The United States Naval War College is emphatic in holding that International Law today is very much alive, and that it is International Law which must be the basis for the treatment of many of the serious and lively problems now facing the civilized world.1 In this opinion the Naval War College is maintaining the position with respect to the “Rule of Law” which it has held since its founding in 1884.
Everybody agrees that the interdependence of states is a fact. A community of interests between states exists, in peace or war, and this community of interests is in a sense as great, although less obviously so, as that between citizens within a state.
The primary objective of a state is the insurance of essential security for that social system which the state has chosen for its own. Even a little research will reveal that as the aims of various states are tabulated and compared, there appear many national interests that are common to all states. The pursuance of peace, the prevention of war, the orderly resolution of conflicting claims, and the promotion of the general welfare, are but a few of these interests common to civilized states. Another common interest lies in the background of International Law, in which states found, in general, that the application of rules to the conduct of war and to other international disputes provided, without prejudice to their broad national objectives, useful beneficial effects. These common aims (derived from natural sources, custom, treaties, and informal agreements) have caused the slow but sure growth of that aspect of international relations called International Law.
In the present day and age many professional military men have become so concerned with advancing technological aspects of warfare and so centered on the many pressing details of current planning and operations, that they have had little opportunity to reflect on such matters as International Law. On the other hand, with so many interests under dispute—even among friendly nations—and with the growth of the new concepts of collective security, it is important now for naval officers to know the rules of the game they are playing, and not the least of these are the rules and customs governing relations between states in peace and war
The position of the United States with regard to International Law is one of long standing and is quite clear. American civilization itself, in fact, is based upon the principle that law—not naked force—should govern all our relationships, as among people, organizations, and governments. Historically, the United States has been consistent in announcing publicly its advocacy of, and in abiding by, the Rule of Law. As recent examples, the Charter of the United Nations, the North Atlantic Treaty, as well as almost every other treaty to which the United States is or has been a party, make clear the intention of the United States to adhere to International Law today as heretofore. This intent is further confirmed by recent statements of our political policy makers, such as President Eisenhower’s address to the Bar Association in 1955, and the approval of the Geneva Conventions of 1949 by the Congress in July, 1955.2 The records of the past as well as the events of today give ample evidence of the fact that the policy of observance of International Law is greatly to the interest of the United States.
International Law of and by itself does not necessarily impose restraint on the decision of a military commander as an individual. In this connection, however, by American law, tradition and practice, United States military forces operate within the framework of political restraint imposed by national political objectives and policy. One example of that restraint lies in the announced national policy of adherence to the restrictions of International Law. This policy is in turn reflected in United States Navy Regulations, which require the observance of International Law in peace and war.
It is obvious, therefore, that the Naval War College must concern itself with questions involving International Law. In this connection it is interesting to examine the mission of the College, which is “to further an understanding of the fundamentals of warfare, international relations, and interservice operations, with emphasis on their application to future naval warfare, in order to prepare officers for higher command.”
Any studies of international relations, as well as an understanding of the fundamentals of warfare, require a thorough grounding in the precepts of International Law on the part of officers responsible for the conduct of future warfare; and the contribution of the College to such knowledge flows directly from the mission of the College as promulgated by the Chief of Naval Operations.
The Naval War College’s work in the field of International Law may be traced back to the earliest years of the College. That work lay in four general categories which persist in more or less the same form today. In this work the College, since it was founded, has been most fortunate in having had the services of a succession of most eminent jurists either as Associates or as Resident Professors in the field of International Law.3
Under this driving intellectual leadership, the College has sponsored and published the so-called “Blue Book Series in International Law”; has maintained courses of instruction for the resident students; has supported a vigorous program of International Law Correspondence Courses; and has drafted and otherwise assisted in the preparation of certain Navy Department publications relating to the Law of Naval Warfare.
By the year in which the Blue Book Series made its first appearance at the Naval War College (1894), the International Law resident course had been made a permanent part of the curriculum at the College. In the years to follow both the resident course and the Naval War College publications in International Law acquired a reputation in the field of International Law that, for a military institution, was indeed unique.
This reputation, and particularly that enjoyed by the Blue Books, rested upon the following basis. The Naval War College provided the opportunity for bringing together a group of senior naval officers with a rich and varied experience in the problems that arise in the relations among states. Given a sufficient background in the formal discipline of International Law, together with this experience, these officers were quite capable of engaging in serious research on current problems and developments in International Law of concern to the Navy.
In the period between World War I and World War II, the time given to the study of International Law at the College was about six weeks per year. This period was initiated by an intensive review of the broad field of International Law followed by a concentration on two or three specific problems, cast in the form of “situations.” Each student was required to prepare separate written solutions , to each situation. These situations would then be discussed and debated by the students in groups, under the guidance of the Associate for International Law. The Associate, after reading all student solutions and participating in the group discussions, would then proceed to the writing of the annual Blue Book of the series International Law Situations with Solutions and Notes.
By virtue of the reputation of the Naval War College in this field, this series of Blue Books became a part of significant reference material in the field of International Law through its value as an informed interpretation.
Looking at the Blue Book Series as a whole it is interesting to notice that their content varies according to a definite pattern. The circumstances surrounding the publication of each Blue Book are conditioned by the times in which they are published. Thus, during the periods of entirely stable peace, the Blue Books were devoted to the interpretation and application of principles and problems (as expressed in hypothetical situations) of concern to the naval service which might arise under the then existing firm tenets of International Law. Blue Books of this nature were published for the years 1894-1897, from 1899-1903, from 1905-1908, from 1910- 1914, and from 1926-1939—for a total of 32 volumes.
On the other hand, in 1904 and 1909, from 1915 through 1925, and from 1940 through 1953, there was published a total of 22 Blue Books which consist of a compilation of documents, in part annotated, having to do with new developments in International Law resulting from the changes brought about by war.4
It is obvious that with changes in weapons, in implements of war, and in communication facilities, each war will bring forth new practices and new theories regarding combatants, noncombatants, belligerent states, and neutrals. In addition, the termination of World Wars I and II brought about new and hitherto unsolved problems in the field of international relations, and new commitments and treaties governing those relations.5
Thus, these wartime and postwar Blue Books serve the purpose of making readily available to the Navy the multitude of new treaties, new commitments, and new responsibilities which were accepted by the United States or which grew up between other powers as a result of such wars. Considering the responsibilities of the Navy in the field of international relations in peace and war, these changes—these new conditions—in the world at large are matters of direct concern to its commanders afloat and ashore.
The 1953 Blue Book is the latest of the volumes to be published. It brings up to date the developments as to the peace treaties and the defense agreements entered into by the United States; and the various agreements on European Unions of interest to the United States.
Upon completion of this 1953 work, an examination of the new treaties and commitments of the United States brought forth some interesting facts with regard to collective security. That term had been rather loosely used in the years before World War II, particularly in the Covenant of the League of Nations, which provided “a mystical ‘collective security’ which called for no military effort from the member nations.”6
Since World War II, however, the concept .of “collective security” has appeared in the Charter of the United Nations and in the North Atlantic Treaty, and other agreements, in a much firmer manner. The term as used today implies the use of military effort on a possibly large scale, but it does so without too great definitiveness. Further to complicate matters, the language of the Charter of the United Nations is such as to imply that any form of war might be considered to be illegal, and that the only form of military effort which could be considered legal would be that which was undertaken to resist aggression under the banner of “collective security.”
A close search indicated that there exist few studies on the military implications of the concept of “collective security” to international law, and particularly its implications to rules for the conduct of warfare, and to the relations among neutral and belligerent states in war. In brief, it appeared that the entire concept of collective security is unclear.
Accordingly the Naval War College is sponsoring two Blue Books in preparation by the incumbents of its Chair of International Law in 1953 and 1954, addressed to the problems of collective security. The first is a study on the theoretical implications of collective security for international law. The second is an analysis of the developing law and practice of collective security, including a study of the implications of certain of the specific collective defense agreements entered into by the United States. These two books should be out of the hands of the printer by the spring of 1956 and the fall of 1956 respectively.
A third Naval War College Blue Book is also under preparation and should appear by the summer of 1956. This book will be a study of and commentary on the “Law of Naval Warfare,” and it is expected that in a measure it will be addressed to the present and future trends in the law of war, and to possible future changes in those laws in the long range future.7
The Naval War College intends to continue with the publication of the Blue Book Series in the future. The subject matter for the succeeding books has not yet been firmly decided upon but will probably again include treatment of new “International Law Situations with Solutions and Notes.”
In addition to its regular curriculum the War College has been available to the Navy Department for projects of a special nature involving research in the field of International Law. Probably the best known—and certainly the most widely used—of the results of such projects lie in the fields of the laws of naval and aerial warfare. For many years the Naval War College has maintained a special interest in such matters; and it has held a more or less authoritative status with relation to the interpretation of those laws.
In 1917, with the assistance of the War College, the Navy Department published the official instructions relative to the law of naval warfare, under the title “Instructions for the Navy of the United States Governing Maritime Warfare, June, 1917.” It was under the precepts of these instructions that the U. S. Navy fought World War I.
This publication was revised and issued by the Navy Department in May, 1941, under the title “Instructions for the Navy of the United States Governing Maritime and Aerial Warfare, May 1941.”
The events of World War II and of the Korean conflict, together with the mass of new international agreements which had come into effect, had brought about some marked changes in concepts underlying the rules and customs of warfare. It became evident that new practices and the phenomenal advances in weapons of mass destruction, coupled with the vital importance of aerial warfare, indicated that there should be another revision of these instructions.
Accordingly the Naval War College was directed by the Office of the Chief of Naval Operations to revise, redraft, and otherwise participate in the preparation of a new publication to replace the Instructions of May 1941. This will be prepared for issuance in 1956.
This publication was drafted with the primary objective of recording the law as it appears to exist. It will utter the laws of naval and aerial warfare as brought up to date by treaties (including the Geneva Conventions of 1949), and it is expected to give the United States Navy’s interpretation of those laws.8 Further, in its footnotes it is expected to express Navy Department policy in regard to certain aspects of the law, and also to expand and discuss some of the implications of the laws in light of the experience of recent years.
This new publication will be entitled “The Law of Naval Warfare.” It is intended to cover peace, cold war, limited war, and total war. It is worthy of emphasis to note that it will in no way depart from long standing United States policies. It is based upon the firm foundation that law and civilized nations do not recognize or accept a philosophy of “might makes right.”
Restraints on the operations of military forces are inherent in the American system. These restraints are not imposed by International Law itself, but rather are imposed by the national policy that the Law shall be observed. Because the moral integrity of the United States stands behind its general adherence to the accepted precepts of International Law, it appears certain that the United States would not stoop to evade that law as long as there is maintained a political and military readiness to apply legal acts of retaliation against transgressors of the law. All laws, to be carried out, need means for their enforcement; and “retaliation” stands in the background as one of the means of enforcement that can be invoked if necessary. Thus, the United States can be expected to continue to live up to and uphold the Rule of Law.
The concept of the Rule of Law can be considered to be an ideology; and that ideology is as one with our other basic ideologies regarding the liberty, rights and dignity of the individual, and the principles of justice, morality, and freedom. There must be in the Navy a fundamental grasp of the laws of peace and war—as they are recognized today —if decisions are to be sound and in keeping with our military and national tradition.*
1. Some military examples: Where does freedom of the seas begin? Three miles off the coast? Four miles? Twelve miles? 200 miles? or the edge of the continental shelf? Again: States claim all the airspace above them. To what altitude? The range of an AA gun? AA missile? Troposphere? Ionosphere? What about man-made satellites? Or another: Are the principles underlying the Nuremberg trials relative to the responsibility of military officers for certain types of so-called “crimes against humanity” accepted as a part of viable international law today, or do they merely represent a phase of the aftermath of one war, no longer applicable in light of technological and other changes? And again: What is aggression? How is it defined? Should it be defined in categorical detail?
2. Incidentally, the Soviet Union also ratified the Geneva Conventions (concerning prisoners and other personnel in time of war) in October, 1954.
3. Associates for International Law: 1885-1887—Prof. James Russell Soley; 1888-1900—Prof. Freeman Snow; 1901—Prof. John Bassett Moore; 1900-1938—Prof. George Grafton Wilson; 1938-1946—Prof. Payson S. Wild, Jr.; 1946-1953—Judge Manley 0. Hudson. Chair of International Law on an annual basis; 1953-54 Prof. Hans Kelsen; 1954-55 Prof. Leo Gross; 1955 to date, Prof. Brunson MacChesney.
4. An exception to this lies in the 1909 edition of the Blue Book which was published on the occasion of the Declaration of London of 1909. This directly concerned the laws of Naval War. This Blue Book was limited to the complete transcript of the Declaration of London.
5. For example, the new relations and new military responsibilities established in the Covenant of the League of Nations, and in the Charter of the United Nations,
6. The London Economist, September 14, 1955.
7. Sponsored by the Naval War College, this Blue Book is being prepared by Professor Robert W. Tucker of Johns Hopkins University.
8. These interpretations, while not binding on other states, should be valuable in reaching an international consensus on the meaning of the law.
* Editor’s Note: Three recent Proceedings articles on the Naval War College are: J. R. Thomas, “Founding of the Naval War College,” page 273, March, 1953; F. Virden, “The Naval War College Today,” page 365, April, 1953; and G. A. Moore, “The Naval War College Takes a New Look at Its Course,” page 68, January, 1955.