Law cannot exist without a sense of community. A desire to get on with one another and a feeling of self-interest in the maintenance of a common society is essential for legal development. From 1648 to 1914 the western state system expanded to include the whole globe, and throughout that entire period, despite many lapses, the peoples of the world became increasingly interdependent, finding that only through association could acute problems affecting them all be resolved. With the increase in the intensity of community feeling came inevitably a greater dignity and importance for international law. Legal rules were found necessary and these, as they developed, had definite community backing. Of course, there were numerous wars which disrupted the community’s evolution and the law never was as extensive or effective as it has been domestically. Technical developments in the fields of communication, transportation, and industry, however, brought national populations closer and closer together with the result that agreements had to be made and were made upon a wide range of topics including extradition, rail travel, protection of artistic works, consular rights, denial of justice, immunity of state-owned property, territorial waters, and hosts of other items which were of concern to all.
Since states internally were very much alike, that is, since their basic social pattern was virtually the same, the outlook and attitude of peoples and leaders did not vary greatly. There thus existed grounds for mutual respect. The rivalries were not ideological but were mainly political and material. Every nation of consequence was in some stage of capitalist development, while optimistic notions of democracy and universal solidarity kept gnawing away at nationalistic exclusiveness and schemes of national advantage. Looking back upon the world before 1914 one can discern how the alliance system, the armaments race, and the imperialists’ struggles led to the World War, but it must not be forgotten that to persons living during these years, schemes for the elimination of war and for the better organization of society did not seem visionary or impossible. A glow of enthusiasm surrounded the efforts made at the Hague Conferences for the creation of an international court. There was belief in progress and confidence in the future, a psychology conducive to the strengthening of international law.
Nowadays, however, there is a different spirit. The community fabric has been tom into rival “isms.” Whereas before 1914 peoples adhered pretty much to one way of life and gave at least lip service to one set of values, there is now no such unity. Communism, fascism, and democracy vie with one another for supremacy. It is no longer simply a matter of one nation against another nation in a scramble for colonies; it is political creed against creed, with states lining up on matters of faith as well as power. Cleavage of this sort shatters the community and the law. Fighting political faiths feel little if anything in common and have no sense of duty or obligation. There is only distrust, malice, and a desire for complete mastery.
A vast gulf, unbridgeable by effective law, separates fascist, democratic, and communist states. The forms of the old law are still adhered to but they lack substance and frequently are but hollow shams. For example, in the cases of Austria, Manchuria, and Spain recognition and self-determination (this last not a part of international law) were used as devices to destroy law. They were methods employed for breaking down legally established governments or a legally fixed status quo. There is precedent of course for such action. Hawaii, Egypt, and pre-1914 Ethiopia can be cited as evidence, but these most recent “law to defeat law” operations are particularly menacing because of the community schism.
The battle between the “isms” constitutes international law’s gravest problem today and accounts for the most significant modifications, but other developments have occurred too. One of these is the effort to outlaw war. Before 1919 states for the most part were legally free to go to war; such an act was alegal rather than an illegal act. The League of Nations Covenant, however, put drastic limitations upon its members’ rights to make war. The supposition was that henceforward whenever war occurred, one of the parties would probably have violated its Covenant obligations and would be liable to the imposition of penalties or sanctions by the other members. A system of sanctions, if genuinely in operation, would have meant the end of neutrality, for third states would have chosen sides in a conflict and would have helped a victim against an aggressor. To avoid sanctions and the stigma of being classed as a lawbreaker, a League member resorting to force was naturally tempted not to label its actions by the term war. The Kellogg- Briand Treaty (the Pact of Paris) with its “renunciation of war as an instrument of national policy,” encouraged further the habit of employing force without a declaration of war. War went out of fashion and we had “force in peace” instead. All of this was most embarrassing and confusing. From its inception, international law had used the concept war, and though definitions may have varied, there was substantial agreement in most cases upon its nature.
With the dropping of the word war, the legal picture became most cloudy. Were third states neutrals in any sense of the word? What authority did nonbelligerent conquerors possess in occupied territory during a state of technical peace? If some states applied sanctions, that is, if they assumed a position of definite partiality, what legal relationship existed between these powers and nonparticipating states and what rules governed the relations of each toward the law violator? Thus, grave issues arose as to how to term and how to deal with large-scale fighting in peace and also as to how to cope with the ambiguous relations involved in the application of sanctions.
Since 1919, Paraguay is the only state which has formally declared war and that she did in 1933 after 5 years of strife. Japan and Italy have never conceded that their actions in China and Ethiopia, respectively, amounted to war. Did this mean that other states were powerless and helpless to call a conflict war even if the parties themselves demurred? Generally in the past there have been two criteria for the existence of a state of war: one, subjective, being the intent of one or the other of the participants, and the other, objective, being the use of force, “war in the material sense.” Some sort of blend of these two has hitherto constituted a state of war, though it should be remembered that a legal state of war is possible without the employment of force, and that the latter is possible without there being a state of war. In this recent epoch the objective criterion has been plainly apparent but if the states actually using force did not intend to make it war, had any other state or agency the authority to bring in its intent? Hague Convention III of 1907 on the Opening of Hostilities places chief reliance upon declaration, that is, intent. During the Ethiopian crisis, however, President Roosevelt of the United States “found” a war, and the members of the League of Nations declared that Italy had “resorted to war,” when neither Italy nor Ethiopia had made any declaration. Was it a real international war? These are simply some of the problems which have arisen as a result of the plans and schemes to eliminate war and to abolish neutrality.
Recognition is another subject which has undergone a change. Recognition is a political act with legal consequences. A state is free to recognize another government or not, but if it does so, definite legal results flow from such action. It is something like getting into matrimony. One exercises one’s choice freely, but once done, the law takes account of the relationship established. Until just prior to the World War most states accorded recognition fairly readily to new de facto governments. The United States, especially, extended recognition very much as a matter of course to whatever authority happened to come into power in a given region. This policy of not picking and choosing favorites was laid down by Jefferson in Washington’s Cabinet, but in 1913 President Wilson embarked upon a different course. He announced that the United States in its dealings with Latin America would recognize only governments which came into existence by legal, constitutional means. This change was due to a sincere desire to promote order and stability in the lands to the south of us. No end of embarrassing episodes resulted, however. In reality the American government was involved in the internal problem of Latin American states and was forced to decide delicate issues of legitimacy. Except for Central America, the new policy was abandoned rather early, and completely discarded during the wave of revolutions in 1931 and 1932. Because we did not care for the Bolsheviks and their failure to recognize any obligation to pay former government debts to this country, we failed to recognize the communist regime, maintaining for years the farce that the Kerensky government was still de jure in Russia. This strange interlude endured until 1933 and marks a queer episode in American history. It is indicative of our increasingly conservative temper. Whereas we too were once revolutionary and felt that others also had a right to overthrow their established rulers, we no longer favored domestic upheaval.
Recognition has come in for new uses in another field. Secretary of State Stimson in 1932 announced that the United States would not recognize seizures and treaties made in violation of the Pact of Paris. Members of the League of Nations followed our lead in adopting a policy of nonrecognition which thus emerged as a sanction for treaty violation. In Manchuria, in Ethiopia, and most recently in the annexation of Czechoslovakia, foreign powers have refused to recognize changes in the status quo made as a result of force. No longer is every de facto alteration recognized as de jure. Though unwilling to back up their disapproval with military might, third states have registered their lack of approbation through nonrecognition. The consequences have frequently been ineffective and disappointing but it is clung to for lack of anything better. From the point of view of international law it is significant that recognition has come to be a favor to be bestowed or withheld rather than a legal clarifier.
Another major legal concern of international law is the effect of increasing governmental regulation of business and private lives. In the past, international law rules were predicated upon the distinction between public and private business. A wide area for the latter was assumed and the sphere of governmental activity was correspondingly small. In time of war neutral citizens were permitted to sell arms to belligerents because the arms business was in private hands. Likewise shipping used to be privately owned and the immunity accorded government vessels caused small inconvenience because the number of state-owned ships was relatively small. Nowadays, however, it is the style for governments to go into the arms and shipping businesses. The result legally in such cases is that arms cannot be shipped from a neutral power because that would involve a violation of a neutral government’s obligation, and the immunity of state-owned ships is a source of trouble when whole fleets of state commercial craft claim exemption from responsibilities and liability in cases of collision, salvage, etc. Similarly, until the present, a neutral state was not responsible if private citizens left as volunteers to fight in foreign wars though expeditions could not go. In a totalitarian state, however, every citizen and individual is watched with care and persons cannot depart without a permit or knowledge of the state. In such circumstances the distinction between volunteers and expeditions disappears, for the neutral state, because of its internal regimentation, can be presumed to know where an emigrant is going.
Government control has thus resulted in a diminishing sphere for private business and private acts. This involves somewhat paradoxically both more immunities and more responsibilities if the old principles are still to hold. Vessels, railroads, etc., owned by the state claim the immunities enjoyed formerly by warships alone when the functions of government were few. On the other hand, the greater control exercised by the state over the press, local governments, and private travel means that the state can be held responsible for what is said and done in these areas formerly outside government regulation.
And what is the result of these new trends and factors upon the laws of war? No definitive answer is possible now, but certain questions should be raised which may indicate the lines to follow. Will the violence and irresponsibility of the “ism” groups help to abolish the distinction between combatants and noncombatants? This distinction certainly was none too clear in the last great conflict, and if there occurs a totalitarian duel to the death between political faiths neither side may recognize anyone as a noncombatant. Another question, raised by the socialization of private property: will the traditional distinction in war between the treatment of public and private property continue? Certainly for a power invading Soviet Russia many provisions of Hague Convention IV dealing with private property on land would be obsolete. Still a further point: the law of war has tended to maintain that new weapons are not entitled to special privileges and must be employed in a manner established by law, but in an ideological struggle will belligerent airmen, for example, exercise the restraint against indiscriminate destruction imposed by legal principles? It is to be feared that the inhibitions created by a sense of community, chivalry, and mutual respect will be absent. Another question of concern to the laws of war is raised by the practice of undeclared wars. Do the rules of warfare apply to the opponents in these contests? If there is no belligerency and no neutrality, who is responsible to whom? The answer to these last two questions are discoverable in recent practice. It is now the consensus that the laws of war do apply to non-war hostilities and that the responsibilities are assumed by the participants very much as if there were war, though much clarification is still required. At any rate it is obvious that the growth of the political-social creeds, that the increase in the extent of government regulation, and that the prevalence of the misunderstandings in regard to the meaning of war will all leave their mark upon future rules governing conduct of hostilities.