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World Order—An Agenda for Lawyers

Published online by Cambridge University Press:  12 April 2017

P. E. Corbett
P. E. Corbett*
Affiliation:
Institute of International Studies, Yale University
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Extract

Within the last year the output of designs for perpetual peace has attained something like flood proportions. Exhortations on how to make this the last war and how to win the peace outnumber the unofficial guides to victory. The volume of these publications, and their sales figures, attest a healthy general interest in the purposes for which we are fighting and the ways and means of achieving them. Inevitably, there is much clash of counsel, and some resulting bewilderment among the reading public. But there is one characteristic uniformity; whether they describe themselves as mere “approaches” to peace, or dogmatically present a fixed “blueprint,” most plans of post-war settlement advocate curtailment of national sovereignty and propose extensive and vigorous supranational organization.

Type
Research Article
Information
American Journal of International Law , Volume 37 , Issue 2 , April 1943 , pp. 207 - 221
Copyright
Copyright © American Society of International Law 1943

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References

1 See Picciotto, The Relation of International Law to the Law of England and of the United States of America (1915); Potter, , “Relative Authority of International Law and National Law in the United States,” this Journal, Vol. 19 (1925), pp. 315–326 Google Scholar; Dickinson, , The Law of Nations (1929), pp. 39–75 Google Scholar, with the cases and opinions there cited; Masters, Ruth D., International Law in National Courts (1932)Google Scholar; Kopelmanas, , “Du Conflit entre le Traité International et la Loi Interne,” Revue de Droit International et de Législation Comparée, 3rd series, Vol. 18, 1937.Google Scholar

2 For Great Britain see The Zamora, [1916] 2 A. C. 77; for the United States, Cook v. United States (1933), 288 U. S. 102, 120, and United States v. Payne (1924), 264 U. S. 446, 448. For the practice in Germany, France and Belgium—which is substantially the same as in the English-speaking countries—see Ruth D. Masters, op. cit. The only instance known to the present writer in which a constitution has laid down a clear rule that no law contrary to a treaty shall be valid is that of the Spanish Constitution of 1931, Art. 65, quoted in Mirkine-Guetzévitch, , Droit Constitutionnel International (1933) 161 Google Scholar (cited in Pfankuchen, , A Documentary Textbook in International Law (1940) 41 Google Scholar). The Swiss Federal Tribunal has, however, declared that the terms of a treaty “doivent primer, en cas de collision, les dispositions de la loi Suisse” (cited by Kopelmanas, op. cit., 97).

3 Das Problem der Souveranität und die Theorie des Völkerrechts (1920), pp. 146–147.

4 Moore, , Digest of International Law, Vol. 2, p. 235.Google Scholar

5 Responsibility of States (1929), Art. 2, with comment, and Law of Treaties (1935), Art. 23, with comment.

6 See publications of the P.C.I.J.: Series A, No. 7, p. 19; No. 24, p. 12; Series B, No. 7, p. 16; No. 17, pp. 32 and 35; Series A/B, No. 46, p. 167.

7 In its advisory opinion on the Exchange of Greek and Turkish populations (Series B, No. 10, p. 20), the Permanent Court of International Justice declares self-evident the principle “according to which a State which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligations undertaken.” The words “necessary to ensure” seem to beg an important question. As the law of nations now stands, may a State not fulfill its obligation by action or abstention contrary to its own law, leaving that law nevertheless still in force, unless the obligation is specifically to alter its existing law by repeal or by new legislation?

8 Hudson, , World Court Reports, Vol. 1, pp. 47–48 Google Scholar, and Vol. 3, pp. 10–11.

9 See, e.g., Habicht, , Post-War Treaties for the Pacific Settlement of International Disputes (1931)CrossRefGoogle Scholar.

10 Articles 3 and 4 of the Covenant.

11 Riches, , Majority Rule in International Organization (1940)Google Scholar.

12 Rapisardi-Mirabelli, , “Theorie Générale dea Unions Internationales,” Hague Academy, Recueil des Cours, Vol. 7 (1925), II, p. 376 Google Scholar, and Lauterpacht, , Annual Digest of Public International Law Cases, 1929–1930, pp. 413–415 Google Scholar. A good general study of the subject is Rapisardi-Mirabelli’s later work, Il Diritto Internazionale Administrativo, in Fedozzi, , Trattato di Diritto Internazionale, Vol. VIII, Padova, 1939.Google Scholar

13 Revue de droit international, de sciences diplomatiques, politiques et sociales, Geneva, Vol. 2 (1924), pp. 356–362.

14 Quoted by Fischer Williams, Sir John in “The Legal Character of the Bank for International Settlements,” this Journal, Vol. 24 (1930), pp. 670–671 Google Scholar.

15 Texts in Hudson, , International Legislation, Vol. V, pp. 135–335 Google Scholar.

16 Cf. Hudson, , “The Bank for International Settlements,” this Journal, Vol. 24 (1930), p. 566 Google Scholar.

17 Borchard, articles on “Government Responsibility in Tort,” in Yale Law Journal, Vols. 34 (1925) and 36 (1927), and in Columbia Law Review, Vol. 28 (1928); Harvard Research in International Law (1932), “Competence of Courts in Regard to Foreign States,” this Journal Supplement, Vol. 26 (1932), p. 451, and Fox, “Competence of Courts in Regard to Non-Sovereign Acts of Foreign States,” ibid., Vol. 35 (1941), pp. 632–640; Allen, Eleanor, The Position of Foreign States before National Courts (1933)Google Scholar.

18 For the text see Hudson, , International Legislation, Vol. 3, p. 1837.Google Scholar

19 Final Report, League of Nations Document C.E.I. 44, May 24, 1927, p. 23.