Saturday, February 25, 2012

Peace Bilateral and International: Birth of "International Peace and Security" as Legal Order and Term of Art



Allen Z. Hertz was senior advisor in the Privy Council Office serving Canada's Prime Minister and the federal cabinet. He formerly worked in Canada's Foreign Affairs Department and earlier taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He studied European history and languages at McGill University (B.A.) and then East European and Ottoman history at Columbia University (M.A., Ph.D.). He also has international law degrees from Cambridge University (LL.B.) and the University of Toronto (LL.M.).


Foreword

This is first publication of a short thesis written at Cambridge University under the direction of the late Clive Parry (1917-1982) who was Professor of International Law from 1969. With the exception of some minor updates, the text is current to May 1980. With reference to the history of public international law, closely related items on this website are three postings, in November 2009 "Medieval Treaty Obligation"  and "Honour's Role in the International States' System,"  and in March 2012 "Treaty Obligation from the Protestant Reformation to 1919."  The 1919 Paris Peace Conference that brought an end to the First World War is also discussed in an October 2011 posting on "Jewish Aboriginal Rights to Israel." 


Summary

From the early 16th-century Protestant Reformation until the 1919 Paris Peace Conference, "the law of nations" generously recognized the sovereign state's right to use force internationally, including the right to wage war (jus ad bellum). Apart from some humanitarian laws of war (jus in bello), there was then hardly anything by way of an overarching legal structure regulating the international use of force. Because each state had a largely unfettered discretion to use force internationally, the domestic and international understanding of the legal meaning of "peace" and "war" was then bilateral and disjunctive.

From the perspective of domestic and international law, war's outbreak between countries "A" and "B" automatically terminated their bilateral "relation of peace." However, both "A" and "B" remained at peace with third-party "C," which could have no legal interest in their bilateral conflict. Significantly, there was then no legal impact on "international peace," because before 1919, there was no such legal concept either domestically or within the law of nations.

Furthermore, it is argued that the 20th-century treaties progressively regulating the state's use of force internationally would have been largely impossible before the First World War, when the treaty was normally -- binding in honor rather than in law; deprecated as a source of the law of nations; bilateral rather than multilateral; and suspended or cancelled upon war's outbreak.

By contrast, the 1919 Covenant of the League of Nations and the 1945 Charter of the United Nations were multilateral treaties purporting to establish a permanent legal order called "international peace and security." Included was the introduction of the "war of aggression" as a new legal offence based on the analogy of domestic criminal law. Precondition for these striking innovations was making the treaty -- firstly legally binding; and secondly a paramount source of public international law, with special reference to the multilateral treaty as a type of international legislation.

Finally explored is the growing divergence between two somewhat different meanings of "peace" -- literally as absence of international conflict; and figuratively as name for a new jurisdiction, i.e. "international peace and security" as the permanent legal order regulating the use of force by states internationally and complementing the bilateral relation of peace between states.

Force and the use of international law by states

In 1963, the Clarendon Press at Oxford published the doctoral dissertation of Professor Sir Ian Brownlie (1932-2010) as an especially earnest and successful book entitled International Law and the Use of Force by States. However, the same topic might have been as usefully addressed as "force and the use of international law by states." The enduring reality is that states sometimes resort to force in their mutual relations, in the context of which they also continue to talk about "peace" and legal rights and wrongs.

The occasional use of force by states and discourse about peace are both significant and persistent characteristics of the international political system. Inter alia consisting of about two hundred sovereign states, the international states' system is exceedingly decentralized. Power in most of its manifestations is largely located not in international institutions at the center, but rather elsewhere, including in the hands of the national governments upon the periphery.

Viewed from the outside, most states appear to be internally organized for the external exercise of force. Seen from the inside, states generally seem to regard the increase of their own measure of independence as one of the primary goals of international relations. On this basis, it is probably impossible to maintain a universal system of collective security or to erect a consistently effective, compulsory mechanism for the peaceful settlement of disputes.

The fact of force and discussion about peace will, therefore, continue to play a greater or lesser role in international politics as long as the international states' system retains its present structure and distribution of power. These last two features are also the foundation of that system of norms known as international law. Shaped by state practice and endorsed by other evidences of the consent of states, international law is also a necessary feature of the contemporary states' system. Accordingly, international law, the fact of force, and the understanding of peace continue a mutual interaction and reciprocal influence.

That interactive relation ensured that international law could not escape revolution pursuant to Europe's sudden shift to "total war" (1914-1918) from the sociologically "limited war" that Europe had experienced in the 18th and 19th centuries.1 Accordingly, what international law had to say about peace and the use of force by states was radically transformed, beginning with significant innovations at the 1919 Paris Peace Conference that brought an end to the First World War.  The "international law" revolution then sparked did more than simply modify the law's material content. Also largely changed were the manner in which international law is born and the way it is perceived and used.

Before 1914 "law of nations" customary

To appreciate how much 20th-century international law responded to the horror of four years of total war, attention must be paid to the law of nations as it generally was from the early 16th-century Protestant Reformation until the 1919 Paris Peace Conference. Today international law is understood as derived from the consent of states as expressed via custom or treaty or both. However, the centuries before the First World War saw the sources and evidences of the law of nations somewhat differently. Specifically, the law of nations was then understood to be principally derived from natural law and custom, with the treaty significantly deprecated or sometimes even rejected as a legal source.

Before the First World War international relations were generally conceived to be mostly the sum total of the various bilateral state interactions. Accordingly, reciprocity was at the base of the law of nations. The self-perceived pattern of these mutual, mostly bilateral, relations was then the most authoritative expression of the consent of states to be bound by a rule of law. As the principal source of the law of nations, custom generally guaranteed an intimate connection between legal norms and the evident facts of the states’ system. Together, realism and reciprocity had a stabilizing influence. Sudden and radical change in the law was virtually impossible. The customary law of nations also used the mold of state practice to cast both its concept of peace and its regulation of the use of force. And to be sure, those two legal features were crafted to fit comfortably with bilateral "limited war" which was the dominant paradigm prevailing in Europe before 1914. 


Late birth of the multilateral treaty

With the exception of the great power congress or conference, significant international institutions were largely absent until the late 19th century. Meetings of the great powers were naturally concerned with matters pertaining to peace and war. However, the contribution which diplomatic assemblies could make to the law of nations was then relatively limited, because they generally expressed themselves via the convention or treaty which remained stubbornly bilateral into the 19th century -- when treaties were binding in honor rather than law, and still deprecated as a legal source.

It is striking that the multilateral treaty was not born until the 1815 Final Act of the Congress of Vienna. For example, the dozen or so states waging the War of the Spanish Succession, ended the conflict with more than twenty treaties (1713-1714).  In the second half of the 19th century, the multilateral treaty certainly took a few significant steps as a device pregnant with legislative potential. However, even then some governments remained cool to using it to create permanent international institutions, and to systematize and clarify the existing law of nations. Thus, an invitation to the USA to accede to the 1864 Geneva Red Cross Convention received from Washington a reply stating that “it has always been deemed at least a questionable policy, if not unwise, for the United States to become a party to any instrument to which there are many other parties.”2 This 1868 USA position underlines the point that, up to that time, only limited use had been made of the multilateral treaty as a law-making organ with capacity to create permanent international institutions and effect substantial change in the nature and content of the law of nations.


The treaty deprecated as a source?

USA lawyer, jurist and diplomatist Henry Wheaton (1785-1848) characteristically placed treaties after “text-writers of authority” in his list of “the various sources of international law.” But even so, Wheaton remained exceedingly cautious with regard to the effect of treaties upon the law of nations:
What has been called the positive or practical law of nations may also be inferred from treaties; for though one or two treaties, varying from the general law of nations, cannot alter the international law, yet an almost perpetual succession of treaties, establishing a particular rule, will go very far towards proving what the law is on a disputed point.3
Similarly wary about treaties was Scottish jurist and professor of public law James Lorimer (1818-1890) who opined:
We have seen that no single treaty can have the value of a well-established custom as a guide to our knowledge of the law of nations, either in itself, or as interpreted by the international consciousness of a particular epoch. A treaty indicates only what the parties to it have consented to hold as the relations subsisting between themselves at the period of contracting it, and, in as much as this consent may have been brought about, not by the coincidence of reason and ultimate will, but by violence or selfishness on the one side, and fear or stupidity on the other, it is quite possible that a treaty may not have the value even of an isolated and temporary instance of international understanding. It may never have been carried out at all, either on the ground that one of the parties to it promised what was impossible, or what he had no intention of performing, except under the continuance of the compulsitor with which he had agreed to dispense.4

The treaty not part of the law of nations?  

Though some European theorists dissented, this understanding of the treaty's largely separate status was generally endorsed by the diplomatic usage of the 18th and 19th centuries. Until 1919, there was a tendency to exclude treaties from the ambit of the law of nations which, before the First World War, was generally conceived to be almost identical with customary law.

This significant perception was still reflected in the 1919 Covenant of the League of Nations, preamble, where “the understandings of international law” were limited to customary law as “the actual rule of conduct among Governments.” As for international conventions or treaties, the relevant reference was inserted elsewhere in the preamble as a “scrupulous respect for all treaty obligations.” The same differentiation appeared in Covenant, Article 13, where “disputes as to the interpretation of a treaty” were contrasted with differences “as to any question of international law.”

This distinction between the law of nations and treaty obligation was crucial, for abundant contemporary evidence suggests that pre-1914 statesmen and diplomatists seldom perceived a "positive law" requirement to keep treaty promises (pacta sunt servanda). Rather, they generally referred to a "moral" or "natural law" requirement of good faith that was then understood to be binding in honor alone.5  Moreover, before the First World War, the suggestion that the moral or natural-law requirement to keep treaty promises could be legally binding would have sounded odd, principally due to the availability of war as a lawful international institution, with legal effects including suspension or cancellation of most treaties between the belligerents.6  As long as the state was fully entitled to wage war in defiance of treaty, how was it possible to view treaty obligation as a matter of law?7 

War as bilateral "litigation of states"

Though customary norms were generally realistic and stable, rules thus formulated were in some other respects less satisfactory. With regard to the phenomenon of war as organized killing, the law of nations preserved a puzzling amorality until the total war of 1914-1918 that so shocked the human conscience. Before the First World War, was not armed conflict legitimated, and to some extent glorified, by the classification of the use of force by states into the several legal institutions of intervention, reprisal, embargo, pacific blockade and war itself?

Such criticism is now advanced on the basis of conceptions that had limited contact with the law of nations that had gradually emerged after the early 16th-century Protestant Reformation. Thus, the four centuries before the catastrophe of total war (1914-1918) generally understood the state's right to resort to force, including the right to wage war (jus ad bellum), as largely discretionary and expressed via a unilateral adversary procedure in a normally bilateral context. Thus, the several legal institutions for the use of force were regarded as various related self-help remedies “for the redress of wrongs or the prosecution of [the] claims of states.”The 19th-century view was well expressed by Wheaton:
The independent societies of men, called States, acknowledge no common arbiter or judge, except such as are constituted by special compact. The law by which they are governed, or profess to be governed, is deficient in those positive sanctions which are annexed to the municipal code of each distinct society. Every State has therefore a right to resort to force, as the only means of redress for injuries inflicted upon it by others, in the same manner as individuals would be entitled to that remedy were they not subject to the laws of civil society. Each State is also entitled to judge for itself, what are the nature and extent of the injuries which will justify such a means of redress.10
However, Wheaton's formulation did not go so far as to embrace an absolute right to resort to force. Wheaton and most of his contemporaries were sensitive to what legal philosopher H.L.A. Hart (1907-1992) later described as “the internal aspect of rules.”11 This was expressed in the requirement of an albeit subjective perception of prior injury and the element of justification. This in itself was a clear indication that, as a matter of law, states did not then believe that the right to use force was absolute.12  Thus, Wheaton was able to condemn "the injustice and mischief of admitting that nations have a right to use force, for the express purpose of retarding the civilization and diminishing the prosperity of their inoffensive neighbors."13 


Here Wheaton's legal view contrasted with the lay perspective of Prussian soldier and military theorist Carl von Clausewitz (1780-1831) who judged the impact of the law of nations to be “almost imperceptible and hardly worth mentioning.”14  For Clausewitz, the resort to force was purely discretionary -- a decision governed by what later in the 19th century would be called Realpolitik: "War is an instrument of policy...15  nothing but a continuation of political intercourse, with a mixture of other means."16 

Clausewitz’s doctrine was neither advanced nor accepted as part of the law of nations, which by definition was bound to express itself in legal terms. Thus, war as a legal institution was the ultimate forum for the bilateral litigation of states. War and “the forcible measures short of actual war” were “various modes of terminating the differences between nations.”17  In this way, an inter partes decision was sought that was otherwise unobtainable. And, it is exactly in the context of this metaphor of conflict as ongoing bilateral litigation that we have to understand the famous toast of USA naval hero Stephen Decatur (1779-1820): "Our country! In her intercourse with foreign nations, may she always be in the right; but our country, right or wrong!"

Privity of conflict

As a recognized procedure for dispute settlement, the unilateral resort to force was in law then exclusively the concern of the parties to the conflict. To my mind, this recalls the Common Law doctrine of "privity of contract" which prevents a person from seeking enforcement, or suing on contractual terms, unless he is a party to that contract. Common Law "privity" provides that a contract cannot confer rights or impose obligations on strangers to that contract. Here I am suggesting that before 1919 -- with respect to the use of force between states -- there was juridically a general understanding that amounted to a doctrine of "privity of conflict."
With reference to the essentially bilateral relation of war, the doctrine of neutrality and the legal conception of belligerent rights were to some extent a refutation of this privity. However, apart from matters connected with neutrality and belligerent rights, the non-belligerent third party then generally lacked locus standi and was in most respects legally regarded as a "stranger to the dispute." Specifically, a third party had no legal interest in the conflict and could not interfere as of right. Mediation between the belligerents was in every respect discretionary. The law of nations then imposed no obligation to offer or accept good offices for conciliation. Thus, third-party mediation was only possible on the basis of formal acceptance by the belligerent states. 


For example, in the warfare and diplomacy culminating in the Belgrade Treaty (1739), the role of the King of France as mediator was accepted as a matter of discretion by both the Habsburg Emperor and the Ottoman Sultan. This was considered to be a triumph for France's diplomacy.The Habsurg and Ottoman armies had done the fighting; but, without firing a shot, France was able to shape the peace settlement to her own advantage.18  Here, the diplomatic achievement has to be assessed according to the norms of the 18th and 19th centuries, when an attempt to mediate might well have been construed as an unfriendly act, itself capable of constituting a justification for war (casus belli).


As late as 1899, compulsory mediation was explicitly excluded by Articles 5-7 of the Hague Convention for the Pacific Settlement of International Disputes. However, Article 3 notably instituted a small exception to privity by stipulating that:
one or more Powers, strangers to the dispute, should, on their own initiative, and as far as circumstances may allow, offer their good offices or mediation to the States at variance. Powers, strangers to the dispute, have the right to offer good offices or mediation, even during the course of hostilities.The exercise of this right can never be regarded by one or the other of the parties in conflict as an unfriendly act.
What I call “privity of conflict” has been faulted as a legal doctrine discouraging third-party peace initiatives. However, this marked defect must be weighed against countervailing advantage. The drift towards a general war among states may have been sometimes impeded because the legal notion of conflict (including the "state of war") was then perceived as essentially bilateral. Also largely bilateral was how domestic and international law then understood the "legal relation of peace."



The general peace

Despite the Concert of Europe and the Congress System, privity is an apt description of some 19th-century realities. This was especially true after the Crimean War (1853-1856), a period which witnessed the 1859 conflict between France and Austria (i.e. the Habsburg Monarchy), and then the three wars of Bismarck (1864, 1866, 1870-1871). However, there was a competing theme of “the peace of Europe,” which was exemplified in the 1878 Congress of Berlin -- a notable third-party intrusion into the Russo-Turkish quarrel.


And to be sure, the “peace of Europe” and the “general peace” had featured in some 18th-  and 19th-century treaties like the 1899 Hague Convention for the Pacific Settlement of International Disputes.18  However, such references to the “general peace” primarily referred to the literal absence of war. They were still more political than legal, because:
  • both domestic and international law then held to an understanding of the "state of war" and the legal relation of peace that was largely bilateral and disjunctive; and
  • there were then no international legal procedures for "keeping the peace" or punishing a "breach of the peace," e.g., via compulsory dispute settlement or collective security.
For similar reasons, the doctrine of the "balance of power" was largely political and seldom perceived to be part of the law of nations. Figuring prominently in European thinking about foreign relations in the three centuries before the First World War, the idea of the balance of power was geographically equivalent to, but conceptually different from, the somewhat related concept of the "general peace" or the "peace of Europe."

Closer kin to the pre-war political doctrine of the balance of power was the post-war legal doctrine of collective security. However, the law of nations had been systemically unable to accommodate legal doctrines of either collective security or the balance of power, principally because what amounted to "privity of conflict" remained a fundamental legal principle until the Paris Peace Conference.


Moreover, privity of conflict implied "privity of peace." The law of nations was therefore also unable to expand via addition of a juridical perception of international peace. That is to say, domestic and international law then understood the "state of peace" to be largely bilateral, and the peace/war relation to be invariably disjunctive. These characteristics together prevented any possibility of then supplementing the law of nations with an overarching juridical conception of international peace as jurisdiction, i.e. as the permanent legal order of an enduring society of states.

Significantly, such notions of privity mostly died in the hecatomb of total war (1914-1918). And, they were largely abrogated by the Covenant of the League of Nations, including Article 11 which stipulated that:
Any war or threat of war, whether immediately affecting any of the Members of the League or not, is hereby declared a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations. [...]

It is also declared to be the friendly right of each Member of the League to bring to the attention of the Assembly or of the Council any circumstance whatever affecting international relations which threatens to disturb international peace or the good understanding between nations upon which peace depends.

Paris 1919: international law revolution?
In many ways, public international law since 1919 has been a commentary upon the work of the Paris peacemakers. This has been true with regard to international law as a whole, as well as with respect to a number of important topics. For example, the Paris peacemakers devoted an extraordinary amount of attention to the 19th-century liberal doctrine of the self-determination of peoples. They placed that political doctrine on track toward transformation into what is today arguably a fundamental norm of the international legal system. With regard to the international use of force, 1919 was similarly a watershed. It witnessed the emergence of three related legal ideas which together revolutionized the law of nations:
  • first was the treaty's acceptance as an integral part of international law, with treaty obligation now legally binding, as opposed to exclusively relying on honor;
  • second was the new understanding of the “war of aggression” as an international delict; and
  • third was the invention of “international peace and security” as a permanent legal order disciplining the use of force by states and thereby enhancing bilateral peace between states.

Making the treaty legally binding

As a legal institution, the treaty was one of the principal beneficiaries of the First World War. What in 1914 German Chancellor Theobald von Bethmann-Hollweg had notoriously considered to be no more than “a scrap of paper”20 was by 1920 given top billing among the sources and evidences of public international law. Thus, the Statute of the Permanent Court of International Justice, Article 38, remarkably exalted “international conventions” over custom, the general principles of law, judicial decisions and the teachings of publicists!21 In the same vein, the Covenant of the League of Nations, preamble, had already enjoined “scrupulous respect for all treaty obligations” and Article 18 insisted that treaties registered with the Secretariat were to be “binding.”
The treaty’s rapid rise had a lot to do with the specific circumstances of the First World War. This was manifest in the peace with Germany. Versailles Treaty, Article 227, stipulated that: “For a supreme offence against the sanctity of treaties [and] with a view to vindicating the solemn obligations of international undertakings...” German Emperor William II was to stand trial. The reference was to Germany’s violation of the neutrality of Belgium. This breach of the Treaty of London (1839) was for the UK government the legal casus belli.22  As such, it was natural and intellectually easy to confuse it with the actual cause or causes of the war. Thus, the failure to observe treaty obligations was then seen as the cardinal defect of the pre-1914 system of international law and relations, where treaties were binding in honor alone.
For this reason, “the old era is to be left behind and nations as well as individuals are to be brought beneath the reign of law.”23 For the establishment of this new legal order, two interrelated innovations were thought necessary with regard to the law of treaties. First, treaties had to be binding not only in honor but also in international law. Second, diplomacy had to “proceed always frankly and in the public view.”

According to USA President Woodrow Wilson: “Open covenants... openly arrived at” would guarantee to the citizenry of each country and to the whole community of nations an opportunity to observe and criticize the conduct of foreign relations and to monitor state compliance with international law.  In this way, governments would fulfill their conventional obligations, and -- what is more -- would be seen to do so.24


Rise of the law-making treaty

With immediate impact was the new perception that treaties are an integral part of international law and that the obligations they embody are binding not only in honor but also in law. Correspondingly, the international legal system shifted from almost exclusive reliance on custom towards more emphasis on a quasi-legislative mode of norm creation. The latter operated through the medium of the multilateral treaty, which included the possibility of the law-making treaty or traité-loi.
During the 19th century, there were just a handful of law-making treaties. For example, the 1856 Paris Declaration on Maritime Law in Time of War specifically stipulated that as between the Parties:
  • privateering is and remains abolished;
  • the neutral flag covers enemy's goods, with the exception of contraband of war;
  • neutral goods, with the exception of contraband of war, are not liable to capture under enemy's flag; and
  • blockades, in order to be binding, must be effective -- that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.

Despite a few such exceptions, the law-making treaty played a relatively limited role before the First World War. However, the settlement crafted by the Paris Peace Conference relied heavily on the law-making treaty. Thus, inserted into the body of each one of the peace treaties with the defeated Central Powers was the Covenant of the League of Nations. The latter effected fundamental changes to substantive law. Simultaneously, it powerfully reaffirmed late 19th-century precedents showing that a multilateral convention (e.g., the 1874 Bern Treaty Concerning the Formation of a General Postal Unioncould serve as constituent instrument for a permanent international organization, where new rules could be formally adopted by stipulated procedures, such as majority vote of the member states.


As legal forms, the traité-loi and the international institution owe much to domestic law. This same domestic influence changed the manner in which statesmen and publicists conceived of international law and its uses. "The understandings of... the actual rule of conduct" no longer sufficed. Instead, the domestic analogy suggested that international law could be consciously, purposefully, and prospectively established. Legislation was a procedure familiar from domestic experience. Its application to international law arose out of the noble determination that the pre-war law of nations had to be reformed. At the same time, this domestic analogy encouraged the perhaps optimistic belief that international law could be reformed.


The impact of state policy or self-interest had also been operative in the earlier system of customary law. As a tool for the advancement and protection of national concerns, legal argument always displayed the characteristic features of manipulation and distortion. In this fashion, 18th-  and 19th-century governments had also tried to shape and exploit the law of nations.25  However, they did so within the relatively narrower limits posed by the doubts about the treaty as a source of law and the general absence of permanent institutions able to regularly manufacture international legal norms. The latter were before 1919 based principally upon custom, and as such were largely the normative reflection of the bare facts of reciprocal relations. However from 1919, it became increasingly easy to drive a wedge between international norms and international realities. Thus, modern international law has expanded opportunity to replace long-standing state practice with new rules that sometimes do not match the actual pattern of the conduct of states.


Covenant and Charter wartime

Formation all at once -- by one blow (uno ictu) -- is a peculiarity of legislation. By definition, the law is made in accordance with the contemporary understanding of present needs. For this reason, the regulation of the international use of force has generally been a wartime subject. Although the legal results were quite different, the formation of the earlier customary law on this topic had logically to emerge also from periods of conflict between states. Thus, the legal doctrine of neutrality took shape during the Napoleonic Wars.
In this respect, the international law of the 20th century has been no different. To consider the Covenant of the League of Nations and the United Nations Charter as post-war creations is a great mistake. Both documents reflect a mental climate peculiar to a period of guerre à outrance. In the midst of total war waged for unconditional surrender, they were ex parte born as the legal expression of Allied war aims.
The name “League of Nations (French, Société des Nations) was widespread as early as 1915. After the USA entered the First World War in April 1917, the establishment of “a general association of nations”26 became one of the main goals of the Allied and Associated Powers. As for the United Nations Charter, it was conceived, drafted and signed before the end of the Second World War.27 This wartime provenance must always be remembered. It is a crucial consideration for the proper understanding of the assumptions underlying the new legal conceptions. These were in large measure the generalized expression of the contemporary view of reality.


War as crime

In 1919, the Paris peacemakers were Janus-faced. Conscious of a legislative role, they looked to the future. However, they violated international law’s important intertemporal rule by reaching back to apply their newly formulated norms to the past. This ex post facto element underlined the obvious:
In the view of the Allied and Associated Powers, the war which began on August 1, 1914, was the greatest crime against humanity and the freedom of peoples that any nation, calling itself civilised, has ever consciously committed.28  [...] They regard this war as a crime deliberately plotted against the life and liberties of the peoples of Europe.29
This condemnation of Germany was not the result of international law. Rather, it was the cause of international law. The unshakable belief in Germany’s guilt was the rock upon which the new international legal order was built. This perception of Germany’s offence was written into Versailles Treaty, Article 231:
The Allied and Associated Governments affirm and Germany accepts the responsibility of Germany and her allies for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies.
This specific reference to the new legal offence of aggression featured in the leading article on “reparation” in each one of the treaties with the Central powers. They were divided into two categories:
  • Germany, Austria, and Hungary were compelled to “accept” that their “aggression” had “imposed” the war upon the Allied and Associated Powers.30  
  • Bulgaria and Turkey were made to recognize that they had joined in “the war of aggression which Germany and Austria-Hungary waged against the Allied and Associated Powers.”31

State responsibility for "aggression"

The “aggression” of the Central Powers was portrayed as the element of injuria (wrongful act) which made them legally responsible for the damnum (damage) they had in fact caused. This was a legal innovation. Before the First World War, states had an almost unqualified right to go to war (jus ad bellum). Thus, "aggression" was then a political accusation not a legal offence. For this reason, the vanquished's obligation to make “contributions” or pay an indemnity arose exclusively from the peace treaty -- it was purely conventional and did not spring from liability for a legal wrong, whether tort or delict. Thus, Article IV of the Treaty of Paris (1815) and Article VII of the Treaty of Frankfurt (1871), each obliged France to make “payment” of a specified sum. But, neither in those articles nor elsewhere in those treaties was there any indication of another conceptual basis for France’s commitment to pay.32
This traditional approach of exacting contributions and indemnities was firmly rejected by President Wilson. Asking Congress for a declaration of war against Germany (April 2, 1917), he insisted: "We seek no indemnity for ourselves, no material compensation for the sacrifices we shall freely make."33  In the same vein, his Message to the Provisional Government of Russia (May 26, 1917) emphasized: "No indemnities must be insisted upon except those that constitute payment for manifest wrongs done."34 The identical approach featured in the November 1917 decree of the Second All Russian Congress of Soviets which demanded a “people’s peace without annexations and without indemnities.”35  Again on February 11, 1918, Wilson told Congress that there should be a peace of “no contributions” and “no punitive damages.”36
The Treaty of Brest-Litovsk (March 3, 1918) was Russia’s separate peace with the Central Powers. There, “the contracting parties mutually renounce[d] all indemnifications...”37  However, in a Russo-German agreement supplementary to the peace treaty, a reciprocal formula for the “compensation of civil losses” was included.38  With respect to Germany, the Allied and Associated Powers also had financial demands. On the basis of their published war aims, they were estopped from imposing contributions and indemnities. A new conceptual foundation had therefore to be contrived, so the idea of "reparation" was formulated on the basis of a domestic-law analogy.
Prior to the Paris Peace Conference, the term “reparation” had seldom been employed in a treaty imposing a war contribution or indemnity.39  In both the English and French languages, reparation in this context bears the meaning of making amends for a prior wrong:
'Reparation' is not a technical word. It is the making good of the losses which a party injured has sustained by wrongful acts and their natural consequences, so as to replace him in as good a position as that which he occupied before the wrong was done. It is effectuated by material means and affords full compensation for the real effects of the wrong.40
This implication is lacking in the concept of “indemnification” which embraces compensation for damnum but not for injuria. In any event, the judgmental element had generally been absent from the traditional conception of the war indemnity. This was evident in the documents regulating the termination of the Franco-Prussian War, where “indemnity” and “contribution” were employed interchangeably.41


Aggression and "war guilt"

The Allies did not have to agonize over a legal definition of “aggression.” Their experience of Germany’s use of force was the exemplar from which they abstracted the notion. The disparity between the law of nations as it was in 1914 and the standards applied by the Allies in 1919 was painfully evident to Germany’s representatives at the peace conference. They had no doubt that, in the context of the old law of nations, both “aggression” and “reparation” were novel concepts aimed at securing an ex post facto condemnation of Germany.42 This is the legal dimension of the famous “war guilt” issue over which rivers of ink have flowed.


At close range, the deep legal meaning of Versailles Treaty, Article 231, was perhaps inscrutable. Thus, German jurist Karl Strupp (1866-1940) then opined (my translation):
Responsibility for the war is nonetheless not responsibility in the legal sense and was not formulated as a legal indictment. Rather Germany, Austria, and Hungary have merely recognized -- in the sense of an ethical-political principle -- that they have caused all the losses and damage and that they are liable for all the losses and damage. The three countries have therefore merely recognized their authorship of the losses... and at the same time their attack upon them [the Allies] as the cause of the losses and damage, but have not admitted the unlawfulness of the attack... or even responsibility for the World War in a strictly juridical sense...43
This effort to distinguish the political from the legal made perfect sense in terms of the law of nations as it had been before the First World War. Writing in the early 1920's, Strupp was so close to events that he understandably missed the key point that the Paris Peace Conference had just fundamentally changed international law. In retrospect, it is easier to see that the finding that Germany had waged a war of "aggression" was, in the context of a new legal order, first exercise of a quasi-judicial capacity, now entrusted to the Security Council under United Nations Charter, Article 39:
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

No delict without legal system

The Paris Peace Conference was also “the first or preliminary meeting of the League, intended to work out its organization, functions and programme...”44 Consequently, the retrospective judgment embodied in Versailles Treaty, Article 231, was able to find its prospective counterpart in the Covenant of the League of Nations. The notion of “aggression” was embodied in Article 10:
The Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled.
Article 10's meaning must be interpreted within the context of the Covenant as a whole. Thus, former League of Nations Deputy Secretary-General Francis Paul Walters (1888-1976) explained that: 
the central, basic idea... was that aggressive war is a crime not only against the immediate victim but against the whole human community; that accordingly it is the right and duty of all states to join in preventing it; and that if it is certain that they will so act, no aggression is likely to take place.45
This succinct analysis by Walters was chronologically correct in first pointing to the identification of aggression as a delict. The borrowing of this notion of a legal wrong from domestic systems was fundamental in determining the orientation of the new international legal order.


The late Professor Glanville Williams (1911-1997) was described as Britain's foremost scholar of criminal law. He taught Cambridge University law students that “a crime (or offence) is a legal wrong that can be followed by criminal proceedings which may result in punishment.”46 This definition underlines the logically necessary connection between the idea of crime and the concept of a continuously functioning legal system embracing law, jurisdiction, institutions, procedure and remedies. Precisely this full combination had been lacking in the law of nations from the early 16th-century Protestant Reformation to the end of the First World War.
The Covenant had to construct both “offence” and “legal system” from the ground up. Part of this work consisted in the creation of the several League organs including the Permanent Court of International Justice. Another aspect was reflected in those articles governing procedures for the settlement of international disputes. The Covenant also offered “collective security” as a remedy available to a member state deemed to be the victim of aggression and embraced the idea of the application of military and economic sanctions against the aggressor. These innovations had logically to be unified within the framework of a new concept of jurisdiction. “International peace and security” was the legal abstraction invented to satisfy this need.

Bilateral peace then and now

According to the Covenant, preamble, one of the primary purposes of the League was “to achieve international peace and security.” From a lay perspective, the latter may well have been seen as nothing more than the restoration of the golden age -- i.e. a return to the long European peace that had suddenly ended in August 1914. From this lay optic, “peace” was simply the absence of interstate conflict. And, this popular view was, in some ways, a fair reflection of the pre-war domestic and international legal understanding of peace, which before 1914 was largely focused on the fact of force, with a juridical precision that saw peace as exclusively bilateral and the peace/war relation as logically disjunctive.

This key point is crystal clear from the writing of John Westlake (1828-1913) who was Whewell Professor of International Law at Cambridge University. Before the First World War, he explained that “the state of peace requires the concurrent wills of two governments to live together in it, and is replaced by the state of war as soon as one of those wills is withdrawn.”47 This was significantly the sole legal meaning of peace before the First World War. It was only international insofar as it operated bilaterally within the context of the law of nations. Moreover, this privity of peace was clearly the obverse of privity of war.
And to be sure, something like that classical understanding of peace to some extent survives in the way that domestic and international law now see the bilateral "relation of peace" or the "state of peace" between two countries. Precisely in this enduring context, modern governments continue to make bilateral peace treaties. For example, consider the 1979 Treaty of Peace between Israel and Egypt, where Article 1(1) stipulates: "The state of war between the Parties will be terminated and peace will be established between them upon the exchange of instruments of ratification of this Treaty."



International peace adds to bilateral peace

There is now also the permanent “international peace” of the Covenant and the Charter which is significantly something more than the bilateral peace between two states. Apart from being international in the traditional sense of not being solely domestic, the new peace is also international by reason of being common to the whole community of states -- la société des nations, which in the French-language significantly means both "the society of states" and "the organization of states."


The important addition of this new kind of peace was effected through the formal abrogation of what I call "privity of conflict" by virtue of League of Nations Covenant, Articles 10-17. Consequently, “peace” is no longer limited to a simple description of fact, i.e. referring only to the absence of the "state of war" or armed conflict between states. To supplement the centuries-old bilateral understanding of peace, there is now also “international peace and security” as a term of art, i.e. as a portmanteau expression for the permanent legal regime (jurisdiction) that disciplines the international use of force by states and thereby enhances the bilateral peace between states.
"The system of international peace and security established by the present Charter” appears in UN Charter, Article 73. This systemic interpretation is also consistent with Covenant, Article 15(7), the so-called "gap" in the Covenant. The “action... for the maintenance of right and justice” there contemplated was nothing less than a resort to war compatible with a figurative international peace and security. In this same sense, Covenant, Article 11, referred to “the peace of nations” and to “international peace” and Covenant, Article 19, to “the peace of the world.” In the Covenant, the phrase “international peace and security” featured only in the preamble. The same term appears in the UN Charter, preamble, and numerous times in its various articles.48 



"International peace" as legal order

The specifically legal meaning of “international peace and security” can be elucidated semantically. The relevant connotation of “international” has already been demonstrated. As for “peace,” the absence of war or conflict has always been but one of several significations. Thus, classical Latin was able to employ pax or “peace” also with the import of “dominion” or “empire,” which is equivalent to "jurisdiction." This usage is familiar to us from the famous phrase pax Romana.49 
The medieval understanding of pax developed this aspect further still. The word pax was then used as the name for the “urban peace, a legal system characterized by enhanced penalties inflicted upon those who use violence” within the commune. At the same time, the pax was also the actual “association for the enforcement of the municipal peace,” the commune itself or “the area in which the municipal peace is in force” or even the “communal charter.”50 The very same shades of meaning are to be found in the международный мир (international peace) of the authentic Russian-language text of the UN Charter. In the Russian language, мир means “peace,” “universe,” “world,” or “the traditional village commune.”51



Meaning of "security"

The conception of “international peace and security” as a formal legal order receives powerful support from an examination of the meaning of “security.” This word is commonly employed in two basic ways. It may refer to “the condition of being secure” or “a means of being secure.”52 In either sense, the term looks to the exigencies of the future. This implicit temporal dimension suggests from a legal viewpoint the continuous operation of a system and not merely a description of fact. Otherwise, security would be impossible either “to achieve” or “to maintain.” This reading is corroborated by the authentic French-language text of the Covenant, preamble. There we find the term sûreté, the primary meaning of which is “ce par quoi une personne est rendue sûre” (that by which a person is made secure) or “ce qui garantit chose est sûre” (that which guarantees something is secure).53  This is an a fortiori instance in so far as the authentic French-language text of the UN Charter uses sécurité, which is not so clearly a means as contrasted with a condition.54

Medieval "peace" as legal order

"International peace and security” as a term of art is a concept which can also be explained comparatively and historically. For this purpose, the early development of domestic systems is especially relevant. The juxtaposition of ideas from two entirely different spheres is here no mark of intellectual confusion. The notion of “international peace and security” as a legal institution was deliberately constructed upon the domestic-law analogy. For this reason, attention must be given to the emergence of the domestic regime of public order within the medieval proto-state.55  
The step-by-step growth of law and jurisdiction is the relevant feature here. Thus, we are interested to learn that the domestic disorder of the 10th and 11th centuries prompted the formation of regional councils composed of ecclesiastical and lay magnates. These bodies proclaimed and enforced the “peace of God” or pax Dei -- a special regime of peace for the protection of religious sanctuaries, clerics, widows, peasants and paupers. This phenomenon was so common that it represented the first form of public law in most of Western Europe.56
After some time, the base of “the peace” or pax as a legal institution shifted from the diocese to the county, duchy or kingdom. This larger territorial scope was matched by an extension of protection to a wider range of persons and places. Thus, the special pax Dei gradually became the general peace proclaimed and enforced by the count, duke or king. As such it reinforced the earlier vague concept of the king’s peace (Königsfriede) which in the case of the Franks is said to date from antiquity.57  The Königsfriede was:
a political conception of public order, a general state of peacefulness. However, it does not indicate a legal conception because a breach of that "peace" could not form by itself the basis of an action by any known form of legal procedure.58 
This defect was corrected in the course of the 12th and 13th centuries. As early as 1084, there was an explicit Landfriede for Saxony. In 1103 Holy Roman Emperor Henry IV promulgated an imperial peace which he enforced with the aid of the great territorial princes. Such Reichslandfrieden were also issued by the Holy Roman Emperor Frederick I Barbarossa twice in the 1150’s and again in 1186. At the time, they were the only form of legislation common to the entire Holy Roman Empire.59



Common Law "King's Peace"

For present purposes, the parallel developments in medieval English law are the most relevant. This emphasis on England is justified by the predominant role of Common Law countries like the UK and the USA in the creation of first the League of Nations and then the United Nations. The general influence of the Common Law upon all branches of international law was thereby strengthened.60  In particular, the new conception of “international peace and security” was consciously cast from the Common Law mold. In this respect, the intimate connection between law, jurisdiction and remedies is the particular aspect of the medieval English experience that merits attention.
English historian and jurist Frederic William Maitland (1850-1906) described the 12th-century legal revolution by which the king’s peace was generalized for all subjects and spread throughout the realm.61 Under English King Henry II and his successors, a common royal justice expanded rapidly at the expense of particular feudal jurisdictions. By the close of the 13th century, “the king’s peace had fully grown from an occasional privilege into a common right.” As such, it was formally claimed in the royal courts with the writ de securitate pacis (concerning the keeping of the peace).This remedy was available only from the king’s justices whose judgments were enforced by the royal sheriff and bailiff, backed by the power of the county.62
The implicit connection between the king’s peace and the new conception of international peace was made explicit in the official British Commentary on the League of Nations Covenant.63  
No State, whether a member of the League or not, has the right to disturb the peace of the world till peaceful methods of settlement have been tried. As in early English law, any act of violence, wherever committed, came to be regarded as a breach of the King’s peace, so any and every sudden act of war is henceforward a breach of the peace of the League, which will exact due reparation.
According to English jurist Sir Frederick Pollock (1845-1937): “This is no far-fetched academic illustration; the parallel is not only justified by historical fact, but closer than it appears at first sight.”64 How penetrating his insight was may be measured against the language of both the League Covenant and the UN Charter. “Any circumstance which threatens to disturb international peace...” figured in Covenant, Article 11. The UN Charter is even more explicit -- Articles 1(1) and 39 embraced the delictual notions of the “threat to the peace” and the “breach of the peace.”65
International peace: a term of art?

Apart from the presumption that law normally has something to do with legal concepts, another consideration argues powerfully for understanding “international peace and security” not only literally as absence of conflict but also figuratively as term of art. This is the canon of construction embodied in the Latin maxim ut res magis valeat quam pereat (that the matter rather be more effective than perish). This requires a treaty (including the Covenant of the League of Nations or the UN Charter) to be interpreted according to its expressed object and purpose, in a way that offers fullest effectiveness. Conceived strictly as referring only to the absence of war or of international armed conflict, “international peace and security” would offer some serious logical problems for the interpretation of contemporary international law.
For example, international peace is presented as sometimes comprehending, but not always identical with the absence of international force. Thus, international peace and security may coexist with the phenomenon of serious armed conflict between states. Also compatible with international peace is the licit use of force as in self-defence or when specifically authorized to enforce international peace and security. Moreover, the peace may be deemed to be “threatened” or “endangered” by an act or circumstance which is both pacific in itself and causally remote from a likely manifestation of international force. If these observations are correct, the present law is more intelligible if the literal interpretation of “international peace and security” is supplemented by the systemic meaning.
The relevance of this suggestion must be measured against the practice of the international legal system. Within this framework, the sources and evidences of the law relating to international peace and security are easily identifiable. The concept was the creation of the Covenant of the League of Nations. Today it rests exclusively upon the UN Charter and has no other basis in law.66 The Charter alone also determines which organs have the capacity to make authoritative determinations with respect to international peace and security. In this connection, there are three relevant bodies -- the Security Council, the General Assembly, and the International Court of Justice (ICJ).

UN Security Council and General Assembly

"Primary responsibility” is conferred upon the UN Security Council67 which “shall determine the existence of any threat to the peace, breach of the peace, or act of aggression.”68 According to the ICJ: "The Charter makes it abundantly clear... that the General Assembly is also to be concerned with international peace and security.”69  The issue here must not be confused with the familiar argument over the legal effect of General Assembly resolutions. The circumstances in which the latter can bind states are not the present concern. The instant point is also prior to the problem of “action” under the UN Charter. Whether subsequently it operates by recommendation or otherwise, has the General Assembly the capacity initially to make a legally definitive declaration or determination about international peace and security? Specifically, may it issue a conclusive finding about the existence of a threat to the peace, a breach of the peace, or an act of aggression?
The UN Charter suggests an affirmative answer: “The General Assembly may consider the general principles of cooperation in the maintenance of international peace and security...”70  Subject to the “primary responsibility” of the Security Council,71 “the General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations, or by the Security Council, or by a state which is not a Member of the United Nations...”72  As for the formal identification of a situation which is "likely to endanger international peace and security," capacity is clearly conferred upon the General Assembly as a preliminary to a reference of the question to the Security Council.73


However, the canon of interpretation embodied in the Latin maxim inclusio unius est exclusio alterius (inclusion of the one thing implies exclusion of the other) suggests that we must search elsewhere for the General Assembly’s authority to pronounce upon the existence of the more serious threat to the peace, breach of the peace, or act of aggression. With special reference to “questions relating to the maintenance of international peace and security,” UN Charter, Article 11(2), provides: “Any such question on which action is necessary shall be referred to the Security Council by the General Assembly...” Here, the General Assembly’s ability to effect the required reference rests upon its capacity first to identify a “question on which action is necessary.” In this context, the ICJ opined:
The word 'action' must mean such action as is solely within the province of the Security Council... The 'action' which is solely within the province of the Security Council is that which is indicated by the title of Chapter VII, namely 'Action with respect to threats to the peace, breaches of the peace, and acts of aggression.'74
The function of identification clearly cannot be performed unless the General Assembly is also able to recognize a threat to the peace, breach of the peace, or act of aggression. “By necessary implication,” the General Assembly must have the capacity to make these legal findings.75 This reading of the UN Charter conforms with the General Assembly’s own understanding and practice. In the 1950 Uniting for Peace Resolution:
The General Assembly... resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.76  
On this basis, “the General Assembly has assumed the power to determine the existence of a breach of the peace or an act of aggression."77  A “threat to international peace and security” may also be identified by the General Assembly.78



International Court of Justice

Established by UN Charter, Article 7, the ICJ is one of the six “principal organs of the United Nations.” The Statute of the International Court of Justice “forms an integral part of the... Charter” and the ICJ is “the principal judicial organ of the United Nations.”79 As such, the ICJ has an advisory and contentious jurisdiction which may extend to any question of international law. The ICJ is therefore competent to render authoritative opinions or judgments relative to the legal meaning and implications of international peace and security.


This specific capacity was affirmed in a 1966 dissenting opinion of Judge Padilla Nervo in the South West Africa cases:
Many of the activities of the General Assembly and the Security Council... are in the nature of political events concerned with the maintenance of international peace, which is also the concern of the Court, whose task is the pacific settlement of international disputes...80
In the 1970 Barcelona Traction case, Judge Padilla Nervo returned to the same theme:
The law, in all its aspects, the jurisprudence and the practice of States change, as the world and the everyday requirements of international life change, but those responsible for its progressive evolution should take care that their decisions do, in the long run, contribute to the maintenance of peace and security and to the betterment of the majority of mankind.81
Judge Sir Percy Spender had earlier expressed a similar view in the 1962 Expenses case:
The purpose pervading the whole of the Charter and dominating it is that of maintaining international peace and security and to that end the taking of effective collective measures for the prevention and removal of threats to the peace. Interpretation of the Charter should be directed to giving effect to that purpose, not to frustrate it. If two interpretations are possible in relation to any particular provision of it, that which is favourable to the accomplishment of purpose and not restrictive of it must be preferred.82

Can others make determinations about peace?

Security Council, General Assembly and ICJ are the three organs legally qualified to make formal determinations about threats to the peace, breaches of the peace and acts of aggression. International law knows no other institution or person empowered to share this special capacity. For example, UN Charter, Article 99, authorizes the UN Secretary-General "to bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security." The Secretary-General is entitled to "his opinion," but lacks competence to make a formal determination of the actual existence of a threat to the peace.


A fortiori incompetent to make such formal determinations with respect to international peace and security are law professors, and lawyers working for non-governmental organizations. They are certainly entitled to their reasoned views, which sometimes may even prove influential, inter alia, because the Statute of the International Court of Justice, Article 38(1)(d), recognizes "the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law."


And, what about states? Can they make a formal determination about international peace and security? UN Charter, Article 33(1), provides a road map for "the parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security." This implies that the states party to the dispute must themselves have the capacity to initially identify a dispute that is "likely to endanger"  the maintenance of international peace and security.  However, the states party to the dispute are not empowered to conclusively determine that a dispute is a danger, i.e. an actual "threat to the peace" under the UN Charter.


In the same way, a state may invoke “the inherent right of individual or collective self-defense."83  Thus, a state can use armed force and offer ex parte arguments that are more or less convincing. But, that is not equivalent to an institutional determination of the existence of a threat to the peace, a breach of the peace or an act of aggression. This is confirmed by UN Charter, Article 51:
Measures taken by Members in the exercise of this right of self-defense... shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Direct impact upon international peace and security must come via authorized determination by a competent body, in accordance with the UN Charter. A threat to the peace, a breach of the peace, or an act of aggression does not legally exist independent of this authoritative judgment. And, this point is manifest in the definition of aggression, adopted by the General Assembly in 1974.84



UN definition of aggression

The Definition of Aggression claims to be nothing more than the General Assembly's recommendation to the Security Council for use “as guidance in determining, in accordance with the Charter, the existence of an act of aggression.” The General Assembly conceded that “the question whether an act of aggression has been committed must be considered in the light of all the circumstances of each particular case.” Thus, “the first use of armed force by a State in contravention of the Charter” is not in itself an act of aggression, but merely “prima facie evidence of an act of aggression.”85 The same distinction is explicitly applied to the enumeration of hostile acts in Definition, Article 3. They are not ipso facto acts of aggression. “Subject to and in accordance with the provisions of Article 2,” they merely “qualify as an act of aggression.” This consideration must be kept in mind in interpreting Definition, Article 1:
Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.
At first glance, this provision might appear to effect a linkage of UN Charter, Articles 1(1) and 2(4), without recourse to the otherwise necessary formal determination by a competent UN organ. On the basis of this reading, the notion of an act of aggression would be given content and intelligibility outside the institutional and procedural framework of the UN Charter. However, such a conclusion is negated by the final phrase of Definition, Article 1. The words “as set out in this Definition” ensure that Definition, Article 1, is qualified by the subsequent seven articles of the Definition of Aggression. This relationship is confirmed by the final article (Definition, Article 8) which specifies that “the above provisions are interrelated and each provision should be construed in the context of the other provisions.” Thus, Definition, Article 1, is clearly limited by Definition, Article 6, which rejects any interpretation which might “in any way enlarg[e] or diminish... the scope of the Charter.” Clearly, the requirement of a formal finding by a competent body is thereby incorporated into Definition, Article 1, which consequently is also subject to the same distinction observed with respect to Definition, Articles 2-3.



Crime to criminal justice as aggression to UN? 

The threat to the peace, breach of the peace, or act of aggression qua delict is comparable to the domestic notion of crime:
Just as a film projector throws an image on the screen, so the working of criminal justice creates the phantom of legal crime. I say "phantom" advisedly, since the legal quality of criminality is the product of our minds. The criminal act may have serious social consequences, or it may be disputable whether it has any bad social consequences at all; but it is a crime if so treated by the courts.86
The foregoing remarks by Glanville Williams are even more apposite to international than domestic law. Under UN Charter, Article 39, the Security Council enjoys absolute and unfettered discretion to “determine the existence of any threat to the peace, breach of the peace, or act of aggression.”  In this respect, the Security Council’s competence can even extend to “matters which are essentially within the domestic jurisdiction of any state.”87  Moreover, Security Council decisions are limited neither by preexisting definitions88 nor by a doctrine of stare decisis, i.e. the Common Law rule that judicial precedents are binding.


Relevant too is the absence of judicial review of resolutions of the Security Council and the General Assembly. According to a 1971 ICJ opinion:
A resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ's rules of procedure, and is declared by its President to have been so passed, must be presumed to have been validly adopted.89  [...] Undoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned.90
The possibility of judicial review by the ICJ was also negated in the 1962 Expenses case:
In the legal systems of States there is often some procedure for determining the validity of even a legislative or governmental act, but no analogous procedure is to be found in the structure of the United Nations. Proposals made during the drafting of the Charter to place the ultimate authority to interpret the Charter in the International Court of Justice were not accepted...  As anticipated in 1945, therefore, each organ must, in the first place at least, determine its own jurisdiction.91
Although the the ICJ can be asked to provide an advisory opinion, the ICJ seems to lack inherent jurisdiction for judicial review of resolutions of the Security Council or the General Assembly. Thus, their formal determinations about international peace and security are unlikely to be discounted as “a mere figment or pretext” by the judges of the ICJ.92 For better or worse, a strictly legal approach seems to require that the veil be not pierced -- that we accept at face value a Security Council or General Assembly determination with regard to international peace and security.

Conversely, the absence of a determination appears to leave international peace and security inviolate. This seems to be true whether or not one or more competent organs had been seized of the issue. And, there might be some logic in this, because information with regard to most matters of international relations is commonly available. This supports the notion that public international law is in this regard truly "public." Specifically, the facts that potentially might have given rise to a formal finding were probably notorious at the relevant time, e.g., the whole world knew of Tanzania’s invasion of Uganda (1979). 

Failure to make a determination after consideration of a question is an a fortiori instance of the same phenomenon. The 1976 Entebbe incident is a good illustration. Without authorization from the Uganda government which even offered armed resistance, a unit of the
Israel Defense Forces landed at Entebbe Airport to successfully free Israeli and other Jewish passengers from an Air France plane that had been hijacked by terrorists. For several days, the Security Council examined mutual allegations of aggression by Israel and Uganda. Though the evident fact of the use of force figured prominently in the discussions, no finding was made in the Security Council, and the issue was not pursued in the General Assembly.93 



Collateral purposes of "crime"


This point is clarified through a comparison with domestic criminal law. Consider a situation where the criminal escapes and there is neither prosecution nor conviction. “What is the point of saying that an act is a crime if no prosecution is brought?” Glanville Williams answers this question with reference to collateral purposes:
If you have insured against theft, you can recover on the policy even though the thief is not caught. There has still been a theft. Then take the crime of handling stolen goods. The handler can be convicted even though the thief has got away. They are stolen goods in the eye of the law although no one has been convicted of theft.94
The same point can be made with reference to the practice of the Criminal Injuries Compensation Board. Because of these and possibly other collateral purposes, the unprosecuted offence is still “a crime in contemplation of law.”


By contrast, the delictual notion of a threat to the peace, a breach of the peace, or an act of aggression has no collateral purposes within the broader international legal system.95  Like the idea of “international peace and security,” the delict operates exclusively under the law of the UN Charter.  Beyond the scope of the Charter, the terminology is legally meaningless.


However, the same or similar language can readily occur as an ex parte allegation in the context of international politics. For example, a country contemplating an unfriendly or hostile neighbour is commonly quick to characterize the latter's conduct as "aggression." This is psychologically and rhetorically understandable. It is also well grounded historically. Before the Covenant of the League of Nations, "aggression" was already a well known political term. And, the word "aggression" even appeared in some 19th-century treaties. Nonetheless, the concept was then largely absent from the law of nations, exactly because war and forcible measures short of war were still lawful options, with few legal restraints on the jus ad bellum, i.e. the right to go to war.



Can peace coexist with armed conflict?

With these considerations in mind, some peculiarities of practice must now be considered. The coexistence of international peace and security with serious armed conflict can be easily established. This was shown in Security Council Resolution 210 (September 6, 1965).96 Responding to the “war” between India and Pakistan:
The Security Council... noting with deep concern the extension of the fighting..., calls upon the parties to cease hostilities in the entire area of conflict immediately... [whereupon the decision] to keep this issue under urgent and continuous review, so that the Council may determine what further steps may be necessary to secure peace and security in the area.
If here “to secure” is synonymous with "to get" or "to obtain," there is no matter for comment. However, this particular interpretation is excluded by a comparison with the resolution's equally authentic French-language version. The latter employs “assurer,” which cannot possibly convey "to get" or “to obtain.” Here the correct meaning must be one which is approximately the same in both tongues. The expression "to secure" must therefore be understood as equivalent to the English verbs “to guard, shield, guarantee or protect.” Thus, “steps... necessary to secure peace and security” clearly imply the existence of that which is to be made secure. Understood in this way, the resolution stubbornly maintained the survival of “peace and security in the area” despite the evident fact of widespread conflict. The latter coexisted with regional peace; a fortiori, it was compatible with international peace and security.


The same conclusion emerges from an examination of the 1971 India-Pakistan conflict which significantly ensured the birth of Bangladesh as a country independent of Pakistan. This was truly one of the major instances of the use of force by states since the Second World War. By December 3rd the army of either side had entered the opponent's territory and cities had been bombed.97 The following day the Security Council considered the question. This meeting did not adopt a relevant resolution. There was consequently no legal characterization. For this reason, the persistence of international peace on December 4th must be presumed even in the face of widespread hostilities.


Is this formalism repugnant? The alternative is to dig deeper to examine the Security Council proceedings of that day. A glance at the record for December 4, 1971, reveals the draft resolution that would have been adopted but for the Soviet Union's veto:98
The Security Council... convinced that hostilities along the India-Pakistan border constitute an immediate threat to international peace and security,... calls upon the Governments of India and Pakistan to take all steps required for an immediate cessation of hostilities;... calls for an immediate withdrawal of armed personnel present on the territory of the other to their own sides of the India-Pakistan borders;... calls upon all States to refrain from any action that would endanger the peace in the area; invites the Governments of India and Pakistan to respond affirmatively to the proposal of the Secretary-General offering good offices to secure and maintain peace in the subcontinent...
Here the document speaks clearly. Despite the egregious fact of force, “international peace and security,” “the peace in the area,” and “peace in the subcontinent” have all endured. Logically peace must still exist, if it is to be threatened and endangered or secured and maintained. This same argument could be constructed upon almost every one of the draft resolutions considered by the Security Council until it used the “Uniting for Peace” procedure to refer the question to the General Assembly.99  And, the latter's resolution exhibited the very same attitude to the evident fact of force. The widespread “hostilities... between India and Pakistan” were characterized as nothing more than “an immediate threat to international peace and security.”100


1974 Turkish invasion of Cyprus

Formerly part of the Ottoman Empire, the Mediterranean island of Cyprus was under UK administration from 1878 and was annexed by the UK in 1914, when the Ottomans opted to enter the First World War on the side of the Central Powers.  Cyprus became an independent state in 1960 and a member of the United Nations in 1961. Following a decade of violence between Greek and Turkish Cypriots, Greek Cypriot nationalists staged a coup to try to make the island part of Greece. This was Turkey's cue to invade northern Cyprus on July 20, 1974.


Security Council Resolution 353 (July 20, 1974) quickly addressed “the present fighting” in Cyprus. Without any success, the Council requested “the withdrawal without delay... of foreign military personnel” and demanded “an immediate end to foreign military intervention in the Republic of Cyprus...” It “deeply deplor[ed] the outbreak of violence and the continuing bloodshed” and called for a ceasefire. The Council also decided “to keep the situation under constant review... in order to insure that peaceful conditions are restored as soon as possible.” However, the formal legal determination of the Council was that “the situation... has led to a serious threat to international peace and security.”


This stunning failure to find a breach of the peace in the face of the brutal reality of an armed attack against the territorial integrity of a UN member state was reiterated on August 16, 1974. "Gravely concerned at the deterioration of the situation in Cyprus, resulting from further military operations,” the Security Council recognized nothing more than “a most serious threat to peace and security in the Eastern Mediterranean area.”101



Eichmann's capture endangered peace!

An act neither warlike in itself, nor likely to be the proximate cause of armed conflict between states, may also formally “endanger” or “threaten” international peace and security. Adolf Eichmann (1906-1962) was a Nazi functionary who had committed crimes against humanity in connection with Germany's extermination of six million Jews during the 1940's. On June 23, 1960, the Security Council:
examined the complaint that the transfer of Adolf Eichmann to the territory of Israel constitutes a violation of the sovereignty of the Argentine Republic... [and noted] that the repetition of acts such as that giving rise to this situation would involve a breach of the principles upon which international order is founded, creating an atmosphere of insecurity and distrust incompatible with the preservation of peace...  Acts such as that under consideration, which affect the sovereignty of a Member State and therefore cause international friction, may, if repeated, endanger international peace and security.102 
Without consent of the government of Argentina, the Israel government had indeed violated international law by executing a unilateral police action on Argentine soil. However, this egregious infringement of Argentina's sovereignty was neither military in character nor by itself likely to lead to armed conflict between the two countries. Israel and Argentina are geographically so distant that it would have been hard for the Security Council to seriously imagine the possibility of a war between them. Ultimately, the issue was resolved through bilateral negotiation, which is the normal avenue for the settlement of disputes between states.


However, the Eichmann incident is instructive, exactly because it was at every stage so clearly remote from actual armed conflict or any likelihood thereof. The Israel government's conduct obviously did not literally endanger international peace and security. Rather, it was merely “a breach of the principles upon which international order is founded.” The Security Council resolution is significant in explicitly enunciating the logical connection between the figurative and literal meanings of international peace and security. If "international peace and security" is synonymous with “international order,” every violation of international law must necessarily to some extent endanger world peace. And, this conclusion is partially confirmed by UN Charter, Article 94 (2): "If any party to a case [before the ICJ]  fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council."


Illegality as threat to peace

The negative impact of illegality upon international peace also featured in the 1971 Namibia case. Referring to the conduct of the government of South Africa, Judge de Castro was emphatic:
It seems undeniable that the illegal occupation of a territory [here South West Africa, also known as Namibia] with regard to which the United Nations has accepted a sacred trust is an act contrary to the maintenance of peace.103
Here, the logic employed by Judge de Castro must not be confused with the very different kind of reasoning used in the social sciences. He has not made an empirical statement about the likely causes of international armed conflict. Rather, his conclusion has been deductively formulated as a legal judgment. This syllogistic mode is one of the principal features that significantly differentiates the discipline of international law from that of international relations. This is germane because it helps to explain how the notion of international peace is frequently used within the international legal system.


Thus, the 1960 UN Declaration on the Granting of Independence to Colonial Countries and Peoples was tantamount to a formal finding by the General Assembly that “colonialism” was illegal, and for that reason “a serious threat to world peace.”104 The primacy of the issue of legality emerged from the resolution itself and from the history of its interpretation. Thus, General Assembly Resolution 2548 (XXIV)1969, found that:
the attempts of some colonial Powers to suppress national liberation movements are... incompatible with the Charter of the United Nations, the Universal Declaration of Human Rights and the Declaration on the Granting of Independence to Colonial Countries and Peoples.  ...The continuation of colonial rule threatens international peace and security.
The same reasoning from a finding of illegality marked the implementation of the decolonization process. Consider the case of the self-governing British colony of Southern Rhodesia, later known as Rhodesia and today as the independent country of Zimbabwe. Ten years before the 1972 start of the guerrilla struggle called the Bush War, the General Assembly hastened to find that the “situation obtaining in Southern Rhodesia constitutes a denial of political rights and endangers peace and security in Africa and in the world at large.”105  


The same approach was adopted by the Security Council in response to Rhodesia’s November 1965 unilateral declaration of independence from the UK. The Security Council identified Prime Minister Ian Smith's White-minority regime as the “illegal authorities.” They were said to be engaged in “an act of rebellion” against the UK “as the administering Power.” Although several years were still to pass before commencement of actual violence, the Council was quick to determine that the situation’s “continuance in time constitutes a threat to international peace and security.”106 


Licit force compatible with peace

The authorized use of force does not disturb the peace. This is obviously true of action taken by  "right of individual or collective self-defense."107  The Security Council may also authorize or legitimate a use of force under UN Charter, Chapter VII. And, such an authorization of the use of force is possible even in response to a mere "threat to the peace." Thus, Security Council Resolution 221 (1966), determined that the violation of the embargo on oil and petroleum products bound for Rhodesia helped to perpetuate a threat to the peace and therefore authorized the UK government "to prevent by the use of force if necessary the arrival at Beira [Mozambique] of vessels reasonably believed to be carrying oil destined for Rhodesia."

Equally licit is the use of force to advance “the right to self-determination, freedom and independence” of “peoples under colonial and racist regimes or other forms of alien domination."108  General Assembly Resolution 31/34 (1976), specifically reaffirmed "the legitimacy of the peoples' struggle...  by all available means, including armed struggle."



Invoking peace to invite violence 

Are UN references to international peace invariably in connection with sincere efforts to avoid armed conflict and peacefully resolve disputes? Or are they sometimes tantamount to an invitation to violence? For example, consider General Assembly Resolution 3379 (XXX) 1975, on the elimination of all forms of racial discrimination, which was justifiably and exceptionally revoked in 1991!


That controversial resolution notoriously determined that "Zionism is a form of racism and racial discrimination." This striking pronouncement was made after the General Assembly had inter alia noted:
the Political Declaration and Strategy to Strengthen International Peace and Security and to Intensify Solidarity and Mutual Assistance among Non-Aligned Countries, adopted at the Conference of Ministers for Foreign Affairs of Non-Aligned Countries held at Lima from 25 to 30 August 1975, which most severely condemned Zionism as a threat to world peace and security...
In the light of the contemporary (1976) UN General Assembly reaffirmation of the legitimacy of national liberation struggles against racist regimes, the highly incendiary intent of this General Assembly resolution could not have been clearer.  Also evident was the resolution's antisemitic character, due to the discriminatory implication that the Jewish people lacked the right to self-determination that belongs to all other peoples.


Within the context of the legal doctrine of the self-determination of peoples, Zionism is to be properly understood as legitimately focusing on the Jewish people's right to self-determination, expressed politically via independent statehood in its ancestral homeland. There, individuals calling themselves "Jews" had lived continuously in each year of the 26 centuries since the ethnogenesis of a self-identified "Jewish" people, around the 6th century BCE.


"The historical connection of the Jewish people with Palestine" and "the establishment in Palestine of a national home for the Jewish people" were famous phrases that featured, from 1917 to 1922, in declarations, resolutions and treaties, that were ex post facto blessed by Article 16 of the 1923 Lausanne Treaty with the Turkish Republic, as successor to the Ottoman Empire. Moreover, General Assembly Resolution 181 (II) 1947, explicitly recommended the creation of "the Jewish State," via partition of the territory between the Jordan River and the Mediterranean Sea.


To say that Israel is "the Jewish State" therefore indicates not racism, but mostly that Israel is the political expression of the self-determination of the Jewish people in a part of its ancestral homeland -- just as Greece is the historic and current homeland of the Greek people.109  Look down the roster of UN member states. In terms of the sources and evidences of international law, how many of those countries can actually claim a legal pedigree equal to or greater than that of Israel?


General Assembly Resolution 3379 (XXX) 1975, lacked a formal finding that Zionism was a threat to international peace and security. However, the references to "racism" and "peace" there were probably understood as justifications for violence. Thus, Resolution 3379 probably damaged the reputation of the General Assembly and likely prejudiced already complex tasks of conflict resolution and political settlement.


An incentive to misbehave?

The Security Council and the General Assembly are the world's only fora for the compulsory settlement of international disputes. Here, the relevant aspect is the psychological "law of the instrument" which warns that "if all you have is a hammer, everything looks like a nail." Are not bellicose conduct and belligerent language to some extent invited by the specific nature of a compulsory jurisdiction limited to disputes or situations likely to endanger international peace and security? Does the mere fact of having such a jurisdiction tend to encourage states "to act up" to advance their cause internationally?


The UN's primary purpose is “to maintain international peace and security.”110  In its quasi-judicial capacity, the UN aims "to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace."111  But even with respect to these disputes or situations, the Security Council and the General Assembly are not courts of first instance:
The parties to any dispute, the continuation of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.112
Taken together, UN Charter, Articles 34 and 35, limit the Chapter VI competence of the Security Council and the General Assembly to disputes or situations “likely to endanger the maintenance of international peace and security.” The latter is, of course, even more closely linked to the Chapter VII jurisdiction of the Security Council. This is explicitly “action with respect to threats to the peace, breaches of the peace, and acts of aggression.”


In this context of compulsory dispute settlement, a dispute or situation unlikely to prejudice international peace is probably not the proper concern of the Security Council or the General Assembly.113  This consideration prompted longtime observer of international organization, Professor F. S. Northedge (1918-1985) to opine:
A state must establish that a dispute or situation is likely to lead to a breach of the peace before it can be placed before the Organisation; and it is evident that the most effective way of doing so is to act in such a manner as to make a breach of the peace likely.114
Thus, a country wishing to avail itself of the compulsory jurisdiction of the Security Council or the General Assembly must first of all behave and speak in a way that invokes the jurisdiction of the forum. And, this forensic ritual  -- at a minimum -- includes an allegation that international peace is endangered, threatened or broken. And, precisely this plea about peace recalls relevant and meaningful Common Law antecedents:
In order to give the king’s courts jurisdiction... it was needful to insert in the writ the words vi et armis [by force and weapons], which imported a breach of the peace; and it was usual, if not necessary, also to add expressly the words contra pacem nostrum [against our peace].115 ...Already in Glanvill’s day [1112-1190], it is understood that an accuser can place an assault outside the competence of the local courts by some four or five words about the king’s peace.116

Flight to metaphor

The parallel with Common Law pleading is useful because it reveals one of the principal ways in which the law grows -- the rapid transition from the literal to the figurative or metaphorical. This is a familiar device for progressive development of the law. It permits a legal institution or concept invented for one purpose to be used analogically for another. The operation of this evolutionary mode upon the contemporary notion of international peace has been recognized and disapproved in two dissenting ICJ opinions in the 1971 Namibia case. In the view of Judge André Gros:
There is not a single example of a matter laid before the Security Council in which some member state could not have claimed that the continuance of a given situation represented an immediate or remote threat to the maintenance of peace.117 [...] 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.118 
Concurring, Judge Sir Gerald Fitzmaurice deplored: 
the all too great ease with which any acutely controversial situation can be represented as involving a latent threat to peace and security, even where it is too remote genuinely to constitute one.  ...It was to keep the peace, not to change the world order, that the Security Council was set up."119 
It is hard to imagine a more emphatic rejection of the drift towards metaphor. But, could the new international law spawned by the Paris Peace Conference ever have avoided argumentation's natural tendency toward analogy and metaphor? Reliance on such rhetorical devices is probably inevitable in any legal system, but all the more likely in the light of the new concept of "international peace and security," combined with persistent political competition, evolving socio-economic realities, and unceasing ideological transformations.


Limits of Law

Born during the First World War and christened at the Paris Peace Conference, the new international law is now almost a century old. Experience of time has confirmed that a legal revolution did occur in 1919. New ideas and institutions were created and old concepts employed in novel ways. Heavy use was made of domestic-law analogies. Such borrowing was specifically advocated by France’s Prime Minister Georges Clemenceau. He expressed his solidarity “with President Wilson who, by establishing the foundations of the League of Nations, has had the honor of transferring the essential principles of national law into international law.”120 


Moreover, first the League Covenant and then the UN Charter significantly expanded the way in which international law addresses the concept of peace, while radically altering the approach to the stubborn reality of the international use of force by states. Thus, the UN Charter completed a 20th-century evolution that rendered the bilateral "state of war" largely obsolete internationally, though some domestic systems are still empowered to declare a "state of war."

Despite these significant innovations, international politics are perhaps much as one hundred years ago. Is the gap between theory and practice bigger than ever? If so, the greater divergence is partly due to the new global institutions. Formerly, the legal relations of states -- including with respect to peace and war -- were essentially bilateral. The operation of the law of nations was then generally more intimate with the fact of force, because the parties themselves regularly determined the legal character of their inter se relations. To a greater extent, modern international law now makes this particular aspect the responsibility of organs of hoped-for world community.

However, the mutual interaction and competition of sovereign states still operate to limit international achievement. Armed conflict between and among states has not been eliminated. Stubborn pluralism within the international states' system ensures that the security provisions of the UN Charter function only fitfully. International law has not beaten swords into plowshares. Though craving an end to conflict is readily understandable, is it reasonable to expect law to achieve what in the first instance has always been more of a political task?

Authority and legitimacy are complex social phenomena closely connected to power in all its many manifestations, including dimensions that are cultural, religious, scientific, economic, political and military. The nexus suggests that further progress may require some more active work of real community creation, without which specifically legal contributions run the risk of being ineffective and sterile. And worse still, in the context of the current international institutions, there remains some danger that important areas of international law can become contradictory and discriminatory, perhaps even mischievous.


Notes


1. "Limited" versus "total" war is a central theme in Men in Arms: A History of Warfare and Its Interrelationships with Western Society (New York, 1956), by Richard A. Preston, Sydney F. Wise, and Herman O. Werner.

2.  Quoted by Manley O. Hudson, International Tribunals: Past and Future (Washington, 1944), 109; Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, signed at Geneva, 22 August 1864, in Consolidated Treaty Series (hereinafter CTS), vol. 129, pp. 361-367; USA accession 1882; Act of the Congress of Vienna, signed between Austria, France, Great Britain, Portugal, Prussia, Russia and Sweden, 9 June 1815, CTS, vol. 64, pp. 453-493; Krystyna Marek, “Contribution à l’étude de l’histoire du traité multilatéral,” in Festschrift für Rudolf Bindschedler (Berne, 1980), pp. 17-39; Paul Reuter, Introduction au droit des traités (Paris, 1972), p. 14;  H.G. Pitt, “The Pacification of Utrecht,” in New Cambridge Modern History, vol. 6: Rise of Great Britain and Russia, 1688-1715/25, ed. J. S. Bromley (Cambridge, 1970), pp. 446-479; CTS, vols. 27-29.


3.  Henry Wheaton, Elements of International Law, Second Annotated Edition by William Beach Lawrence (London, 1864), pp. 27-28.


4.  James Lorimer, The Institutes of the Law of Nations, I (Edinburgh-London, 1883), p. 37.


5.  Clive Parry, ”Foreign Policy and International Law,” in British Foreign Policy under Sir Edward Grey, edited by Sir F.H. Hinsley (Cambridge, 1977), pp. 89-110, at pp. 89, 91, 96; honour's pivotal role in the law of nations from the 16th to the early 20th century is described by Allen Z. Hertz, "Honour's Role in the International States' System," Denver Journal of International Law and Policy, 31 (2002), pp. 113-155, and with specific regard to treaty obligation, see pp. 138-140, 147-148; see also Allen Z. Hertz, "Treaty Obligation from the Protestant Reformation to 1919," which appears as thirteen separate March 2012 postings on this www.allenzhertz.com website.

6.  Ex-Lord Chancellor Thurlow said: “All subsisting treaties were at an end as soon as a war was commenced with those who were parties to them.  It behooved those, therefore, who plunged the country into the war, not to have set the treaties loose by commencing hostilities; but it by no means followed as a matter of course, that ancient treaties were necessarily to be revived and renewed in every treaty of peace; that must depend on the will of the contracting parties.”  Lord Chancellor Eldon replied that not all former treaties were abrogated by failure to affirm them in the peace treaty, see May 4, 1802, House of Lords, The Parliamentary History of England From the Earliest Period to the Year 1803 (London, 1820), vol. 36:596-597; Lassa Francis Lawrence Oppenheim, International Law, 2nd ed. (London, 1912), vol. 2, § 99:129-131; McNair, Law of Treaties, 695-728.

7.  Posed by Parry, “Foreign Policy and International Law,” p. 95. 


8.  Parry, “Foreign Policy and International Law,” p. 95.


9.  John Westlake, International Law, Part II, Second Edition (Cambridge, 1913), p. 1.


10.  Wheaton, op. cit., p. 505.


11.  H.L.A. Hart, The Concept of Law (Oxford, 1961), pp. 79-88; with particular reference to international law, see pp. 208-231.


12.  Parry, “Foreign Policy and International Law,” p. 93.


13.  Wheaton, op. cit., p. 118.


14.  Carl von Clausewitz, Vom Kriege (Berlin, 1832), Bk.1, § 2, Definition: "Unmerkliche, kaum nennenswerte Beschränkungen, die sie sich selbst setzt unter dem Namen völkerrechtlicher Sitte..." 

15.  Ibid., Bk. 8, Ch. 6B, "Der Krieg ist ein Instrument der Politik."

16.  Ibid., loc. cit., "...der Krieg ist nichts als eine Fortsetzung des politischen Verkehrs mit Einmischung anderer Mittel." See also Ibid., Foreword to 1st Edition, Notice, Berlin, July 10, 1827: "...der Krieg nichts ist als die fortgesetzte Staatspolitik mit anderen Mitteln."

17.  Wheaton, op. cit., p. 505.


18.  Marc-Antoine Laugier, Histoire des négociations pour la paix conclue à Belgrade (Paris, 1768); Lavender Cassels, The Struggle for the Ottoman Empire, 1717-1740 (London, 1966), pp 156-206; Allen Z. Hertz, "The Ottoman Conquest of Ada Kale, 1738," Archivum Ottomanicum, 6 (1980), pp. 151-210, at pp. 194-199.


19.  For “the general Peace of Europe,” see preamble, Treaty between Great Britain and Prussia, signed at Westminster, Jan.16, 1756, CTS, vol. 40:293, and also preamble, Treaty between Great Britain and Prussia, signed at London, Apr. 11, 1758, CTS, vol. 41:18; for “the General peace,” see Article 1, Treaty of Alliance between Austria, Great Britain, Prussia and Russia, signed at Vienna, Mar. 25, 1815, CTS, vol. 64:32; for “the maintenance of the general peace,” see preamble and Title I, Convention for the Pacific Settlement of International Disputes, Jul. 29, 1899, signed at the Hague, CTS vol. 187:410-411.


20.  Bethmann-Hollweg said (Aug. 4, 1914): “Just for a word ‘neutrality’ a word which in wartime had so often been disregarded — just for a scrap of paper, Great Britain was going to make war on a kindred nation which desired nothing better than to be friends with her.” See No. 671, Sir Edward Goschen to Sir Edward Grey, Berlin, Aug. 6, 1914, British Documents on the Origins of the War, vol. 11:351; The Diary of Edward Goschen:1900-1914, Royal Historical Society, Camden, 4th ser., vol. 25, ed. Christopher H.D. Howard (London, 1980), Appendix B: ‘A scrap of paper,’ pp. 298-302.


21.  On the significance of the sequence in Article 38, see Clive Parry, The Sources and Evidences of International Law (Manchester, 1965), p. 28; and Sir Ian M. Sinclair, The Vienna Convention on the Law of Treaties (Manchester, 1973), p. 2.


22.  Winston Churchill, The World Crisis (New York, 1931), pp. 120-121; A.J.P. Taylor, English History: 1914-1945 (New York, 1965), pp. 2-3. For the legal dimension, see Hertz, "Honour's Role in the International States' System," pp. 138-140.


23.  Letter to the President of the German Delegation covering the Reply of the Allied and Associated Powers to the Observations of the German Delegation on the Conditions of  Peace, June 16, 1919, British Foreign and State Papers, CXII, p. 248.


24. To the first of “The Fourteen Points” (January 8, 1918), President Woodrow Wilson added the fifth of “The Five Particulars” (September 27, 1918): “All international agreements and treaties of every kind must be made known in their entirety to the rest of the world.” This was the idea behind Covenant of the League of Nations, Article 18.


25. On the interrelation between customary international law and naval policy, see D.P. O’Connell, The Influence of Law on Sea Power (Manchester, 1975), pp. 16-26.


26.  The last of President Wilson’s Fourteen Points.


27.  On June 26, 1945, the early defeat of Japan was not anticipated. The San Francisco Conference commenced on April 25, 1945, even before Germany’s capitulation. The outlines of the United Nations Organization had already been sketched at the 1944 Dumbarton Oaks Conference.

28.  Letter to the President of the German Delegation. .., p. 245. (See note 20 supra.) The visceral condemnation of Germany and Allied adoption of ideas from domestic criminal law are detailed in Hertz, "Honour's Role in the International States' System," pp. 151-152.


29.  Reply of the Allied and Associated Powers to the Observations of the German Delegation on the Conditions of Peace, June 16, 1919, British Foreign and State Papers, CXII, pp. 281-282.


30.  Versailles Treaty, Article 231; Saint Germain Treaty, Article 177; Trianon Treaty, Article 161.


31.  Neuilly Treaty, Article 121; Sèvres Treaty, Article 231.


32.  Treaty of Peace between Austria, Great Britain, Prussia, Russia and France (Paris, November 20, 1815), British and Foreign State Papers, III (1815-1816), p. 281, at p. 288; Treaty of Peace between Germany and France (Frankfurt, May 10, 1871), British and Foreign State Papers, LXII (1871-1872), p. 77, at pp. 79-80.

33.  War Addresses of Woodrow Wilson, ed. Arthur Ray Leonard (Boston, 1918), p. 42.

34.  Ibid., p. 49.

35.  Adam B. Ulam, Expansion and Coexistence: The History of Soviet Foreign Policy, 1917-1967 (New York, 1968), pp. 51-52; John Wheeler-Bennett, Brest-Litovsk: The Forgotten Peace 1918 (London, 1938), Appendix I, Soviet Declaration of Peace, November 8, 1917, pp. 373-378.

36.  War Addresses of Woodrow Wilson, p. 106. Wilson's reference to "punitive damages" is drawn from Common Law remedies. The Common Law and other domestic systems may compensate a plaintiff beyond actual loss sustained, by awarding punitive damages to punish the defendant's flagrant wrongdoing and to set an example. However, the classical law of nations did not offer punitive damages as a remedy against sovereign states. Practically and theoretically, the state was then conceived primarily as an aristocratic gentleman not a middleclass litigant. Consistent with the prevailing chivalric paradigm of the code duello, diplomatic practice generally redressed injury to national dignity and honour not by arbitration, but rather by diplomatic demand for "satisfaction," the substantive results of which might perchance be embodied in treaty terms. Though satisfaction was normally intended to be retributive and afflictive, the concept is not to be confused with punitive damages. See P. A. Bissonnette, La satisfaction comme mode de réparation en droit international (thesis, University of Geneva, 1952).

37.  Article 9, Peace Treaty of Brest-Litovsk, Papers Relating to the Foreign Relations of the United States, 1918, Russia, Volume I, pp. 442-475, at p. 444.


38.  Ibid., Chapter IV, Articles 13-17, p. 449. Implementation of these provisions would have cost the new Bolshevik government 300 million gold rubles, see Walter Alison Phillips, "Treaties of Brest-Litovsk," Encyclopedia Britannica, IV (1961), pp. 94-95; Wheeler-Bennett, op. cit., pp. 344-345: "All pretence of adhering to the doctrine of 'no indemnities' having been abandoned, Germany demanded, and Russia agreed to, the payment of six billion marks in goods, bonds, and gold as 'compensation for the loss to Germans caused by Russian measures'."

39.  “Kriegsentschädigungen und die Reparationen...," in Karl Strupp, Wörterbuch des Völkerrechtes und der Diplomatie, I (Berlin, 1924), p. 724, at p. 725.


40.  Memorandum presented by the British Delegation, February, 1919, reproduced by P.M. Burnett, Reparation at the Paris Peace Conference, II (New York, 1940), Document 454, Annex III, pp. 298-299.


41.  Preliminary Peace (Versailles, February 26, 1871), Articles 2-3; Convention Relative to the Execution of the Preliminary Peace (Ferrières, March 11, 1871), Articles 1-3, and 12; Additional Articles appended to the Frankfurt Treaty (May 10, 1871), Article 1(6), British Foreign and State Papers, LXII (1871-1872), pp. 61-62, 65, 69, 79-80.


42.  Erich Eyck, A History of the Weimar Republic, I (Cambridge, Mass.,1962), pp. 95-96; Fritz Dickmann, "Die Kriegsschuldfrage auf der Friedenskonferenz von Paris 1919, Historische Zeitschrift,197 (1963), pp. 1-101; Herman Kantorowicz, Gutachten zur Kriegsschuldfrage 1914, edited by Immanuel Geiss (Frankfurt, 1967).


43.  Strupp, op. cit., p. 729: "Die Schuld am Kriege ist jedoch nicht als Schuld im Rechtssinne und nicht als Tatbestandsmerkmal im Rechtssinne formuliert worden. Vielmehr haben Deutschland, Österreich und Ungarn... lediglich im Sinne eines ethisch-politischen Prinzips anerkannt, alle Verluste und Schäden verursacht zu haben und für alle Verluste und Schäden verantwortlich zu sein... Die drei Staaten haben also lediglich ihre Urheberschaft an den Verlusten und... zugleich ihren Angriff auf sie als Ursache der Verluste und Schäden anerkannt, nicht dagegen die Rechtswidrigkeit des Angriffes... oder gar die Schuld am Weltkriege im juristisch-technischen Sinn..."

44. Jan Christian Smuts, cited by Francis Paul Walters,  A History of the League of Nations, I (London, 1952), pp. 31-32.


45.  Francis Paul Walters, “League of Nations,” Encyclopedia Britannica, XIII (1961), pp. 831-837, at p. 831.


46.  Glanville Williams, Textbook of Criminal Law (London, 1978), p. 14.


47.  Westlake, op. cit., p. 2.


48.  UN Charter, Articles 1(1), 2 (3) , 2(6), 11(1)-11(3), 12(2), 15(1), 18(2), 23(1), 24(1), 26, 33(1), 34, 37(2), 39, 42-43(1), 47(1), 48(1), 51-52(1), 54, 73, 73(c), 76(a), 84, 99, and 106.

49.  Charlton T. Lewis and Charles Short, A Latin Dictionary (Oxford, 1879), p. 1320.


50.  J.F. Niermeyer, Mediae Latinitatis Lexicon Minus, Fasciculus 9 (Leiden, 1962), pp. 777-779.


51.  O.S. Ahmanova et al., Русско-английский словарь (Moscow, 1949), p. 364.


52.  The Oxford Universal Dictionary (Oxford, 1955), p. 1828.


53.  Paul Robert, Dictionnaire alphabétique et analogique de la langue française (Paris, 1973), p. 1721.


54.  Ibid., p. 1627.


55.  For the legal meaning of peace in this context, see the regional studies in La Paix, Recueils de la Société Jean Bodin, XIV-XV (Brussels, 1961-1962).


56.  John Gilissen, Introduction historique au droit (Brussels, 1979), pp. 280-281.

57.  Heinrich Brunner, Deutsche Rechtsgeschichte, II (Leipzig, 1892), pp. 11, 42.


58.  G.O. Sayles, The Medieval Foundations of England (London, 1964), p. 170.


59.  Gilissen, loc. cit.


60.  Clive Parry, “Some Considerations upon the Content of a Draft Code of Offences against the Peace and Security of Mankind,” The International Law Quarterly, III (1950), pp. 208-227, at p. 226.


61.  Sir Frederick Pollock and Frederic William Maitland, The History of English Law Before the Time of Edward I, Second Edition (Cambridge, 1952), I, pp. 44-45; II, pp. 462-464.


62.  Sir Frederick Pollock, “The Kings Peace,” Oxford Lectures and Other Discourses (London, 1890), pp. 65-90, at pp. 88-89.


63.  U.K. Parliamentary Papers, 1919, Cmd. 151, pp. 12-19.


64.  The League of Nations (London, 1922), pp. 165-166.

65.  The “act of aggression” was in Kelsen’s view “superfluous to mention,” because UN Charter, Article 1(1), makes clear that “breaches of the peace” embrace “acts of aggression” which are nowhere further defined in the Charter. Hans Kelsen, The Law of the United Nations: A Critical Analysis of Its Fundamental Problems (London, 1950), p. 726.


66.  The notion does not figure in the 1928 Pact of Paris. UN Charter, Articles 52(1) and 54, mention “the maintenance of international peace and security” in connection with “regional arrangements or agencies.” On this foundation, the doctrine of the “necessary implication of powers (see note 68, infra) would argue for the competence of regional institutions with regard to international peace and security. But this interpretation is negated by the regional organizations themselves. There is no mention of either “peace” or “international peace and security” in the Pact of the Arab League (1945). The Organization of American States is concerned with “security and peace.” However, this is limited to “the peace of America” or “the peace and security of the continent.” (1947 Inter-American Treaty of Reciprocal Assistance, Article 6; 1948 Bogota Charter, preamble, Articles 1, 4, 19, and 25.) The same is true of the Charter of the Organization of African Unity (1963), the preamble of which refers to “peace and security.” The North Atlantic Treaty (1949) employs “international peace and security” only with reference to the United Nations. Otherwise used are “peace and security” (preamble), “the security of the North Atlantic area” (Article 5), and “peace and security in the North Atlantic area” (Article 12). Insensitive to this distinction is the 1955 Warsaw Pact Treaty, Articles 1-4, which speak of “international peace and security” in connection with the obligations in this “Treaty of Friendship, Cooperation and Mutual Assistance.” Despite this anomaly, the better view is that the regional agencies are not competent with respect to international peace and security.


67.  UN Charter, Article 24.


68.  UN Charter, Article 39.


69.  Certain Expenses of the United Nations (Article 17, paragraph 2 of the Charter), p. 163.


70.  UN Charter, Article 11(1).


71.  UN Charter, Articles 12 and 24.


72.  UN Charter, Article 11(2).


73.  UN Charter, Article 11(3). This provision’s significance emerges through a comparison with UN Charter, Articles, Articles 34-35, and 99. On this basis, “the Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security,” (UN Charter, Article 99). Access to the Security Council is also given to “any Member of the United Nations” which may raise “any dispute or any situation which might lead to international friction” (UN Charter, Articles 34, 35(1)). In these two instances, and also with respect to a dispute referred by a non-member state (UN Charter, Article 35 (2)), “the Security Council may investigate... in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security,” (UN Charter, Article 34). This evaluative function is not necessary with respect to references from the General Assembly. The latter “may call the attention of the Security Council to situations which are likely to endanger international peace and security” (UN Charter, Article 11(3)).


74.  Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), ICJ Reports 1962, pp 164-165.


75.  Regarding the doctrine of “necessary implication of powers,” see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa), notwithstanding Security Council Resolution 276 (1970), (Separate Opinion of Judge de Castro), ICJ Reports1971, p. 185, and the precedents there cited.


76.  General Assembly Resolution 377 (V), November 3, 1950; adopted by 52 votes to 5, with two abstentions. Ian Brownlie, International Law and the Use of Force by States (Oxford, 1963), p. 334, opines that the early controversy regarding its validity is now “academic to a very considerable degree since opponents of the resolution in the United Nations have since approved the use of its machinery in practice in several crises and are presumably estopped from reopening the question of interpretation.”


77.  Derek W. Bowett, Self-Defence in International Law (Manchester, 1958), p. 177, where the General Assembly’s (February 1, 1951) finding that the government of the People’s Republic of China had “engaged in aggression” in Korea is noted (327th Plenary Meeting, A/1771).


78.  For example, see General Assembly Resolution 2793 (XXVI), December 7, 1971, adopted on the basis of the “Uniting for Peace” procedure at the instance of Security Council Resolution 303 (1971).


79.  UN Charter, Article 92.


80.  South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Second Phase, Judgment (Dissenting Opinion of Judge Padilla Nervo), ICJ Reports 1966, pp. 469-470.


81.  Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment (Separate Opinion of Judge Padilla Nervo), ICJ Reports 1970, pp. 248-249.


82.  Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter),  (Separate Opinion of Judge Sir Percy Spender), ICJ Reports 1962, p. 186.


83.  UN Charter, Article 51.


84.  Definition of Aggression, General Assembly Resolution 3314 (XXIX), 14 December 1974.


85.  Definition of Aggression, Article 2.

86.  Glanville Williams, “The Definition of Crime,” Current Legal Problems, VIII (1958), pp. 107-130, at pp. 123-124.


87.  On this point, see UN Charter, Article 2(7), and Leo Gross’s review of Der Begriff der Friedensbedrohung in Satzung und Praxis der Vereinten Nationen by Joachim Arntz, in The British Yearbook of International Law, XLIX (1978), pp. 223-230, at pp. 229-230.


88.  The “threat to the peace” and the “breach of the peace” remain undefined. General Assembly, Definition of Aggression, Articles 2, 4, and 6, ensure that the Security Council’s discretion remains unaffected.


89.  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 Reports 1971, pp. 21-22.


90.  Ibid., p. 45. The same point is made in the Separate Opinion of Judge Padilla Nervo, ibid., p. 105,  “...the Court will have to assume the validity of the action taken by the Security Council and the General Assembly on the question of Namibia and that such action was in accordance with the Charter. The Court should not assume powers of judicial review of the action of principal organs of the United Nations without specific request to that effect.”


91.  Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), ICJ Reports 1962, p. 168. A suggestion of a contrary argument appears in the dissenting opinions of Judges Sir Gerald Fitzmaurice and André Gros, Legal Consequences for States of the Continued Presence of South Africa in Namibia..., ICJ Reports 1971, pp. 226, 292-295, 340-341.


92.  This view is contrary to a suggestion implied in the Dissenting Opinion of Judge Sir Gerald Fitzmaurice, ibid., pp. 292-293.


93.  The Entebbe incident was considered by the Security Council on July 9-14, 1976, see Yearbook of the United Nations 1976, XXX (New York, 1979), pp. 315-320; Ulrich Beyerlin, “Die Israelische Befreiungsaktion von Entebbe in völkerrechtlicher Sicht,” Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, XXXVII (1977), pp., 213-243.


94.  Williams, Textbook of Criminal Law, pp. 16-17.


95.  General Assembly, Definition of Aggression, Article 5(2): “A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.” As earlier explained, this provision – like Definition, Article 5(3), regarding territorial acquisition does not establish a notion of aggression independent of the recognized avenues of authoritative determination.


96.  Whether the 1965 India-Pakistan conflict was legally war is discussed in The Legal Effects of War, Fourth Edition (Cambridge, 1966), by A. McNair and A.D. Watts, Appendix, pp. 457-458; and by Dietrich Schindler, “State of War, Belligerency, Armed Conflict,” in The New Humanitarian Law of Armed Conflict (Naples, 1979), edited by Antonio Cassese, pp. 3-20, at p. 5.


97.  K. P. Misra, The Role of the United Nations in the Indo-Pakistani Conflict, 1971 (Delhi, 1973), pp. 60, 62.


98.  UN Document S/10416, United States Draft Resolution, moved on 4 December 1971, reprinted in Appendix II, ibid., pp. 162-163. This draft resolution was supported by eleven Security Council members, with two abstentions and two negative votes.


99.  Security Council Resolution 303 (December 6, 1971).


100.  General Assembly Resolution 2793 (XXVI), December 7, 1971.


101.  Security Council Resolution 360 (1974). The Council has been extremely reluctant to use the other two findings under UN Charter, Article 39. “The armed attack upon the Republic of Korea by forces from North Korea” was held to be “a breach of the peace,” (June 25, 1950). For recent instances of “act of aggression” determinations, see Security Council Resolutions 387 (1976); 405 (1977); and 411 (1977).


102.  Security Council Resolution S/4319, Repertoire of the Practice of the Security Council, Supplement 1959-1963 (New York, 1965), p. 159.


103.  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa)..., (Separate Opinion of Judge de Castro), ICJ Reports 1971, pp. 186-187.


104.  General Assembly Resolution 1514 (XV) 1960, preamble, paragraph 4, and Article 1.


105.  General Assembly Resolution 1755 (XVII) 1962.


106.  Security Council Resolution 217 (1965).


107.  The right derives from both customary international law and UN Charter, Article 51, see Bowett, op. cit., pp. 185-186.


108.  General Assembly Resolution 3314 (XXIX) 1974, Article 7.


109.  With comparisons to the Greek people and the Aboriginal peoples of Canada, the Jewish people's aboriginal, treaty and self-determination rights are discussed at length on this website. See Allen Z. Hertz, "Jewish Aboriginal Rights to Israel," an October 2011 posting at www.allenzhertz.com, elsewhere published as "Aboriginal Rights of the Jewish People."


110.  UN Charter, Article 1(1). “The primary place ascribed to international peace and security is natural, since the fulfillment of the other purposes will be dependent upon the attainment of that basic condition.” Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), ICJ Reports 1962, p. 168.


111.  UN Charter, Article 1(1).


112.  UN Charter, Article 33(1).


113.  Partial confirmation of this proposition comes from UN Charter, Article 2(7), which preserves from United Nations intervention “matters which are essentially within the domestic jurisdiction of any state.”  But, domestic matters formally found to endanger or threaten international peace thereby become subject to the organization's jurisdiction.


114.  F.S. Northedge and M.D. Donelan, International Disputes: The Political Aspects (London, 1971), p. 215.


115.  Sir Frederick Pollock, “The Kings Peace,” in Oxford Lectures and Other Discourses (London, 1890), pp. 65-90, at pp. 89-90.


116.  Pollock and Maitland, op.cit., II, p. 464.


117.  Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) ..., (Dissenting Opinion of Judge André Gros), ICJ Reports 1971, pp. 340-341.


118.  Dissenting Opinion of Judge André Gros, ibid., p. 340.

119.  Dissenting Opinion of Judge Sir Gerald Fitzmaurice, ibid., pp. 294-295.



120.  The Deliberations of the Council of Four (Mar. 24-June 28, 1919): Notes of the Official Interpreter Paul Mantoux, ed. Arthur S. Link (Princeton, 1992), vol. 1, Meeting XXV, pp. 187-197, at p. 193. The domestic analogy was explicit on April 2, 1917, when President Wilson asked Congress to declare war on Germany, see War Addresses of Woodrow Wilson, pp. 31-45, at p. 39: "We are at the beginning of an age in which it will be insisted that the same standards of conduct and of responsibility for wrong done shall be observed among nations and their Governments that are observed among the individual citizens of civilized states."