Showing papers in "American Journal of International Law in 1946"

General Theory of Law and State. By Hans Kelsen. Translated by Wedberg Anders. Cambridge: Harvard University Press (Twentieth Century Legal Philosophy Series: Vol. I); 1945. Pp. xxxiii, 516. Appendix. Index. $6.00.

Abstract: The single article by M. Fryde on modern corporations is largely devoted to explanation of the Berle and Means thesis on the control of modern corporations and the supporting findings of the T.N.E.C. The author compares this point of view to that of James Burnham to the latter's disadvantage. Although this is by no means an original approach, supporting conclusions by some French and German writers not always available in translation give this article some value. The article on Andrew Wolan by C. Jarra is the only one that provides something new for the American or English reader. Wolan was evidently a leading writer and politician in the Calvinist movement in Eastern Europe, although it is not clear what his writings and leadership contributed to modern Poland. On the whole, this volume suffers from a lack of integration or plan. In addition, no subject touched upon was explored with any high degree of thoroughness. Finally, the prefatory note that \"the authors . . . do not necessarily represent the views of the Association,\" seems somewhat futile since very few distinct points of view are expressed. This latter omission, though regrettable, was perhaps deliberate and is understandable.

Questions of Guerrilla Warfare in the Law of War

Abstract: The history of war knows no such brigandage, fanaticism, or such craftiness as the German fascist usurpers practiced from the moment of their attack upon the peoples of other states. The rules and customs relating to the conduct of war, recognized by all civilized peoples, were rejected and trampled under foot by these usurpers. These rules and customs relating to the conduct of war, put together in the course of many centuries, have received the title “the law of war” and constitute an inseparable part of international law.

The Arab League as a Regional Arrangement

Abstract: The Arab countries long ago aspired to form some kind of union and the movement towards that ideal came to be known as Pan-Arabism. The roots of the movement go back to the time when the various nationalities of the Ottoman Empire rose in revolt against Turkish domination and aimed at eventual separation from Ottoman sovereignty. Some of the Arab countries actually defied Turkish authority and were separated, at least for a definite period of time, from the Ottoman body politic: such were the Arabian Peninsula under the Wahhabis and Egypt under Mohammed Ali.

Legality of Guerrilla Forces Under the Laws of War

Abstract: The possibility of continued resistance by Japanese forces toward the end of 1945, contrary to the terms of the surrender agreement by the Japanese Government, again raised the problem of the status of guerrillas under the laws of war. This problem has arisen during almost every war in modern history. It arose at the conclusion of hostilities with Germany when there was speculation that some German forces would refuse to abide by the unconditional surrender.

The Atomic Bomb

Abstract: The proposal of a world government having supreme powers to enforce a \"world law\" may be the ultimate ideal towards which the peoples of all nations must strive. It is very doubtful, however, at this crisis, if it is wise or expedient to discredit the United Nations Organization, before it has even begun to function, by demands for another kind of world government. The peoples of the world gathered together at San Francisco in the first real \"Congress of Nations\" felt that they had made great progress when they finally agreed on the Charter of the United Nations. They will not wish to have the task of the United Nations made more difficult by demands of statesmen, scientists, or perfectionists of any kind. Progress in international cooperation, even under the stimulus of the atomic bomb, should not be attempted by leaps and bounds beyond the power of adjustment by the bewildered and badly-frightened peoples of the world. This crisis of civilization demands the best collective wisdom, the stoutest courage, and robust faith if we are to build a sound structure of international relations based on law. That law has grown out of the experience of mankind over the centuries. It cannot be \"replaced\" without chaotic results. It should be improved, strengthened, and implemented. That is a proper function of the United Nations Organization. By such orderly process a genuine \"world law\" may be evolved.

Recent Aspects of the Calvo Doctrine and the Challenge to International Law

Abstract: At the Third Conference of the Inter-American Bar Association held in Mexico City during July–August, 1944, a sub-committee of the Committee on Post-War Problems proposed a draft resolution relative to the diplomatic protection of citizens abroad which, if ever officially accepted by the American Republics, would erase as between those countries all of the existing international law on the subject. The resolution urged, first of all, that “diplomatic protection of citizens abroad” be abolished in favor of an international protection of the rights of man.

International Administration of European Inland Waterways

Abstract: Gaius and Charlemagne and President Truman seem to be working hand in hand across the centuries to bring about coördination of European inland waterways. Under the law of the Roman Empire such waterways, when constituting or crossing international boundaries, were free to use by all nations within the Empire. Since 1815, as we shall presently see, there have been successive organized attempts, mostly unsuccessful, to revive and apply this principle of freedom of navigation of the Roman Law on the Rhine, the Danube, and elsewhere. The United States, through President Truman, at the July–August Berlin (Potsdam) conference of the victorious allies, proposed that navigation over the internal waterways of Continental Europe be free to all nations under international control. More recently, in the latter weeks of 1945, grave obstacles and problems threaten the realization of the Truman proposal. The writer believes that if we visualize clearly the mechanism and workings of an international body vested with control of inland river navigation, we can better appraise the merits of that proposal.

Further Developments Concerning Jurisdiction over Friendly Foreign Armed Forces

Abstract: In the October, 1942, number of this JOURNAL, there was published an article by the present writer dealing with the jurisdiction of the courts of one nation over the personnel of the armed forces of another friendly nation on the soil of the former.2 During the three years which have elapsed since that time there have issued several international agreements, statutes, executive orders, and judicial decisions in various countries dealing with this subject, a summary of which will bring the previous article down to date.

The Jurisdiction of the Security Council over Disputes

Abstract: Chapter VI of the Charter of the United Nations has generally been regarded as one of its most poorly drafted parts; and the experience of the Security Council in dealing with cases recently coming before it has both evidenced the uncertainties of the text and added to the confusion as to its meaning. The difficulties of the Council were increased by the tendency of members to disregard the text of the Charter and by the lack of Rules of Procedure. As a result important issues have been raised, especially in the Soviet-Iran case, and more particularly as to the decision that a dispute exists concerning which the Council may make recommendations.

Manchurian Booty and International Law

Abstract: In its reply to the identical notes sent by Secretary of State James F. Byrnes on February 9, 1946, to the Chinese and Soviet Governmenats concerning the disposition of Japanese external assets, the Government of China stated that the claim of the Soviet Government "that all Japanese enterprises in the Chinese Northeastern Provinces which had rendered services to the Japanese Army were regarded by the Soviet Union as war booty of Soviet forces"2 is considered by the Chinese Government "'as far exceeding the scope of war booty as generally recognized by international law and international usage." I The international law applicable to war booty is found in the Hague Conventions of 1899 and 1907 which, though flagrantly violated in both World Wars by the German Government, remain supported and respected by most governments and international law authorities. Convention IV of the 1907 Hague Conference, in consonance with the growth of humane sentiments respecting war, partly as fostered by such men as Vattel and Wellington, defines the rights and obligations of the occupying armies based on pure military necessity and for the sole purpose of bringing the enemy to quick surrender.2 It therefore states in precise language the nature and role of the occupying state and imposes upon it more obligations than rights.

Has the Supreme Court Abdicated One of its Functions

Abstract: The recent decision of the Supreme Court in the Hoffman case must cause concern to anyone interested in the development of international law. Despite, and perhaps because of, the continuous stream of criticism of international law as a body of legal principles, no one who gives any thought to the future of international relations can fail to be concerned with the development of that law. Almost every basic declaration by statesmen refers to the necessity of the rule of law. One of the principal criticisms of the Dumbarton Oaks Proposals was their failure to lay sufficient stress upon justice and law as principles upon which the new international organization would base its efforts for the promotion of world peace. These criticisms led to the insertion in the Charter of the United Nations of several important references to law and to justice. The Hoffman case is one in a long series of decisions of the highest courts of very many countries of the world relative to the immunities of foreign sovereigns and their property. Largely through the normal developmental process of national court decisions, an extensive body of international law has been developed on this subject.* Yet one reading the opinion of Chief Justice Stone in the Hoffman case might well assume that this is a subject with regard to which no body of law exists, a subject governed entirely by political considerations. According to the Chief Justice, " I t is therefore not for the courts to deny an immunity which our Government has seen fit to allow, or to allow an immunity on new grounds which the Government has not seen -fit to recognize." It might be argued that the only question involved is one of the distribution of functions under our constitutional system between the executive and judicial branches of the government. It is familiar doctrine in the courts of the United States and in the courts of other countries that certain questions which may be raised before courts are "political," and that with regard to them the courts will merely follow the views of the political or executive branch of the government. In determining whether a particular group exercising governmental functions in a foreign country is or is not "the Government" of that country, or whether a particular individual represents in a diplomatic or other capacity the Government of a foreign country, the courts have customarily and properly turned to the executive for information. This is too familiar a proposition to require citation of

The Second World War and International Law

Abstract: The Second World War inflicted countless sufferings and misfortunes on mankind. At the same time the war put to the test, in the sacrifice and heroism at the battlefronts and in the rear, many peoples and states, social forms and political systems, doctrines and theories.

The United States Accepts Compulsory Jurisdiction

Abstract: On August 2, 1946, the United States Senate approved the Morse resolution by the overwhelming vote of 62-2, thereby giving its advice and consent to the acceptance on the part of the United States of the compulsory jurisdiction of the International Court of Justice. It was the same Senate which, just one year and one week earlier, had cast a vote of 89-2 in favor of the United Nations Charter. On August 26 Herschel Johnson, acting United States representative on the Security Council, deposited President Truman’s declaration of adherence with the Secretary-General of the United Nations. At long last the United States assumed far-reaching obligations to submit its legal disputes to an international court.

Resources of the Continental Shelf

Abstract: On September 28, 1945, the President of the United States issued two important proclamations and executive orders relating to the national exploitation of the resources of the continental shelf and the national regulation of contiguous fisheries. The claims therein made on behalf of the United States have important international repercussions. They also have an impact on the Constitutional question as to who, as between state and nation, controls these resources within and outside the three-mile limit.

The Headquarters of International Institutions. A Study of Their Location and Status.

Abstract: relations with the Axis, destroyed American solidarity. It was legally in i contradiction with the obligation created by Declaration XV of 1940. It :.§ was illogical, because ten American Republics were already at war. It if showed the Americas divided and unwilling to fulfill their obligations. 1 Instead of taking a correct and vigorous majority decision, it disguised the I lack of solidarity by a meaningless unanimity. It was further illegal for the | American Republics to take such measures as they did against citizens of the «J axis on the basis of a mere breach of diplomatic relations, creating a danger*s ous precedent against them. The fault lay not only with Argentina, but ;! with all the 21 Republics. Resolution I of 1942, a mere recommendation, 4 leaving everything to the discretion of the respective governments, was not legally binding and Argentina could, therefore, not be accused of a violation of this Resolution. The author's whole reasoning is based on the hypothesis that Declaration j| XV of 1940 created a strictly legally binding obligation. But, he argues, it was only legally binding because it had been ratified by all the 21 Congresses and made a Statute. Has Declaration XV of 1940 been so ratified by all the 21 American Republics? We doubt it; the author merely asserts it; he does not prove it. The crux of the whole book lies, therefore, in the juridical nature and legal validity of Pan American resolutions. At the Mexico City Conference of 1945 Venezuela proposed that the Inter-American Juridical Committee study this problem but the resulting Resolution XXIV watered this proposal down to a mere study of the nomenclature of the different compromises contained in the Final Acts. This basic question of the Inter-American System, never yet authoritatively decided or fully studied, continues thus to remain in its present status of ambiguity.

The International Organizations Immunities Act

Abstract: This legislation constitutes belated recognition of the need for granting to international organizations of which the United States is a member, and to their personnel, a legal status which is adequate to ensure the effective performance of their functions and the fulfillment of their purposes. It will “not only protect the official character of public international organizations in this country,” as the Senate Committee on Finance has stated, “but it will also tend to strengthen the position of international organizations of which the United States is a member when they are located or carry on their activities in other countries.”

The United Nations and Specialized Agencies

Abstract: International coöperation in economic and social fields, a direct consequence of the amazing progress attained in the field of transportation and communications, has progressed during recent decades with remarkable speed. There were leagues and associations of states even in ancient times, and some of them were formed and maintained for economic as well as for political purposes, but modern economic and social cooperation extends to the most varied spheres of human activity and emphasizes more and more the interests of individuals as contrasted with those of states.1 It finds its most characteristic expression in the so-called public international unions, associations of sovereign states for the accomplishment of certain definite tasks in the economic and social field, but it is embodied also in the important work of private international associations. Organizations of the latter type have often been instrumental in bringing about important international regulations.

The Leaders’ Agreement of Yalta

Abstract: purely commercial business. The principle cannot be said to be well established but may be in the process of development, having gained recognition at least in some countries. The importance of limiting sovereign immunity where the state enters the arena of commercial business has only recently begun to assume vital importance. The nationalization of all export and import business by Soviet Russia has now been followed, although to a more limited degree, by the nationalization of certain industries by Great Britain, France, and other countries. The significance of this phenomenon in international life must soon be recognized as one deeply affecting both economic and political relations. The fact that the Supreme Court of the United States has restricted the immunity of State governments to the exercise of essential government functions should not be overlooked in the conduct of our foreign relations. The principle is a corollary to the maintenance of a system of free enterprise.

The Internal Administration of an International Secretariat.

Abstract: so that it would not be an ingrowing bureaucracy; factors such as climate, finance, and living standards should be considered. A chapter is devoted to the requirements of functional independence— freedom for meetings, communications and broadcasting, immunities and physical protection, and so on; the possibilities of these are compared as between status within a national territory and status as an independent international headquarters. The latter status, as a new idea, is developed in three chapters. Something like a District of Columbia is favored. The difficulties are great; Mr. Jenks summarizes them by saying that \"an internationalized area not recognized as a state would have to make its own way in the world, whereas an internationalized area recognized as a state would inherit all the rights and faculties enjoyed by existing states\" (p. 75). Two final chapters outline a procedure for establishment and a legal regime.