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Quincy Wright: On Legal Tests of Aggressive War

Published online by Cambridge University Press:  28 March 2017

Richard A. Falk
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Editorial Comment
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American Journal of International Law , Volume 66 , Issue 3 , July 1972 , pp. 560 - 571
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Copyright © American Society of International Law 1972

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References

1 “A Select Bibliography of the Writings of Quincy Wright,” in Lepawsky, Buehrig, and Lasswell (eds.), The Search for World Order: Studies by Students and Colleagues of Quincy Wright 441–451 (New York, Appleton-Century-Crofts, 1971), gives some sense of Quincy Wright’s remarkable range of contributions to the study of war and peace.

2 In essence, Quincy Wright accorded consistent primacy to the universal identifications associated with the scientific inquiries of a scholar and managed to subordinate the accidental bonds of time, place, and national affiliation. As a result, his inquiries exemplified the spirit of objectivity characteristic of the pursuit of truth and eschewed the spirit of partisanship characteristic of the adversary process. It may be that Quincy Wright was influenced by the strong interests in natural science and mathematics exhibited by several members of his family, including his father, two brothers, and son. Significantly also, Wright’s wife and daughter have been actively involved in activities designed to promote the cause of world peace. Therefore, one finds, that a universality of emphasis is present in both realms of scholarly inquiry and ideological commitment within Wright’s family surroundings. At the same time, Quincy Wright had, it always seemed to me, the true patriot’s love of country in the sense of seeking the best for his country and feeling its shortcomings as personal losses. It is relevant to note Quincy Wright’s concern with American history exhibited in one of his latest major publications, “The American Civil War, 1861–1865,” in Falk (ed.), The International Law of Civil War 30–109 (Baltimore, Johns Hopkins University Press, 1971).

3 Of course, such an orientation toward legal inquiry implies a certain jurisprudential position that is controversial, aside from the issues of whether it is desirable to present an objective interpretation of facts and law. The controversy involves the extent to which it is possible to obtain such objectivity, given the degree of indeterminacy that attaches to language, facts, and law.

4 Quincy Wright’s value priorities seemed to reconcile a nationalist and a universalist perspective by stressing the importance of world peace for the satisfaction of national interests and the importance of governments adhering to the restraints of international law to establish the conditions for the maintenance of world peace. Quincy Wright also believed that respect for international law throughout the world was hindered by the tendency of principal governments to rationalize and defend foreign policy positions by partisan appeals to international law and by the willingness of professional international lawyers to lend their academic prestige to these legal rationalizations. In considering this problem it is important to realize that the possibility of objective assessment only exists in those national societies where academic freedom is protected, a distinct minority of countries, but it is also necessary to realize that academic freedom may not be enough to assure independence. For instance, careerist motivations, either by way of research support or access to government posts or influence, may exert pressure on the development of genuinely independent views. In this regard, Quincy Wright was an extraordinary phenomenon on the American academic scene, a spectacular career blended with a true independence of outlook. He serves us well, in this and so many other respects, as a positive model.

5 As I have made clear in earlier footnotes, Quincy Wright was convinced on policy grounds that it was desirable to maximize the guidance and restraint functions of international law. There are many evidences, particularly in his numerous non-legal writings, that Quincy Wright was aware of the complexities of international conflict. See, e.g., Wright, The Study of International Relations (New York, Appleton-Century- Crofts, 1955) and A Study of War, 2nd rev. ed. (Chicago, University of Chicago Press, 1965).

6 “Cuban Quarantine: Implications for the Future,” 1963 Proceedings, Am. Soc. Int. Law 1–18.

7 Wright, “The Cuban Quarantine,” ibid. 9–10, at 9.

8 Ibid., at 10; by implication also Professor Wright rejected the claim of regionalist prerogatives relied upon by Abram Chayes.

9 Professor Chayes developed his position on legal prerogatives more fully in “Law and the Quarantine of Cuba,” 41 Foreign Affairs 550 (July, 1963), and “The Legal Case for U.S. Action on Cuba,” 47 Dept. of State Bulletin 763 (1962).

10 Professor Chayes makes no distinction, it seems, between the communication of claims to act in specified ways and the assessment of the legal status of these claims in terms of norms of restraint. What assessment is possible involves the effects of policy on the objectives of law (e.g., minimization of violence, maintenance of freedom of the high seas, discouragement of aggression, etc.), but not the policy itself.

11 Chayes, “Remarks,” note 6 above, at 13.

12 Ibid., at 11–12.

13 Ibid., at 11.

14 Of course, the basis of this influence is an over-all view of the relation between law and change that has prevailed in the United States, especially with regard to the discretion available to judicial decision-makers. The “openness” of the law in other decisional settings is a natural sequel.

15 There is, of course, a strong psychological impulse to harmonize these distinct roles played by an international lawyer.

16 Wright, The Role of Law in the Elimination of War 43 (Manchester, Manchester University Press, 1961).

17 Ibid., at 64.

18 Acheson, “Remarks,” note 6 above, 13–15, at 14; a perceptive critical discussion of the Acheson position is found in Henkin, How Nations Behave 251–271 (New York, Praeger, 1968).

19 Ibid.

20 See, e.g., Boulding, The Image (Ann Arbor, University of Michigan Press, 1956); White, Nobody Wanted War: Misperception in Vietnam and Other Wars (New York, Anchor Books, rev. ed., 1970).

21 Note 6 above, at 16; see also comments on p. 17.

22 My shift in position relates only to initiation of border-crossing war by striking the first blow. Such temporal priority does not, I am now convinced, provide an adequate test of aggression. The adoption of a qualified contextual approach on initiation of war does not imply the extension of this approach to the legal status of territories acquired by force, or to the permissibility of retaining such territories.

23 For a useful appreciation of the tendency by rival super-Powers to erode Charter prohibitions on the use of force, see Franck, , “Who Killed Article 2(4)?”, 64 A.J.I.L 809 (1970)Google Scholar.

24 Among the important efforts to specify or avoid contextual factors are Bowett, Self-Defence in International Law (Manchester, Manchester University Press, 1958); Brownlie, International Law and the Use of Force by States (Oxford, Oxford University Press, 1963); McDougal and Feliciano, Law and Minimum World Public Order (New Haven, Yale University Press, 1961); J. Stone, Aggression and World Order (Berkeley, University of California Press, 1958).

28 I would differentiate between four principal phases on the international force continuum relevant for legal analysis:

I II III IV

Recourses and

Threats Conduct and Execution of Claim Termination of Violence Assessment of and Responsibility Punishment

Each of these phases could be analyzed in relation to the three main positions taken by the quarantine panelists.

26 This assertion intends to emphasize the clarity of the prohibition (Position I) that can be qualified only by sustaining the burden to establish exceptional qualifying circumstances. Therefore Position I/II is defined exclusively by reference to I, and does not attempt to take contextual factors routinely into account as an offset to the clarity of the Charter prohibitions on threats or uses of force.

27 The Concept of Aggression in International Law,” 29 A.J.I.L. 373 (1935); “The Prevention of Aggression,” 50 ibid. 514 (1956).

28 Note 27 above, 29 A.J.I.L. 373, 389 (1935).

29 Ibid., at 391.

30 Quincy Wright also acknowledges a third category of concerns involving the assessment of responsibility for a wrongful use of international force.

31 Ibid., at 395.

32 Note 27 above, 50 A.J.I.L. 514, 519 (1956) (“. . . a suitable definition of aggression seems central in the entire work of the United Nations.”). Cf. recent concerns of comparable character from most diverse sources: Ferencz, “Defining Aggression as a Means to Peace” (pamphlet) (New York, B’nai B’rith International Council, 1972); idem, above, p. 491; Chkhikvadze and Bogdanov, “Who is Hindering Progress in the Definition of Aggression,” International Affairs 22 (Oct. 1971).

33 Note 27 above, 50 A.J.I.L. 514, 530 (1956).

34 Ibid.

35 Ibid.

36 There are obvious difficulties that arise from the employment of diverse tests of aggression. For instance, India and Israel are “aggressor” states in relation to provisional measures, but not in relation to the initiation of hostilities. There is also the question as to whether on each occasion of armed conflict at least one actor is responsible for its initiation. Put more concretely, does it follow from sustaining the burden of exceptional circumstances to overcome Charter prohibitions that the other side is guilty of aggression? By upholding Israel’s recourse to force first in 1967 is one necessarily suggesting that the Arab governments were guilty of prior aggression? This is a difficult problem area that requires detailed analysis.

37 Clearly, the effectiveness and authoritativeness of U.N. initiatives are an important dimension in the over-all assessment of national behavior. Deference to third-party procedures depends, in all social orders, on their capacity to implement their decisions and the degree to which these decisions generate respect. The transition from a self-help to a police system depends heavily on such considerations, especially if the transition is accomplished contractually by voluntary action.

38 In this respect I think it is important to move beyond a mechanical view of “peace at any price” to take account of extreme justice considerations. Important insight into this complexity is to be found in the works of Stone and McDougal-Feliciano cited in note 24 above.

39 Position I needs to be more explicitly linked to certain minimum conditions of order within the international system, including peacekeeping capacities and impartial decision- making by the political organs of the United Nations. The non-fulfillment of Charter expectations in Chapter VII certainly has some bearing on the interpretation of rights and duties under Arts. 2(3), 2(4), 33, 51, 54, and so on. The Charter’s approach to the control of war was to a certain extent organic, and the failure of a part means the alteration of the status of other parts. Certainly, this is one type of answer, not by any means the only satisfactory one, to Professor Franck’s question about who killed Art. 2(4).

40 Quincy Wright was an original member in late 1966 of the Consultative Council of the Lawyers’ Committee on American Policy Towards Vietnam and took a characteristically active and significant r61e in the work of this Council that has used its scholarly resources and stature to oppose the American involvement in the Viet-Nam war on legal grounds.