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International law and the maintenance of peace*

Published online by Cambridge University Press:  07 July 2009

Bert V.A. Röling
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Can international law help to maintain peace? If so, which areas of international law are relevant to the problem of war and peace? For a long time international law merely recorded that there was a distinction between the law of peace and the law of war, jus pacis and jus belli, a distinction based on the fact that there was a substantial difference between friend and foe, and that the enemy relationship could be one of life and death. This is typical of an underdeveloped legal community. The national legal order no longer recognizes the enemy relationship in the national context. This relationship only fits into a structure lacking central authority and central power. Such as a structure of sovereign States which determine their own way of life and are responsible for their own security. A structure of this kind is a polemogenous one in which the power struggle is considered the ultima ratio. The price of national sovereignty is occasionally war, The price of lasting peace will inter alia be interference with unlimited national sovereignty, restriction of the individual country's freedom of decision in matters concerning armaments, economic structure, ideology and culture, environmental protection and national law.

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Section A: Articles
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Netherlands Yearbook of International Law , Volume 4 , December 1973 , pp. 1 - 103
Copyright
Copyright © T.M.C. Asser Press 1973

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References

1. Discussed in greater detail in my article “De rechtspositie van de opstandige in de burgeroor-log” [The legal position of the rebel in a civil war], in Recht als instrument van behoud en ver-andering [Law as an instrument of conservation and change], van der Ven, J.J.M. commemorative collection (Deventer, 1972), pp. 391–401.Google Scholar

2. Kenneth, Boulding, Conflict and Defense. A General Theory (New York, 1962), p. 5Google Scholar. In his book Harmony and Conflict in Modern Society (London 1966) Jan Pen sees conflict as a mere clash of interests (p. 12).Google Scholar

3. South West Africa cases (Preliminary Objections), I.C.J. Rep. 1962, p. 328.

4. This analysis agrees with the view of the Permanent Court in the German Interests in Polish Upper Silesia case, PCIJ Series A, No. 6, 1925, p. 14.

5. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Rep. 1971, p. 24.

6. von Clausewitz, Cail, Vom Kriege (1832, Leipzig, 1935 edit.) p. 640.Google Scholar

7. More fully discussed by Raymond, Aron in Le Grand Débat, Initiation à la stratégie atomique (Paris, 1963), pp. 76 et seq.Google Scholar; Herman, Kahn, On Thermonuclear War (Princeton-London, 1960), pp. 226 et seq.Google Scholar

8. Discussed more fully in Johan, Galtung, “Peace Thinking”, in Lepanski-Buehrig-Lasswell, (eds.), The Search for World Order, Studies by Students and Colleagues of Quincy Wright (New York 1971), pp. 120–153, at p. 135 et seq.Google Scholar

9. General Assembly resolution 2508 (XXIV) of 21 November 1969 which, like previous resolutions called the situation in Southern Rhodesia “a threat to international peace and security” as the Security Council had done in its decision to impose sanctions (resolution 253 of 29 May 1968).

10. In the days of the natural law doctrine of bellum justum there was usually a requirement of auctoritas which was reserved to the sovereign State (and was not thought to exist in the case of individuals or corporate bodies). In our days it is beginning to appear that auctoritas to consider force permissible in the struggle against intolerable injustice is vested exclusively in the United Nations.

11. Hans, Kelsen, The Law of the United Nations (London, 1951)Google Scholar, considers the term “security” in the expression “International peace and security” superfluous. “International security is guaranteed if international peace is maintained” (p. 13). In Kelsen's view “international peace” means “a condition of absence of force in the relations among States” (p. 19).

12. People have at times wanted to read something into the term “security” that had a direct connection with justice. This does not seem altogether correct, since Article 2, paragraph 3, juxtaposes “international peace and security, and justice” as requirements for the peaceful settlement of disputes.

13. This is a reference to what is called the “Scandinavian School of Peace Research”. See Herman Schmid's “Peace Research as a Technology for Pacification” and Lars, Dencik's “Peace Research: Pacification or Revolution?”, in Proceedings of the IPRA Third Conference, Vol. I: Philosophy of Peace Research (Assen, 1970), pp. 20–69 and 74–91Google Scholar; Johan, Galtung, “Peace Research: Science or Politics in Disguise?”, 21 Internationale Spectator (1967), pp. 1573–1603Google Scholar. Galtung takes the view that peace research is concerned with both positive and negative peace, with great emphasis on the meaning of “structural violence”. See, for instance, his “Violence, Peace and Peace Research”, 6 Journal of Peace Research (1969), pp. 167–191, at p. 186.Google Scholar

14. In Prospects for the West (Cambridge, 1963), p. 43Google Scholar, J. William Fulbright finds that there is a great contrast between “our needs” and “our capacities”. It was on the basis of the same distinction that Emèric de Vattel distinguished between (inoperative) natural law as “jus necessarium” and operative but insufficient positive law as “jus voluntarium”.

15. See on this question Stanley, Hoffmann, The State of War (New York – Washington - London, 1965), p. 132.Google Scholar

16. Discussed more fully in Verwey, W.D., Economic Development, Peace and International Law (Assen, 1972), pp. 7 et seq.Google Scholar

17. de Tocqueville, A., L'ancien régime et la révolution, Vol. II, Chap. IV (ed. Mayer, N.R.F., 7th edition), p. 223Google Scholar, pointed out that the revolution was at its most violent where most had been done to bring about improvements, “le mal est devenu moindre, il est vrai, mais la sensibilité est plus vive”. Comparative study of existing analyses of revolution in Ted, Gurr, Why men rebel (Princeton, 1970).Google Scholar

18. Mauk, Mulder, Het spel om de macht. Over verkleining en vergroting van machtsongelijkheid [The power game, Diminution and enlargement of power inequality] (Meppel, 1972)Google Scholar, a fascinating study which no practitioner of the social sciences should neglect.

19. Fulbright, J. William, The Arrogance of Power (New York, 1966).Google Scholar

20. Differently Baehr, P.R., “Internationale politiek en organisaties” [international politics and organisations], in Hoogerwerf, A. (ed.), Verkenningen in de politiek [Reconnaissance sorties in politics], Part II (second edition, Alphen aan de Rijn, 1973), pp. 117–127Google Scholar, where he says: “Maintenance of international peace and security does, however, also mean maintenance of the international status quo, which many find unacceptable” (p. 127). Cf. my contribution to this collection: “Vredespolitiek” [Peace policy], pp. 203–215. I have the impression that in speaking of changes in the status quo many authors are thinking chiefly of changes in national frontiers.

21. See Strauss, F.J., Herausforderung und Antwort. Ein Programm für Europa [Challenge and answer. A programme for Europe] (Stuttgart, 1968)Google Scholar. Strauss's theory is an adaptation of the ideas expressed by the French general, André Beaufre, in his many writings on “stratégie directe”. “stratégic indirecte” and “stratégie totale”, most recently in La guerre révolutionnaire. Les formes nouvelles de la guerre (Paris, 1972), pp. 31 et seq.Google Scholar

22. This is dealt with in greater detail in my dissenting opinion as judge on the I.M.T.F.E. See The Tokyo Judgment, Vol. II, Dissenting Opinion of Justice Röling (Amsterdam, University Press, 1973).Google Scholar

23. Discussed more fully in my International Law in an Expanded World (Amsterdam, 1960).Google Scholar

24. The Treaty of Tlatelolco, of 14 February 1967, begins with the preambular paragraph: “Desiring to contribute, so far as lies in their power, towards ending the armaments race, especially in the field of nuclear weapons, and towards strengthening a world at peace …”.

25. The other horn of this dilemma consists in the fact that what is possible for the maintenance of peace is largely immoral and is endured as something degrading. The present maintenance of peace relies on the “balance of terror”, the keeping ready for a “second strike” of nuclear rockets to exterminate the aggressor's civilian population. In other words, it is a peace arrangement resting on mutual readiness to commit genocide.

26. Compare Deutsch, Karl W., The Analysis of International Relations (Englewood Cliffs, New Jersey, 1968), p. 39.Google Scholar

27. Cf. the way this idea is formulated by Tamar in Vrij Nederland on 12 February 1972: “There is a great incapacity to be just in one's emotions, i.e. to be moved by the fate of someone who was not born in the geographical territory to which one's sympathy is confined”.

28. In 1921 the term was still “traite des femmes et des enfants” (traffic in women and children), but the United Nations Convention of 2 December 1949 speaks in general terms of the “traite des êtres humains” (traffic in persons).

29. See Johan, Galtung, “On the Future of the International System”, 4 Journal of Peace Research (1967) pp. 305–333.Google Scholar

30. On this point it is very instructive to read van Kan, J., “L'Idée de l'organisation internationale dans ses grandes phases”, 66 Recueil des Cours (1938-IV) pp. 295–611.Google Scholar

31. Cf. Engers, J.F., Hoofdstuk XI van het Handvest van de Verenigde Naties [Chapter XI of the Charter of the United Nations] (Amsterdam, 1956), pp. 47 et seq., p. 226.Google Scholar

32. Cf. the views of Hans, Kelsen, The Law of the United Nations (London, 1951), pp. 13 et seq., pp. 279 et seqGoogle Scholar. According to Kelsen this is always a case of “attempts to alter by force” the existing situation, or a settlement made by the United Nations (p. 287). Adlai Stevenson formulated this view when he was United States representative to the United Nations (on 2 August 1963): “The founders of the United Nations were very careful to reserve the right of the Organization to employ mandatory coercive measures in situations where there was an actuality of international violence or such a clear and present threat to the peace as to leave no reasonable alternative but resort to coercion” (quoted in Van Dyke, Vernon, “Violations of Human Rights as Threats to the Peace”, in Lepansky-Buehrig-Lasswell, (eds.), The Search for World Order (New York, 1971), pp. 189–214, at p. 203).Google Scholar

33. This is a technique aimed at strengthening the binding force of the standard by declaring that what is being done is the recording of existing customary law. The same technique is, of course, used in treaties to promote universal applicability, even in the case of States which have not ratified. Thus the Convention on the High Seas (1958) was adopted “as generally declaratory of established principles of international law” (preamble).

34. E.g..the Uniting for Peace Resolution (which created a new exception to the prohibition of violence), the resolutions recognizing the right of rebellion and the Declaration on Permanent Sovereignty over National Resources (General Assembly resolution 1803 (XVII) of 14 December 1962), which recognized the right to nationalize under certain conditions. An important feature of this resolution is the distinction made between rights acquired under colonial rule (which can apparently be nationalized subject to less stringent conditions) and rights acquired since independence.

35. Claude, Inis L., The Changing United Nations (New York, 1967), pp. 58 et seq.Google Scholar

35a. The term “disturbing international peace and security” is no “legal” term of the Charter with legal consequences. The Charter distinguishes disputes and situations the continuance of which is “likely to endanger the maintenance of international peace and security” (Arts. 33 and 34) and “in fact likely to endanger the maintenance of international peace and security” (Art. 37), and the “threat to the peace, breach of the peace, or act of aggression” of Art. 39.

36. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970). Advisory Opinion, ICJ Rep. 1971, p. 293: “It was to keep the peace, not to change the world order, that the Security Council was set up”, and p. 340: “To assert that a matter may have a distant repercussion on the maintenance of peace is not enough to turn the Security Council into a world government”, respectively. It was important in this connection that in resolution 276 the Council had not stated explicitly that the existing situation constituted “a threat to the peace”. Precisely because the Charter lays down that the Security Council may act only if the maintenance of peace so requires, it does not make a great deal of difference whether it is stated explicitly that one of the three situations mentioned in Article 39 exists. It is only the connection with a threat to the peace that can empower the Council to take decisions such as ruling that the presence of South Africa in Namibia was unlawful. Cf. also my note on the Advisory Opinion in 21 Ars Aequi (1972) pp. 380–390.

37. The clearest formulation of this danger was made by Lord Caradon, the representative of the United Kingdom, at the General Assembly meeting of 14 December 1967: “We see the forces of African nationalism north of the River Zambesi and the forces of white supremacy south of the river facing each other in a confrontation. That confrontation creates, so I have long believed, one of the greatest dangers of the world – the danger of race conflict, a conflict which could inflame the whole of Africa and involve the whole world” (quoted by Vernon Van Dyke, op. cit., p. 201).

38. Everything is linked with the changeover from the colonial system to a neo-imperialism of spheres of influence. Falk, Richard A. (”Janus Tormented: The International Law of Internal War”, in Rosenau, J. (ed.). International Aspects of Civil Strife, Princeton, 1964, pp. 185–248)Google Scholar is correct when he says (p. 186): “If empire once depended primarily upon the extent of colonial occupation, it now increasingly depends upon the capacity to influence the outcome of important internal wars”. See also my “De burgeroorlog in de internationale verhoudingen” [Civil war in international relations], in Röling, (ed.), Opstand en Revolutie [Rebellion and revolution] (Assen, 1965), pp. 9–24.Google Scholar

39. It frequently happens that new legal ideas are tested on available subjects of law, such as the vanquished after the First World War. Other new legal ideas, too, were applied (in a discriminatory way) in the Treaty of Versailles, such as those of the limitation of national freedom to arm (Part V, Articles 159 ff., as a first step towards universal application, which never ensued), and the idea that state-owned merchant vessels should not enjoy a privileged status (Article 281, which did, however, prove viable).

40. Referred to in this text as Declaration 2625 (XXV).

41. In a different field the Soviet Union does apply the Brezhnev Doctrine fully. It is common knowledge that, since the London Conference of 1933, the Soviet Union has had its own definition of aggression, which is the taking of the first military action against a State. The Russian proposals on this question in the Aggression Committees of 1953 and 1956 applied the fixed formula that no consideration whatever respecting the internal political or economic situation could be used as justification. See, for instance, the proposed definition of aggression in the 1956 Aggression Committee (document A/3574, New York 1957, p. 30): the acts “may not be justified by any considerations of a politic, strategic or economic nature”. The definition of aggression proposed by the Soviet Union in 1970 contained the following preambular paragraph: “Considering that the use of force by a State to encroach upon the social and political achievements of other peoples or of other States is imcompatible with the principle of the peaceful coexistence of States with different social systems” (italics supplied). In other words, such use of force would not be prohibited between socialist States.

42. In the case of foreign trade this is apparent from statistics: foreign trade constitutes 50 per cent, of the national income in the case of States with 1 million inhabitants, 35 per cent, in the case of States with 10 million inhabitants and 7 per cent, in the case of States with 200 million inhabitants, according to Karl, Deutsch, “Power and Communication in International Society”, in De, Reuck and Knight, (eds.), Conflict in Society (London, 1966), pp. 300–316 at p. 313Google Scholar. Probably contacts of other kinds would show similar variation.

43. Inis, Claude, “The OAS, the United Nations and the United States”, International Conciliation, No. 547 (New York, 1964)Google Scholar, is very instructive on this question.

44. Cf. Eisenhower, D.D., Mandate for Change (Doubleday, 1963), p. 424Google Scholar: “This resolution formed a Charter for the anti-communist counterattack that followed”. The military intervention in the Dominican Republic (1965) is comprehensible, assuming that the United Stated regarded Juan Bosch as a communist and that communism meant a “threat to the peace”. This can also be seen as the forerunner of the United Nations view which considers certain regimes (apartheid and colonial domination) “a threat to the peace”, but there is also a parallel with Soviet Russia's misconduct against Czechoslovakia in 1968, which, of course, was also made out to be a regional matter.

45. See Carl, Schmitt, Der Nomos der Erde [The nomos of the world] (Cologne, 1950), pp. 162 et seq.Google Scholar, and Völkerrechtliche Grossraumordnung mit Interventionsverbot für raumfremde Mächte [Major area planning under international law with prohibition of intervention for Powers extraneous to the area] (Berlin-Vienna, 1939), p. 39Google Scholar. There is a very clear and critical summary of Schmitt's ideas in Peter, Schneider, Ausnahmezustand und Norm. Eine Studie zur Rechtslehre von Carl Schmitt [Emergency situation and the norm. A study on the legal doctrine of Carl Schmitt] (Stuttgart, 1957), pp. 224 et seq.Google Scholar

46. Edward, McWhinney, International Law and World Revolution (Leiden, 1967), p. 94.Google Scholar

47. The question is also an important one as regards relations within NATO, which may acquire significance, inter alia, in the event of internal violence in a Member State. Can NATO act in the event of civil war within NATO territory (e.g. revolution against a colonels' regime or a presidential dictatorship)? The question will then be whether “armed attack” within the meaning of Article 5 has taken place. At the time the following statement was made in the United States Senate Foreign Affairs Committee: “Obviously purely internal disorders or revolutions would not be considered ‘armed attacks’ …However, if a revolution were aided and abetted by an outside power such assistance might possibly be considered an armed attack”. American Foreign Policy, 1950–55, Basic Documents (United States Department of State, Publication 6446, Washington 1957), Vol. I, p. 835Google Scholar, as quoted by Inis Claude (op. cit., p. 47). It is interesting to note in this connection that in 1952 NATO approved France's action in Indochina, since resistance to “direct or indirect aggression in any part of the world is an essential contribution to the common security of the free world”. Consequently, France's action was “in fullest harmony with the aims and ideals of the Atlantic Community” (see NATO, Final Communiqués, 1949-1970, pp. 66–67).Google Scholar

48. It would thus be possible to conceive a treaty entered into by the Western European States under which the democratic regimes would safeguard themselves against seizure of power by “colonels” and consent in advance to regional intervention if such seizure of power took place.

49. This is the drift of the provision included in Declaration 2625 (XXV) on the initiative of the Netherlands: “Recourse to, or acceptance of a settlement procedure freely agreed to by States with regard to existing or future disputes to which they are parties shall not be regarded as incompatible with sovereign equality”, though this only concerns settlement by peaceful means.

50. Cf. Declaration 2625 (XXV) which accepts the principle that intervention is not permissible and declares explicitly: “Every State has the inalienable right to choose its political, economic, social and cultural Systems, without interference in any form by another State”. This word “inalienable” refers to the jus cogens nature of the provision, and could be intended to exclude the right of waiver.

51. Schlezinger, Arthur M., A 1000 days: John F. Kennedy in the White House (Mayflower-Dell, ed. 1967), p. 626.Google Scholar

52. Op. cit. p. 61.

53. E.g. Harry, Macdoff, The Age of Imperialism, The Economics of U.S. Foreign Policy (2nd printing, New York–London, 1969), p. 142.Google Scholar

54. The introductory principles (Article 2, paragraph 1) contain the following statement: “Socialist Yugoslavia, using the experience of the National Liberation War, frames its concept of universal people's defence as the only possible form of resisting an armed aggression”.

55. “Nobody shall have the right to recognize or sign a capitulation of the country or a capitulation of the armed forces, nobody shall have the right to accept and recognize occupation of the country or a part of it. If an enemy temporarily seizes the territory of the country or a part of it, the citizens, the organs and other organizations on the territory shall continue the armed struggle and resisting the enemy and shall carry out the orders of the organ which conducts the universal people's defensive war on that part of the territory” (Part I, Article 7). The prohibition of signing or recognizing capitulation is already laid down in Article 254 of the Constitution: “No one shall have the right to sign or acknowledge capitulation or the occupation of the country on behalf of the Socialist Federal Republic of Yugoslavia. Any such act is unconstitutional and punishable”

56. The Yugoslav deterrent resembles the nuclear balance of power in that if it fails it is a disastrous failure, but it differs from the nuclear deterrent in that “people's defence” cannot be used offensively, and thus doe's not intensify the fear and the mistrust. This ‘deterrence’ is not in itself a factor which increases tension by instilling fear, as do the “nuclear deterrent” and the “balance of terror”.

57. Op. cit. p. 6.

58. Bluntschli, J.C. once called permanent neutrality “Selbstentmannung” [self-emasculation], a “Verzicht auf die selbständige Existenz” [renunciation of autonomous existence]: Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt [Modern international law of civilized States presented as a Law-Book] (Nördlingen, 1872), pp. 413Google Scholar et seq. This, however, was the typical conception in the days of the “civilized States”and it is not longer convincing in the days of the “peace-loving States”.

59. A permanently neutral country can, of course, be a member of functional Inter-Governmental Organizations. In Switzerland's view permanent neutrality rules out membership of the United Nations, not only because of possible involvement in United Nations military action, but also because of the need to take sides in voting. Opinions differ on this point. The Soviet Union had no objection to Austria joining the United Nations, but did object to its joining the EEC. It was, in fact inferred from Austria's accession to the United Nations that in 1955 there had been a fundamental change in the character of the United Nations. See Rodolfo, de Nova, “Die Neutralisation Oesterreichs” [The neutralization of Austria] 54 Friedenswarte 1958, pp. 298–320 at p. 318.Google Scholar

60. The “prisoner's dilemma” situation is discussed more fully in my Einführung in die Wissen-schaft von Krieg und Frieden [Introduction to the science of peace and war] (2nd impression, Neukirchen-Vluyn, 1971), p. 157.Google Scholar

61. Text in Stephan, Verosta, Die dauernde Neutralität [Permanent neutrality] (Vienna, 1967), pp. 113–117Google Scholar, where it is explicitly stated that the Neutralitätspflichten [obligations of neutrality] are Einschränkungen der Souveränität [restrictions of sovereignty]. On the question of Swiss permanent neutrality see the excellent book by Daniel, Frei, Neutralität – Ideal oder Kalkül? [Neutrality – ideal or calculation ? ] (Frauenfeld and Stuttgart, 1967).Google Scholar

62. Text of the “Declaration on the Neutrality of Laos”, in Black, , Falk, , Knorr, and Young, , Neutralization and World Politics (Princeton, 1968), pp. 169–184Google Scholar. This declaration is important from a legal point of view since it concerned the neutralization of a developing country. One provision obliged Laos to accept “unconditional aid” only, while the States which recognized its neutrality undertook to attach no conditions “of a political nature” to aid. Laos further undertook to allow no foreign troops in its territory, and not to accept the protection of any alliance, including SEATO.

63. See the text of the Austrian “Bundesverfassungsgesetz” [Federal Constitution Act] of 26 October 1955 on the subject of the country's neutrality, Verosta, op. cit., pp. 117–118.

64. Arthur, Nussbaum, A Concise History of the Law of Nations (New York, 1950), p. 126.Google Scholar

65. On strategic and political aspects of armament, arms control and arms reduction see Art, Robert J. and Waltz, Kenneth N. (eds.), The Use of Force, International Politics and Foreign Policy (Boston, 1971)Google Scholar; Hedley, Bull, The Control of the Arms Race, Disarmament and Arms Control in the Missile Age (London, 1961)Google Scholar. If international law is formulated to ensure the continuing existence of an unimpaired human race, this will necessarily concern much broader fields than armaments alone. An example of an attempt to formulate this “natural law of the atomic age” can be found in my “Koude Oorlog en Vreedzame Coexistentie” [Cold war and peaceful coexistence] in Röling, (ed.), Aspecten van de Koude Oorlog [Aspects of the Cold War] (Assen, 1964), pp. 96–132.Google Scholar

66. Dealt with more fully in my “The polemological Aspects of Deterrence”, in Congresboek Deterrence and Détente, a volume commemorating the centenary of the Hogere Krijgsschool [Military Staff College], 1868–1968, The Hague, 1969, pp. 136–161.Google Scholar

67. See Noel, Baker, The Arms Race (London–New York, 1960)Google Scholar; Dieter, Senghaas, Abschreckung und Frieden. Studien zur Kritik organisierter Friedlosigkeit [Deterrence and Peace. Contributions to the criticism of organized non-peace] (Frankfurt, 1969).Google Scholar

68. von Weizsäcker, C.F., Atomenergie und Atomzeitalter [Atomic energy and atomic age] (Fischer Bücherei, 3rd impression, 1958), pp. 155 et seq.Google Scholar, where he says: “Das Recht soil möglich machen, dass Menschen miteinander leben” [The law should make it possible for human beings to live together] (p. 162).

69. Cf. the formulation in Declaration 2625 (XXV) of the legal obligation to negotiate in good faith on disarmament.

70. Cf., on the development of the conclusion of peace, von Hentig, Hans, Der Friedensschluss. Geist und Technik einer verlorenen Kunst [The conclusion of peace. Spirit and technique of a lost art] (Munich, 1965).Google Scholar

71. Agreements between the United States and the Soviet Union of May 1972, which limit the quantity and quality of intercontinental anti-ballistic missiles (ABMs) and the quantity of offensive missiles. Texts in 11 I.L.M. (1972) pp. 784 et seq.

72. I have borrowed this argument from the excellent study by Burgers, J.H., “The Netherlands and Disarmament”, which is to appear in a volume on International Law in the Netherlands (to be published by the Inter-University Institute of International Law – T.M.C. Asser Institute, The Hague).Google Scholar

73. See text in Burgers, loc. cit.

74. The relationship between these special clausula provisions and the general provisions in the Vienna Convention on the Law of Treaties is discussed more fully in my “De clausula rebus sic stantibus in het Volkenrecht” [The clausula rebus sic stantibus in international law], in R.M. Themis, 1972, pp. 574–601.

75. See the masterly study of the Stockholm International Peace Research Institute (SIPRI) entitled: The Arms Trade with the Third World (Stockholm–New York, 1971, 910 pp.).Google Scholar

76. Kennedy's important Washington speech is reproduced in full in the New York Times of 11 June 1963.

77. See Edward, McWhinney, Conflit idéologique et ordre public mondial (Paris, 1970), pp. 15Google Scholar et seq. and 141 et seq.

78. Program of the Communist Party of the Soviet Union, (Crosscurrents Press, New York, 1961) p. 112.

79. E.g. Ramundo, Bernard A., Peaceful Coexistence. International Law in the Building of Communism (Baltimore, 1967)Google Scholar, who speaks of “a strategy of conquest and capitulation” (p. 225), and says (p. 229) that “the law of peaceful coexistence it little more than a lex sovietica designed to shape international relationships in the Soviet interest”.

80. Raymond, Aron, Le Grand Débat (Paris, 1963), p. 41.Google Scholar

81. Cf. the reports and debates of the International Law Association, Brussels 1962, Tokyo 1964 and Helsinki 1966.

82. In 1961 the Soviet Union proposed codification of the legal principles of peaceful coexistence. The General Assembly changed the name of the agenda item, since for many people the doctrine of peaceful coexistence was too closely linked with communist doctrine, and because the new name would ensure a more positive content. In recent years even the West has become less averse to the name “peaceful coexistence”. In the Declaration on Social Progress and Development (General Assembly resolution 2542 (XXIV) of 11 December 1969), adopted unanimously less two abstentions, the Members of the United Nations declare their conviction that “social development can be promoted by peaceful coexistence, friendly relations and co-operation”. In the SALT I agreements there is explicit recognition of peaceful coexistence between the United States and the USSR.

83. Where Article 13 of this Agreement provides that the question of the Vietnamese armed forces will be settled “in a spirit of national reconciliation and harmony, equality and mutual respect”, it will not, however, be advisable to apply the a contrario rule.

84. Alfred, Zimmern, The League of Nations and the Rule of Law, 1928–1935 (London, 1936), pp. 257 et seq.Google Scholar

85. In the application of this Convention the Netherlands, by the Act of 18 February 1971 (Stb. 1971 No. 96), amended Articles 137c and 137d of the Penal Code, and inserted a number of new articles, such as Article 429 quater, which reads: “Anyone who, in the exercise of his profession or the conduct of his business, in the offering of goods or services, or in the fulfilment of an offer, discriminates against another person because of his race, shall be liable to imprisonment for not more than one month or to a fine not exceeding 1000 guilders”. A new Article 9a was inserted in the Wet Economische Mededinging (Economic Competition Act), reading: “1. Any provision of a competition regulation which involves discrimination against persons because of their race shall not be binding”.

86. In dealing here with the polemological aspect of the implementation of human rights we refrain from discussing the other autonomous motives, the values of “freedom and justice”. From a polemological point of view they are relevant only in so far as injustice and the lack of liberty are causes of discontent, rebellion and violence. But it is self-evident that the recognized values of freedom and justice would be quite sufficient to motivate recognition and would be important enough in themselves to justify unavoidable violence.

87. Resolutions 2307 (XXII) of 13 Dec. 1967; 2396 (XXIII) of 2 Dec. 1968; 2506 (XXIV) of 21 Nov. 1969 and 2671 (XXV) of 8 Dec. 1970.

88. Genocide is an international crime which, in general, can only be committed if the government co-operates, by promoting, tolerating or not punishing. Genocide is per se structural, systemic criminality, where the principal causing factor is society itself.

89. Under other agenda items, too, the Assembly recognized the “freedom fighter” as a “privileged combatant”. In resolution 2674 (XXV) (Respect for Human Rights in Armed Conflicts) the Assembly affirms “that the participants in resistance movements and the freedom fighters in Southern Africa and territories under colonial and alien domination and foreign occupation, struggling for their liberation and self-determination, should be treated, in case of their arrest, as prisoners of war in accordance with the principles of the Hague Convention of 1907 and the Geneva Conventions of 1949”.

90. It does, of course, speak of “action” against “forcible action”.

91. On world poverty see Josue, de Castro, Geography of Hunger (London, 1953)Google Scholar; Gunnar, Myrdal, The Challenge of World Poverty (New York, 1970)Google Scholar; World Peace through World Economy (Polemologische Studiën IX, Assen, 1968)Google Scholar; Proceedings of the IPRA Second Conference, Vol. II: Poverty, Development and Peace (Assen, 1968); Tinbergen, J., Shaping the World Economy (New York, 1962).Google Scholar

92. Johan, Galtung, “Violence, Peace and Peace Research”, 6 Journal of Peace Research, (1969) pp. 167–191.Google Scholar

93. “Poverty” and “decent existence” are relative terms, further defined by the actual opportunities and prevailing opinions.

94. Johan, Galtung, “A structural theory of aggression”, 1 Journal of Peace Research (1964) pp. 95–119Google Scholar. drew attention to the frustration caused by a structure in which unequal developments take place. He develops this social frustration theory (with which he believes mass agressivity to be associated) especially for individuals and groups in one community. It is equally true of pedples and States in the world.

95. For a fuller discussion of these questions see Gurr, T.R., Why Men Rebel (Princeton, 1970)Google Scholar; Verwey, W.D., Economic Development, Peace and International Law (Assen, 1972), with detailed bibliography.Google Scholar

96. For a further analysis of the many internal wars (from 1945 till 1970 there were 15 international wars and 85 internal armed conflicts), see Istvan, Kende, “Twenty-five Years of Local Wars”, 8 Journal of Peace Research (1971) p. 5–22.Google Scholar

97. Falk, Richard A., The Status of Law in International Society (New Jersey, 1970), p. 559.Google Scholar

98. Falk, Richard A., This Endangered Planet, Prospects and Proposals for Human Survival (New York, 1971), p. 2.Google Scholar

99. General Assembly resolution 724 (VIII) of 7 December 1953 states explicitly that part of the money released by disarmament will be used for development aid. In General Principle XII adopted by UNCTAD I at Geneva in 1964 the same link is again established.

100. Philip, Mason, Race Relations (Oxford University Press, 1970) p. 164.Google Scholar

101. Inis, Claude, The Changing United Nations (New York, 1967), p. 9Google Scholar. He is referring to “the sort of devotion to peace that stems not so much from good will as from good sense, not so much from moral scruples about how the national interest should be pursued as from rational calculation about how that interest can best be safeguarded and promoted”.

102. Gunnar, Myrdal, The Challenge of World Poverty (New York, 1970), p. 298.Google Scholar

103. Discussed in greater detail in my International Law in an Expanded World (Amsterdam, 1960).Google Scholar

104. Verwey, W.D., Economic Development, Peace and International Law (Assen, 1972), pp. 230 et seq.Google Scholar

105. For examples see Verwey, op. cit., pp. 266–268.

106. Guy, de Lacharrière, Commerce extérieur et sous-développement (Paris, 1964), pp. 234–238Google Scholar, speaks in this connection of “discrimination positive” and of “le principe de la dualité des normes applicables aux pays industrialisés et aux pays en voie de développement”, quoted by Thiébaut Flory, , Le GATT. Droit International et Commerce Mondial (Paris, 1968), pp. 187 and 189Google Scholar. The distinction between “equality before the law” and “equality in the law”, the principle of formal and material “non-discrimination” is also valid as regards individuals, cf. Vierdag, E.W., The Concept of Discrimination in International Law (The Hague, 1973), p. 17 and p. 166.CrossRefGoogle Scholar

107. Vignes, D., “Droit d'au teur et aide au développement”, 13 Annuaire François de Droit International (1967) pp. 716 et seq.CrossRefGoogle Scholar

108. Although this is more concerned with breaching the idea of the “sanctity of treaties” which in League of Nations days was the means of maintaining the status quo. The preamble to the League of Nations Covenant spoke of achieving “international peace and security”, inter alia, by “a scrupulous respect for all treaty obligations”. One of the objectives of the United Nations Charter was “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained”.

109. This Conference is being prepared by the Committee on the Peaceful Uses of the Sea Bed and the Ocean Floor. The Declaration also provides that the sea bed may be used for peaceful purposes only. In this the General Assembly goes farther than the Seabed Arms Control Treaty of 11 February 1971, which only prohibits the placing of “weapons of mass destruction” and not, for instance, the placing of military monitoring devices. In the important report of the Commission to Study the Organization of Peace, entitled “The United Nations and the Bed of the Sea” (New York 1969)Google Scholar the following arguments, inter alia, are advanced in favour of United Nations control: (1) that all countries will receive a share in the profits, (2) that conflicts will be prevented: “these potentialities for conflict require some regime that could prevent a colonial race by the major powers to claim vast areas beyond present national limits”, and (3) that it will prevent pollution.

110. The freedom of the seas is threatened not only as regards the exploitation of the sea bed. It was clear from the debates in the General Assembly that the young countries wish to use the Conference planned for 1973 not only for the formulation of the law of the sea-bed but for a reformulation of the law of the sea as a whole. The Dutch Report on the 1971 General Assembly (Publication No. 100 of the Ministry of Foreign Affairs, The Hague, 1972, p. 71).speaks of “the tendency of developing countries to regard the traditional international law – whether codified or not – respecting, for instance, the breadth of the territorial sea, the right of innocent passage, the freedom of the high seas, in many cases as the objectionable product of the large maritime Powers “ and goes on to say: “In this question the countries of Western and Eastern Europe formed a united front and defended the universal value of the legal principles that had grown up over the centuries”. In my opinion it is not only on this question of the law of the sea that the rich capitalist and communist States will unite in resisting the wish of the poor countries to alter international law in the direction of greater justice in social and economic matters.

111. On the demands of the young countries in this field see Anand, R.P., New States and International Law (Vikas Publishing House, New Delhi, 1972).Google Scholar

112. Arnold, Toynbee, The World and the West (Oxford University Press, 1953), p. 1.Google Scholar

113. Harry, Macdoff, The Age of Imperialism, The Economics of US Foreign Policy (2nd printing, New York–London, 1969).Google Scholar

114. Gunnar, Myrdal, The Challenge of World Poverty (New York, 1970)Google Scholar. Myrdal, incidentally, does not hesitate to call OECD “the rich men's club”, which is an instrument to torpedo UNCTAD (p. 309).

115. Although the Decolonization Declaration of 1960 spoke of the “subjection of peoples to alien subjugation, domination and exploitation”, an expression repeated in Declaration 2625 (XXV).

116. For a more detailed examination of the collusion between the rich countries and the élites from the developing countries, see Johan, Galtung, “A Structural Theory of Imperialism”, 8 Journal of Peace Research (1971) pp. 81–117.Google Scholar

117. This explains why the colonial status of Asiatic Russia, which forms a territorial whole with the motherland, was less clearly recognized as a colonial relationship, although China takes a different view of the matter.

118. It is not easy, of course, to make a clear distinction between “resistance” and “armed conflict”. Quantitative factors and qualitative ones (whether there is only police action or whether military force is also used, the nature of the hostilities) must also be taken into consideration. For more detail on this question see Michel, Veuthey, “Some Problems of Humanitarian Law in Non-International Conflicts and Guerilla Warfare”, in Bassiouni, and Nanda, (ed.), A Treatise on International Criminal Law (Springfield, Illinois, 1973), Vol. I, pp. 422–452, at p. 429).Google Scholar

119. As is apparently assumed by the Netherlands Government. The Dutch report on the 25th session of the General Assembly (Ministry of Foreign Affairs, No. 98, The Hague 1971) contains the following comment: “With reference to the principle of self-determination it had appeared possible this year to treat the subjugation of peoples to alien domination, not only domination in a colonial context, as a violation of the principle. Consequently it was also easier to find a generally acceptable wording for the highly controversial point of the right to self-defence against domination” (p. 182).

120. Meadows, Dennis L., The Limits to Growth (London, 1972)Google Scholar; Falk, Richard A., This Endangered Planet, Prospects and Proposals for Human Surival (New York, 1971)Google Scholar. Brief, but penetrating analysis in Eyre, S.R., “Man the Pest: The Dim Chance of Survival”, New York Review of Books, 18 Nov. 1971, pp. 18–27Google Scholar. Earlier interest, e.g. the resolution of the Institute of International Law in 1911 concerning the inadmissibility of fresh water pollution, did not lead to general regulations. Cf. Jenks, C. Wilfred, New World of Law? A Study of Creative Imagination in International Law (London, 1969), p. 105.Google Scholar

121. Research on this aspect is still in its infancy. See, for instance, the interim report of Nazli, Choucri, Michael, Laird and Meadows, Dennis L., Resource Scarcity and Foreign Policy: A Simulation Model of International Conflict (M.I.T., Cambridge, Mass., March 1972).Google Scholar

122. In his report to the Europe-America Conference, held at Amsterdam from 26 to 28 March 1973, Walter J. Levy, the United States petroleum expert, stated that around 1980 both Japan and Western Europe would have to obtain between 75 and 80 per cent, of their oil from the Middle East countries (especially Saudi Arabia and Iran), the percentage for the United States then being between 50 and 55. This led him to suggest that the United States, Japan and Western Europe would have to pursue a common policy in this matter, inter alia ensuring collectively that these Middle East countries did not land in the communist camp as a result of subversive activities. They should be able jointly to guarantee that the existing regimes remained in power. See Levy, Walter J., An Atlantic-Japanese Energy Policy (mimeograph), pp. 18Google Scholar et seq.. The suggestion would mean that, in a Cold War atmosphere, the West and Japan would agree to defend feudal regimes against democratic and socialist tendencies in the Arab World for the sake of guaranteeing the petroleum supply. This notwithstanding the fact that the Soviet Union is self-supporting as far as petroleum is concerned, and even exports it. One wonders what measures would be contemplated if the Cold War blocs were to be contendants for vital goods in short supply.

123. Cf. on this point Gaston, Bouthoul, La Surpopulation: l'Inflation démographique (Paris, 1964)Google Scholar, in which he develops the idea of war as “infanticide déféré” (p. 221). In his opinion population structure and population size are a major factor of war. The history of every people provides sufficient grounds for grievances, which can serve as a motive if there is a desire to fight. Cf. the same author's Les Guerres, Eléments de polémologie (Paris, 1951), p. 282.Google Scholar

124. Wolfgang, Friedmann, “National Sovereignty, International Co-operation and the Reality of International law”, in 10 UCLA Law Review (1963), pp. 739–753Google Scholar, in which he deals with a rapidly developing “new type of ‘co-operative international law’, for which the traditional concept of sanction is largely meaningless since its effectiveness is predominantly predicated upon the privilege of participation in joint endeavours serving the common interests of mankind” (p. p. 739).

125. This is consistent with the “peace research finding” that people are unlikely to surrender in concreto their own power of decision in favour of a fairly abstract and remote ideal (such as the maintenance of peace), but will only do so if they can anticipate direct, concrete advantages. Cf. Karl, Deutsch, The Analysis of International Relations (Englewood Cliffs, 1968), p. 200.Google Scholar

126. It should be noted that the titles of Chapters VI and VII are misleading. Chapter VI provides for voluntary settlement and Chapter VII for compulsory settlement (with or without the use of force), whereas the wording suggests that Chapter VI is concerned with peaceful settlement and Chapter VII with settlement involving the use of force.

127. Nothing came of the Netherlands proposal for extending the range of instruments for use in fact-finding, partly because a great deal already exists in this field (I.C.J. Statute, Article 50; Revised General Act for the Peaceful Settlement of Disputes, Article 15; United Nations Panel for Inquiry and Conciliation, G.A. resolution 268 (III); and Hague Convention for the Pacific Settlement of International Disputes 1907, Articles 9 et seq) and partly because there are two different kinds of fact-finding, fact-finding in connection with a dispute and fact-finding for the purpose of supervising compliance with agreements, e.g. on disarmament or environmental protection. In the case of conflict resolution a great deal already existed, and in the case of inspection the growth of international law may be promoted more effectively by the creation of instruments on an ad hoc basis.

128. As developed by John, Burton, Conflict and Communication. The use of controlled communication in international relations (London, 1969).Google Scholar

129. Dealt with more fully in Nobel, J.W., “Competition and Co-operation in International Politics as a Bargaining Problem”, Proceedings of the IPRA Inaugural Conference (Assen, 1966), pp. 116–146.Google Scholar

130. The definition of these terms varies. In the Report of a Study Group on the Peaceful Settlement of International Disputes (David Davies Memorial Institute of International Studies, London, 1966), p. 31Google Scholar, a distinction is made between “good offices” (action to facilitate negotiations but without participationi in the discussion of the substance of the dispute), “mediation” (participation in the discussion) and “conciliation” (participation with advice).

131. Although it is always the case that the views of the parties can be heard in the bodies deciding the issue, e.g. through the intermediary of the judges ad hoc.

132. See, for instance, the proposals contained in “The United Nations, the next twenty-five years”, Twentieth Report of the Commission to study the organization of peace (Sohn, Louis B., Chairman) (New York, 1969).Google Scholar

133. Jenks, C. Wilfred, A New World of Law?, p. 42.Google Scholar

134. Cf. Rosalyn, Higgins, The Development of International Law through the Political Organs of the United Nations (1963), p. 87Google Scholar: The United Nations was intended “as a coalition of the Great Powers to enforce peace”. All this is also clear from the transitional provisions still in force (since the agreements mentioned in Article 45 are not yet concluded) whereby thj five permanent members of the Security Council will consult with one another “with a view to such joint action on behalf of the Organization as may be necessary for the purpose of maintaining international peace and security” (Article 106).

135. The possibilities and limitations of “coercive diplomacy” are more fully discussed in Schelling, Thomas C., Arms and Influence (New Haven, 1966)Google Scholar, but this book is concerned with the force that can be exerted by the threat of national arms. This is also true of the study by George, , Hall, and Simons, (eds.), The Limits of Coercive Diplomacy (Boston, 1971)Google Scholar, but the conclusions are also relevant to “coercive diplomacy” by the United Nations. The purpose of “coercive diplomacy”, unlike “coercive action”, is to neutralize the adversary's will, not his “capabilities” (p. 18).

136. More fully discussed in my contributions: “The Limited Significance of the Prohibition of War”, in Lepansky, , Buehrig, and Lasswell, (eds.), The Search for World Order, Studies by Students and Colleagues of Quincy Wright (New York, 1971), pp. 228–237Google Scholar; and “Friedenssicherung durch Völkerrecht, Möglichkeiten und Grenzen” [Possibilities and limitations of guaranteeing peace by international law], in Schaumann, W. (ed.), Völkerrechtliches Gewaltverbot und Friedenssicherung [Prohibition of force by international law and guaranteeing the peace] (Baden-Baden, 1971), pp. 89–118.Google Scholar

137. George, Alexander L., Hall, David K. and Simons, William E., The Limits of Coercive Diplomacy, Laos, Cuba, Vietnam (Boston, 1971).Google Scholar

138. E.g. George, Schwarzenberger, “The Fundamental Principles of International Law”, 87 Recueil des Cours de l'Académie de Droit International (1955 – I), pp. 195–385, at p. 337 et seq.Google Scholar

139. Inis, Claude, “The Present and Future of World Order, a Review”, 13 Journal of Conflict Resolution (1969), pp. 526–532 (at p. 530).Google Scholar

140. These were, moreover, vulnerable missiles using liquid fuel and taking more than half-an-hour to load. This meant that they could be put out of action in an enemy “surprise attack” and that they could only be used in an American “surprise attack”.

141. Edward, McWhinney, International Law and World Revolution (Leyden, 1967), p. 94Google Scholar: “The avoidance of ‘surprise’ or sudden change in the inter-bloc balance of power”.

142. Cf., for instance, von Weizsäcker, C.F., Kriegsfolgen und Kriegsverhütung [Consequences of war and prevention of war] (Munich, 1971), p. 20.Google Scholar

143. Cf. Article 11 of the European Convention on Human Rights, and Article 19 of the International Covenant on Civil and Political Rights.

144. More fully discussed in my: “The Question of Defining Aggression”, in Symbolae Verzijl (The Hague, 1958), pp. 314–336Google Scholar. On the subsequent attempts (since 1967) of the General Assembly to arrive at a definition of aggression see Bassiouni, M. Cherif, “The Definition of Aggression in International Law: the Crime against Peace”, in Bassiouni and Nanda, A Treatise on International Criminal Law (Springfield, Illinois, 1973), Vol. I, pp. 159–181.Google Scholar

145. The “act of aggression” in Article 39 has a meaning of its own, different from the “breach of the peace”. In the judgment of the International Military Tribunal at Nuremberg the annexation of Austria was called an “act of aggression” (British edition, London, 1946, p. 17). The General Assembly declared in resolution 2074 (XX) of 17 December 1965 that the annexation of South West Africa by South Africa would be an “act of aggression”.

146. More fully discussed in my International Law in an Expanded World (Amsterdam, 1960), pp. 23 et seqGoogle Scholar; Ernst, Reibstein, Völkerrecht, Vol. I: Von der Antike bis zur Aufklärung [From ancient times to the Enlightenment] (Freiburg-Munich 1958), pp. 272 et seq, pp. 417–418.Google Scholar

147. See Clark, and van Eysinga, , The Colonial Conferences between England and the Netherlands in 1613 and 1615, Part II (London, 1951), pp. 114–115.Google Scholar

148. Carr, E.H., The Twenty Years' Crisis 1919–1939 (London, 1939), p. 275.Google Scholar

149. Wolfgang, Friedmann, “Intervention, Civil War and the Role of International Law”, Proceedings of the American Society of International Law, 1965, p. 69.Google Scholar

150. Quoted from Young, Oran R., “Intervention and International Systems”, in Falk, Richard A. (ed.), The Vietnam War and International Law, Vol. II (Princeton, 1969), pp. 1016–1026, at p. 1026.Google Scholar

151. More fully discussed in Rosenau, James N., “Intervention as a Scientific Concept”, in Falk, Richard A. (ed.), The Vietnam War and International Law, Vol. II (Princeton, 1969), pp. 979–1015.Google Scholar

152. See Jaquet, L.G.M. (ed.), Intervention in International Politics (The Hague, 1971)Google Scholar (especially the contributions of W. Friedmann on pp. 40–68 and M. Bos on pp. 69–75); Verwey, W.D., Economic Development, Peace and International Law (Assen, 1972), pp. 343–349.Google Scholar

153. Falk, Richard A., Law, Morality and War in the Contemporary World (New York–London, 1963), p. 61.Google Scholar

154. The following declaration was made at the meeting of the NATO Council of 15–16 November 1968: “The Members of the Alliance urge the Soviet Union, in the interests of world peace, to refrain from using force and interfering in the affairs of other States. Determined to safeguard the freedom and independence of their countries they could not remain indifferent to any development which endangers their security. Clearly, any Soviet intervention directly or indirectly affecting the situation in Europe or in the Mediterranean would create an international crisis with grave consequences”. NATO Final Communiqués 1949–1970, p. 202. The relationship with Romania was established by a simultaneous declaration by Dean Rusk.

155. Kant, Die Metaphysik der Sitten [Metaphysic of morals] (1797), paragraph 57, considered it inadmissible “sich solcher heimtückischen Mittel zu bedienen, die das Vertrauen, welches zur künftigen Gründung eines dauerhaften Friedens erforderlich ist, vernichten würden” [to avail oneself of such insidious means which would destroy the confidence that is essential for the future foundation of a lasting peace].

156. Réaffirmation et développement des his et coutumes applicables dans les conflits armés, report on the occasion of the twenty-first International Red Cross Conference (Istanbul, 1969), p. 40. More fully discussed, in connection precisely with the maintenance of peace by the “balance of terror”, in my report for the Netherlands Association of International Law: “De positie van de niet-bezette burgerbevolking in een gewapend conflict, in het bijzonder met het oog op de massaal werkende strijdmiddelen (N.B.C. wapens)” [The position of the non-occupied civilian population in an armed conflict, with particular reference to weapons of mass destruction (A.B.C. weapons)], Mededelingen No. 61 (Deventer, 1970), pp. 45–78, at pp. 47–48.

157. “Coercive warfare”, warfare that is coercive with respect to civilians, was practised in World War II, culminating in the atomic bombs on the Japanese cities. It was practised also in Vietnam, as an official policy (”bombing to the Conference-table”). Thomas Schelling considered in his Arms and Influence (Yale University Press, 1966)Google Scholar the civilian population the primary target of modern warfare (p. 27). Even Telford Taylor defends the thesis that terrorizing the population, which became an accepted part of strategic air warfare, is not forbidden by the now existing laws and customs of war (Nuremberg and Vietnam; An American Tragedy, Bantam Books, New York, 1971, pp. 140–143)Google Scholar. Further discussion of this crucial question in my report about the position of the civilian population, in which report I come to the opposite conclusion.

158. A different view is expressed by Stanley, Hoffmann, The State of War (Praeger, 1965), p. 45Google Scholar: “Wisdom suggests not that war be retained in all its honor so as to prevent its outbreak, but that mankind be saved from a certain kind of war even if this favours other kinds”.

159. See Henri, Dunant, Un Souvenir de Solférino, suivi de l'Avenir sanglant (Institut Henri Dunant, Geneva, 1969)Google Scholar. Dunant was far in advance of his times, which also explains why he was rejected by society. He fulminated against “la barbarie scientifique” (p. 192), whose aim is “le meurtre en grand de nos semblables” (p. 193). He combated the social and colonial abuses (pp. 163 ff.) which led to wars. He realized that while armaments remain intact there is no reason to boast of “attendrissements humanitaires” (p. 174). He condemned the “christianisme blasphématoire” (pp. 159 ff.) and the hypocrisy of the colonizing “civilization”, which deprived the “barbares” of “leur vieille et respectable moralité” (p. 186). He saw the world heading for the world wars which were to follow: “Le résumé reste ceci: du sang, du sang, encore du sang, du sang partout” (p. 194). This view is shared and endorsed for the present time by modern polemological thought.

160. Further developed in my lectures on the law of war as applied in the post-war judgments, “The Law of War and the National Jurisdiction since 1945”, 100 Recueil des Cours (1960-1962), pp. 325–456.Google Scholar

161. See Ebert, Th., Gewaltfreier Aufstand. Alternative zum Bürgerkrieg [Non-violent rebellion. Alternative to civil war] (Frankfurt am Main, 1970)Google Scholar. It is probable that Gene Sharp's The Politics of Non- Violent Action, to be published at Boston in 1973, will, because of its quality and size (1000 pages), become the bible of “social defence”.

162. See Kalshoven, F., Belligerent Reprisals (Leiden, 1971)Google Scholar, in which the view is expressed “that the balance of the merits and demerits of belligerent reprisals has now become so entirely negative as no longer to allow of their being regarded as even moderately effective sanctions of the laws of war” (p. 377).

163. For the history see my Hague lectures, op. cit., pp. 417 ff., which include a résumé of the contradictory decisions in post-war judgments.

164. E.g.. the agreement on limiting stocks of anti-ballistic missiles, in SALT-1, is supervised by satellite. Where a violation by either party is discovered the penalty is that the other party, too, ceases to abide by the agreement. One of the basic elements of the agreement is the vital interest both parties have in its continued existence.

165. See Articles 14–21 of the Convention on the High Seas (1958).

166. This obligation applies only to States participating in a war, not to neutrals.

167. In the case of these two crimes France took the initiative to propose international law provisions; it presupposed that States themselves could be the criminals. See Claude, Lombois, Droit pénal international (Paris, 1971)Google Scholar. Speaking of the Counterfeiting Convention of 20 April 1929 he says: “Sous le couvert de coordonner la répression d'une activité qui menace les intérêts de tous les Etats et affectant de croire qu'elle n'est le fait que de particuliers, la Convention a, sans le dire, pour principal objet d'empêcher les Etats d'y recourir” (p. 199). On the Geneva Terrorism Convention of 1937 see ibid. pp. 70 et seq.

168. Cf. Telford, Taylor, Nuremberg and Vietnam. An American Tragedy (Bantam, ed., 1971 pp. 123 et seq.Google Scholar

169. See Ruter, C.F., “De Bijzondere Rechtspleging: Symbool of alibi?” [Special jurisdiction: symbol or alibi? ], 21 Ars Aequi (1972) pp. 346–374Google Scholar; The Trials of nationals charged with war crimes or crimes against humanity, Report to the 1972 Conference of the International Society for the Study of Comparative Public Law (mimeograph), and recently his Enkele aspecten van de strafrechtelijke reactie op oorlogsmisdrijven en misdrijven tegen de menselijkheid (Amsterdam, 1973), p. 23, p. 48.Google Scholar

170. Treated more fully in my Hague, Lectures, “The Law of Wai and the National Jurisdiction since 1945”, 100 Recueil des Cours (1960-1962), pp. 329–456Google Scholar, and my “Verandering in het oorlogsrecht” [Changes in the law of war], 48 N.J.B. (1973) pp. 305–312.Google Scholar

171. Cf. Falk, Richard A., This Endangered Planet (New York, 1971), p. 348.Google Scholar

172. More fully discussed in my contribution: “The Nuremberg and Tokyo Trials in Retrospect”, in Bassiouni, and Nanda, , A Treatise on International Criminal Law (Springfield, Illinois, 1973), Vol. I, pp. 590–608.Google Scholar

173. The General Assembly appointed a Special Committee on International Criminal Jurisdiction which submitted reports in 1953 and 1956. This question, and the definition of aggression and the international criminal code, were later removed from the agenda until a more propitious time arrived. Since 1967 the Assembly has again been examining the definition of aggression.

174. Julius, Stone and Woetzel, Robert W., Toward a feasible International Criminal Court (Geneva, 1970), pp. 315–341.Google Scholar

175. See Stanley, Hoffmann, The State of War (Praeger, 1965)Google Scholar, Chapter V: The Study of International Law and the Theory of International Relations, pp. 123–133.

176. See Wolfgang, Friedmann, “The United Nations and the Development of International Law”, 25 International Journal (Canada) (1970), pp. 272–286.Google Scholar