International Law and the Present War
| Author | W. Friedmann |
| Date | 01 January 1940 |
| Published date | 01 January 1940 |
| DOI | http://doi.org/10.1111/j.1468-2230.1939.tb00757.x |
THE
MODERN
LAW
REVIEW
VOl.
Ill
JANUARY,
I940
No.
3
INTERNATIONAL LAW AND THE
PRESENT
WAR
HE
fact that all military aggressions of the last few years
have started without a declaration of war is a symbol
of
T
considerable importance for the diagnosis of the crisis
of
international law.
In the first place,
it
indicates, that the rules of warfare, such as
they were, are no longer observed by aggressors, and to that
category belongs by now a very considerable part of mankind.
It
indicates further the disintegration
of
a
society, at least
in
the relations between aggressor states and others, which feels
bound
by
any common rules of behaviour. But thirdly: the
absence of
a
declaration of war makes
it
easier to maintain that
state of twilight between peace and war which is
so
characteristic
of the present international situation, and which is in itself, a
deadly blow to the established international law. For if anything
was elementary in the rudimentary international law which had
come to be accepted it was the clear-cut distinction between peace
and war, and correspondingly between a law of peace and
a
law
of war.
The absence of such a clear distinction blurs the border line
not only between peace and war, but also between internal and
international revolution.
Italy, Japan, Germany, Russia, all have in different ways
described their aggressive actions as police actions taken to deal
I
78
MODERN
LAW
REVIEW
Jan.,
1940
with "incidents," or
as
a
process of getting into contact with the
people of another country
as
distinct from their government.
It is a natural consequence of this state of affairs that the border
lines between belligerency and neutrality are blurred, and the
confusion is heightened by the occasional bursts of activity of a
fragmentary League of Nations. Thus it would be difficult to say
whether at present Soviet Russia is neutral or not in the war
between Germany and the Allies. Russia on the one hand, and
Great Britain and France on the other, certainly stand on opposite
sides in regard to Finland, but have
so
far avoided direct hostili-
ties. On the other hand, Russia's relations with Germany fit
into no known category of neutrality.
These observations may illustrate the revolutionary character
of
the problems which face the international lawyer. But before
discussing these problems in any more detail, it is essential to be
clear about the function which the international lawyer might,
and should, exercise at the present day.
Throughout the past decade of intensifying international crises
the great majority of international lawyers have persisted in an
analytical and static interpretation of international law as
it
was
laid down in customs, conventions and decisions, while inter-
national society went through revolutionary changes. That this
attitude has not increased the efficiency
of
international law, or
the respect for the science of international law, is beyond doubt,
but
it
is
less easy to say what should have been done. The chief
difficulty
is
the absence in international society
of
a
clear-cut
indication of any change of law. Within the state society a change
of
law is indicated by legislative act. Sometimes, in revolutionary
periods,
a
radical breach of the existing law initiates a period
of
lawlessness until
a
new law-giving authority establishes itself by
what German jurists have called the
Normative Kraft des Fak-
tischen.
But in international society there is no organ of legis-
lation, no body
of
law reformers as distinct from law interpreters.'
Indeed,
as
is
recognised by Article
38
of the Statute of the Per-
manent Court, the science of international law has
its
share in
the sources and thus in the making
of
international law. But
it
is
a fact
of
considerable sociological importance that through a
long period of comparative social stability and a characteristic
self-limitation of
a
legal profession trained in the security
of
municipal law, interpretation was considered
as
the overwhelm-
ingly important,
if
not the only, task. This, of course, never meant
that the interpretation
of
international law was free from political
Permanent Court
of
International Justice, have not been developed.
1
Possibilities
in
that direction, inherent
in
Art.
38,
par.
5
of
the Statute
of
the
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