The decision of the Supreme Court in RJR Nabisco v. European Community is the culmination of sixteen years of litigation, preceded by years of investigation. From a European perspective, the decision can only be read as a disappointment: “we” tried, “we” lost. But beyond the frustration with the outcome, this European take on the RJR decision will focus on two questions: (i) why did the European Community decide to bring proceedings in the United States in the first place; and (ii) what would happen in the reverse scenario, if a foreign public authority or a private plaintiff were to bring suit in the European Union? Answering these two questions casts RJR in a slightly different light and offers an interesting picture of the wider political and regulatory context in the European Union.

The position of justice and law in the international society organized under the Charter of the United Nations seems to have become a matter of controversy among scholars commenting on the Charter. Conflicting views on this matter have been expressed, and they seem to obscure one of the very basic problems arising from the Charter of the United Nations. Professor Clyde Eagleton maintains that “the Security Council was not restricted to legal principles, solutions, and procedures; security was set above justice, and the establishment of order was to precede the reign of law.” Senator Henri Rolin, Delegate of Belgium to the San Francisco Conference, expressed a different view by saying that ”with regard to peace, we felt the need to emphasize, that our first object was to be strong to maintain peace, to maintain peace by our common effort and at all costs, at all costs with one exception—not at the cost of justice.” Professor Alfaro, Delegate of Panama, seconded him. He stressed that “we will not maintain peace and security at the cost of justice; that is to say, sacrificing the rights of any nation.”

Though the eighteenth year of the Permanent Court of International Justice has been the most critical year in its history, the Court has carried on its work in a regular way and some notable additions to its jurisprudence have been made during the year.

In the early months of the year, the Court held two series of meetings, from January 19 to April 4, and from May 15 to June 15; later in the year a series of meetings was held from November 28 to December 5. The Court was in actual session during the year for a total of 116 days; this was considerably less than the average of 144 days for each of the previous seventeen years, though it exceeded the number of 69 days of actual session during the year 1938.

The arbitration between Ethiopia and Italy, concerning the armed clash which occurred at Wal Wal, in the Ogaden, on December 5–6,1934, offers a number of interesting aspects to the student of international adjudication, and, indeed, to the student of international organization and procedure in general. In addition, the case should be recorded as such and for what it is worth while the materials are still available and while personal recollections of the incident are fresh.

It appears to be generally accepted that International Law as we know it today had its beginnings in the writings of the political theorists of the latter sixteenth and early seventeenth centuries, more particularly in the memorable treatise of Grotius which appeared in the year 1625. The works of these writers were produced during the period of so-called rationalism when the true historical view had not yet been discovered, and the precedents and examples which were cited in support of the new rules of international law were taken exclusively from Biblical or classical antiquity. Moreover, in this same period Roman law was held in high esteem, a fact which further served to focus attention upon ancient law and custom. It is not surprising, therefore, to find that many principles which had regulated international conduct among European states, especially those of Teutonic character, during the Middle Ages, were either overlooked or rejected. If we remember that these principles had been enforced by an extensive system of municipal legislation, we shall understand why the founders of international law may have regarded them as res internæ rather than as matters of international import. Recently, however, the problems to which these very principles were applied have become of increasing international concern and vigorous attempts have been made on the one hand to preserve a sphere of municipal jurisdiction and on the other hand to inject into our international jurisprudence the principles upon which they were based. It shall be my purpose to show the early development of the rules which regulated the question of responsibility for aliens, how they were rejected by the early publicists and what effect they had upon later developments in our international law.

A brief description of Belgium’s geography and history is essential to make clear how the present tangled legal situation arose respecting Belgium’s neutrality since its violation in 1914. Belgium is one of those nations, like Palestine and Luxemburg, which, unfortunately for their tranquillity, lie across the easiest route between two powerful states. Her history is largely the story of the passage of armies up and down the Meuse, between France and Germany. The names of Rocroi, Sedan, Namur and Liege tell the story of the importance of this highway.

War in the full sense, according to international law, can exist only by declaration or recognition of belligerency by a state. War in the material sense of an actual contest of armed forces may and does often exist without such declaration or recognition. However desirous a party using armed force within a state and in opposition to it may be to be regarded as a belligerent, such a party has not the legal capacity to raise itself to a belligerent status. This status can be gained only by action of the parent state or of a foreign state. An armed contest may, nevertheless, exist and of this fact others must often take notice.