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International Law and Resort to Armed Force

Published online by Cambridge University Press:  16 January 2009

J. L. Brierly
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Extract

THE relation of war to the international system was stated by W. E. Hall in a well-known passage of his treatise in these words: ‘International law has no alternative but to accept war, independently of the justice of its origin, as a relation which the parties to it may set up if they choose, and to busy itself only in regulating the effects of the relation.’ This view, which came to be more or less generally accepted by international lawyers in the course of the nineteenth century, marked the definite abandonment of the claim of the classical jurists to distinguish between bellum iustum, and bellum iniustum, and it was in a sense an admission that international law had so far failed in the primary task of all legal systems, that of establishing and maintaining a distinction between the legal and the illegal use of force. But it had the great merit of candour, and it brought the theory of the law into accord with what had always been and still remained the facts of international practice.

Type
Research Article
Information
The Cambridge Law Journal , Volume 4 , Issue 3 , November 1932 , pp. 308 - 319
Copyright
Copyright © Cambridge Law Journal and Contributors 1932

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References

1 International Law (8th ed.) p. 82.

2 International Law, Part II, p. 19.

3 Cf. Moore, Digest, VII, 140.

4 Ibid. p. 434.

5 International Law (4th ed.), Vol. II, p. 84.

6 These three conditions were applied judicially in an arbitration between Portugal and Germany arising out of damage caused in the Portuguese colonies by Germany during the war and justified by her as acts of reprisal. The award is reported in Revue de droit international, 1929, p. 255.

7 Traité de droit international public, Tom. 1, 3me partie, p. 690.

8 Grotius Society Transactions, Vol. 11, p. 29. A number of definitions by different writers are collected in the article.

9 The italics are mine.

10 L'interprétation du Pacte au lendemain du différend italo-grec. Revne de dr. int. et de lég. comp. 1924, p. 377.

11 So ambiguous that Dr. McNair seems to interpret it in a sense exactly the opposite of that which Prof. de Visscher at least intended it to bear. He regards it as ‘putting plainly on record’ that Art. XII is ‘not necessarily violated by the use of coercive measures, even when—I think we may justifiably infer from the circumstances giving rise to the interpretation by the jurists—those coercive measures involve the application of force’: loc. cit. p. 43.

12 The letter is quoted by Toynbee, Survey of International Affairs, 1926, at p. 380.

13 I have attempted to discuss this question in an article on ‘The Legislative Function in International Relations,’ published in Problems of Peace, 5th series, pp. 205–229 (Oxford University Press).