THE INTERNATIONAL LAW 0F THE FUTURE
copyrighted and published by Maurice Gomberg (a cartographer) in Philadelphia,
PA. in 1942 -- about a month before this Canada-US meeting on the “International
Law of the Future”, described in the article below.
The map was “completed October 1941” according to one copy in circulation; and
deposited into the United States Library of Congress which stamped it as received
on February 25, 1942, and stamped it again as entered into the "Division of Maps"
on March 31, 1942, according to "Copy 1" in its archives.
There is speculation that either the Communist Party of America (CPA) or the
Carnegie Endowment for International Peace might have sponsored the map. A
representative of the Carnegie foundation participated in this Canada-USA joint
meeting on the International Law of the Future in 1942-1943.
It is interesting to speculate whether this meeting or anyone attending might
have had the Gomberg map at their disposal. This article in the CBA contains a
list of names of quite a number of the meeting participants. 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 in bold.
This 100-page OCR is almost impossible to edit. I am leaving most as-is, and I
hope it benefits someone. KM/HCC
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THE CANADIAN BAR REVIEW
VOL. XXII April, 1944 No. 4
THE INTERNATIONAL LAW 0F 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 demo-
cracy 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.
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278 The Canadian Bar Review [Vol. XX11
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 inaugu-
ration 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 dis-
cussions 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 care-
fully 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 ap-
proaches 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 stimu-
late 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 to investigate who was
actually causing and bankrolling the wars.
[2] KM: Prime Minister of Canada, 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 was 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.
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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 Wash-
ington, 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.
1. Gomberg map completed October 1941
Philadelphia
2. Pearl Harbor (date)
3. U.S.A. enters WWII
4. meeting at Washington, April 24, 1942
5. meeting at New York, May 30-31,1942
6. meeting at New York, June 27-28, 1942
7. meeting at Washington, July 26, 1942
8. meeting at Boston, August 8-9, 1942
9. draft prepared & considered at New York, September 20, 1942
10. draft prepared & considered at
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The meetings were attended by different groups of men,
but continuity was maintained by the presence of a few indi-
viduals at all of the meetings. Each of the groups was com-
posed 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, profes-
sors, 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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280 The Canadian Bar Review [Vol. xxii
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
KENNETH COLEGROVE, Evanston, Illinois
Professor of Political Science, Northwestern University
W. HENRY COOKE, Claremont, California
Professor of History, Claremont Colleges
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[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
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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
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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 o£ 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
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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
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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
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
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
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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
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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 profes-
sion 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 con-.
tinuous 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 insist-
ence 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
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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 unpre-
cedented 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 experi-
ence 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 con-
cerning 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
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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 inter-
national 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 dis-
positions .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.
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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 pro-
tection 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 inter-
national 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 char-
acter 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.
----------------------- Page 15-----------------------
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 litera-
ture 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 pro-
tection 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' commoninterests 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 byafew 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 forstandardizingweights 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 develop-
ment 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 andmethods 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 em-
ployers 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 func-
tioned 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 contri-
butions 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.
----------------------- Page 17-----------------------
1944] The International Law of the Future 293
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 peace-
ful 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 estab-
lished 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 legisla-
tion 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 Inter-
national Justice in the direction to the Court to apply (1) inter
national conventions, whether general or particular, establishing
rules expressly recognized by the contesting States, (2) inter-
national 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 ade-
quately 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
----------------------- Page 19-----------------------
1944] The International Law of the Future 295
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 ôf 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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296 The Canadian Bar Review [Vol. XXII
munity of States, and governs the relations of such agencies with
States, it maybe 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 Com-
munity 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 develop-
ment 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 Per-
manent 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.
----------------------- Page 21-----------------------
1944] The International Law of the Future 297
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 Com-
mittee has recently recommended a declaration that "nations
have a common and joint obligation to watch over the obser-
vance 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 deter-
mining 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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298 The Canadian Bar Review [Vol. XXII
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 corner-
stone of the policy of the United States of America which did
not join the League o£ Nations. In 1937, numerous Govern-
ments united with the Government of the United States of
America in declaring that "any situation in which armed hostili-
ties are in progress or are threatened isa 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 isthe 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.
----------------------- Page 23-----------------------
1944] The International Law of the Future 299
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 situa-
tions can be readjusted as need arises.
COMMENT
The history of international relations is a history of con-
tinuous change and of efforts to meet new conditions.
In former times, treaties between States frequently stipu-
lated 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 fre-
quently 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 Conven-
tion on Abolition of Capitulations in Egypt and by the exchanges
of notes relating to house-taxes in Japan, and in 1943 by bipar-
tite treaties abrogating extraterritoriality in China.
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300 The Canadian Bar Review [Vol. XXII
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 main-
tained 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."
----------------------- Page 25-----------------------
1944] The International Law of the Future 341
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 inter
national 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 govern-
ment, 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.
----------------------- Page 27-----------------------
1944] The International Law of the Future 303
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 corres-
pondence with Mexico relating to the Cutting Case, the Govern-
ment 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 inter-
national obligations is bound to make in its legislation such modi-
fications 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 govern-
mental 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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304 The Canadian Bar Review [Vol XXII
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 considera-
tions 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
----------------------- Page 29-----------------------
1944] The International Law of the Future 305
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 under-
lying principle has been expressed in, a declaration by the Eighth
International Conference of American States in 1'938 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 pro-
tection 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 pro-
ceeded 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 con-
ditions in Spain, in which it noted "that attacks have taken place
in violation of the most elementary dictates of humanity under-
lying 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 engend-
ered 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
----------------------- Page 31-----------------------
1944] The International Law of the Future 307
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 inter-
vention 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; disturb-
ances 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 war-
rant 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 gener-
alize 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 inter-
national 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 expe-
ditions designed to operate inthe 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 pre-
parations for the despatch of expeditions, and the execution of
----------------------- Page 33-----------------------
1944] The International Law of the Future 309
Any of these acts to the prejudice" of any other party. Thirteen
American States became parties to the 1928 1:Iabana Convention
on Civil Strife, by which they obligated themselves "to use all
means at their disposal to prevent the inhabitants of their terri-
tory, 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 obliga-
tion was proclaimed by Central American States in treaties of
1907, 1923 and 1934, by States of the Near East in the Saadabad
Pact of 1937, and by the Ministers of Foreign Affairs of the
American. Republics in the. Final Act of the Iiabana Conference
in 1940.
Efforts to extend the principle have been proceeding in
recent 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 agree-
ment by which each undertook "not to permit the formation
or residence on its territory of any organization or group a . o o.
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 possi-
bilities 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 inter-
national 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 transmis-
sion 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 Conven-
tion. 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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310 The Canadian Bar Review [Vol. XXII
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 activi-
ties 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 institu-
tions, 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
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 main
tenance 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 condi-
tioned upon such cooperation and collaboration. For this reason,
----------------------- Page 35-----------------------
1944] The International Law of the Future 311
the Inter-American Juridical Committee has recently declared
that "no nation is privileged to remain aloof from the organi-
zation 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 neces-
sity 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 Inter-
national 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 -=- here as so often in dealing
with inter-State relations -in national efforts to regulate rela-
tions between employers and workers. Certain States have not
hesitated to impose on employers and workers. a duty to nego-
tiate 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 agen-
cies 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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312 The Canadian Bar Review [Vol. XXII
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 pre-
viously 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 neces-
sities 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.
----------------------- Page 37-----------------------
1944] The International Law of the Future 313
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 settle-
ment 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 sanc-
tion 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 understand-
ing 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 settle-
ment 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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314 The Canadian Bar Review [Vol. XXII
mediation was codified in the 1899 and 1907 Hague Conven-
tions on the Pacific Settlement of Disputes, and these conven-
tions 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 investi-
gation and in establishing permanent commissions of concilia-
tion, 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, ifit 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 Com-
munity 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 settle-
ment 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 beoperative.
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 besuitable 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 disputewas notsubmitted 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
----------------------- Page 39-----------------------
1944] The International Law of the Future 315
to arbitration or judicial settlement, the parties were bound to
"carry out in, full good faith anyaward 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 1Vlem-
hers of the League,covenanted "not to go to warwith any party"
which compliedwith therecommendation.
Such remarkable progress has been made during the past
quarter-century, both in creating agencies for the pacific settle-
ment of disputes and in building a law relating to pacific settle-
ment, 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 dis-
putes bythe competent agency of the Communityof -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 Com-
munity 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 suffi-
ciently assured by provision for the peaceful settlement of dis-
putes between States.Recentexperience 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 meansto beemployed for the attainment.
of States objectives. Whatever the situation, no State should be
permitted to resort to force to imposeits will uponanother State.
It should be proclaimed as a legal duty of States-to refrain from.
using force, as well asfrom threats to useit.
The Principle deals with the use of force rather than with
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 definiteiness
with which the,duty niust be stated. Other forms of pressure,
such as discriminations in trade relations, raise complications
which cannot easily be encompassed by a simple statement of
----------------------- Page 40-----------------------
316 The Canadian Bar Review [Vol. XXII
legal duty, and they may require adjustments which only con-
tinuing 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 useforce authorized by the competent agency
of the Community of States. Situations may arise in which a
useofforce will be thoughtto be necessaryfor 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 under-
standing 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 con-
ception whichJends itself to such general misusemust be employed
with sparing anddiscrimination.Ablanketexceptionof self-defense
would rob aformulation of theduty to refrain from auseof force
of much of its utility. What is necessary is to admit that aState
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 bythe 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
----------------------- Page 41-----------------------
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 ulti-
matum 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 Coven-
ant 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 inde-
pendence 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 them-
selves "the right to take such action as they shall consider neces-
sary for the maintenance bfright andjustice ."
Nor were these, "gaps in the Covenant" repaired by-'the
Paris Treaty for the-Renunciation of War of 1-928, in- which most
of the States of the world joined in a renunciation of war as an
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318 The Canadian Bar Review [Vol. XXII
instrument of national policy. That step was to a large extent
vitiated by a qualification, which had notappeared in the Coven-
ant, that each State had a "right of self-defense," andit waseven
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 exer-
cised 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 Com-
munity.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 aState in its relations with another State. Norwould it
serve much purpose to postulate that any use of force or any threat
----------------------- Page 43-----------------------
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 decid
as theoccasions arise, or perhaps in accordance with guides which
might be drawn up from time to time. AState might be asked
to sever diplomatic relations with a State usingor 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 threat-
ened 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 Govern-
ments concerned what effective military, naval or air force the
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20 The Canadian Bar Review [Vol. XXII
Members of the League shall severally contribute to the armed
forces to be used to protect thecovenants of the League," andthe
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
Stateswereleft acomplete 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 imple-
ments 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 under-
standing 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
----------------------- Page 45-----------------------
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 maintenanceof peacerequires the reduction of national
armaments to the lowest point consistent with national safety
and the enforcement by common action of international obliga-
tions," remaineda dead letter, though it was reinforced by pro-
visions for "plans" and for a permanent commission to advise
upon their observance when adopted. Norhave anyof the recent
conferences on limitation of armamentsachieved 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
corps It must a particular
army. be more thana ban upon weapon,
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 mechaniza-
tion 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 limita-
tions 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 year-
book" which appeared in fifteen volumes from 1924 to 1939, but
the information contained was "drawn solely from official and
public documents," andnoattemptwas'made toverify theindica-
tions 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 and
reports.
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322 The Canadian Bar Rezdew [Vol. XXII
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 arma
ments 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 inter-
national supervision and control," and that "'without such prac-
tical 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.
----------------------- Page 47-----------------------
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 Com-
munity of States effective; and to assure the continuous colla
boration 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 suggese
tions 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 ®f 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.
----------------------- Page 48-----------------------
324 The Canadian Bar Review [Vol. XXII
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 inter-
national 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 expul-
sion '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 exer-
cised 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 activi
ties 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
----------------------- Page 49-----------------------
1944] The International Lawof the Future 325
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 Con-
federation 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 Com-
mittee 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, organiza-
tion 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 neces-
sary 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 organiza-
tion. 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 organi-
zation will be required for problems which are more than tem-
porary, '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
----------------------- Page 50-----------------------
326 The Canadian Bar Review [Vol. XXII
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 con-
strained, to follow the lead. If one or more States should hold
aloof, competence might none the less be vested in the organi-
zation 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. There-
after, 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 partici-
pation, 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 beenassociated
since 1889 in the Union of American Republics, which operates
in periodical InternationalConferencesofAmericanStatesandwhich
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 Scan-
dinavian 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 Common-
wealth 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.
----------------------- Page 51-----------------------
19441 The Internatiônal Law of the Future327
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 pre-
paration 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 assist-
ance of permanent officials.
The chief of these institutions should be a general representa-
tive 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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328The Canadian Bar Review[Vol. XXII
In such abody,each of the Stateswhichform the Community
of States should beentitled to representation. Thenumberof rep-
resentatives of each State might be determined by the General
Assembly itself, as aunit.
Each State should be left free to determine howit will choose
its representatives. As the Covenant of the League of Nations
entitled each Member to have three representatives in the As
sembly, 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.
Thematter is one of which each State maybe the bestjudge for
itself.
Nordoes it seem desirable to provide for the representation
in a General Assembly of groups or bodies other than Govern-
ments. The effectiveness of such a body would be in direct pro
portion 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 proce-
dure 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
----------------------- Page 53-----------------------
19441 The International Law of the Future 329
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 partici-
pate 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 rep-
resented. 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 ofactual differences infact.
In the past, the practice has usually prevailed in inter-
national organizations of giving, to each State one vote. - Thatrule
has obtained intheAssembly of the League,of Nations, and in the
International ConferencesofAmerican States. Yettherehavebeen
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 mustrest ona 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 classificationwere not basedon 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 stillremain
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 cumu
lative value according to another system. In 1919, the Swiss
Confederation proposed that certain decisions of the Assembly
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330 The Canadian Bar Review [Vol. XXII
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' popula-
tions. 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 ofoil.
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 representa-
tives _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 Com-
munity 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.
----------------------- Page 55-----------------------
19441, The International Law of the Future 331
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 Com-
munity of States, to keep, a watchful eye, upon the develop-
ment of inter-State relations, and to deal with questions of policy
notreserved to the General Assembly.
Thus the GeneralAssembly andthe Executive Council might
both be given general power to deal with any matter of concern
to the Community of States. Asharp 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. Leagueor affecting the peace of theworld,"
hasshown that it is notnecessary to anticipate a conflict between
the General Assembly. and the Executive Council as to their
authority. .
Adecision 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 arepresentation which would assure confid-
ence 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, andin 1934 to sixteen.
AstheExecutive Council here envisaged would be arelatively,
.small body+, each Staterepresented should haveonevote. 'Inview ,
of the nature and functions of the' body, it is proposed that, as a
general rule, its.decisions should be taken byunanimity, but-this
rule :should not apply to decisions with regard-to appointments or
mattersof procedure, forwhich amajorityvote should suffice.The
requirement of unanimity., would restrict the action which the
Executive Council might take, but it seems to be necessitated by
the probableinsistence ofStates playing animportant r6le in inter-
national 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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332The Canadian Bar Review[Vol. XXII
PROPOSAL 4
(1) In the selection ofStates 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
.might be entitled
be named Certain States named as to rep-
resentation 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,
andpossibly of other States to beentitled to representation, should
be entrusted to the GeneralAssembly.
(2) Any State not represented in the Executive Council
should be entitled to participate, without avote, in the considera-
tion by the Executive Council of any matter specially affecting
its interests.
COMMENT
TheExecutive 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 rep
resentation 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. Nofixed criteria
are available, and perhaps none can be devised, for a precise
measuringof therelative importance of theroles played byStates.
Despite its generality, the standard is susceptible of application.
Indeed, it is generally applied in popular thought which dis-
tinguishes 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 Inter-
national 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 dissatisfac-
tion. In 1926, the Austrian Government drew upon the analogy
for aproposal that the Council of the League of Nationsshould 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."
----------------------- Page 57-----------------------
1.9441 The International Law of the Future 333
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.
Yetescape mustbefoundfromanypracticeof automatic rotation;
the danger of which was demonstrated by the experience in the
Leagueof Nations.
A fixed geographical allocation ofseats in the Council
of the League of Nations wasdecided upon in 1920,andit was not
displaced by a later determination that regard should be paid to.
"the maingeographical divisions of the world, the great ethnical
groups, the different religious traditions, the various types of
civilization, and thechief 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 Polandand Spain occupying a special position as to re-eligi-
bility, Asystem 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 responsi-
bilities as to robthe Councilof muchof its powerandprestige.
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,
othersfor afixed period, orfixed periods, of years.It should beleft
to the General Assembly to select the successors to such States.
Nosuccessors 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 GeneralAssembly mightalso
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 thisdescription), were to have permanent
representationintheLeagueCouncil; andwiththeapproval of the
Assembly, the Council was empowered to name additional States
for permanent representation. Only the selection of States for
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334 The Canadian Bar Rerie2U [Vol. XXII
non-permanent representation was entrusted to the Assembly.
The distinction between permanent and non-permanent rep-
resentation 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 representa-
tion led to the withdrawal of Brazil. Moreover, embarrassment.
ensued from the conduct of some of the States entitled to per-
manent representation-in two instances, such States were found
to haveviolated their covenants.
More satisfactory results maybe anticipated if the power of
selection entrusted to theAssembly beenlarged, andif theinvidious
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 respon-
sibilities 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 antici-
pated, 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.
Thepretension of the so-called "Great States" to representation
wasquite aseffective 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 elec-
tion of judges of the Courtestablished in 1920 to both theAssem-
bly and the Council of the League of Nations;when that step
taken, it wasanticipated that five of the nine seats in the Council
would be held by the "Great States," yet even after the composi-
tion 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 maybe notedthat therulesadopted by theAssembly of the
Leagueof Nationsin 1926 provided that atanytime the Assembly
might "by a two-thirds majority, decide to proceed . . . to a
newelection of all the non-permanent Membersof the Council."
In application of this rule it was possible for the mandate of a
----------------------- Page 59-----------------------
1944]The International Law of the Future 335
State to be revoked during the term for which it had beenelected
for representation.
The national experience of certain federal States is also sug-
gestive in this connection. Nô 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 hundredyears
the membership of both of these bodies has with rare and brief
'exceptions included citizens of the State of NewYork.
The Proposal also provides that even though it is not one.
of the States represented in the Executive Council, aState 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 privilegeof 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 thelight ofexperience.
A large body such as the General Assembly would of neces-
sity meet in public.The Proposal would establish this general
rule for the Executive Council, also, .for it seems important that -
States not represented .inthat body should be. currently apprised
of its activities.. Yet in some cases, .which would be covered by
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336 The Canadian Bar Review [Vol. XXII
special exceptions in the rules of procedure, the way should be
left open for variations from the general rule. Theprompt publi-
cation of minutes of both bodies would extend the knowledge
of their functioning to ageneral 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 par-
ticular 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 Ameri
can 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 publi-
cation of the minutes within a year from the day of adjourn-
ment, 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
----------------------- Page 61-----------------------
1944] The International Lawof the Future 337
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 vary-
ing numbers of units. Though this system had worked satis-
factorily 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 impos-,
sible 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 contri-
butor (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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338 The Canadian Bar Review [Vol. XXII
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 inter-
national 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 con-
ventions 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
----------------------- Page 63-----------------------
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 ratifi-
cations 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 Phos-
phorus 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 inter-
national 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
à large preponderance' of the States.
The proposalwould vest a power of international legislation
in the General' Assembly, limited to the amendment and 'enact-
ment 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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340 The Canadian Bar Review [Vol. XXII
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 ratifica-
tion, 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 adminis-
trations 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 exercis-
able 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 recom-
mendations addressed to Governments, or of resolutions in the
nature of recommendations. When it desired that more imme-
diate effect be given to its "decisions," it habitually referred
them to the Council with suggestions as to the action to be
----------------------- Page 65-----------------------
1944] The International Lawof the Future341
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 cogni-
zance of any alleged failure by â State to carry, out its obliga
tions 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.
C®PIIIVIENT
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 inter-
national 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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342 The Canadian Bar Review [Vol. XXII
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 com-
mitments 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 Con-
ference 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 undertakingswhich
they have contracted," and condemning the "unilateral repudia-
tion 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 obliga-
tions, 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 soli-
darity 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
----------------------- Page 67-----------------------
1944] The International Law of the Future 343
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 consti-
tute 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 pro-
visions 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 mea-
sures 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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344 The Canadian Bar Review [Vol. XXII
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 rela-
tions with other States.No attempt is here made to indicate
the nature of such dispositions. They would derive their char-
acter from current thought, and they would doubtless be
changed from time to time. No generation can devise a strait-
jacket 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 Con-
vention 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 Com-
munity of States;but, as the corresponding Principle stated,
----------------------- Page 69-----------------------
1944]The International Law of the Future 345
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. Noattempt
is here made to indicate the nature of such measures. It would
depend upon the Executive Council's appreciation of the situa-
tion, and of the possible ways of meeting it.The situations
which would arise might present very different kinds of pro-
blems, and 'the measures to be taken by one State in any
situation might be very different from those to be takenbyother
States in that situation, and different from those to be taken by
that State in other situations. ®f course the resources and
geographical position of each State would be taken into con-
sideration. . 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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346 The Canadian Bar Review [Vol. XXII
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 em-
powered 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 under-
takings 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.
----------------------- Page 71-----------------------
1944] The International Lawof theYnuure 347
The precedents are few for the actual employment of the.
armed forces of various States under general international auth-
ority. The joint employment of the forces of eight States in
China in 1900, at the time of the Boxer difficulties, was under-
takenwithout any mandate from other States. Mention may be
made, however, of the action of the Council of the League of
Nations in 1934, extending to the,British, Italian, Netherlands;
and Swedish Governments an invitation "to take part in the
establishment of an international force to becharged . .. . . . . with
the maintenance of order ... . . . before, during and- after th;e
plebiscite" in the Saar Territory. This invitation was accpeted
.
by the four Governments, each of which provided a contingent
of the international force of 3,300 men placed by the Council
"at the disposal of the international Governing Commission of the
Saar Territory," other States giving facilities for the transit of
these contingents through their territories; and during'a period
of two months the force discharged its mission without serious
incident.
P®SAL 10
(1)Acting upon its own initiative or at the request of any
State, the Executive Council should have power to take cogni-
zance of the prevalence within the territory ofany State of
conditions which menace international peace end order, and to
take such action as it may deem to be necessary for the pro-
tection 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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348 The Canadian Bar Review[Vol XXII
State. Nor should it be left possible for a few States, acting
on their own authority and according to no established pro-
cedure, 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 condi-
tions 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 responsi-
bilities, 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 neededfor 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 manu-
facture of arms and ammunition.
(b) International trade.
(c) Production and distribution of food and raw mate-
rials.
(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.
----------------------- Page 73-----------------------
19441 The International Law of the Future 349 '
(j) Population problems, including international migra-
tion..
(k) Cultural and scientific interchange.,',
COMMENT
Ageneral 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 assist
ance of , special agencies working in particular fields. Many
questions will need to be explored by personnel having,the capa-
city of specialists. Such explorations would involve an expen-
diture 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 con-
tinuous 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 arma-
ments should be reduced "to the lowest point consistent with
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350 The Canadian Bar Review [Vol. XXII
national safety and the enforcement by common action of inter-
national 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 con-
sideration 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 con-
ferences on armaments, held in later years.
The manufacture of arms and ammunition presents pro-
blems 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 pre-
vented." Little progress was made in dealing with this subject.
AConvention on International Trade in Arms andAmmunition,
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 Com-
mittee 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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19441 The International Law,of the Future3571
between all nations in the economic - field," and it sets as a
goal of effort "the enjoyment by all States, great or small, victoi°
or vanquished, of access, on equal terms to the, trade and- t6
the raw materials of the world which are needed' for. their econo-
mic prosperity."This was supplemented in the various mutual
aid agreements of 1942 and 1943, by provision for "the. better-
ment of world-Wide economic relations" by action "directed to
the expansion, by appropriate international and domestic mea-
sures, of production, employment, and the- exchange and con-
sumption 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 convention's. Efforts have
been made to coordinate the production and export of coffee,
rubber, silver, sugar, tin, and other commodities. The Inter-
national 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 6f
keeping herdbooks (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 Inter-'
American 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 co®rdi
nated by the Union for Transport by Rail, functioning since
1893. International conferences on questions relating to mari-
time transport have been frequent since the Washington 'Con-'
ference 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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352 The Canadian Bar Review [Vol. XXII
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, unifi-
cation 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 Inter-
national 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 confer-
ences; multipartite conventions were concluded in 1912 and
1927, and a large volume of general and regional legislation
now exists on the subject.The International Telecommuni-
cation Union,organizedin1932,is thesubjectof aseparate 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.
----------------------- Page 77-----------------------
19441 The International Lawof the Future 353
The subjection of the continent of_ Africa led to inter-
national 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 terri-
tories, 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 Man-
dates Commission, in its thirty-seven sessions, has established
many useful precedents. Further directives are contained in the
Inter-American Convention on the Provisional Administration
of European Colonies and Possessions in, the Americas, con-
eluded at Habana in 1940, to which seventeen American States
are parties. The Convention vests responsibilitiesin "the
American Republics as an international community."
These historical developments furnish a basis for the recog-
nition of an interest of the Community of States in the welfare,
of dependent peoples, and States entrusted with the adminis
tration 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 Communityinterposition andhowtheCommunity'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,
----------------------- Page 78-----------------------
354 The Canadian Bar Review [Vol. XXII
have extended international effort into many newfields, includ-
ing the organization of epidemiological intelligence, the stan-
dardization 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 organ-
ized 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 tuber-
culosis, 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 agree-
ments 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 adminis
tered by the Supervisory Body.Each Government has a duty
to submit advanceestimates for each year for examination bythe
Supervisory Body, and the latter establishes estimates for those
countries whichfail to submitthem. Thesystem is nowapplicable
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
----------------------- Page 79-----------------------
19441 The International Lawof the Future 355
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) Thepopulation of theworld 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 upof undeveloped areas, so long as unequal opportunities
exist in different parts of the world, so long as menseek to give
vent to their disposition to roam and'to create new lives for them-
selves, 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 afirm 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 maybe
essential. Aconference of emigration States was held at Romein
1921, and a conference of immigration States was held in Paris
in 1923. Bothemigration and immigrationStates wererepresented
at conferences held, at Rome in 1924,and at Habana in 1928. A
conference of expers on cooperation with regard to emigrationfor
settlement, held at Geneva in 1938, recommended the establish-
ment 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 com-
mittee.
The importance of demographic problems in the post-war
world may call for a special agency which, functioning continu-
ously, can be in a position to signalize any opportunity offered
for relief from difficulties caused by the congestion of populations
in certain. parts of theworld.
(k) The importance of cultural and- scientific interchange
has long been recognized by unofficial international associations.
In recent years ithas 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-
----------------------- Page 80-----------------------
356 The Canadian Bar Review [Vol. XXII
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 andto 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 Ameri-
can 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 beundertaken wholly anew. Numerous institu-
tions 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.
Ageneration of effort triumphed in the establishment of the
Permanent Court of International Justice. Fifty-two States
have given their formal support to the maintenanceof the Court,
and practically all of the States of theworld-including all of the
States in the Western hemisphere-have become parties to
instruments which give it jurisdiction . More than 500 treaties
havebeen concluded which relate to the Court, and manyof 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
----------------------- Page 81-----------------------
1944]The International Law of the Future357
advisory opinions, acid more than 200 orders, led to the settle-
mentof numerousdisputes, some of themveryvexing incharacter.
Somecriticism of ajudicial institution is inevitable, but in general
the legal profession throughout the world has hailed the juris-
prudence of the Courtwith satisfaction. The approval of its work
by Governments is indicated by the fact that forty-seven States
made effective declarations accepting t_ he Court's compulsory,
jurisdiction over legal disputes.
The Court's Statute should be adapted to bring it into con-
formity 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 satis-
factory instrument would result. The adaptation might lead to
some changes in the present provisions for electing thejudges and
for meeting the expenses, and possibly greater usefulness could
befound for the chambers ofthe Court; the chamberfor summary
procedure might be organized to serve the function of regional
courts.
PROPOSAL 13
The Perman~nt 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 avail-
able, 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 1914-4918.. Since 1922 the exist-
ence 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 candi-
dates in the elections of thejudges of the former.
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358 The Canadian Bar Review (Vol. XXII
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, butasnogeneralagreement hasbeenmade,unanimous
consent of the parties is required for any accession. If the Per-
manent Court of Arbitration is to be continued, the 1907 Con-
vention should be opened to accession byanyState.
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, itgrew out of a movementfor international labor
legislation which beganin thenineteenth century. Acharacteristic
feature of the Organization, which gives it a tripartite aspect, is
the representation of employers and workers, as well as of Gov-
ernments, both in the International Labor Conference and in the
Governing Body of the International LaborOffice.
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. Thelatest Conference, held in NewYork andWashing-
ton in 1941, planned a widening of the sphere of action of the
Organization andpledgedits availability in the post-war world.
----------------------- Page 83-----------------------
1944) The International Lazy of the Future359
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 Inter-
national Union for the Publication of Customs Tariffs (dating
from 1890)-all of which were specifically mentioned and con-
tinued by the Treaty of Versailles in 1919-fall within this
category, and others might be selected for inclusion. The pro-
vision in the Covenant of the League of Nations that "there
shall be placed under the direction of the League allinter-
national 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 ithas
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 main-
tains 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 - main-
tains a permanent bureau at Berne.
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360 The Canadian Bar Review [Vol. XXII
PROPOSAL 16
A General Secretariat, whose members should be inde-
pendent 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 con
stant contacts between Governments and international insti-
tutions. 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 advan-
tages, butit hastended to besuperseded by international organiza-
tion. 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 memberswere 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 store-
house 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
----------------------- Page 85-----------------------
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 con-
flict 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 pos-
sible 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 ofinternational
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,,
Newlines of progress were opened up in 1920, when agree-
ment was achieved upon the creation of a really permanent
court.
----------------------- Page 86-----------------------
362 The Canadian Bar Review [Vol. XXI1
The Committee of Jurists which drafted the Statutelof
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 con-
ferred in eleven cases, without any untoward incident.
Moreover, a large number of multipartite and bipartite
treaties have been entered into, which confer compulsory juris-
diction 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 Inter-
national Disputes, which gave the Court wide jurisdiction over
legal disputes.
This history would seem to indicate that the time has
arrived when further progress canbemade. The Proposal there-
fore 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 em-
ployed 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 prin-
ciples 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 mayarise . . . by virtue of a claim of right . . . under treaty
or otherwise," and "which are juridical in their nature byreason
of being susceptible of decision by the application of the prin-
ciples of law."
----------------------- Page 87-----------------------
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 maynotbe 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 invok-
ing 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
alestine Mandate applying only "if the dispute cannot, be
settled by negotiation," saying that negotiations .do not neces-
sarily "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 Per-
manent Court of International Justice in 1921, the Netherlands
Government confined its acceptance to disputes "in regard to
----------------------- Page 88-----------------------
364 The Canadian Bar Reuiew [Vol. XXII
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 bythe Council
of the League of Nations, provided that notice to suspend is given
after the dispute has been submitted to the Council andis given
within ten days of the notification of the initiation of the proceed-
ings 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 woulddispense with the necessity for aspecial agreement
in each case. Therequirement of aspecial agreement in each case,
essentialwhen aspecial tribunal hasto becreated, 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 Inter-
national 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
whichshould be confided to acourt.
If anyenforcement ofjudgments is to beattempted, 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 underinternational law.
Aprecedent exists in the provision in the Covenant of the
League of Nations that "in theevent of anyfailure to carry out"
----------------------- Page 89-----------------------
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 Internationaljustice. ,take
(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 Inter-
nationaljustice 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 recommenda-
tions deemedto bejust 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 con-
sideration.
COMMF,NT
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 dis
putes. 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. ,
Abody not subject tojudicial limitations should beempower-
ed 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
----------------------- Page 90-----------------------
366 The Canadian Bar Review .
[Vol XXII
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 Nationswhich 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 peaceof the
world, that menacing situations mayarise which cannot be canal-
ized 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 cog-
nizanceof anyalleged failure byaState 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 therequest of anyState. It
was aweakness of theprocedurefordealing 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.
----------------------- Page 91-----------------------
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 Con-
vention 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 beexercisable
only bythe unanimousvote of the Council, with the parties to the
dispute not voting.If a unanimousdecision were notpossible, the
Council should be empowered to adopt by majority vote a report
which would state the facts and its recommendationswith 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 Execu-
tive 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 mightdecide 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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368 The Canadian Bar Review [Vol. XXII
III. Treaties and Peaceful Change
PROPOSAL' 19
Everytreaty 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 opencovenantsopenly arrived at. Itwasin consequ
ence of this insistence that a provision was included in the Coven-
ant 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 byit,"and that "nosuch 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 202volumes
of the Treaty Series published by the Secretariat of the League of
Nations contain the complete texts, and where necessary English
andFrench translations, of 4745 principal treaties or engagements,
together with information as to action taken byStates with refer-
ence to them.
Aresolution adopted bythe Eighth International Conference
of American States in 1938 called for the registration with the
Pan American Union of treaties concluded by the American
----------------------- Page 93-----------------------
1944] The International Lawof 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 theAmerican 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 adapttherequire-
mentof theactual practice.
PROPOSAL 20
Upon application by any party to the treaty or engagement,
the Permanent Court of International justice should have juris-
diction '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.
Atreaty mayimpose an obligation which can beperformed
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, theagreementwill 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 aState 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, theagreement continues
to beexecutor;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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37 The Canadian Bar Review .
0[Vol XXII
world of rapid changes, treaties are frequently revised to meet
new conditions. If all the parties can agree upon the re-adapta-
tion, 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 situa-
tions, 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 unila-
teral 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 inter-
national law.A mass of literature on the clausula rebus sic
stantibus(an impliedprovisionthat 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 con-
troversy which would imperil the legal relations of States.
nThe Proposal would apply only to an executory treaty, i.e.,
t
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 inde-
pendent judicial body. It would set the following conditions to
be judicially pronounced upon. (1) that the treaty or engage-
ment 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.
----------------------- Page 95-----------------------
1944]The International Lawof the Future371
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.inview" 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
labs."° " -
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 off
engagement, the Executive Council should have power, by
two-thirds vote and with the concurrence of the Gener
Assembly given by two-thirds vote, to advise the revision by
e 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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372 The Canadian Bar Review [Vol. XXII
if it finds that under the existing conditions the treaty or engage-
ment 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 con-
troversy 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 â 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
aharmful 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.
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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 engage-
ment 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 under-
standing 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 territorialarrangements.
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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374 The Canadian Bar Review [Vol. XXII
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 Representa-
tives 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 amend-
ment 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 pro-
visions 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 ratifi-
cation by all the Members whose representatives composed the
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1944 The International Law of the Future 375
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 objec-
tion 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 pro-
vides 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 Com-
mittee 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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376 The Canadian Bar Review [Vol. XXII
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 pro-
posed 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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