large extent vitiated by a qualification, which had notappeared in the Covenant, that each State had a “right of self-defense,” andit was even asserted in the course of the negotiations that each State remained the sole judge of the occasion on which the “right” should be exercised.

The abortive Geneva Protocol on the Pacific Settlement of Disputes of 1924 provided for agreement by the parties not to go to war “except in case of resistance to acts of aggression or when acting in agreement with the Council or the Assembly of the League of Nations.”

No substantial progress was made in the Rio de Janeiro Anti-War Treaty of 1933, in which a number of States declared “that they condemn wars of aggression in their mutual relations or in those with other States.” A Declaration of American Principles, adopted at Lima in 1938, confined itself to the simple formulation that “the use of force as an instrument of national or international policy is proscribed.”

The enunciation of this Principle at the present time would serve as a means of giving effect to thedeclaration in theAtlantic Charter that “all nations of the world, for realistic as well as spiritual reasons, must come to the abandonment of the use of force.”
 

PRINCIPLE 8

Each State has alegal duty to take, in cooperation with other States, such measures as may be prescribed by the competent agency of the Community of States for preventing or suppressing a useofforce by anyState in its relations with another State.

COMMENT

If States are to give up the freedom which they have exercised in the past to rely upon their ownwill in the use of force against other States, if they are to refrain from any use of force or any threat to use force in their relations with other States except as authorized by thecompetent agency of the Community of States, they will need to beassured of protection by the Community.It is obviously impossible to fore see the precise situations in which that protection may be needed, and the assurance would be illusory if a competent agency of the Community of States could not seek to prevent or suppress the unauthorized use of force by a State in its relations with another State. Nor would it serve much purpose to postulate that any use of force or any threat
 

1944 The International Lawof the Future 319

to use force. by a State in its relations with,another State is a matter of concern to the Communityof States, if the Community were powerless to move once the situation hadpresented itself. ThePrinciple does notindicate the nature of theaction which an agency of the Community of States might be competent to take to that end, nor does it specify the measures which States might be asked to take. Those questions can best be decided as the occasions arise, or perhaps in accordance with guides which might be drawn up from time to time. A State might be asked to sever diplomatic relations with a State using or threatening to use force; or it might be asked to discontinue exchanges of goods; or it. might be asked to withhold any kind of assistance; or it might be asked to supply military forces, or to permit the passage of such forces across its territory; or it. might be asked to take other measures. Noris it to be assumed that all States would be in thesame position with respect to an actual or threatened use of force;measures might be prescribed for a certain State which other States would notbe in a position to take. Such matters are hotsusceptible of a uniform and universal treatment. Yet the duty would rest upon all States, and no State would be free to frustrate the efforts of the Community of States by relying upon the nineteenth-century law of neutrality.

In any case in which measures are prescribed, it would seem desirable that they should be prescribed for more than one State. Action byasingle State might be tooonerous; or it might prove so tempting that it would get out of hand, with the result that the State would come to be serving its own interests. For these reasons, the Principle is limited to àState’s- duty to take measures in cooperation with other States.

The Principle represents a departure from the Covenant. of the League of Nations. In the event of a resort to war by any Member of the League in disregard of certain obligations, the Covenant provided that it should “ipso facto be deemed to have committed an act ofwaragainstall other Membersof the League,” and the Members undertook “immediately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the covenant-breaking State, and the prevention of all financial, commercial or personal intercourse between the nationals of the covenant-breaking State and the national of any other State, whether a Member of the League or not.” Moreover, the Council was empowered “in such case to recommend to the several Governments concerned what effective military, naval or air force the
 

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Members of the League shall severally contribute to the armed forces to be used to protect thecovenants of the League,” and the Members agreed to “take the necessary steps to afford passage through their territory to theforces of anyof the Membersof the League which are cooperating to protect the covenants of the League.”These provisions were weakened by the failure of the Covenant to provide, or by its failure to provide sufficiently clearly, for a common decision that a resort of war in violation of its provisions had taken place, and an amendment formulated in 1921 for clarifying the matter did not become effective. In no case did the Council recommend a use of armedforces “to protect the covenants of the League.” The “sanctions” applied against Italyin 1935 were inadequateand for the mostpartineffective.

In retrospect, it may be possible to say that the provisions of the Covenant might have been more efficacious ifthey had been less sweeping. It seems preferable to leave to a competent agency of the Community of States more freedom to consider the differences in resources and geographical position of various States, and more power to determine the quantum and character of the measures to be taken by particular States in situations in which it maydetermine themto benecessary.
 

PRINCIPLE 9

Each State has a legal duty to conform to the limitations prescribed by the competent agency of the Community of States and to submit to the supervision and control of such an agency, with respect to the size andtype of its armaments.

COMMENT

It would be idle to attempt to eliminate the use of force by States in their relations with other States if at the same time States were left a complete freedom to determine thesize and type of the armaments which they will maintain. Noris it possible to look forward to “a just and enduring peace ensuring order under law to all nations” if any State is to be permitted to pile up implements with which it mayseek to impose its will on other States.Apart from the temptation to make an unauthorized use of such implements, the State which amasses themwould come to possess an undue amount of power, and a disturbance of the good understanding necessary for an effective organization of the Community of States would be inevitable.

Efforts to limit armaments by the agreement of the heavily armed States have been proceeding almost continuously since
 

1944] The International Law of the Future 321

1899. The failure of the two Peace Conferences at The Hague to make any progress in this direction is notorious. The solemn recognition embodied in the Covenant of the League of Nations that “the maintenance of peacerequires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations,” remaineda dead letter, though it was reinforced by provisions for “plans” and for a permanent commission to advise upon their observance when adopted. Norhave anyof the recent conferences on limitation of armaments achieved results of lasting significance.’ Experience of the past has demonstrated that the disarmament of adefeated State, effected while the victors keep their armaments, can operate as an encouragement to clandestine arming.

A departure, must be made if any substantial progress is really desired. It cannot be merely an agreement”to scrap certain ships, or to restrict the caliber of guns, or to limit the size of an xxxxxxxxxxx corps It must a particular army. be more than a ban upon weapon, xxxxx and more than a community monopoly of a certain raw material.

The task of arriving at the limitations to which States should have a duty to conform ought to be facilitated by the recent mechanization of war and by the fact that the newer kind of warfare requires open preparations on a vast scale. It must be realized, however, that an effective limitation of armamentspresupposes an adequate system of international organization under which States can feel that their security is assured.

Extensive supervision and control maybe required if limitations are to be established and if their observance is to be assured of course States will suspect that others are not performing their obligations. The dissemination of complete information concerning the military establishments of States will be essential. In the Covenant of the League of Nations, sixty-three States undertook “to interchange full and frank information as to the scale of their armaments, their military, naval and, air programmes, and the condition of such of their industries as are adaptable.to warlike purposes.” This led to the, publication of an “armaments yearbook” which appeared in fifteen volumes from 1924 to 1939, but the information contained was “drawn solely from official and public documents,” andnoattemptwas’made toverify theindications of such documents. The 1925 Geneva, Convention on Trade in Arms, whichfailed to enter into force though it wasratified by seventeen States, contained provisionson “supervision, and publicity,” but they were limited to a system of licenses andreports.
 

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The need for supervision and control has been appreciated in a striking declaration by an Under-Secretary of State of the United States of America that “the abolition of offensive armaments and the limitation and reduction of defensive armaments and of thetools which make the construction of such armaments possible, canonly be undertaken through some rigid form of international supervision and control,” and that “‘without such practical and essential control no real disarmament can ever be achieved.”
 

PRINCIPLE 10

Each State has a legal duty to refrain from entering into any agreement with another State, the performance of which would be inconsistent with the discharge of its duties under general international law.

COMMENT

States have a wide freedom to enter into agreements for meeting their common problems, and it isa freedom which must be safeguarded. Yet all agreements between States depend for their binding force on international law, and the interests of the whole Community of States require that the general international law take precedence over agreements between pairs or small groups of States. The legal duties imposed upon a State by general international law must be performed in any event, and it would seem to follow as a corollary that no State should enter into any agreement by which it would assume obligations the performance of which would be inconsistent with the general law.

Aprecedent is to be found in the Covenant of the League of Nations, designed to be general law for the sixty-three States which became Members of the League. The Covenant was accepted as “abrogating all obligations or understandings” inconsistent with its terms, and the Members agreed that they would not thereafter “enter into any engagements inconsistent with the terms thereof.”

Enunciation of this Principle would serve not only to assure the better observance of the duties imposed by the international law of the future, but also to bolster the numerous multipartite conventions which constitute the body of the world’s statute law. Too frequently in the past such conventions have been restricted in their operation by inconsistent agreements between some of the parties.
 

1944] The international ‘Law of the Future 323

PROPOSALS FOR THE
INTERNATIONAL LAW OF THE FUTURE

These Proposals are offered as indications of measures which. might be adopted to make the organization of the Community of States effective; and to assure the continuous collaboration of States to promote the common welfare of all peoples and to maintain friendly relations between all States.They are intended to point out ways for implementing a declaration of the preceding Principles, but they are not presented as draft provisions for inclusionin an international instrument.

In line with authoritative declarations made on behalf of peoples who desire “a just and enduring world peace securing order under law to all nations,” suggestions are advanded as to possible and desirable approaches to be made toward the solution of legal problems connected with the maintenance of a permanent world order. Solution of many of these problems cannot be reached once, and for all. Whatever the solution attempted, the problems will .recur. For this reason the suggestions are confined to the agencies and methods and procedures by which such problems can be faced in any permanent system. No attempt has been made to anticipate solutions which may. have – to be given to the immediate problems with which the world will be faced when present hostilities have been ended. The importance of those problems cannot be minimized, but solutions of them will depend upon numerous political decisions to be taken in situations which cannot be foreseen.
 

I. Organization of the Community of States

PROPOSAL 1

(1) The Community of States should be organized on a universal basis. All States which exist or which may come into existence in the future should be included. No provision should be made for the expulsion or withdrawal of any State.

(2) The organization of the Community of States on a universal basis should not preclude the organization of groups of States on the basis of regional propinquity, historical relation ship, or mutuality of interest, for purposes not’ inconsistent with those ofthe universal organization. The activities of agencies of such groups of States should be coordinated with the activities of the agencies of the Community of States.

 

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COMMENT

If the Community of States is to protect and advance the interests of all peoples, if it is to proscribe the use of force by any State, if its agencies are to be enabled to function with a world-wide authority, it must be organized on a universal basis. All States in the Community of States, all States to which international law applies, must be included in the organization. If the organization of the Community of States is to be effective, if it is to have a prospect of permanence, it must be enabled to continue on a universal basis. Hence, no provision should be made for the withdrawal of any State, and no expulsion ‘of a State should be possible.

An international organization which is not universal, which though it includes many States excludes others, would not only be less effective; it would also encounter grave risks of challenge and opposition.If it includes only States of a certain political or ideological character, the formation of a rival and hostile group would be encouraged.A union of democratic States might find itself confronted by a union of non-democratic States; and recent history has shown that a union of like-minded States of a certain mind may lead to a union of like-minded States of another mind.

Experience in international organization clearly points to the necessity of universality. The founders of the League of Nations seemed to have hoped for its development toward universality, but when the League was organized numerous States were not invited to accede to the Covenant — not merely Austria, Bulgaria, Germany, Hungary and Turkey, but also Afghanistan, Costa Rica, Dominican Republic, Luxemburg, Mexico, the Soviet Union and other States. The States named were subsequently admitted to membership, but certain smaller States  Liechtenstein, Monaco, and San Marino — were excluded from formal membership. The prospect of universality was further prejudiced by the Covenant’s provisions for withdrawal and expulsion; the privilege of withdrawal was effectively exercised by sixteen States, and one State was expelled. Throughout its history, the efforts of States made through the League of Nations were hampered by the necessity of a distinction between Members and non-Members. League activities in many fields required that the cooperation of non-Member States be enlisted, and frequent diplomatic conferences had to be convoked to this end. . Yet progressively the distinction became of less importance, and when a new Central Committee
 

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for Economic and Social Questions was projected in 1939, it was urged by the United States of America And recognized by the League Assembly that all States should be permitted to participate in the work of the Committee; The experience of the League of Nations led the Government of the Swiss Confederation to observe, in 1936, that “a League that is not universal is not merely a weaker and less effective institution, but an institution whose character is liable to deteriorate. It may change from a world-wide association for the development and defence of international law into an association of States likely, in the nature of things, to find itself at odds with countries that do not belong to it.”

In other organizations, also, the tendency has been toward universality. The Universal Postal Union, for example, grew from a union of twenty States in 1874 to a union of seventy-two States in 1939.

The Proposal follows thé precedent of the Unionof American Republics, from which no American Republic has been excluded, none has been expelled, and none has sought to withdraw. It is in line with a recent declaration by the Inter-American Committee of Jurists that “the international community must be organized on the basis of the cooperation of all nations,” and that “no nation is privileged to remain aloof from the, organization thus established.” It would carry out the clear implications of the Atlantic Charter which emphasizes the enjoyment “by all States, great or small, victor or vanquished” of conditions necessary for their economic prosperity, the fullest collaboration “between all nations” in the economic field, a peace from which “all nations” may benefit, and the abandonment of the use of force by “all the nations of the world.”

An organization of the Community of States on a uni- versal basis would , naturally be competent to deal with any matter of concern to the Community of States. This does not mean that some problems would not have to be dealt with by agencies of special and limited scope, and of course such agencies could be. created within the framework of a universal organization. Yet if only a number of special and limited unions were formed, the world would be back in the stage of the fifty years which preceded 1919. As a permanent matter, a general organization will be required for problems which are more than temporary, ‘as well as for the coordination of special activities.

The method to be adopted for realizing this Proposal of an organization of the Community of States on a universal
 

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basis cannot be determined in advance.It must depend upon conditions prevailing when the organization is to be launched. It is assumed that at the conclusion of the present war the lodgement of power will be such that the States which desire an effective organization will have the dominant voice, and that other States will be willing, or will feel themselves constrained, to follow the lead. If one or more States should hold aloof, competence might none the less be vested in the organization to act on behalf of the whole Community of States. Initially, the inclusion of States should be specific, all of the entities existing as States at the time being named. Thereafter, the inclusion of any entity as a State in the organized Community of States should constitute its recognition by all States.

If the conditions existing in certain States at the close of the war should lead to any restrictions on their active participation, it should be realized that the organization would be crippled if such restrictions were more than temporary, and their earliest possible removal should be envisaged. The organization of the Community of States on a universal basis would not preclude the grouping of certain States for purposes not inconsistent with those of the universal organization. Such a grouping of States might be based upon regional propinquity,[2] upon historical relationship, or upon mutuality of interest. Numerous regional organizations have existed in recent years. The twenty-one American Republics have been associated since 1889 in the Union of American Republics, which operates in periodical International Conferences of American States and which maintains apermanent agency inthe Pan-American Union.Other regional organizations have been the Little Entente, the Balkan Entente, the Baltic Union, and the Inter-American Union of the Caribbean.Regional groupings of States, less closely organized, have been formed for cooperative purposes, also; e.g., the Scandinavian States, the Bolivarian States, and the States of the River Plate. Historical relationship unites the States which have emerged from the British Empire to form the British Commonwealth of Nations; and mutuality of interest has at times drawn together such groups as the Islamic States, and the Oslo States. It is desirable that the activities of such groups of States be coordinated with those of the more general organization. Not infrequently general international conventions have been dupli cated, and to that extent limited, by conventions drawn up by groups of States.
 

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A useful precedent exists in the field of postal service. The Universal Postal Conventions have long provided that “countries of the Union may maintain and establish restricted unions,” if the agreements creating them do not provide for services “less favorable than those laid down in the Acts of the Union”; and several subordinate postal unions-e.g., the African Postal Union and the Postal Unionof theAmericas and Spain-exist under that provision. A similar situation exists within the framework of the Telecommunication Union. In the League of Nations, also, regional conferences were held from time to time to deal with special matters; e.g., the American Conferences on double taxation, and the Par Eastern Conferences on health and other social questions. Under the auspices of the general International Labor Organization, the American States have recently held two labor conferences and a conference on social security.
 

PROPOSAL 2

(1) A General Assembly, in which all States should be entitled to, representation, should be established to serve as the general representative and deliberative organ of the Community of States.

(2) The General Assembly) meeting,as occasion mayrequire, and at least once each year, should have general power to deal with any matter of concern to the Community of States. Exçept as may be expressly provided otherwise, its decisions should require only a majority vote.

 

COMMENT

The protection and advancement of the common interests of peoples require an organization which can preserve continuity in its efforts. -Merely spasmodic conferences would not suffice. Solutions of international problems usually require long preparation and repeated discussions, and even when they are arrived at they may not be in any sense final. Continuity is to be achieved only through established institutions, making possible frequent and periodical conferences functioning with the assistance of permanent officials. The chief of these institutions should be a general representative and deliberative organ, which might be called a Generai Assembly. Meeting as occasion may require, and at least once each year, it should be empowered to deal with any matter of concern to the Community of States exceptasspecial competence mayhave been committed to another body.
 

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In such abody,each of the Stateswhichform the Community of States should be entitled to representation. Thenumberof representatives of each State might be determined by the General Assembly itself, as a unit.

Each State should be left free to determine how it will choose its representatives. As the Covenant of the League of Nations entitled each Member to have three representatives in the Assembly, some States habitually included in their delegations representatives chosen from political parties in opposition to the party in power, and the practice had an obvious advantage.Yet conditions in the different States vary so widely that no uniform prescription as to a method of choice would seem to be possible. The matter is one of which each State may be the best judge for itself.

Nor does it seem desirable to provide for the representation in a General Assembly of groups or bodies other than Governments. The effectiveness of such a body would be in direct proportion to the extent to which its decisions are acceptable to States, for in most cases the Governments of States would have the responsibility of executing them.The General Conference of the International Labor Organization is “composed of four representatives of each of the members, of whom two shall be Government delegates and the two others shall be delegates representing respectively the employers and the workpeople of each of the Members,” and the non-Government delegates must be chosen in agreement with the industrial organizations which are most representative of employers or workpeople in their respective countries.Thesystem serves admirably for the General Conference of the International Labor Organization, yet it would hardly be susceptible of application in a General Assembly in which more extensive powers would be vested. In a body composed of some seventy States, it would seem to be undesirable to require unanimity before any action could be taken. For most matters, a majority vote should suffice for a ;other matters, some of which are referred to in the decision for Proposals, a qualified majority, such as two-thirds, might be required. As ageneral rule the decisions of the Assembly of the League of Nations on all matters other than questions of procedure and the appointment of committees to investigate particular matters were required to be unanimous, but in practice certain types of resolutionswere adopted bymajority vote.

If a majority vote be made sufficient, however, it may be desirable to establish from the outset a system of weighting the
 

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votes of States in a General Assembly. The principle of State equality would be recognized in provision for the representation of All States, and in the privilege extended to All States to participate in the consideration of matters of common concern. Yet States vary so widely in size and influence, the responsibilities, which they can assume are so disparate, that some distinctions may have to be drawn in the voting power of the States represented. Without such distinctions, it might be necessary so to restrict the powers of a General Assembly as to render it a much less significant body.The principle of State equality does not stand in the wayof a recognition of actual differences in fact.

In the past, the practice has usually prevailed in international organizations of giving, to each State one vote. That rule has obtained in the Assembly of the League,of Nations, and in the International Conferences of American States. Yet there have been notable exceptions to the general rule. In the Congresses of the Universal Postal – Union, votes have long been assigned to the dependencies of certain States, so that in fact some States have a number of votes. In some organizations, voting power has been made to depend upon a classification of States. In the 1905 Convention on the International Institute of Agriculture and in the 1907, Arrangement on the International Office of Public Health, a classification was adopted both for voting power, and for contributions to the budget.

Any classification of States must rest on a somewhat arbitrary basis. No objective criteria seem to be available which would not lead to artificial results. The factor of population would probably present least difficulty, yet some limitations would be necessary if populationwere made the sole criterion, or even if, the classification were not based on population alone. The amount of a State’s contribution to the budget might serve as one of the criteria of its voting power; but too much emphasis on financial capacity would be invidious, and the problem would still remain of finding a barometer for determining that amount. If any classification,is to be made, a variety of factors may have, to be considered together. Size of population, amount of contribution to the budget, extent of trade and production, and perhaps other factors might be taken into account.

Nor is it necessary that a single system ofweightingvotes be adopted.It is possible to assign to the vote of a State a value according to one system of weighting and simultaneously a cumulative value according to another system. In 1919, the Swiss Confederation proposed that certain decisions of the Assembly
 

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of the League of Nations should require a double majority of votes, a majority on the basis of one vote to each State and a majority weighted in accordance with the size of States’ populations. Similarly, the Interstate Compactto Conserve Oil and Gas concluded in 1935byseveral states of the United States ofAmerica, provides for votes by a double majority of the representatives in the Interstate Oil Compact Commission, prescribing both “the affirmative votes of the majority of thewhole number of the compacting states represented,” and a “concurring vote of a majority in interest” of such states, the interest to be determined byaratio of daily average production of oil. The representation in the General Assembly of diminutive States, for instance of States having a population of less than 100,000, might be thought to raise a special problem in this connection. The effective rôle of such States might be limited to their participation in deliberations; votes of their representatives might be cast but, at any rate for some purposes, not counted.
 

PROPOSAL 3

(1) An Executive Council, in which States should be entitled to representation, should be established to serve as thegeneral executive organ of the Community of States.

(2) The Executive Council, meeting as occasion may require and at least four times each year, should have general power to deal with any matter of concern to the Community of States. Except as may be expressly provided otherwise, its decisions should be taken by unanimous vote, but decisions with regard to matters of procedure and appointments should require only a majority vote.

 

COMMENT

A body so large as the proposed General Assembly would not be capable of taking the decisions of immediate application which may be required for the protection and advancement of peoples’ common interests. It should be supplemented by a smaller and moreflexible body, whichcould meet more frequently andwhich could serve as thegeneral executive organ of the Community of States. Such a body might be called an Executive Council.

Meeting as occasion may require and at least four times each year, the Executive Council should be empowered to deal with any matter of concern to the Community of States, except as special competence mayhave been committed to another body.
 

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Following any directives laid down by the General Assembly, it should have general power to take emergency decisions, to supervise and coordinate the, activities of -agencies of the Community of States, to keep, a watchful eye, upon the development of inter-State relations, and to deal with questions of policy notreserved to the General Assembly.

Thus the General Assembly and the Executive Council might both be given general power to deal with any matter of concern to the Community of States. A sharp demarcation, of the fields of action of the twobodies would be undesirable. The experience of the Assembly and Council of the League of Nations, both of which were empowered to deal “with any matter within the sphere of action of the League or affecting the peace of the world,” has shown that it is not necessary to anticipate a conflict between the General Assembly and the Executive Council as to their authority.

A decision as to the number of representatives to compose the Executive Council will depend upon the general political situation. On the one hand, it would seem desirable that the number should not be too large for effective conference and, for the free exchange of views;on the other hand, it should, be large enough to provide for a representation which would assure confidence and prestige.Perhaps a possibility of varying the number from time to time should besafeguarded.

The Covenant of the Leagueof Nations originally envisaged a Council of representatives of nine States, butit empowered the Council, with the approval of the, majority of the Assembly, to increase the number of States to be represented. Only eight States were represented in the Council in the beginning, but in 1922 the number was increased to ten, in 1926 to fourteen, in 1933 to fifteen, and in 1934 to sixteen. As the Executive Council here envisaged would be a relatively small body, each State represented should have one vote. In view of the nature and functions of the body, it is proposed that, as a general rule, its decisions should be taken by unanimity, but this rule should not apply to decisions with regard-to appointments or matters of procedure, for which a majority vote should suffice. The requirement of unanimity, would restrict the action which the Executive Council might take, but it seems to be necessitated by the probable insistence of States playing an important role in international affairs. It would have the advantage of assuring the wider support of decisions and thus of increasing the efficacy of action taken bythe Executive Council.
 

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PROPOSAL 4

(1) In the selection of States for representation in the Executive Council, special consideration should be. given of the importance of their r6le in international affairs. Initially, the States entitled to representation in the Executive Council should xxxxxxxx .might be entitled be named Certain States named as to representation until the selection of their successors;other States might be named as entitled to representation for a fixed period, or for fixed periods, of years. The selection of their successors, and possibly of other States to be entitled to representation, should be entrusted to the General Assembly.

(2) Any State not represented in the Executive Council should be entitled to participate, without avote, in the consideration by the Executive Council of any matter specially affecting its interests.

 

COMMENT

The Executive Council is proposed as a body to have a great authority, to be invested with large powers, and to be capable of taking effective action. Such a body would require the representation of those States which may be at the time in a position to assume and to discharge responsibility for the decisions taken.

The Proposal calls for giving special consideration to the importance of the r6le of States in international affairs. This standard cannot be applied as a rule of thumb. No fixed criteria are available, and perhaps none can be devised, for a precise measuring of the relative importance of the roles played by States.

Despite its generality, the standard is susceptible of application. Indeed, it is generally applied in popular thought which distinguishes between “Great States” and others. It would not be individious to make such a distinction, for States are only too aware of the differences in the responsibilities which they are able and willing to assume.

An analogy is to be found in the Constitution of the International Labor Organization, in the provision that each of the eight Members “of chief industrial importance” is entitled to appoint a representative in the Governing Body.This formula has been applied without producing any considerable dissatisfaction. In 1926, the Austrian Government drew upon the analogy for aproposal that the Council of the League of Nations should be composed of representatives of the States which, considering “international political power, extent of territory, and degree of influence abroad,” could be said to be of “chief universal importance.”
 

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The standard proposed would exclude certain States from eligibility for representation in the Executive Council. It would not exclude consideration of geographical position, however, for that is a necessary element of importance in international affairs.

Yet escape must be found from any practice of automatic rotation; the danger of which was demonstrated by the experience in the League of Nations.

A fixed geographical allocation of seats in the Council of the League of Nations was decided upon in 1920, and it was not displaced by a later determination that regard should be paid to “the main geographical divisions of the world, the great ethnical groups, the different religious traditions, the various types of civilization, and the chief sources of wealth. “In practice, a group system was followed in the allocation of “seats” on the Council, three seats being allocated to Latin-American States, two to Asiatic States, one to “Nordic” States, one to Little Entente States, one to British Dominions, and one or two to other States, with Poland and Spain occupying a special position as to re-eligibility. A system of rotation adopted by States in certain groups led, in the later years, to the selection for representation in the Council of States which were so incapable of assuming responsibilities as to rob the Council of much of its power and prestige.

In the beginning, theselection of the States to be represented in the Executive Council should be made by those who.initiate the organization.Some of the_ States thus selected might be entitled to representation until the selection of their successors, others for a fixed period, or fixed periods, of years. It should be left to the General Assembly to select the successors to such States. No successors might be selected for some of the States originally
named, or under a system to be adopted some States might be selected to succeed themselves. The General Assembly might also be given power to select additional States. Terms could be later fixed during which the representation would continue, and the same termswould not be necessary in all cases.

The Proposal would make a significant departure from the Covenant of the League of Nations. Though it named the States to be represented in the Council in the beginning, the Covenant provided that certain States, described as “the Principal Allied and Associated Powers” (anamendment proposed in 1938 would have eliminated this description), were to have permanent representation in the League Council; and with the approval of the Assembly, the Council was empowered to name additional States for permanent representation. Only the selection of States for
 

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non-permanent representation was entrusted to the Assembly.

The distinction between permanent and non-permanent representation was resented by some States as invidious, and upon the admission of Germany in 1926, the difficulties encountered in increasing the numberof States entitled to permanent representation led to the withdrawal of Brazil. Moreover, embarrassment ensued from the conduct of some of the States entitled to permanent representation in two instances, such States were found to haveviolated their covenants.

More satisfactory results maybe anticipated if the power of selection entrusted to the Assembly be enlarged, and if the invidious distinction between permanentand non-permanent representation be abolished. This course would better provide for the changes which will inevitably occur. It should not be inacceptable to the States which are accustomed to discharging the larger responsibilities in world affairs. So long as they continue to play such roles, the necessity of their being represented in the Council will be generally appreciated. Such States would also have great influence in the General Assembly, and representatives in the latter body, genuinely interested in maintaining the Executive Council, would hardly fail to agree that these States should be entitled to continued representation. Sabotage is notto be anticipated, though it mightremain possible within any formal scheme to be devised.

In this connection, the experience in the elections of judges of the Permanent Court of International Justice is illuminating.

The pretension of the so-called “Great States” to representation was quite as effective in delaying the establishment of a permanent court as was the insistence of other States upon recognition of equality. It was one of the reasons, also, for entrusting the election of judges of the Court established in 1920 to both the Assembly and the Council of the League of Nations; when that step taken, it was anticipated that five of the nine seats in the Council would be held by the “Great States,” yet even after the composition of the Council had been changed, after control of the elections had passed out of the hands of States permanently represented, nationals of the “Great States” continued to be elected as judges of the Court, almost as a matter of course.

It may be noted that the rules adopted by the Assembly of the League of Nations in 1926 provided that atanytime the Assembly might “by a two-thirds majority, decide to proceed… to a new election of all the non-permanent Members of the Council.” In application of this rule it was possible for the mandate of a
 

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State to be revoked during the term for which it had been elected for representation.

The national experience of certain federal States is also suggestive in this connection. No one of the twenty-two cantons of the Swiss Confederation is entitled to representation in the Swiss Federal. Council, yet since 1848 two of the seven members of that body have regularly been selected from the two largest cantons, Bern and Zurich. No state of the United States of America is entitled to representation either in the Supreme Court or in the President’s Cabinet, yet for more than a hundred years the membership of both of these bodies has with rare and brief exceptions included citizens of the State of New York.

The Proposal also provides that even though it is not one of the States represented in the Executive Council, a State should be entitled to participate in consideration of any matter the specially affecting its interests. In line with other Proposals, it is suggested that in such 4 case the State should not have a vote. On this point, also, the Proposalwould depart from the precedent in the Covenant of the League of Nations, under which such a State ordinarily had the privilege of voting.
 

PROPOSAL 5

(1) Except as may be expressly provided otherwise, the General Assembly and the Executive Council should have power to establish their ownrules of procedure.

(2) Subject, to such exceptions as may be provided in the rules of procedure, meetings of the General Assembly and the Executive Council. should beheld in public and the minutes of all meetings should be published promptly.

COMMENT

It is obviously impossible to determine in advance all of the rules of procedure to be followed by such bodies as the proposed General Assembly and Executive Council. Except on points covered by specific provisions, each of these bodies should be empowered. to draw up its ow. rules of procedure, and to modify such rules in the light of experience.

A large body such as the General Assembly would of necessity meet in public. The Proposal would establish this general rule for the Executive Council, also, for it seems important that States not represented in that body should be. currently apprised of its activities. Yet in some cases, which would be covered by
 

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special exceptions in the rules of procedure, the way should be left open for variations from the general rule. The prompt publication of minutes of both bodies would extend the knowledge of their functioning to a general public.

Experience in the League of Nations serves to emphasize the importance of the second part of this Proposal. Meetings of the Assembly of the League of Nations were invariably held in public, and minutes were promptly published; in its rules, however, the Assembly reserved power to “decide that particular meetings shall be private.”Some of the earlier meetings of the Council of the League of Nations were not held in public, and the minutes were not published at the time; but after some agitation this rule was soon reversed, and the minutes of the earlier meetings were opened to public circulation. The rules of the Council continued to reserve the possibility of both private and secret meetings, and they required some decisions, particularly decisions concerning persons, to be taken at private meetings.

The minutes of the International Labour Conferences were regularly and promptly published from the beginning, but the minutes of the Governing Body of the International Labour Office were not made available to the public until 1932.

The practice of the Union of American Republics leaves much to be desired in this connection. The preparation and publication of records of the International Conferences of American States have been entrusted to the Governments which were hosts to the Conferences, and the results have been far from satisfactory. In 1933, the Seventh Conference called for publication of the minutes within a year from the day of adjournment, in a uniform type and according to a systematic plan.

The Governing Board of the Pan-American Union publishes no records of its proceedings.
 

PROPOSAL 6

The General Assembly should have power to deal with all questions relating to the general budget, to decide upon the methods of providing funds for meeting expenses, and to fix the proportions in which States should contribute to such funds.

COMMENT

Any effective international organization must be assured of an adequate budget.Activities can be undertaken only if funds
 

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are available for meeting expenses. Various methods might be adopted for raising such funds.

In any case, it would probably be necessary to rely upon contributions from all. the participating States. Hence, ageneral responsibility for questions relating to the budget should be entrusted to the most representative body in an organization. The Proposal would invest the General Assembly with general powers in connection with the budget and its alimentation.

Experience in the League of Nations would seem to support the Proposal. The original Covenant provided that the expenses should be borne by’ the Members of the League “in accordance with the apportionment of the expenses of the International Bureau of the Universal Postal Union”;in that apportionment.

States were ranked in several classes; and the classes paid varying numbers of units. Though this system had worked satisfactorily for the small expenses of the International Bureau of the Universal Postal Union (then about ’125,000 Swiss francs, or $25,000), it soon became apparent that it would not serve for the larger expenses of the League.In 1924, the Covenant was amended -the amendment had been proposed in 1921 to provide that the expenses should be borne by the Members “in the proportion decided by theAssembly.”Gradually, control over finances ‘shifted to the Assembly, to the exclusion of the Council. The Assembly’s Allocation Committee found it impossible to arrive at any “purely scientific scale of allocation”; adopting “capacity to pay” as a guide, it took into account data relating to”population, production, trade and banks, transport, and budgets” of the various States.By’the, scale of 1937; which provided for the 1938 budget of the Secretariat, the InternationalLabour Organization and the Permanent Court of International Justice, amounting to 32,273,251 Swiss francs (roughly $8,000,000), 932 units were allocated, 108 units (11.5 per cent) being allocated to the ‘largest contributor (the United Kingdom of Great Britain and Northern Ireland).

For the budget of the Pan-American Union (in 1943, $419,647), a quota is fixed for each State at the rate of $1.50 per 1000 of population.Under this system, the largest contributor (the United States of America) is called upon to pay, 54 per cent of the expenses, and` the second largest contributor (Brazil) 16 per cent; so that 70 per cent of the budget is contri.biited by two of twenty-one States. Though’the scheme has the advantage’ of a scale definitely fixed in advance, it would hardly serve for a much larger budget., In some smaller iinter-
 

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national organizations, States pay equal contributions; in others, quotas are based on such factors as commerce, tonnage, exports and imports, or production, or on some combination of them.

Perhaps no satisfactory method of alimenting a relatively large budget can befixed in advance. The Proposal would leave the financial problem to a body which could be guided by its own experience. If votes in the General Assembly were weighted in accordance with contributions, however, the problem would cease to be merely financial, and would take on a political aspect of first importance.

PROPOSAL 7

The General Assembly should have power, by two-thirds vote and with the concurrence of the Executive Council, to modify general rules of international law and toenact new general rules of international law.

COMMENT

In the past, a change in the general rules of international law has been possible only with the consent of States. No method was prescribed for the giving of consent, nor was any particular procedure required for ascertaining that it had been given. Some formulations of new law came to be admitted to have a general validity even by States which had not given their formal consent. Indeed it may be said that it was never thought to be necessary to get the consent of all of the existing States for the extension of international law.

During the past hundred years, legislation with respect to problems of international law, effective for the participating States only, has become very common. In isolated instances, it has resulted from proposals made by a single State and approved by other States -for example, a proposal made by Great Britain in 1862 was approved by other maritime States and became the first International Rules of the Road at Sea.

Legislation has usually resulted from the deliberations of international conferences, however, and it has taken the form of instruments opened to signature and ratification, or to accession; exceptionally, the formality of signature has been omitted as to some instruments, for example, the international labour conventions and the 1928 Geneva Act on Pacific Settlement of Disputes. The signatories of instruments were usually free to give or withhold their ratifications, and constitutional procedures in many States calling for the participation of legislative bodies
 

1944] The International Law of the Future 339

have tended to preserve the necessity of ratification following signature or accession.Rarely have conferences promulgated measures to be immediately binding and effective.

It has proved difficult to achieve general uniformity by this system.In many cases States have failed to deposit ratifications of or, accessions to conventions to which they have no grave objections,and long delays have frequently resulted.

Thus, to cite a few examples, the United States of America acceded to the 1864 Geneva Red Cross Convention in 1882; Turliy acceded to the 1881 Convention on Phylloxera in 1935; Chile acceded to the 1906 Convention on Use of White Phosphorus in the Manufacture of Matches in 1936; and Paraguay ratified the 1912 Opium Convention in 1943.

In some cases, the entry into force of conventions, even for States which have ratified them, has been long delayed by the failure of other States to ratify. Even- in ordinary cases, where no great controversy raged and no strong objection was voiced, the, process of securing the ratification ofan international instrument by a considerable number of States has frequently occasioned a delay of several years. Thus the 1929 Protocol amending the Statute of the Permanent Court of International; the Justice did not enter into force until 1936 and last of the ten ratifications required to bring the 1930 Protocol on Military. Service of Persons. having Double Nationality into force was not deposited until 1937.

Clearly, a more efficient and a more expeditious method should be available for effecting needed changes. in the general rules of international law.The method which has prevailed in the past can be continued, and in some cases it may suffice for the-desirable legislation. Yet it should be supplemented by a less cumbrous method which could.be employed if desired by a large preponderance’ of the States.

The proposal would vest a power of international legislation in the General’ Assembly, limited to the amendment and enactment of general rules of international law. It would in no way encroach upon the legislative powers exercised by any national congress or parliament: National legislatures have never been competent to effect changes in international law. Determination of the manner in which a State is to perform its international obligations and of the manner in which the rules of international law are to be incorporated into the national law of a State, however, would still remain within’ the competence of that State’s own legislature.
 

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Any exercise of the power to modify existing general rules and to enact new general rules ofinternational law would require both a two-thirds vote in the General Assembly and a unanimous vote in the Executive Council.It would of course be preceded by the necessary investigations and deliberations, which would entail the collaboration of experts.Hasty action is not to be feared in such a process, nor would Governments be confronted with any necessity of decisions as to which they would not have had plenty of advance notice.

The Proposal is not altogether an innovation. Though the Universal Postal Conventions are formally subject to ratification, they are habitually brought into force on definite dates, even for States which have not then and do not later ratify.

These Conventions have long provided that proposals made in the interval between conferences with the support of three postal administrations shall be voted upon by all the administrations in the Union; in some cases a unanimous vote, in other cases a two-thirds vote, is required for the adoption of such proposals, and if only the interpretation of an existing text is involved a majority vote isenough. The 1919 Convention on Air Navigation empowered the International Commission on Air Navigation to amend certain annexes to the Convention by “three-fourths of the total possible votes which would be cast if all the States were represented.” The Covenant of the League of Nations provided that amendments of its text would take effect when ratified by the Members represented in the Council and by a majority of the Members represented in theAssembly; but any Member was permitted to signify itsdissent, and thereby to effect its withdrawal from the League.

The practice of the Assembly of the League of Nations may also be mentioned in this connection. In ‘no case did the Assembly assume to promulgate legislative acts binding on States, though this might have been within its powers exercisable by unanimous vote. Only exceptionally did itopen to signature and ratification or to accession instruments of its own formulation; e.g., the 1920 Protocol of Signature and Statute of the Permanent Court of International Justice, and the 1928 General Act on the Pacific Settlement of Disputes.

The Assembly’s “decisions” usually took the form of recommendations addressed to Governments, or of resolutions in the nature of recommendations. When it desired that more immediate effect be given to its “decisions,” it habitually referred them to the Council with suggestions as to the action to be
 

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taken; ‘but in some cases diplomatic conferences were convoked for the purpose.

The Proposal would open the way for conscious effort to modernize some of the principles of international law, and to keep its content up to date.

PROPOSAL 8

(1)  Acting upon its own initiative or at the request of any State, the Executive Council should have power to take cognizance of any alleged failure by a State to carry, out its obligations under international law, amd if the failure is established to take such action as it may deem to be necessary for the protection of the interests of the Community of States.

(2)  If the State which is alleged to have failed to carry out its obligations is represented in the Executive Council, it should not be entitled to, vote when the matter is under consideration.

COMMENT

If the organization of the Community of States is to have firm legal foundations, if a legal order is to be maintained in the relations of States, it seems essential that a responsible body should be competent to deal with violations of international law.States would be reluctant to-abandon the use of force for self-help, they would be unwilling to observe legal limitations ‘in their own conduct, if they felt that other States could repudiate their obligations with impunity. Nor would the general interest in the “supremacy of law be protected if no means were available for its vindication.

The Proposal would empower the Executive Council, acting upon its own initiative or at the request of any State, to take cognizance of any alleged failure by a State to carry out its legal obligations. It would leave the Executive Council free to appreciate any situation which might arise. Some cases might be so trifling that the Executive Council would decide not to ‘interpose; other cases might be of such gravity as to require action for the protection of the interests of the Community of States, and the powers, of the Executive Council should be sufficient to enable it to take such action. In à proper case, such action might extend to assuring the indemnification of a State which has been injured by the failure. In any case, it would be necessary to establish very clearly both the obligation of the State and its failure to perform that obligation. At times, the obligation might be indisputable and
 

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the fact of failure might be notoriously patent; for example, a judicial pronouncement might already have been made.

Otherwise, the Executive Council would be under the necessity of conducting the investigation required. In a proper case, it might request an advisory opinion of the Permanent Court of International Justice on a doubtful question of law or fact, or it might institute a special procedure.The Council of the League of Nations frequently set up special commissions to conduct investigations, as well as commissions of jurists to advise on legal questions before it.

The Proposal is in line with historic precedents. Repeatedly in the past, the failure of a State to live up to its legal commitments has led to a conference of “the Powers.” Many examples might be cited;among others, the London Conference of 1871, and the action taken by various States in the Far East in 1890 and 1901.A more recent precedent is the Stresa Conference of 1935 on the occasion of Germany’s announcement of a policy of rearmament, and the ensuing resolution adopted by the Council of the League of Nations declaring that “Germany has failed in the duty which lies upon all the members of the international community to respect the undertakings which they have contracted,” and condemning the “unilateral repudiation of international obligations.”

It may also be noted that the Minorities Treaties of 1919 and 1920 provided that any member of the Council should “have the right to bring to the attention of the Council any infraction, or any danger of infraction, of any of these obligations, and that the Council may thereupon take such action and give such direction as it may deem proper and effective in the circumstances.”Numerous cases arose under these provisions, and a special procedure was adopted for dealing with them.

In 1942, the Ministers of Foreign Affaires of the American Republics declared that if any agreement between American Republics should be violated, or ifthere should be “reason to believe that aviolation which might disturb the peace or solidarity of the Americas is being contemplated,” a procedure of consultation might be initiated “with the object of agreeing upon the measures to be taken.”

This is clearly one of the cases in which the State whose conduct is under consideration should not be able to negate action by its own vote if it is represented in the Executive Council. This could be prevented by a provision that it is not then to be entitled to a vote. In this respect, the Proposal is
 

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in line with a provision in’. the 1921 Aaland Islands Convention which empowered the Council of the League of Nations “to decide upon the measures to be taken either to assure the observance of the provisions of this Convention or to put a stop to any violation thereof,” and stipulated that “the vote of the representative of the Power accused of having violated the provisions of this Convention shall not be necessary to constitute the unanimity required for the Council’s decision.”,
 

PROPOSAL 9

(1)  The Executive Council should have power, with the concurrence of the General Assembly, to adopt general provisions for preventing or suppressing the use of force by States in their relations with other States.

(2)  Acting upon its own initiative or at the request of any State, the Executive Council should have power to take cognizance of any use of force or threat to use force by a State in its relations with any other State, to take such action as it may deem to be necessary for the protection of the interests of the Community of States, and to prescribe the specific measures to be taken by States for preventing or suppressing the use of force.

(3)  1f the State which has used force or threatened to use force is represented in the Executive Council, it should not be entitled to vote when the matter is under consideration.

COMMENT

If the peoples of the world desire to proscribe the use of force in international relations, if they wish to pursue the recent tentatives in that direction, itmust be .realized that a mere pronouncement is not enough. The weakness of the Covenant of the League of. Nations was that it did not go far enough in proscribing the use of force; the vice of the Paris Treaty for the Renunciation of War of 1928, as of the Rio de Janeiro Anti-War Treaty of stopped short with a 1933, was that it mere dictum. If substantial ‘progress is desired, the proscription must be implemented by giving powers to a life-and-blood institution, so organized that it can pursue continuing and unremitting effort and that it can employ the sagacity available at the time in dealing with situations as they arise. No cut-and-dried solution will suffice.No schematic plan will be proof against vicissitude. What can be done with some hope of success is to announce a clear goal, to create an institution
 

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capable of mobilizing both will and wisdom for attaining it, and to leave the precise procedure to be worked out in the light of unfolding events.

The Proposal would implement the Postulate that any use of force or any threat to use force by a State in its relations with another State is a matter of concern to the Community of States. First of all, it would confer on the Executive Council and the General Assembly power to take general dispositions to prevent or suppress the use of force by States in their relations with other States.No attempt is here made to indicate the nature of such dispositions. They would derive their character from current thought, and they would doubtless be changed from time to time. No generation can devise a straitjacket for future generations.

In the exercise of this general power, the Executive Council and the General Assembly might lay down procedures to be followed. Such action was taken by the Assembly and Council of the League of Nations in 1927, in a resolution which codified the practice under the Covenant and which was intended to serve as a guide in times of emergency. Both the 1930 Geneva Convention on Financial Assistance and the 1931 Geneva Convention to Improve the Means of Preventing War contain suggestive indications as to procedures which might be adopted. In exercise of this general power, also, the Executive Council might find it practicable to organize naval, military, or air forces, which could be used to prevent or suppress aggression. Suggestions of a need for an international force have been voiced recurrently in recent years.Detailed plans for creating an “international police force” were placed before the Disarmament Conference in 1932 by one Government, and were approved by nine other Governments. The Executive Council might find it desirable to depend, at least in part, upon the use of national forces in any case of need, and its dispositions might determine in advance when such forces would be called upon and howthey would be used.

Secondly, the Proposal would confer on the Executive Council power to take cognizance of any use of force or of any threat to use force by a State in its relations with any other State. Each State would have a duty, under a Principle previously formulated, to refrain from any use of force and from any threat to use force in its relations with another State, except as authorized by the competent agency of the Community of States;but, as the corresponding Principle stated,
 

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a State should be able, subject to reference to and approval by the competent agency of the Community -of . States, to oppose by force an unauthorized use of force or threat to use force made against it by another State.The Executive Council should be the competent agency of the Community of, States for this purpose. It should, be left free to appreciate any situation which might arise, and to shape its action to meet the needs of that situation. It must have a plenary power to take the action which is, necessary for the protection of. the interests of the Community of States.

To this end, the power of the Executive Council should extend to prescribing the specific measures to be taken by States for preventing or suppressing the use of force. No attempt is here made to indicate the nature of such measures. It would depend upon the Executive Council’s appreciation of the situation, and of the possible ways of meeting it.The situations which would arise might present very different kinds of problems, and ‘the measures to be taken by one State in any situation might be very different from those to be taken by other States in that situation, and different from those to be taken by that State in other situations. Of course the resources and geographical position of each State would be taken into consideration. The Executive Council might prescribe measures of a military character, or measures of an economic nature, or both. Its action would be possible without the.vote of the State whose use of force is in question, if that State is represented in the Executive Council, Important precedents for the Proposal are to be found in recent history. The Covenant of the Leagueof Nations provided that “the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations”; the Members undertook to subject a Member which had resorted to war ‘in disregard of certain covenants, “td the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the covenant-breaking State, and the prevention of all financial, commercial or personal intercourse between the nationals of the covenant-breaking State and. the nationals of any other State”; the Council was to “recommend to the several Governments concerned,what effective military, naval or air force the Members of the League shall, severally contribute to the armed forces to be used to protect the covenants of the League” and the Members agreed to “mutually support one another in the financial and economic measures which are, taken,” and “to afford passage through theirterritory to the forces
 

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of any Membersof the League which are cooperating to protect the covenants of the League.” An amendment to the Covenant, proposed in 1921 but not brought into force, would have empowered the League Council “to give an opinion whether or not a- breach of the Covenant has taken place,” and “in deliberations on this question in the Council thevotes of Membersof the League alleged to have resorted to war and of Membersagainst whom such action wasdirected” would not havebeen counted. These obligations were reenforced by provisions in certain particular treaties. Under the Aaland Islands Convention of 1921, ratified by ten European States, any party might apply to the League Council “to decide upon the measures to be taken to assure the observance of the provisions of this Convention or to put a stop to anyviolation thereof”; the parties undertook “toassist in the measureswhich the Council might decide upon,” and if unanimity could not be obtained, each partywas “entitled to take measures which the Council by a two-thirds majority recommends”;in either case the vote of the State “accused of having violated the provisions” was notto be counted. The abortive Geneva Protocol on the Pacific Settlement of International Disputes of 1924 would have empowered the Council of the League of Nations in certain cases of actual or threatened aggression to “decide upon the measures to be taken with aview to end as soon as possible a situation of a nature to threaten the peace of the world”, and to take such decisions by two-thirds vote; and under certain conditions States would have been obligated to apply the sanctions of the Covenant and “to cooperate loyally andeffectively in support of the Covenant of the League of Nations, and in resistance to any act of aggression, in the degree which its geographical position and its particular situation as regards armaments allow.” The 1924 Protocol also envisaged that States might give to the Council advance undertakings as to “the military, navaland air force which they would be able to bring into action immediately to ensure the fulfilment of theobligations in regard to sanctions.”

In the 1925 Locarno Treaty of Mutual Guarantee, Belgium, France, Germany, Great Britain, and Italy, agreed that in case the Council of the League of Nations should find that aflagrant violation of certain obligations of Belgium, France or Germany not to resort to war had been committed, they would “act in accordance with the recommendations of the Council, provided that they are concurred in by all the members other than” the States engaged in hostilities.
 

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PROPOSAL 10

(1)  Acting upon its own initiative or at the request of any State, the Executive Council should have power to take cognizance of the prevalence within the territory of any State of conditions which menace international peace end order, and to take such action as it may deem to be necessary for the protection of the interests of the Community of States.

(2)  If the State within whose territory the conditions prevail is represented in the Executive Council, it should not be entitled to vote when the matter is under consideration.

COMMENT

Instances have not been rare in the past in which States have permitted conditions to prevail within their territories which menaced international peace and order, and in which other States acted to remedy the situation. At times, such action was taken by a number of States in concert, but not infrequently it was taken by one State acting upon its own authority.

The international law of the future should make it a legal duty of each State to see that the conditions prevailing within its territory do not menace -international peace and order. At the same time, it should enunciate s; duty to each State to refrain from intervention in the internal affairs of any other
 

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State. Nor should it be left possible for a few States, acting on their own authority and according to no established procedure, to organize such an intervention. If these steps are taken, a power should be conferred on the Executive Council, acting as an organ of the Community of States and subject to the limitations of its procedure, to seek the removal of conditions in the territory of any State which menace international peace and order.

The Proposal is in line with a provision in the Covenant of the League of Nations declaring it to be “the friendly right of each member of the League to bring to the attention of the Assembly or of the Council any circumstance whatever affecting international relations which threatens to disturb international peace or the good understanding between nations upon which peace depends.” Under this provision, the Council adopted a resolution in 1934 declaring that “it is incumbent on the Hungarian Government, conscious of its international responsibilities, to take at once appropriate punitive action in the case of any of its authorities whose culpability may be established” in connection with the preparation of the crime of Marseilles.

PROPOSAL 11

(1)  The Executive Council should have power, with the concurrence of the General Assembly, to create and maintain such special agencies as may be needed for dealing with matters of concern to the Community of States.

(2)  Special agencies should be envisaged with respect to such matters as

(a)  The size and type of armaments, and the manufacture of arms and ammunition.
(b)  International trade.
(c)  Production and distribution of food and raw materials.
(d)  International finance and investments.
(e)  Internationaltransport,and particularly aerial transport.
(f)  International communications.
(g)  Welfare of dependent peoples.
(h)  Public health.
(i)  International trafficin narcotics and dangerous drugs.
 

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(j)  Population problems, including international migration.
(k)  Cultural and scientific interchange.

COMMENT

A general organization of the Community of States should give continuous attention to the protection and advancement of peoples’ common interests. Some of the problems which will arise may be “political,” in the sense in, which that term is commonly used; others which are primarily economic or social or cultural may at any time be invested with political significance.

For the most part, ultimate responsibility must rest with the General Assembly and the Executive Council, which should have general competence, but these bodies must have the assistance of special agencies working in particular fields. Many questions will need to be explored by personnel having,the capacity of specialists. Such explorations would involve an expenditure of an amount of time which first-rank political men could not spare, and they should be made by men who can capitalize on accumulated experience.

It is not possible to enumerate all of the fields in which special agencies may be needed, and the determination of them must be left to unfolding experience.The list contained in the Proposal emphasizes the importance of agencies in certain fields, but it does not exclude, others. As to most of the fields listed, there is a rich history of cooperative international effort as to some of them, agencies already exist which could be continued.

Numerous multipartite international conventions are in force, and if the precedent of 1919 is followed some of them will be recognized to continue in force after the present war.

(a)  If the Principle is to be implemented that each State has a legal duty to conform to limitations prescribed with respect to the size and type of its armaments, a special agency is clearly needed in this field.The problems will require continuous attention, and solutions will be found for them only if determined efforts are made over the years. The failure of the provisions in the Covenant of the League of Nations to produce the desired result has revealed some of the difficulties which may be encountered; and it has shown that no simple method of approach to them will suffice.

The Covenant laid, down a’ general principle that armaments should be reduced “to the lowest point consistent with
 

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national safety and the enforcement by common action of international obligations”; it provided that “the Council, taking account of the geographical situation and circumstances of each State, shall formulate plans for such reduction for the consideration and action of the several Governments”; and it envisaged a permanent Commission “to advise the Council.”

The Council created a permanent commission in 1920, but it was gradually superseded by a Temporary Mixed Commission, created in 1921, a Coordination Commission, created in 1924, and a Preparatory Commission, created in 1925. No permanent results were achieved by the Disarmament Conference which convened in 1932. Nor was great progress made by other conferences on armaments, held in later years.

The manufacture of arms and ammunition presents problems germane to those relating to armaments. In the Covenant of the League of Nations, States agreed “that the manufacture by private enterprise of munitions and implements of war is open to grave objections,” and the Council was to “advise how the evil effects attendant upon such manufacture can be prevented.” Little progress was made in dealing with this subject.

A Convention on International Trade in Arms and Ammunition, opened to signature on June 17, 1925, was ratified by seventeen States; but as the conditions set in some of the ratifications were never met, the Convention did not enter into force.

(b)  Problems related to international trade cover a wide range. During the decade before 1939, it became clear that national recovery programs, if not correlated, operated to extend the area and to intensify the effects of economic depressions.

Through the Economic and Financial Organization of the League of Nations, significant progress has been made in recent years with reference to problems of economic and financial policy, including problems relating to currency, economic depressions, financial reconstruction, nutrition, population movements, raw materials andtaxation. The Organization continues to maintain an Economic Committee, a Financial Committee, a Fiscal Committee and a Delegation on Economic Depressions, all of which have met and issued reports in 1942-1943.Its efforts have inspired extensive legislation; to prevent double taxation, for example, more than one hundred bipartite agreements have been concluded on the basis of its models.

Directives of more recent formulation are also at hand, emphasizing the interdependence of peoples in the economic field. The Atlantic Charter calls for “the fullest collaboration
 

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between all nations in the economic field,” and it sets as a goal of effort “the enjoyment by all States, great or small, victor or vanquished, of access, on equal terms to the, trade and t6 the raw materials of the world which are needed’ for. their economic prosperity.”This was supplemented in the various mutual aid agreements of 1942 and 1943, by provision for “the betterment of world-Wide economic relations” by action “directed to the expansion, by appropriate international and domestic measures, of production, employment, and the exchange and consumption of goods which are the material foundations of the liberty and welfare of all peoples.”

(c)  The production and distribution of food and raw materials has led to many problems which have been dealt with in recent years by international conventions. Efforts have been made to coordinate the production and export of coffee, rubber, silver, sugar, tin, and other commodities. The International Institute of Agriculture, established at Rome in 1905; has served as a central statistical organization and as a forum for the discussions of agricultural questions; its efforts have led to international conventions on various subjects, such as the [marling [?] of eggs in international commerce (1931), analysis of cheeses (1934), methods of analysis of wines (1935), methods of keeping herd books (1936). The Wheat Agreements of 1933 and 1942 projected far-reaching international controls. The United Nations Conference, on Food and Agriculture, held at poi [?] Springs in 1943, recommended the establishment of “a permanent organization in the field of food and agriculture”

(d)  In the field of international finance, various monetary unions have existed in the past, the most important being the Latin Monetary Union created in 1865. A Bank of International Settlements has existed since 1930, and the creation of an InterAmerican Bank is envisaged in a pending convention.

(e)  The revolutionary development of transport in modern times has led to the creation of numerous international agencies. Railway transport on the continent of Europe, has been coordinated by the Union for Transport by Rail, functioning since 1893. International conferences on questions relating to maritime transport have been frequent since the Washington Conference of 1889. The international circulation of automobiles has been regulated since 1909. The Communications and Transit Organization of the League of Nations, created in 1920 and now existing under a Statute revised in 1938, has served to coordinate efforts in this field; in addition to its handling of
 

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numerous disputes, its activities have led to conclusion of some twenty international conventions, dealing with such subjects as freedom of transit, navigable waterways, regime of railways, regime of maritime ports, maritime signals, uniform buoys, unification of road signals, and taxation of motor vehicles.

Under the Paris Convention on Air Navigation of 1919, to which thirty-three States became parties, a permanent International Commission for Air Navigation has been maintained since 1922. Some of the provisions of the Paris Convention were duplicated inthe Inter-American Commercial Aviation Convention of 1928, to which eleven States are parties.

Conventions on private aerial law were drawn up at Warsaw in 1929 and at Rome in 1933 and a Sanitary Convention for Aerial Navigation was opened to signature at the Hague in 1933. Aerial transport has also been regulated by more than a hundred bipartite treaties.With the rapid developments of recent years, and particularly during the present war, the time has arrived for a revision and coordination of these various instruments, and the prospect of future developments may necessitate an elaboration of the permanent machinery now existing. Aguide for the future has been set by the Canadian Government in a recent declaration of its willingness to shape its policy of “international collaboration and cooperation” with regard to air transport “to serve notonly the immediate national interests of Canada but also our overriding interests in the establishment of an international order which will prevent the outbreak of another world war.”

(f)  Since the middle of the nineteenth century efforts have been proceeding to deal with the problems presented by the development of international communications. The International Telegraphic Union was organized in 1865, and the Universal Postal Union in 1874. A Convention on Submarine Cables of 1884 enlisted the support of some thirty-five States. Since 1906, radio-communication has been the subject of frequent conferences; multipartite conventions were concluded in 1912 and 1927, and a large volume of general and regional legislation now exists on the subject. The International Telecommunication Union,organized in 1932, is the subject of a separate Proposal.

(g)  The problems of peoples now in a state of dependence are among the most baffling in the whole field of international relations. Whatever changes may result from the war, these problems will continue to face the next generation, and perhaps they will be more aggravated than heretofore.
 

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The subjection of the continent of Africa led to international conferences at Berlin in 1885, at Brussels in 1890, at Algeciras and Brussels in 1906, and at St. Germain in 1919, and many African problems were dealt with constructively in the numerous treaties which resulted. The League of Nations system of mandates applied only to certain disannexed territories, for which the Covenant laid down the principle that “the well-being and development” of their peoples “form a sacred trust of civilization.” The work of the Permanent Mandates Commission, in its thirty-seven sessions, has established many useful precedents. Further directives are contained in the Intermerican Convention on the Provisional Administration of European Colonies and Possessions in, the Americas, concluded at Habana in 1940, to which seventeen American States are parties. The Convention vests responsibilities in “the American Republics as an international community.”

These historical developments furnish a basis for the recognition of an interest of the Community of States in the welfare, of dependent peoples, and States entrusted with the administration of the affairs of such peoples have a clear responsibility to the Community of States.It is not,merely, a question of assuring equality of opportunity in dependent areas for outside States; it is a question also of protecting, dependent peoples against serfdom and exploitation, and of assuring to them an opportunity, of developing their indigenous cultures and their self-respect. The post-war political situation will determine the extent of the Community interposition and how the Community’s interest will be asserted.

(h)  In the field of public health, common action has been taken by States since the middle of the nineteenth century. The need for control of epidemics led to international conferences as early as 1851 and 1859, and conferences have been frequent in the subsequent years. Important Sanitary Conventions were concluded at Habana in 1924, and at Paris in 1926, and a Convention on Contagious Diseases of Animals. was concluded at Geneva in 1935.

Permanent agencies have long existed in this field. The Pan American Sanitary Bureau was created in 1902, and the International Office of Public Health was established at Paris in 1907. Conventions on the unification of pharmacopoeia) formulas were promulgated in 1906 and 1929.

The activities of the Health Organization of the League of Nations, which have been continued during the present war,
 

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have extended international effort into many new fields, including the organization of epidemiological intelligence, the standardization of sera and vitamins, the nomenclature of diseases and causes of death, and the coordination of the training of public health personnel. The Health Organization has organized numerous conferences, both general and regional. It has directly assisted many countries in the establishment of public health services and in combating endemic and epidemic diseases.

By organizing world-wide research on cancer, cholera, diphtheria, leprosy, malaria, rabies, sleeping sickness, syphilis, and tuberculosis, it has made a notable contribution to the advancement of public health in all countries.

(i)  In no field has international cooperation been pushed further than in the field of control of opium and other narcotic drugs The International Opium Convention of 1912 came into general application in 1920, as a result of a provision in the Treaty of Versailles that ratification of the latter was to be deemed to be ratification of the former instrument. Under the auspices of the League of Nations additional drug conventions were concluded at Geneva in 1925, 1931, and 1936, and agreements concerning the suppression of opium-smoking in the Far East were signed at Geneva in 1925 and at Bangkok in 1931.

Sixty-seven States are parties to one or more of these drug conventions. Preparatory work was under way in 1939 for an additional convention to limit the production of opium.

An elaborate international administration has been built up, consisting of (1) the Advisory Committee of the League of Nations, (2) the Permanent Central Opium Board created under the 1925 Convention, and (3) the Supervisory Body established under the 1931 Convention. The Conventions also entrust certain duties to the Health Committee and the Secretary-General of the League of Nations, and to the International Office
of Public Health.

This administration deals with avariety of problems affecting agriculture, commerce, health, industry and police. A system of estimates of national requirements of specified drugs is administered by the Supervisory Body.Each Government has a duty to submit advanceestimates for each year for examination by the Supervisory Body, and the latter establishes estimates for those countries which fail to submit them. The system is now applicable to 177 “countries or territories”; the estimates submitted for 1942 were in respect of 117 “countries or territories.” States have agreed, in the 1931 Convention, to restrict the manufacture of
 

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drugs to these estimates, and a report on their statistics as to consumption, manufacture, and export and import, is made by the Permanent Central Opium Board.

(j)  The population of the world doubled in the two centuries which preceded 1850, and it has again doubled since that year. The distribution of the world’s population at any particular time can never be considered as final. At no time in modern history have peoples kept themselves within the confines of continents or countries. So long as a world economy calls for the building up of undeveloped areas, so long as unequal opportunities exist in different parts of the world, so long as men seek to give vent to their disposition to roam and to create new lives for themselves, some avenues must be open for the movement of peoples.

The demographic problem does not promise to be less acute during the generation to come.

Most States have shown a firm determination to safeguard the integrity of their population and economy by determining for themselves the categories of persons to be admitted or excluded. No interest of the Community of States would be served by attempting to force States to receive unwanted immigrants. Yet the variant policies of emigration and immigration States are susceptible of some reconciliation, and effort to this end may be
essential. A conference of emigration States was held at Rome in 1921, and a conference of immigration States was held in Paris in 1923. Both emigration and immigration States were represented at conferences held, at Rome in 1924,and at Habana in 1928. A conference of experts on cooperation with regard to emigration for settlement, held at Geneva in 1938, recommended the establishment of a permanent international committee on that subject. An Inter-American Demographic Conference, held at Mexico City in 1943, also envisaged the creation of a permanent committee.

The importance of demographic problems in the post-war world may call for a special agency which, functioning continuously, can be in a position to signalize any opportunity offered for relief from difficulties caused by the congestion of populations in certain parts of the world.

(k)  The importance of cultural and scientific interchange has long been recognized by unofficial international associations. In recent years it has led to official cooperation, also. An International Committee on Intellectual Cooperation, created. by the League of Nations in 1922, has devoted much of its activity to the International Institute of Intellectual Coopera-
 

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tion centered at Paris. A Conference held in Paris in 1938, at which forty-nine States were represented, promulgated a formal Act concerning Intellectual Cooperation, designed to lay new foundations for the Institute and to assure that cooperation would be “independent of politics and based entirely on the principle of universality.” Eight PanAmerican Scientific Congresses have been held since 1908. An Inter-American Convention on Cultural Relations, promulgated in 1936, is in force between fifteen American States.

The Proposal envisages the creation of agencies in these various fields without any attempt to forecast their specific powers. So far as possible, continuity with the past should be maintained. Some of the special agencies may have a character of permanence. Their powers would vary, and might have to be modified from time to time. In general, they should function under the authority of the General Assembly and the Executive Council, and they would need more or less constant supervision and coordination by the latter body.
 

PROPOSAL 12

The Permanent Court of International justice should be maintained as the chief judicial organ of the Community of States, and its Statute should be adapted to the organization of the Community of States.

COMMENT

Fortunately, the organization of the Community of States does not have to be undertaken wholly anew. Numerous institutions are already in existence which can be adapted in a program of general organization. It is most desirable that continuity be preserved with the past, and this is particularly important with reference to judicial institutions.

A generation of effort triumphed in the establishment of the Permanent Court of International Justice. Fifty-two States have given their formal support to the maintenance of the Court, and practically all of the States of the world — including all of the States in the Western hemisphere — have become parties to instruments which give it jurisdiction. More than 500 treaties have been concluded which relate to the Court, and many of them continue in force.

Over a period of eighteen years, the Court functioned with a greater success than had been anticipated for it. Sixty cases came before it. The Court’s thirty-two judgments, twenty-seven
 

1944] The International Law of the Future 357

advisory opinions, acid more than 200 orders, led to the settlement of numerous disputes, some of them very vexing in character.

Some criticism of ajudicial institution is inevitable, but in general the legal profession throughout the world has hailed the jurisprudence of the Courtwith satisfaction. The approval of its work by Governments is indicated by the fact that forty-seven States made effective declarations accepting the Court’s compulsory jurisdiction over legal disputes.

The Court’s Statute should be adapted to bring it into conformity with , the post-war organization. This course is clearly to be preferred to any attempt to draft a new Statute. Such an attempt might reopen many questions to which solutions have already been given, and it seems doubtful whether a more satisfactory instrument would result. The adaptation might lead to some changes in the present provisions for electing the judges and for meeting the expenses, and possibly greater usefulness could be found for the chambers ofthe Court; the chamber for summary procedure might be organized to serve the function of regional courts.
 

PROPOSAL 13

The Permanent Court of Arbitration should be maintained as an agency of the Community of States, and all States should be permitted to accede to the Hague Convention on the Pacific Settlement of International Disputes of October 18, 1907.

COMMENT

The Permanent Court of Arbitration has been maintained since 1900, under the Hague Conventions on Pacific Settlement of Disputes of 1899 and 1907. It is not really a court, for the 150 members appointed by Governments constitute only a panel for the manning of special tribunals to deal with particular cases.

It is permanent only in the sense that this panel is always available, and in the sense that a permanent bureau is maintained under a council of administration.

Since 1900 some twenty-one cases have been brought before tribunals created within this framework; all but four of the cases were referred prior to thewar of 1914-1918. Since 1922 the existence of the Permanent Court of International Justice has tended to eclipse the Permanent Court of Arbitration, but members of the latter have performed a useful function in nominating candidates in the elections of the judges of the former.
 

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States may always agree to refer their disputes to special tribunals, and occasions may arise in which they will prefer to submit disputes to special tribunals which they may create out of the Permanent Court of Arbitration, rather than to submit them to the Permanent Court of International Justice with its fixed roster of judges. That possibility should be kept open, and as the maintenance of the Permanent Court of Arbitration involves but slight expense it should be continued.

The 1907 Hague Convention provides that the conditions on which Powers not invited to the Second Peace Conference in 1907 may accede shall be established by the later agreement of the parties, but as no general agreement has been made, unanimous consent of the parties is required for any accession. If the Permanent Court of Arbitration is to be continued, the 1907 Convention should be opened to accession by any State.
 

PROPOSAL 14

The International Labor Organization should be maintained as an agency of the Community of States, and its Constitution should be adapted to the organization of the Community of States.

COMMENT

The International Labor Organization is another of the existing institutions which should continue to be maintained.

Created in 1919, it grew out of a movement for international labor legislation which began in the nineteenth century. A characteristic feature of the Organization, which gives it a tripartite aspect, is the representation of employers and workers, as well as of Governments, both in the International Labor Conference and in the Governing Body of the International Labor Office.

Sixty-four States-including all of the States of. the Western hemisphere-have become members of the International Labor Organization. The International Labor Conference has met in twenty-six sessions. It hasadopted sixty-seven draft conventions, some of which have been ratified by alarge number of States, and sixty-six formal recommendations; a variety of subjects has been dealt with, including employment and unemployment, wages, hours of work, rest-periods and holidays with pay, health and safety and welfare in industry, social insurance, migration and statistics. The latest Conference, held in New York and Washington in 1941, planned a widening of the sphere of action of the Organization and pledged its availability in the post-war world.
 

1944) The International Law of the Future 359

PROPOSAL 15

Various existing international unions should be maintained as agencies of the Community of States, including the Universal Postal Union, the International Telecommunication Union, and others of proved usefulness.

COMMENT

In the past hundred years many international agencies have been created to deal with matters of concern to the Community of States. Apart from those established under the aegis of the League of Nations or the Union of American States, some twenty-five or thirty in each case, more than a hundred official agencies have come into existence. Manyof them still function, and quite clearly some of them should be continued in the future. The International Bureau of Weights and Measures (dating from 1875), the Union for the Protection of Industrial Property (dating from 1883), the Union for the Protection of Artistic and Literary Works (dating from 1886), and the International Union for the Publication of Customs Tariffs (dating from 1890)-all of which were specifically mentioned and continued by the Treaty of Versailles in 1919-fall within this category, and others might be selected for inclusion. The provision in the Covenant of the League of Nations that “there shall be placed under the direction of the League all international bureaux already established by general treaties if the parties to such treatiesconsent” produced but little effect, and a different approach may be needed in the future.

The Proposal makes specific reference to two Unions which are distinguished by their universality and, outstanding in their success, and the services of which are easily appreciated by the general public.

Created in 1874, the Universal Postal Union has enlisted the day-to-day cooperation of seventy-two States, and it has assured an effective system of international postal exchanges throughout practically the entire world. Its congresses have met, almost uninterruptedly, at five-year intervals, the latest congress having been held at Buenos Aires in 1939. It maintains a permanent bureau at Berne.

The International Telecommunication Union was formed in 1932 as the successor to the International. Telegraph Union created in 1865. Sixty-eight States have cooperated in its work. Its latest conference was held at Cairo in 1938. It also maintains a permanent bureau at Berne.
 

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PROPOSAL 16

A General Secretariat, whose members should be independent of control by the States of which they are nationals, should be maintained to serve the needs of the General Assembly, the Executive Council, and the various agencies of the Community of States.

COMMENT

The history of international cooperation during the past hundred years has shown the necessity of permanent officials to carry on routine administrative work and to maintain constant contacts between Governments and international institutions. An international conference always needs a large staff, also, and people need to be trained for the work. Most of the earlier unions were provided with permanent bureaus, and in many cases the organization and supervision of the bureau was entrusted to a single Government; this sytem had some advantages, butit hastended to besuperseded by international organization. In 1890 thefirst Conference of American States established a “Commercial Bureau ofAmerican Republics,” under the supervision of the Secretary of State of the United States; this bureau was placed under the supervision of an international Governing Board in 1902, its name being changed to “Pan American Union” in 1910.

From the beginning of the League of Nations, a permanent Secretariat was maintained, composed of nationals of various States. Its members were chosen to “act, during their period of office, in an international capacity,” and they were to be “not in any way representatives of their own country.” Hence, the members were forbidden to “accept any honor or decoration” during their terms of appointment. Later Staff Regulations emphasized the international character of the service, and since 1932 officials have been required to make a formal declaration undertaking to regulate their conduct “with the interests of the League alone in view and not to seek or receive instructions from any Government or authority external” to the League.

For more than twenty years, this Secretariat has functioned with marked success, and its experience supplies a rich storehouse for the future to draw upon.

The proposed General Assembly and Executive Council would need the assistance of an international civil service, which should be organized as a General Secretariat. To main tain its independence of national control, the members should
 

1944] The International Law of the Future 361

hold themselves free from direction by the States of which they are nationals, and such States should acknowledge a duty to refrain from attempting to direct them.
 

II. International Disputes

PROPOSAL 17

(1)  The Permanent Court of International justice should have jurisdiction over all disputes in which States are in conflict as to their respective legal rights and which are not pending before the Executive Council, such jurisdiction to be exercised upon an application by any party to the dispute. If the parties to a dispute have agreed upon another method of pacific settlement, the application to the Court should be possible only after the failure o£ the method agreed upon.

(2)  The Court should be competent to decide any question as to its jurisdiction. Its decision of any such question and its judgment on the merits should be binding upon the parties to the dispute.

(3)  In the event of a failure by any State to comply with a judgment of the Court, the Executive Council should have power to take such action as it may deem to be necessary for giving effect to the judgment. I£ the State which has failed to comply with a judgment of the Court is represented in the Executive Council, it should not be entitled to vote when the matter is under consideration.

COMMENT

For a half-century and more, international law has been moving toward the compulsory adjudication of international disputes. Most of the earlier treaties of this period contained but the barest tentatives in this direction. In the numerous treaties concluded under the inspiration of the Hague Peace Conference of,1399, progress was stifled for a time by the addiction of States to formulas such as those safeguarding their “national honor and vital ;interests.” Yet the treaties were numerous in which States, particularly South American States, went further in providing for the compulsory arbitration of certain categories of disputes frequently described as legal disputes.

New lines of progress were opened up in 1920, when agree ment was achieved upon the creation of a really permanent court.
 

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The Committee of Jurists which drafted the Statute of the Permanent Court of International Justice proposed that it should be given an extensive compulsory jurisdiction over “cases of a legal nature,” but in the Council and Assembly of the League of Nations the representatives of a number of States were not prepared to go so far. In place of this proposal, an optional provision was included in the Court’s Statute. At one time or another forty-seven States exercised the option, making declarations conferring on the Court compulsory jurisdiction over certain classes of legal disputes.Some of the declarations were made for varying periods of time, and in some instances their effect was limited by reservations. During the eighteen years of its activity, the Court exercised jurisdiction thus conferred in eleven cases, without any untoward incident.

Moreover, a large number of multipartite and bipartite treaties have been entered into, which confer compulsory jurisdiction on the Court; at least sixty-five States -including all of the States of the Western hemisphere -are’ parties to one or more of these treaties. Twenty-three States became parties to the 1928 General Act for the Pacific Settlement of International Disputes, which gave the Court wide jurisdiction over legal disputes.

This history would seem to indicate that the time has arrived when further progress can be made. The Proposal therefore envisages a general jurisdiction of the Court over legal disputes.

The formula of the 1925 Locarno treaties and the 1928 General Act is employed to describe legal disputes as “disputes in which States are in conflictas to their respective legal rights.” Its effect is quite similar to that of the formula employed in many treaties of the United States of America, which provide for the arbitration of disputes “relating to international matters” in which the parties “are concerned by virtue of a claim of right made by one against the other under treaty or otherwise,” and which “are justiciable in their nature by reason of being susceptible of decision by the application of the principles of law or equity.” The 1929 Inter-American Arbitration Treaty, to which sixteen American States are parties, applies to “differences of an international character which have arisen or may arise … by virtue of a claim of right … under treaty or otherwise,” and “which are juridical in their nature by reason of being susceptible of decision by the application of the principles of law.”
 

1944] The International ‘Law of the Future 363

The Proposal would apply only to “disputes”. In the Mavrommatis Case, the Permanent Court of International Justice said that a dispute is “a disagreement on a point of fact or law, a conflict of legal views or of interests between two persons,” and that “before a dispute can be made the subject of an action at law, its subject-matter should have been clearly defined by means of diplomatic negotiations.” In the Chorzow Case, however, the Court refused to require “the manifestation of the existence of the dispute in a special manner as for instance by diplomatic negotiations.” In the more recent Electricity Company Case, the Courtrefused to deal with a claim as to which the applicant had not established the existence of a dispute.

The Covenant of the League of Nations refers to disputes “which cannot be satisfactorily settled by diplomacy”; the Locarno treaties apply to disputes “which it may not be possible to settle amicably by the normal methods of diplomacy”; a series of treaties of the United States of America and ‘the Inter-American Arbitration Treaty cover disputes “which it has not been possible to adjust by diplomacy,” and the 1928 General Act is very similar. Under such formulas a party invoking the jurisdiction of a tribunal may have to show both the existence of a dispute and some attempt to bring about its settlement. In the Mavrommatis Case, the Permanent Court of International Justice took jurisdiction under a provision in the Palestine Mandate applying only “if the dispute cannot, be settled by negotiation,” saying that negotiations do not necessarily “presuppose a more or less lengthy series of notes and despatches; it may suffice that a discussion should have been commenced and this discussionmay have been very short.”

In the Chorzow Case, the Court declared that it is “desirable that a State should not proceed to take as serious a step as summoning another State to appear before the Court without having previously, within reasonable limits, endeavoured to make it quite clear that a difference of views is in question which has not been capable of being otherwise overcome.”

States which are parties to a dispute should remain free to agree upon a special forum to which it may be submitted; if the method agreed upon does not result in a settlement, any party should be able to make application to the Court. In its declaration, accepting the compulsory jurisdiction of the Permanent Court of International Justice in 1921, the Netherlands Government confined its acceptance to disputes “in regard to
 

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which the parties have not agreed to have recourse to some other means of friendly settlement.” The Belgian declaration of 1925 applied “except in cases where the parties have agreed or shall agree to have recourse to another method of pacific settlement.” Similar reservations were made by other States.

The Proposal would also preclude an application to the Court with reference to a dispute pending before the Executive Council. In the Canadian declaration of 1929, as in various other declarations, the right was reserved “to require that proceedings in the Court shall be suspended in respect of any dispute which has been submitted to and is under consideration by the Council of the League of Nations, provided that notice to suspend is given after the dispute has been submitted to the Council and is given within ten days of the notification of the initiation of the proceedings in the Court,” the suspension beingfor alimited period.

By making it possible for the Court’s jurisdiction to be exercised upon an application by any party to a dispute, the Proposal would dispense with the necessity for a special agreement in each case. The requirement of a special agreement in each case, essential when a special tribunal has to be created, is not necessary when a permanent court exists; if it were insisted upon, no really compulsory jurisdiction would be possible, and any provision for jurisdiction would remain only an agreement to reach an agreement.

The Proposal emphasizes the competence of the Court to decide any question as to its jurisdiction, a competence which has already been conferred on the Permanent Court of International Justice by its Statute.

Of course a judgment of the Court must be binding on the States which are parties to the case in which it is rendered. It defines or creates for them obligations under international law. Yet an international court does not have, and should not have, a staff of marshals or sheriffs to levy execution on its judgments. Their enforcement goes beyond the strictly judicial function which should be confided to a court.

If any enforcement of judgments is to be attempted, it should be entrusted to a body possessing a political responsibility. The Proposal would entrust it to the Executive Council, as a corollary of that body’s general power to take cognizance of any State’s failure to carry out its obligations under international law. A precedent exists in the provision in the Covenant of the League of Nations that “in the event of any failure to carry out”
 

1944] The International Law of the Future 365

an arbitral award or judicial decision “the Council shall propose what steps should be taken to give effect thereto.” As no case has arisen in which a State has declined to carry out a judgment of the Permanent Court of International Justice, the Covenant’s provision was never applied in practice.
 

PROPOSAL 18

(1)  Acting upon its own initiative or at the request of any State, the Executive Council should have powerto take cognizance of any dispute between two or moreStates whichis not pending before the Permanent Court of International justice.

(2)  The Executive Council should have power to such measures as it may deem to be necessary for preventing an aggravation or extension of the dispute; and, by majority vote, to request an advisory opinion of the Permanent Court of International justice on any legal question connected with the dispute.

(3)  If its efforts to bring about a settlement of the dispute by the agreement of the parties is not successful, the Executive Council should have power, byunanimous vote, to give a decision which will be binding on the parties; failing such a decision, it should have power, by majority vote, to adopt and publish a report containing a statement of the facts and the recommendations deemed to be just and proper in regard thereto.

(4)  If a party to the dispute is represented in the Council, it should not be entitled to vote when the dispute is under consideration.

COMMENT

Provision for the compulsory jurisdiction of the Permanent Court of International Justice over legal disputes clearly needs to be supplemented by a more general provision concerning disputes. The category of legal disputes does not include all of the differences which may arise to, trouble the relations of States. States may be in conflict as to matters other than their legal rights. Even in the event of a legal dispute, neither of the parties may make application to, the Permanent Court of International Justice, and yet the continued existence of the dispute might menace peace and order.

A body not subject to judicial limitations should be empowered to deal in the general interest with disputes in any category. For this purpose, ‘it is not necessary to distinguish between legal disputes and so-called “political disputes”: any dispute between States may become invested with political significance. Nor is it
 

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necessary to follow the Covenant of the League of Nations in setting off from other disputes those which are “likely to lead to a rupture.” The vice of that distinction was exposed in two cases before the Council of the League of Nations which revealed that the question whether a dispute was “likely to lead to a rupture” depended on the amount of hostility shown by any one of the parties.

What is necessary is to appreciate that a strictly judicial body is of but limited usefulness in connection with international disputes, that anykind of adispute mayendanger the peace of the world, that menacing situations mayarise which cannot be canalized as formal disputes, and that some international authority, of a political rather than ajudicial nature, should have power to resolve disputes when required.

The Proposal would give the Executive Council power to take cognizance of a dispute of anykind, butthe power would not extend to disputes actually pendingbefore the Permanent Court of International Justice. TheProposal is corollary to those which would vest in the Executive Council general powers to take cognizance of any alleged failure by a State to carry out its obligations under international law, or of any use of force or threat to use force by a State in its relations with any other State; but in the exercise of these general powers, the Executive Council might take cognizance of the situation growing out of a dispute even though the dispute were pending before the Court.

The Executive Council should not have to wait until one of the parties brings the dispute before it. It should be able to proceed upon its own initiative, or at the request of any State. It was aweakness of the procedure for dealing with disputes outlined in Article 15 of the Covenant of the League of Nations that the. Council could proceed only upon a request by a party to the dispute. Yet Article 11 of the Covenant declared it to be the “friendly right of each Member of the League to bring to the attention of the Council any circumstance whatever affecting international relations which threatens to disturb international peace or the good understanding between nations upon which peace depends.” In exercise of this “friendly right,” Great Britain brought before the Council the Aaland Islands dispute between Finland and Sweden in 1920. The Washington representatives of nineteen American Republics acted upon their own initiative in 1932, in taking cognizanceof the Chacodispute between Bolivia and Paraguay.
 

1944] The International Law of the Future 367

The powers of the Executive Council should extend to taking the necessary measuresfor preventing an aggravation or extension of the dispute. The importance of conservatory measures was demonstrated by the experience of the Council of the League of Nations, particularly in the Greco-Bulgarian dispute in 1925, and the lessons of that experience were codified in an abortive Convention on Meansof PreventingWarof 1931.

The Executive Council should have power to request the Permanent Court of International Justice to given an advisory opinion on any legal question connected with a dispute, and a majority vote should be sufficient for making such a request.

The question of the nature of the vote required for such a request by the Council of the, League of Nations was never answered authoritatively, though a League. Committee recommended in 1930 that a new paragraph be added to the Covenant stating that unanimity was not necessary.

The Executive Council would naturally seek to bring about a settlement of the dispute by the parties before attempting to arrive at a settlement in which the parties might not concur. If that effort is not successful, it should have power to give a decision which would be binding on~ the parties. Such a power would be so far-reaching, however, that it ought to be exercisable only by the unanimous vote of the Council, with the parties to the dispute not voting.If a unanimousdecision were not possible, the Council should be empowered to adopt by majority vote a report which would state the facts and its recommendations with regard to them.Any refusal by a party to comply with a unanimous decision could .be dealt with by the Executive Council under its general power to take cognizance of a failure by a State to carry out its obligations under international law.

The Proposal is limited to avesting of powers in the Executive Council, It does not assume to indicate when these powers should beexercised. Such questions must depend on the situation at the time, and the wisdom of those who must deal with them.

In a given case, either because ofthe setting of a dispute or its lack of gravity or importance, the Executive Council might decide not to take cognizance of a dispute;if its decision werein the opposite sense, however, the action to be taken would not need to follow any uniform pattern.”
 

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III. Treaties and Peaceful Change

PROPOSAL 19

Every treaty or international engagement entered into by any State should be required to be registered with the General Secretariat upon its entry into force. The texts of all treaties or engagements registered should be published by the General Secretariat.

COMMENT

Secret treaties were a great hazard to international relations in times past, and during the war of 1914-1918 they led to wide insistence on open covenants openly arrived at. It was in consequence of this insistence that a provision was included in the Covenant of the League of Nations that “every treaty or international engagement entered into hereafter byany Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it,” and that “no such treaty or international engagement shall be binding until so registered.”

The provision was generally observed by Members of the League of Nations. Even States not bound by the Covenant availed themselves of theprivilege of registration; in 1920 Germany agreed to register its treaties, and in 1934 the United States of America took similar action. In consequence, 4821 principal treaties or engagements were registered at Geneva from 1920 to 1942. Under the practice adopted, the registration took place only when the instrument hadentered into force.

It is notorious, however, that some treaties or engagements were not registered.The sanction of the Covenant that they should not “be binding until so registered” may have operated to encourage registration, but to a large extent it remained a dead letter.

The systematic publication of the texts of treaties and engagements under international auspices had been mooted long before 1919. An international conference metat Berneto consider the matter in 1892, but it produced no result. The 202 volumes of the Treaty Series published by the Secretariat of the League of Nations contain the complete texts, and where necessary English and French translations, of 4745 principal treaties or engagements, together with information as to action taken byStates with reference to them.

Are solution adopted by the Eighth International Conference of American States in 1938 called for the registration with the Pan American Union of treaties concluded by the American
 

1944] The International Law of the Future 369

States. Such registration was inaugurated in 1939, and down to June 30, 1943, 217 treaties hadbeen registered byfive States, 197 being registered by the United States of America. Texts of treaties registered are communicated to all the American States, but they are not otherwise published; lists are issued annually in the Bulletin of the PanAmerican Union.

The Proposal would preserve the very desirable innovation of the Covenant, and at thesame time it would adapt the requirement of the actual practice.
 

PROPOSAL 20

Upon application by any party to the treaty or engagement, the Permanent Court of International justice should have jurisdiction to give a declaratory judgment that an executor; treaty or engagement has ceased, in whole or in part, to be binding in the sense of calling for further performance, if it finds that the treaty or engagement was entered into with reference to the existence of a state of facts the continued existence o£ which was envisaged by the parties as a determining factor. moving them to undertake the obligations stipulated and that this state of facts has essentially changed.

COIMIMENT

Most States are parties to scores of treaties with other States, and at any given time there are several thousands of treaties in force.

A treaty may impose an obligation which can be performed once and for all, and it becomes executed when that obligation is performed. Thus, if a State agrees to cede a particular territory to another State the agreement will be executed when the cession has been made. On the other hand, a treaty may impose an obligation which calls for a future or continuing performance, and it will remain exeçutory so long as the performance is due.

Thus, if a State agrees to permit another State to maintain consuls within its territory, or to permit the nationals of another State to engage in business within its territory, the agreement continues to be executor; until it is terminated. The same instrument may, include both executed and executor;provisions.

Some executor; treaties provide for their expiration after a period of years, but in many cases no time-limitation is fixed. Some treaties provide that either party may denounce them, but in many cases no provision is made for denunciation. In a
 

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world of rapid changes, treaties are frequently revised to meet new conditions. If all the parties can agree upon the re-adaptation, no difficulty is presented;but if one of the parties refuses to cooperate in a re-adaptation insisted upon by another party, a troublesome situation may arise. The international law of the past has offered little assistance in dealing with such situations, and it needs to be supplemented.

It is a basic principle of international law, stated in the London Protocol of 1871 and reiterated in the Inter-American Convention on Treaties of 1928 and in a resolution of the Council of the League of Nations of 1935, that “no State can liberate itself from the engagements of a treaty, nor modify the stipulations thereof, except as a result of the consent of the contracting parties, by means of an amicable understanding.”

This principle has been generally observed. Without it, a vast structure of treaty law would tumble.

Yet cases have not been rare in which States have sought to relieve themselves of treaty obligations by their own unilateral fiat, and they have sometimes sought to justify this course by invoking a change in circumstances.This ground for the termination of a treaty has had little support in the practice of States, and the doctrine has had but doubtful standing in international law. A mass of literature on the clausula rebus sic stantibus (an implied provision that a treaty is to bind the parties only so long as things stand as they are) has not led to any authoritative formulation of principle. A concept which readily lends itself to mis-statement and mis-application, which can so easily be made an excuse for a refusal to perform valid obligations, can be acceptable only within narrow and well-defined limits. Otherwise it would create rancour and controversy which would imperil the legal relations of States. The Proposal would apply only to an executory treaty, i.e., to one which calls for the performance of stipulated obligations to be begun or continued in the future. Adopting a careful formulation published in 1935, it would permit the application of the principle of changed circumstances only by an independent judicial body. It would set the following conditions to be judicially pronounced upon. (1) that the treaty or engagement had been entered into with reference to an existing state of facts; (2) that the continued existence of this state of facts had been envisaged by the parties at the time as a determining factor moving them to undertake the obligations stipulated; and (3) that this state of facts had essentially changed.
 

1944] The International Law of the Future 371

These conditions find some support in the judgment given by the Permanent Court of International Justice in the Free Zones Case between France and Switzerland in 1932. There the Court dealt with an argument that the stipulations establishing the zones had lapsed on the ground that the zones had been “created in view of and because of the existence of a particular state of facts” which had “disappeared”; finding that this argument had not been substantiated, that the parties did not “have in view” the state of facts which had changed, the Court declined to consider “the questions of principle which arise in connection with the theory of the lapse of treaties by reason of change of circumstances, such as the extent to which the theory can be regarded as constituting a rule of international laws.”

If it finds the conditions met, the Permanent Court of International Justice should have power to give a declaratory judgment that the treaty or any provision thereof has ceased to be binding in whole or in part. Such a judgment would effectively relieve the parties from the further performance of the obligations stipulated.

The Proposal is in line with a provision in the 1923 Habana Convention on Treaties, fequiritng arbitration in case any party to a treaty should seek to invoke its caducity. Its adoption would fill a gap in the existing law.It would give to a controverted principle a careful and restricted formulation; it would tend to obviate the anarchy under which States have sometimes purported to act as judges in their own interest; and it would provide a needed buttress to the structure of treaty-law.

PROPOSAL 21

(1)  Acting at the request of any party to the treaty of engagement, the Executive Council should have power, by two-thirds vote and with the concurrence of the General Assembly given by two-thirds vote, to advise the revision by the parties of an executor, treaty or engagement which it finds to be not adapted to existing conditions.

(2)  If any party fails to collaborate in full good faith in the revision advised by the Executive Council, the Permanent Court of International justice should have jurisdiction, on application by any other party, to give a declaratory judgment that the treaty or engagement has ceased, in whole or in part, to be binding in the sense of calling for further performance,

 

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if it finds that under the existing conditions the treaty or engagement has become unduly onerous to one or more of the parties.

COMMENT

The principle that treaties may be declared to have ceased to be binding because of changes in circumstances has been restrictively formulated, and cases may arise in which it would not be applicable but in which the revision of a treaty or engagement would be clearly desirable. If confusion and controversy are to be avoided, provision should be made for such cases. Yet it is important to avoid any undue disturbance of existing treaty relations, and States would zealously guard their freedom to make and to unmake their.own treaties. Any procedure which may be laiddown must be both rigid and restricted, and it cannot be too exacting.

Provision was made in the Covenant of the League of Nations that “the Assembly may from time to time advise the reconsideration by Members of the League of treaties which have become inapplicable.” It was never decided that action could be taken by the Assembly under this provision by less than a unanimous vote, or that it could be taken without the concurrence of the parties to the treaty.In practice, no advice was ever given by the Assembly.Though the provision was hardly more than a dead letter, it maybe thought to have had a harmful effect in that it was both illusory and disquieting. The Proposal would apply only to an executory treaty or engagement, i.e., to one which calls for the performance of stipulated obligations to be begun or continued in the future. It would restrict the action to be taken by requiring a two-thirds vote in both the General Assembly and the Executive Council. It would thus assure careful consideration and a very general approval.

The action of the Executive Council would be limited to advising revision by the parties, and the advice could be given only after a finding that the treaty or engagement was not adapted to existing conditions. The Executive Council would not be empowered to revise a treaty; if the treaty is to be revised, the task should be left to the parties themselves. The advice would probably be very persuasive to the States parties to the treaty, but they would not be under a necessity of agreeing upon a revision. Collaboration in the revision advised should not be made positively mandatory, though the Proposal outlines a possible result of a failure to collaborate.
 

1944 The International Lawof the Future 373

If one of the parties to the treaty-or engagement fails to collaborate in the revision in full good faith after such advice has been given, any other party might apply to the Permanent Court of International Justice. The Court’s finding of a failure to collaborate would be a condition of its jurisdiction on the merits, the Court would have to find that the treaty or engagement had become unduly onerous to one or more of the parties before it could give a declaratory judgment that the treaty or engagement had ceased to be binding in whole or in part. Such a judgment would effectively relieve the parties from the further performance of the obligations stipulated.
 

PROPOSAL 22

Acting upon its own initiative or at the request of any State, the Executive Council should have power, by two-thirds vote and with the concurrence of the General Assembly. given by two-thirds vote, to advise the re-adjustment of any situation the continued existence of which would endanger good understanding between States.

Apart from the cases in which a treaty or engagement may be declared to have ceased to be binding because W. changes in circumstances, apart also from the cases in which the revision of a treaty or engagement may be advised, situations may exist which are such that, if continued, they would endanger peace or the “good understanding between States upon which peace depends. Such situations might be territorial arrangements. They might have been produced by executed treaties, or they might have come to exist in the absence of any treaty. Their disturbing influence on international relations might be quite as menacing as that of an executor, treaty or engagement.

Provision was made in the Covenant of the League of Nations that “the Assembly may from time to time advise … the consideration of international conditions whose continuance might endanger the peace of the world”. At no time, however, was such advice given by the Assembly.

The Proposal would restrict the action to be taken by requiring the concurrence of the General Assembly given by two-thirds vote, as well . as a two-thirds vote in the Executive Council. It would thus assure, careful consideration and a very general approval.The action would be limited to advising the
 

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readjustment of a situation, and the advice could be given only after a finding that the continued existence of the situation would endanger good understanding between States.

In most cases, such advice ought to be very persuasive to the States within whose power the readjustment would lie. If it did not lead to a readjustment, further action by the Executive Council would be possible, either in virtue of its special power to take cognizance of any dispute to which the situation might give rise, or in virtue of its more general power to deal with any matter of concern to the Community of States.
 

PROPOSAL 23

The General Assembly should have power, by two-thirds vote and with the concurrence of the Executive Council, to amend the international instrument creating the organization of the Community of States, provided that no amendment should become effective if objection is formally expressed within twelve months by as many as States.

COMMENT

Any international instrument creating an organization of the Community of States should be subject to amendment, and it seems desirable to find escape from the necessity of a unanimous agreement of all the parties before amendment can be effected.

The Covenant of the League of Nations provided that amendments should take effect “when ratified by the Members of the League whose Representatives compose the Council and by a majority of the Members of the League whose Representatives compose the Assembly”;it further provided that “no such amendments shall bind any Member of the League which signifies its dissent therefrom, but in that case it shall cease to be a Member of the League.”Seventeen protocols of amendment were drawn up after votes in theAssembly;fourteen were opened to signature in 1921, one in 1924, one in 1925, and one in 1938. Twelve of the protocols did not enter into force; four protocols drawn up in 1921 entered into force in 1924, and one in 1926. It is significant that two of the protocols which did not enter into force would have effected changes in the provisions for amendment:one would have required a three-fourths vote in the Assembly, including the votes of all the Members of the Council represented at the meeting, and ratification by all the Members whose representatives composed the
 

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Council at the time of the vote, and by a majority of the Members whose representatives form the Assembly; the other would have deprived a proposed amendment of any effect if the required number of ratifications were not obtained within twenty-two months after the vote of the Assembly.

The Constitution of the International Labor, Organization provides that amendments may be “adopted by the Conference by a majority of two-thirds of the votes cast by the Delegates present,” to take effect “when ratified by the States whose representatives compose the Council of the League of Nations and by three-fourths of the Members.” Only one amendment was adopted by the Conference; promulgated in 1922, it did not enter into force until 1934.

The Statute of the Permanent Court of international Justice failed to provide for its amendment, but amendments were adopted by a Conference of Signatories in 1929 and annexed to a protocol. Most of the States parties to the original Protocol of Signature proceeded to prompt ratification of the amending protocol. In 1935, when the ratificâtions of three States were lacking, the Assembly of the League of Nations requested the Council to put the protocol into force on February 1, 1936, “on condition that the States which have not already ratified have not in the meanwhile made objection”; as no such objection was made the amendments entered into force on the date fixed.

The 1928 Convention on the Pan American Union, which has been ratified by fourteen American Republics but which has not yet entered into force, provides for amendment, but requires the unanimous agreement of the twenty-one American Republics.

The Minority Treaties of 1919 and 1920 provided for amendment with “the assent of a majority of the Council of the League of Nations,” and certain of the parties agreed not to object’ to an amendment thus assented to.

The 1933 Convention on Transport of Goods by Rail provides that an important annex to the Convention shall be “kept up to date” by a Committee of Experts on which all the parties maybe represented, and that the decisions of the Committee of Experts may “be deemed to have been accepted unless within two months of the date of notification at least two Governments object thereto.”

The Proposal would require for any amendment of the basic instrument creating the organization of the Community of
 

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States, both a two-thirds vote in the General Assembly and a unanimous vote in the Executive Council.It would dispense with the formality of signature and ratification, but it would permit later formal objection by any State. A State whose representative had voted against an amendment in the General Assembly might, on further reflection and in view of the general opinion, refrain from advancing an objection.Time should be allowed for such objections, and it is therefore proposed that no amendment should enter into force ifformal objection is expressed, within twelve months, by a number of States to be determined.
 

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