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War, Neutrality and Non-Belligerency

Published online by Cambridge University Press:  12 April 2017

Edwin Borchard
Edwin Borchard*
Affiliation:
the Board of Editors
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Extract

At Havana on March 27, 1941, Attorney General Jackson delivered an address designed to prove that as a matter of law the United States was now obliged to render to England (and presumably others) all aid “ short of war,” while “ at the same time it is the declared determination of the government to avoid entry into the war as a belligerent.” Apparently convinced that United States military aid to one belligerent alone cannot be justified by the traditional international law, the Attorney General feels obliged first to explode as obsolete the international law conceptions of war and neutrality of the past two centuries, culminating in The Hague Conventions, and to maintain that a new international law has now been revealed in the Covenant of the League of Nations, the Kellogg Pact, the Budapest “ Articles of Interpretation” of 1934, and the Argentine Anti-War Treaty of 1933, all of which are alleged to make discrimination the new way of life for neutrals. The legislation of Congress requiring impartiality is not accorded even honorable mention. The “ new international law” is thus found in the vague and illusory monuments to the myth called “ collective security,” which crumbled under the impact of the first European crisis. It should be no surprise to the Attorney General that many international lawyers do not share his views on international law or how international law is created, or follow his unique construction of documents.

Type
Research Article
Information
American Journal of International Law , Volume 35 , Issue 4 , October 1941 , pp. 618 - 625
Copyright
Copyright © American Society of International Law 1941

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References

1 This Journal, Vol. 35 (1941), p. 348 ff.

2 My esteemed colleague, Professor Quincy Wright, also seeks to demonstrate, under the same inspiration and in the light of committee reports, that in becoming the “arsenal of democracy” the United States is performing a legal obligation or exercising a legal privilege under international law. Ibid., Vol. 35 (1941), p. 305 ff.

3 For a neutral, it would not be more legal if extended to both or all belligerents.

4 Nevertheless, the Attorney General invoked them in 1940 in his opinion concerning the destroyer-naval bases deal. This Journal, Vol. 34 (1940), p. 690 ff. So did the Department of State in the protest to Great Britain, January 2, 1940, on censorship of the mails. 2 Bull. Dept. of State, p. 3. See also Pan American protest on the Wakama, 2 Bull., 306.

5 Hall’s International Law, 5th ed., 1904, p. 61; this Journal, Vol. 35 (1941), p. 350.

6 Dept. of State, Publication No. 1079.

7 Portugal pointed out that general maxims, however benevolent, do not solve concrete problems. It deprecated “that habit of entrusting the solution of grave external problems to vague formulae,” and while admitting universal concurrence in general aspirations for human welfare, intimated that a more profound analysis was a condition of practical solutions. Press Releases, XVII, No. 416, Sept. 18, 1937, p. 229.

8 This is one of the most fatuous terms in the new international vocabulary. The conception is entirely subjective and serves the purposes of a “cuss-word,” raising the heat but shedding no light. Both sides necessarily become more belligerent and there is no limit to the armaments a nation must keep to enforce the “prerogatives” or resist the “penalties” of coercer and coerced, respectively. Since there is no objective criterion of “aggression,” in spite of feeble attempts to define it in certain treaties now liquidated, the effort to reach a judgment is reasonably sure to divide the nations and increase the area of conflict and war. Moreover, such a judgment will practically always be based on self-interest only—hence the division of opinion.

9 “The Evolution of the Concept of the Just War in International Law,” this Journal, Vol. 33 (1939), p. 665.

10 A common meaning, originating in Rome and still preserved in our distinction between “perfect” and “imperfect” or unlimited and limited war, was to regard a war appropriately commenced as “justum,” i.e., legally correct. Some, like Ayala, speaking of the justice of a cause, considered this a matter of politics and equity, not of law or as having any bearing on the conduct of war. Von Elbe, loc. cit., p. 676. Gentilis considered that both belligerents might have a “just cause.”

11 De Jure Belli ac Pads, Bk. II, c. xxii, sees, viii–xii.

12 The Pope is reported (New York Times, Sept. 17, 1941, p. 1) to have declined to pass judgment on which side in the present war was “just,” and to have denied that one could speak of any side as fighting a “just war.” 111

13 This Journal, Supplement, Vol. 28 (1934), p. 79.

14 If nations nevertheless undertake war or “aggression” the contracting parties “will adopt in their character as neutrals a common and solitary attitude” and the means “authorized by international law.” In no case will they “resort to intervention,” subject to the “attitude” incumbent on them under the League Covenant (Art. III). The Havana Convention of 1928, not mentioned by the Attorney General, was a comprehensive code of neutrality.

15 Congressional Record, Daily ed., p. 1345 ff. See also the careful analysis by Prof. Herbert Wright, Cong. Rec, March 6, 1941, Vol. 87, No. 44, pp. A. 1114–1117.

16 This Journal, Vol. 35 (1941), p. 355, note. The Attorney General says they were “not disapproved by the United States.”

17 The draft of the Research in International Law, entitled “Rights and Duties of States in Case of Aggression,” also invoked by the Attorney General, is frankly conceded not to be international law and is proposed de legeferenda only. No mention is made of the more important and voluminous legal code on “Neutrality in Naval and Aerial War” promulgated at the same time under the same auspices.

18 Congressional Record, LXX (Jan. 15, 1929), p. 1730. Says the report: “ . . . the treaty does not provide sanctions, express or implied.” Should it be violated, “there is no obligation or commitment, express or implied . . . to engage in punitive or coercive measures” against the violator. “ . . . the treaty does not, either expressly or impliedly, contemplate the use of force or coercive measures for its enforcement. . . . It is a voluntary pledge upon the part of each nation that it will not have recourse to war except in self-defense,” and each nation “is the sole judge of what constitutes the right of self-defense and the necessity and extent of the same.” The report adds: “This treaty in no respect changes or qualifies our present position or relation to any pact or treaty existing between other nations or governments.”