Economics and Law: vol. IV, Today and Tomorrow (Jessup, 1936), pp. 121– 123. Cf. Quincy Wright, "The Present Status of Neutrality”, 34 A.J.I.L. (1940) 391.

Mr. Stimson, Secretary of War, and formerly Secretary of State, said, when testifying on January 16, 1941 before the House Committee on Foreign Affairs with respect to the proposed lend-lease bill, that—

even under ... international law as it stood before these hostilities in Europe began we would be rightfully authorized to act with regard to what it has been proposed to do in the defense or in the assistance of Great Britain. That is a thing which has not been understood, because the original fountain of the change has been so comparatively recent.

This country was one of the authors of one of the greatest changes in international law that has ever taken place when it was in 1926 and 1927 and 1928 the initiator of what has been called the Pact of Paris, or the Kellogg-Briand Pact. Now, it has not been recognized, even by us, by these Houses of Congress here that were the parents of it, what a vital change was made in the system of international law by that action. However, the international lawyers all over the rest of the world and in this country have recognized this important change, and I want to bring before this committee what they have found.

You will remember that that great treaty, the Pact of Paris, was joined in by some 63 nations. We joined it. Great Britain joined it. France joined it. Germany joined it._Italy joined it. Japan joined it. All the Axis Powers did. They all agreed to renounce war and they agreed in the second provision of that agreement that they would never seek the solution of any controversy except by peaceful means.

Now, when these troubles began to arise, when these lawless nations thereafter began to make attacks upon the fabric of international law . . . the Association of International Law . . . met in 1934 to consider what the effect of such an attack as Japan had made upon China would be, or as Mr. Hitler was even then threatening, on Austria. . . . I might say that the membership of that association is composed of the most distinguished international lawyers from all over the world; Americans, British, Frenchmen, Germans, Scandinavians, Italians, Japanese-all of them. And they considered what the effect would be of an attack in violation of the Kellogg Pact by one signatory upon another, and what effect it would have upon the rights and redresses of the other members of the great family of nations which had entered into that treaty under international law. And the conclusions which they reached are the most authoritative statement of international law on that subject which, so far as I know, has ever been published. And this is what they said, and I would like to have it on this record very carefully so that when our friends say that to help Great Britain at this time would be an act of war, I would like them to know what these great scholars and lawyers have said it would be under the Kellogg Pact.

[Secretary Stimson then quoted and commented on the Budapest Articles of Interpretation.]

Now that Germany has violated it [the pact]; now that Japan has violated it, and all of these axis powers are now tearing down the structure of our world, here is what we can do and still conform to international law:

a. Refuse to admit the exercise by the State violating the pact of belligerent rights such as visit and search, blockade,

etc.

Every blockade by Germany is illegal under international law.
Now, here is the most important one of all:

we on the outside, the law-abiding states can

decline to observe toward the State violating the pact the
duties prescribed by international law, apart from the pact,
for a neutral in relation to a belligerent-

We are no longer bound by the rules.

Now, here is one that is directly in point. We can

c. Supply the state attacked with financial or material assistance, including munitions of war;

d. Assist with armed forces the state attacked.

When my friends here talk about whether we are going to commit an act of war—I want them to read this statement made by this great group of lawyers when they tried in 1934 to decide exactly what this treaty meant. And this is the report of the Thirty-eighth Conference of the International Law Association, held at Budapest, in the Hungarian Academy of Science, on September 6-10, 1934.

Hearings before the House Committee on Foreign Affairs, 77th Cong., 1st sess., on H.Res. 1776 regarding the Lend-Lease Bill, pp. 103-105. See also statement by Secretary Stimson in the Hearings before the Senate Committee on Foreign Relations, 77th Cong., 1st sess., Jan. 29, 1941, pp. 89-90. Robert Jackson, Associate Justice of the Supreme Court of the United States, in an address delivered at the annual dinner of the American Bar Association on Oct. 2, 1941, said of the Kellogg-Briand pact:

"This treaty, however, was not wholly sterile despite the absence of an express legal duty of enforcement. It had legal consequences more substantial than its political ones. It created substantive law of national conduct for its signatories and there resulted a right to enforce it by the general sanctions of international law. The fact that Germany went to war in breach of its treaty discharged our own country from what might otherwise have been regarded as a legal obligation of impartial treatment towards the belligerents." 27 A.B.A.J. (1941) 690-691.

In an address before the General Commission of the Disarmament Conference at Geneva on May 22, 1933, Norman Davis, chairman of U.S., 1933 the American Delegation, said:

I wish to make it clear that we are ready not only to do our part toward the substantive reduction of armaments but, if this is effected by general international agreement, we are also

Harvard
Research

prepared to contribute in other ways to the organization of peace. In particular, we are willing to consult the other states in case of a threat to peace, with a view to averting conflict. Further than that, in the event that the states, in conference, determine that a state has been guilty of a breach of the peace in violation of its international obligations and take measures against the violator, then, if we concur in the judgment rendered as to the responsible and guilty party, we will refrain from any action tending to defeat such collective effort which these states may thus make to restore peace.

Department of State, VIII Press Releases, weekly issue 191, pp. 387, 390 (May 22, 1933).

The Harvard Research in International Law published in 1939, in connection with its work on neutrality, a Draft Convention on Rights and Duties of States in Case of Aggression, which was acknowledged to speak de lege ferenda and the purpose of which was "to define legal relationships between States in cases where a resort to armed force has been in violation of a legal obligation not to resort to such means and where such violation has been duly determined by a procedure to which the law-breaking State has previously agreed”.

33 A.J.I.L. Supp. (1939) 819, 824, 825. The draft convention was said to be "based upon the assumption that a distinction in law is to be drawn between war", in which case the law of neutrality applies, and acts of force which may or may not amount to war but which amount to aggression as that term is defined in the draft convention, i.e. as "a resort to armed force by a State when such resort has been duly determined, by a means which that State is bound to accept, to constitute a violation of an obligation". Under it an aggressor "does not have any of the rights which it would have if it were a belligerent" but does have "the duties which it would have if it were a belligerent" (art. 3). It is further provided that by becoming an aggressor a state loses the right to require other states to perform executory treaties but is not relieved of its duty to perform them (art. 5). In the language of the draft convention a "defending State" is one which is the victim or object of aggression, and a "co-defending State" is one "which assists a defending State with armed force" (art. 1). A "supporting State" is defined as one "which assists a defending State without armed force” and by becoming such it "acquires the right to discriminate against the aggressor, but it may not do any act to the detriment of States other than the aggressor unless such act would be lawful if done by a defending or co-defending State". Against an aggressor, a supporting state-under the draft convention "has the rights which, if it were neutral, it would have against a belligerent" (art. 10). It is suggested in the comment that:

"The action taken by a supporting State to assist a defending State would take the form of some kind of discrimination against the aggressor or in favor of the defending State. The State may take such action and assume such status for a variety of reasons but presumably its reasons will include a desire to deter, restrain or even perhaps to punish an aggressor. The dis.criminatory action may take the form of economic or financial embargoes directed against the aggressor. It might be restricted to a withdrawal of diplomatic and consular representatives from that State or to participation

in the determination that the State violated its obligation not to resort to force. It might not take the form of any measures directly against an aggressor but might rather be in the form of aid-financial, economic or otherwise to the defending State. By way of analogy attention may be called to the action taken by certain Latin American States upon the entry of the United States into the war against Germany in 1917."

Under the draft convention a state which is neither an aggressor, a defending state, a co-defending state, nor a supporting state, has the rights but not the duties toward an aggressor which it would have as a neutral with respect to a belligerent (art. 12). Such a state would have in general the position of a neutral with respect to a defending, co-defending, or supporting state, although a defending or co-defending state is given certain privileges (art. 13). 33 A.J.I.L. Supp. (1939) 823, 847, 878, 879-880, 886, 896, 902, 903, 904.

It is explained in the introductory comment that the purpose of the draft convention is not to "implement' any specific treaty such as the Covenant of the League or the Pact of Paris", nor "to determine what constitutes a breach of any of these treaties, nor to suggest new means for determining when a breach has occurred". In comparing the draft convention with the "Budapest Articles of Interpretation” drawn up by the International Law Association in 1934 with respect to the consequences of a breach of the Pact of Paris, it is stated in the comment:

"The form in which the Budapest Articles were cast indicates that they sought to state an existing legal situation; that the legal consequences they describe would on that date have followed a breach of the Pact. It is unnecessary here to debate whether that interpretation is sound. The important distinction is that the International Law Association addressed itself to an interpretation of a particular treaty; the present Draft Convention does not rest upon the Pact of Paris or any other one treaty, and seeks to suggest a possible future development of the law rather than the law now in force. To some it may seem to reflect rules already upon the penumbra of the international legal system. It is at such a stage in the development of international law or practice that the jurist properly finds an opportunity to explore the possibilities of the future. The more the subject is embroiled in political controversy and emotion, the greater is the need for juristic study pursued dispassionately and without reference to the momentary currents of diplomacy, enthusiasms and prejudices." Ibid. 825, 826.

With respect to attempts to define aggression and to distinguish between aggressors and victims of aggression, see also Eagleton, "The Attempt To Define Aggression" (International Conciliation, no. 264, Nov. 1930); Quincy Wright, "The Concept of Aggression in International Law", 29 A.J.I.L. (1935) 373; and works cited in II Oppenheim's International Law (6th ed., by Lauterpacht, 1940) 155-156.

In his address read at the meeting of the Inter-American Bar Association at Habana, on March 27, 1941, Attorney General Robert H. Jackson stated:

It is the declared policy of the Government of the United States to extend to England all aid "short of war." At the same time it is the declared determination of the government to avoid entry into the war as a belligerent.

Distinction between just and unjust

war

Partiality

The question has been raised whether the two aspects of this dual policy are reconcilable with law, or whether such comprehensive aid, extended to one belligerent party to the express exclusion of the other, is incompatible with the obligations which international law imposes upon a state, not a belligerent in the

It is easy to see how an international law which holds all wars to be legal, and all warring nations as possessed of equal rights, arrives at the conclusion that neutrals must not discriminate between belligerents.

To the mind untutored in such sophisticated thought it seems to be characterized by more of learning than of wisdom. It does not appear to be necessary to treat all wars as legal and just simply because we have no court to try the accused. That hypothesis seems to justify President Wilson's statement that "International Law has perhaps sometimes been a little too much thought out in the closet." Certainly the work-a-day world will not accept an unrealistic and cynical assumption that aggression, by a state that had renounced war by treaty, rests on the same basis as defense against an unprovoked attack in violation of treaty.

The doctrine of international law in the seventeenth and eighteenth centuries was based on a distinction between just and unjust wars. From that distinction there was logically derived the legal duty of members of the international society, bound by the ties of solidarity of Christian civilization, to discriminate against a state engaged in an unjust war-in a war undertaken without a cause recognized by international law. That duty was stressed by the scholastic writers in the formative period of the law of nations. It was voiced by Grotius, the father of modern international law. There was, in his view, no duty of impartial treatment when one of the belligerents had resorted to war in violation of international law. Writing in 1625, he said "it is the duty of neutrals to do nothing which may strengthen the side which has the worse cause, or which may impede the motions of him who is carrying on a just war."

It may be argued that the nineteenth century and the first two decades of the twentieth witnessed an interlude in international law inconsistent with what went before and also with what was to follow. But if I read history correctly, there has seldom, if ever, been a long period of time during the past three centuries when states, for their own self-defense or from other motives, have been completely impartial in relation to the belligerents. More often than not, at the end of wars, there have been recriminations of such activities, which have thereafter been largely overlooked. The testimony of historians as to the practice of states in the seventeenth, eighteenth and nineteenth centuries should not be overlooked by the international lawyer in so far as the real limits of the principles of neutrality are concerned. It is safe to assert that the absolute category of neutrality on