1 E. M. Borchard, this Journal, Vol. 23 (1929), p. 118; Proc. Am. Soc. Int. Law, 1929, pp. 88–109. The Pact has even been compared to the Holy Alliance of Sept. 14, 1815, (Encyclopedia Britannica, 14th ed., Vol. 22, p. 443), but comparison of the texts and origins of the two instruments gives little evidence of similarity. The monarchs parties to the Holy Alliance agree to treat each other as brothers conformably to the scriptures, to render each other reciprocal service as would fellow-countrymen or members of the same family, and to deal with their subjects as would the father of a family. The alliance may be for peace but contains no positive provisions against war or non-pacific measures. See Phillips, The Confederation of Europe, 1920, pp. 141, 305.

2 Stimson, , “The Pact of Paris: Three Years of Development,” Foreign Affairs (U. S.), Sp. Supp. No. 1, Vol. 11, p. iv Google Scholar; United States, Department of State, Publication No. 357.

3 See United States notes to China and Russia, Dec. 2, 1929, and action of 31 parties to I the Pact on this initiative with respect to Chino-Soviet hostilities in Manchuria, particularly Secretary Stimson’s statement that communications were sent to these two states “because this government regards the Pact of Paris as a covenant which has profoundly modified the attitude of the world toward peace and because this government intends to shape its own policy accordingly.” U. S. Dept. of State, Press Keleases, No. 10, Dec. 7, 1929, pp. 83-89. See also J. B. Condliffe, Ed., Problems of the Pacific, 1929, pp. 167, 230 ff. For correspondence in regard to application of the Pact to the Chino-Japanese hostilities in Manchuria, 1931-32, see U. S. Senate, 72nd Cong. 1st Sess. Doc. No. 55, Conditions in Manchuria, Jan. 27,1932, and Wright, , “The Manchurian Crisis,” Am. Pol. Sci. Rev., Feb. 1932, Vol. 26, pp. 69–76 CrossRefGoogle Scholar. The Pact has not been strictly applicable to the Paraguay-Bolivia hostilities because, although Paraguay has ratified the Pact and Bolivia has expressed an intention to do so, the Bolivian ratification has not been deposited. (U. S. Treaty Information, Feb. 1932, p. 7). Nevertheless, in their communication of Aug. 2, 1932, to Paraguay and Bolivia, nineteen American states asserted that the principles of the Pact were “a tradition among the American nations” and that they would not recognize “any territorial arrangement of the controversy which has not been obtained by peaceful means nor the validity of territorial acquisitions which may be obtained through occupation or conquest by force of arms.” (Press Releases, No. 149, Aug. 6, 1932, p. 100.)

4 Hudson, International Legislation, 1931, Vol. 1, pp. xvi–xvii; Wright, Proc. Am. Soc. Int. Law, 1930, pp. 80–81; Chamberlain, ibid., 1929, p. 92; Miller, The Peace Pact of Paris, N.Y., 1928, pp. 127–8.

5 Stimson, op. cit., note 2, p. viii.

6 See discussion, Proc. Am. Soc. Int. Law, 1930, pp. 97-99.

7 Ibid., p. 108; The Covenant and the Pact, Geneva Special Studies, Dec, 1930, Vol. 1, No. 9; Manning, C. A. W., “The Proposed Amendments to the Covenant of the League of; Nations,” British Year Book of Int. Law, 1930, p. 158 Google Scholar ff., and text of proposals, p. 170; J. L. Brierly states that the Pact has closed the gaps in the Covenant, ibid., 1929, p. 208. f Secretary Stimson has denied the contention that the Pact “was a mere group of unis lateral statements made by the signatories, declaring a pious purpose on the part of each I of which purpose that signatory was to be the sole judge and executor, and for a violation I of which no other signatory could call him to account” (op. cit., note 2, p. iv).

8 The writer has discussed the sanctions of treaties and international law, Proc. Am. Soc. Int. Law, 1932, p. 112 ff.

9 Stimson, op. cit., note 2, p. ix. See also Whitton, , “What follows the Pact of Paris,” International Conciliation, No. 276, Jan. 1932, pp. 13–19 Google Scholar; Wright, Proc. Am. Soc. Int. Law, 1932, pp. 117–118.

10 As Professor Brierly has pointed out the “pact is not an isolated event” (Br. Y. B. 1929, p. 208), and has profited by the sanctioning machinery of the League and the Pan American organization in the cases which have occurred since it went into effect, but the United States has rested its action mainly on the Pact.

11 See Borchard, loc. cit.; R. S. Morris, Proc. Am. Soc. Int. Law, 1929, p. 90; C. H. Butler, ibid. p. 105.

12 “ Neither of the parties who has an interest in the contract or treaty may interpret it after his own mind.” Vattel, Law of Nations, II, c. 17, sec. 265; Introduction, sec. 17. It has been suggested that treaty provisions of a political character impose “ obligations of honor” (Lord Derby referring to the Luxemburg neutralization guarantee of 1867, Hansard Debates, 3rd series, Vol. 187, col. 1922), or “moral obligations” (President Wilson referring to Art. 10 of the League Covenant, 66th Cong. 1st Sess. Sen. Doc. 106, p. 502) not susceptible of legal interpretation. This distinction rests on the lack of legal organization rather than on legal principle, and does not indicate exception to the general duty accepted by many states to submit treaty interpretation to impartial adjudication. See Wright, Control of American Foreign Relations, 1922, pp. 209–215; Columbia Law Rev., Feb. 1920, Vol. 20, pp. 145–148. “From the standpoint of municipal law, the claim of a state through its organ with ultimate authority in the matter to a legal right, power, or interest is a legal right, power, or interest; but from the standpoint of international law, such a claim is valid only in so far as established through the appropriate international procedure.” Wright, Mandates under the League of Nations, p. 284.

13 See The General Pact for the Renunciation of War, text of the Pact as signed, notes and other papers, U. S., Government Printing Office, 1928.

14 Wright, , “The Interpretation of Multilateral Treaties,” This Journal, Vol. 23 (1929), p. 94 Google Scholar. See also Myers, Origin and Conclusion of the Paris Pact, World Peace Foundation, 1929, Vol. 12, No. 2, p. 66 ff.

15 The writer has discussed the legal effect of this preparatory material at length in the article cited in note 14.

16 Stimson, op. cit., note 2, p. v.

17 Vol. 2, sec. 215. See also ibid., Vol. 7, sees. 1092, 1093; Hyde, International Law, Vol. 1, p. 106 ff; Wright, , “The Outlawry of War.” This Journal, Vol. 19 (1925), p. 90 Google Scholar ff.

18 League of Nations, Conference for the Codification of International Law, Bases of Discussion, (V. Legal Questions, 1929, v, 3) Vol. 3, pp. 58,125–127.

19 International Law, 3rd ed., Vol. 1, p. 215. See also Hall, International Law, 8th ed., p. 325; Hyde, Int. Law, Vol. 1, p. 106; Borchard, Diplomatic Protection of Citizens Abroad, p. 449; Westlake, International Law, Vol. 1, pp. 312–313; Potter, Manual Digest of Common International Law, pp. 167–169, sees. 184–191.

20 Oppenheim, op. cit., Vol. 1, p. 216; Westlake, op. cit., Vol. 1, p. 313.

21 “The committee reports the above treaty with the understanding that the right of self-defense is in no way curtailed or impaired by the terms or conditions of the treaty. Each nation is free at all times and regardless of the treaty provisions to defend itself, and is the sole judge of what constitutes the right of self-defense and the necessity and extent of the same. The United States regards the Monroe Doctrine as a part of its national security and defense. Under the right of self-defense allowed by the treaty must necessarily be included the right to maintain the Monroe Doctrine, which is a part of our system of national defense.” This appears to read all legal character out of the treaty, but the report also said “the treaty in brief pledges the nations bound by the same not to resort to war in the settlement of their international controversies save in bona fide self-defense and never to seek settlement of such controversies except through pacific means,” which seems to put defense on a juridical plane, and also quotes with approval Professor Theodore Woolsey’s statement that the Monroe Doctrine “was justifiable by reason of the right of self-defense (which is a recognized principle of international law). It called no new rights into being. Therefore, whenever it oversteps the principle of self-defense, reasonably interpreted, the right disappears and the policy is questionable because it then violates the rights of others.” 70th Cong. 2nd sess. Ex. Rep. No. 1, Cong. Rec. Jan. 15,1929, Vol. 70, p. 1730; Myers, Origin and Conclusion of the Pact of Paris, p. 68.

22 The Supreme Court said in reference to a joint resolution passed by a majority of the Senate stating the purpose of the Senate in ratifying the treaty annexing the Philippines, “We need not consider the force and effect of a resolution of this sort. . . . The meaning of the treaty can not be controlled by subsequent explanations of some of those who may have voted to ratify it.” Fourteen Diamond Rings v. U. S., 1901, 183 U. S. 176; Wright, Control of American Foreign Relations, pp. 45–61.

23 “ It is inconceivable that Mr. Kellogg meant to lay down that a state is competent to declare its recourse to war to be defensive in defiance of patent facts and whether or not a state has been willing to seek a settlement by pacific means must necessarily be a fact patent to all.” Brierly, Br. Y. B. 1929, p. 209. See also Shotwell, War as an Instrument of National Policy, N. Y., 1929, p. 214; Kingsbury, Proc. Am. Soc. Int. Law, 1929, p. 103. The limits of self-defense in international law are analogous to the limits of self-defense in criminal law and to the limits of national defense in martial law. See statement from Denmark, in the report referred to in Note 18, supra, p. 126, and Secretary Stimson’s statement, supra, Note 16. Dicey narrates the case of Captain Moir whose grounds were infested by trespassers. “He gave notice that he should fire at any wrongdoer who persisted in the offense. He executed his threat, and, after fair warning, shot a trespasser in the arm. The wounded lad was carefully nursed at the captain’s expense. He unexpectedly died of the wound. The captain was put on his trial for murder; he was convicted by the jury, sentenced by the judge, and, on the following Monday, hanged by the hangman. He was, it would seem, a well-meaning man, imbued with too rigid an idea of authority. He perished from ignorance of law. His fate is a warning to theorists who incline to the legal heresy that every right may lawfully be defended by the force necessary for its assertion.” (The Law of the Constitution, 8th ed., 1915, p. 490.) The Supreme Court of the United States held that President Lincoln’s order establishing martial law in Indiana during the Civil War could not justify the execution of Lambdin P. Milligan convicted of treason by a military commission at a time when the ordinary courts were open and necessity did not exist in fact. The court concluded that the execution had not been carried out, because Milligan was before them and ordered his release, holding the decision of the military commission a nullity. “Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration. . . . As necessity creates the rule, so it limits its duration. . . . It is also confined to the locality of actual war.” (Ex parte Milligan, 1867, 4 Wall. 2.) Dicey compares these two situations as follows: “An individual may use any amount of force necessary to avert death or grievous bodily harm at the hands of a wrongdoer, but, if he kills a ruffian, he must to justify his conduct show the necessity for the force employed in self-protection. So a general, who under martial law imprisons or kills British subjects in England, must, if he is to escape punishment, justify his conduct by proving its necessity. The analogy between the two cases is not absolutely complete, but it is suggestive and full of instruction.” (Op. cit., p. 543.) The case of Martin v. Mott (1827, 12 Wheat. 19) seems to carry a different implication with reference to legal limitations upon the exercise of discretionary powers. The Supreme Court said “when a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statute constitutes him the sole and exclusive judge of the existence of those facts.” This was doubtless applicable to the case before the court, which involved the power of the President to call forth the militia to execute the laws of the Union, suppress insurrection and repel invasion. The President, under the constitutional division of powers, doubtless enjoyed final authority on the political question of whether the occasion justified a calling forth of the militia, in so far as the rights of no one but the militiaman, bound by the Constitution to answer such a summons, were involved. Where the rights of others, not legally bound by the exercise of power, are concerned, it does not appear that either in constitutional law, municipal law, or international law, are the facts upon which the exercise of power is contingent to be conclusively judged by the person exercising the power. See, also, supra, note 12.

24 See Wright, “The Manchurian Crisis,” loc. cit.; League of Nations, Appeal by the Chinese Government, Report of the Commission of Enquiry (Lytton Commission), Geneva, 1932, p. 71.

25 League of Nations, Appeal of the Chinese Government, Observations of the Japanese Government on the Report of the Commission of Enquiry (Political, 1932, VII, 19), p. 23. In this answer to the report of the Lytton Commission, Japan quotes Mr. Kellogg’s statement of June 23, 1928, omitting the statement “If it has a good case, the world will applaud and not condemn its action” and the remainder of the paragraph. It asserts that the United States acquiesced in the British invasion in connection with the Caroline incident because of “propinquity to the United States and the extreme importance and disturbed conditions of Canada.” Although portions of Webster’s statement are quoted, the important statement that “the inviolable character of the territory of independent states is the most essential foundation of civilization” and that defensive action “must be limited by that necessity and kept clearly within i t” are not. (pp. 17, 22, 24.) Although asserting that “the right to pronounce a decisive opinion on an act of self-defence falls solely within the sovereign appreciation of the interested state,” an effort is made to prove that a necessity for self-defence justified the Japanese operations after September 18, 1931, by citation of the following facts: (1) “No one except the officers on the spot could possibly be qualified to judge whether or not the action undertaken by the Japanese army was a measure of self-defence “ and the Lytton Commission had not “excluded the hypothesis that the officers on the spot may have thought they were acting in self-defence.” (2) “There was the necessity of meeting a great and imminent danger—an overt attack by members of a vastly superior force, capable, if not nipped in the bud, of driving the Japanese into the sea. There was no choice of means. What else was to be done? There was no instant for deliberation—the open attack was launched upon them. It is fortunately unnecessary to consider whether the magnitude of the interests at stake warranted forcible measures. For these interests were nothing less than the whole position of Japan in the Far East.” (3) “There remains the solid fact that the explosion did take place, and that an attack was launched by Chinese soldiers; in consequence, the Japanese emergency plan was automatically put in motion long before such question as the extent of the damage could ever be discussed.” These three points are summarized: “the operations which commenced on the night of September 18th were only the putting into active execution of a plan prepared to meet the case of a Chinese attack, and whose prompt and accurate execution had always been considered by the Commander-in-Chief as absolutely essential for the fulfilment of the task of protection which was incumbent on him, in view of the great local superiority of the Chinese.” (pp. 22, 24–25.) The facts therefore creating a necessity for the occupation of all of Manchuria were the occurrence of an attack of unknown magnitude by Chinese soldiers (the Lytton Commission was not convinced of this), the conclusion by Japanese officers on the spot who had a superior opportunity to judge that these measures were necessary, the existence in Manchuria of superior Chinese forces and of extensive Japanese interests, the advance preparation of a plan of extensive military operations to be put in action automatically upon the occurrence of an attack without regard to the extent of damage resulting from such attack. See also Inazo Nitobe, “Japan and the Peace Pact,” Report of Radio Broadcast, Aug. 20, 1932, p. 1.

26 Nitobe, op. cit., p. 1.

27 See notes transmitting adherence to the Pact of Afghanistan, Egypt, Persia, U. S. S. R., Myers, op. cit., pp. 160–172.

28 Brierly, op cit., p. 209; Wright, this Journal, Vol. 23 (1929), p. 105.

29 Nitobe, op. cit., p. 4.

30 This idea had been incorporated in a proposed convention of the Inter American Conference of 1890 (Moore’s Dig. Vol. 6, p. 402; Vol. 7, p. 316), and in the project on Conquest of the American Institute of International Law in 1925 (this Journal, Spec. Supp. Vol. 20 (1926), p. 384).

31 Proc. Am. Soc. Int. Law, 1930, p. 104.

32 Wright, , “The Stimson Note of January 7, 1932,” This Journal, Vol. 26 (1932), pp. 342–348 Google Scholar; Roxburgh, International Conventions and Third States, p. 31 ff.

33 U. S. Senate, 72nd Cong. 1st sess., Doc. No. 55, Conditions in Manchuria, Jan. 27, 1932, p. 55.

34 Miller, The Peace Pact of Paris, p. 126.

35 The writer has attempted to state “When does War Exist?” this Journal, Vol. 26 (1932), p. 362 ff.

36 William Hard, The World’s Work, March, 1929, p. 83.

37 Secretary Kellogg assumed that a party to the Pact can “decide whether circumstances require recourse to war in self-defense,” and Professor Shotwell stated that under the Pact war can be used in defense or as an instrument of the community of nations (International Conciliation, Oct. 1928, No. 243, pp. 454ff), but presumably only against a state already at war. It can not be said that every violation of the Pact justifies defensive war against the violator. Although every violation of Art. 1 of the Pact would also be a violation of Art. 2 (Miller, op. cit., p. 126), the reverse is not true. A state might use non-pacific means in violation of Art. 2 without going to war in violation of Art. 1 (infra, note 55).

38 Stimson, op. cit., note 2, p. iv.

39 Proc. Am. Soc. Int. Law, 1929, p. 105. Although the Pact forbids such wars, as well as all others, it can not be assumed that states will always find it easy to carry out their obligations under it. These resentments and passions, particularly where governments are weak, may lead to hostilities even though such hostilities would be “conflicts” the settlement of which should only be sought by pacific means.

40 Mavrommatis Palestine Concession Case, Per. Ct. Int. Justice, Ser. A, No. 2, p. 11.

41 See Wright, “When Does War Exist,” loc. cit.

42 Proc. Am. Soc. Int. Law, 1929, p. 7. Codification project No. 29 of the American Institute of International Law (this Journal, Spec. Supp. 1926, Vol. 20, p. 382) distinguishes “pacific” (severance of diplomatic relations, pacific embargo, non-intercourse) from “coercitive” (retorsion, reprisals, hostile embargo, pacific blockade) measures of redress short of war.

43 League of Nations, 65th Sess. of the Council, Min., par. 2954. Later M. Briand referred to Art. 12 of the Covenant as defining the “pacific means” available under the Pact of Paris to members of the League (ibid., par. 2960); Wright, “ The Manchurian Crisis,” loc. cit. A similar opinion was frequently expressed during the general debate in the special session of the Assembly, March 5, 7 and 8,1932, especially by the representatives of Sweden, Denmark, Switzerland, Germany, Canada, Bulgaria, South Africa and Latvia, League of Nations, Off. Journ. 1932. Special Supp., No. 101, pp. 47–79.

44 Quoted by Sec. Kellogg in address to New York Council on Foreign Relations, March 15, 1928, reprinted in document referred to in note 13, p. 64.

45 Compare note 23.

46 “If a physical injury is directed against the territory, property or acknowledged rights of a state or its subjects, physical prevention of it presents a true case of self-defense and is justifiable. . . . But when the interests involved in a right claimed but not acknowledged are subjected to physical damage, physically to oppose that damage is rather self-help than self-defense and from the point of view of law can not be tolerated.” Westlake, International Law, Vol. 1, p. 173.

47 “A state may defend itself, by preventive means against attack by another state, threat of attack, or preparations or other conduct from which an intention to attack may reasonably be apprehended. If its legal rights or those of its subjects are concerned, and the necessity is not great and immediate, action in the right of self-preservation will seldom be conscientious unless arbitration has first been offered and refused.” Ibid., Vol. 1, pp. 312–313.

48 See cases of forcible action to defend territory, Moore’s Dig. Vol. 2, sec. 215; to defend nationals, Memorandum of J. Reuben Clark, Jr., Solicitor of the Department of State, on right to protect citizens in foreign countries by landing forces; and to defend government agencies and authority, Moore’s Dig., Vol. 7, pp. 109–118.

49 Hall, Int. Law, p. 325.

50 Richardson, Messages of the Presidents, Vol. 1, pp. 326–327; Corwin, The President’s Control of Foreign Relations, p. 132.

51 Supra, note 23.

52 Lytton Report, p. 71.

53 The legitimacy of reprisals under the League of Nations Covenant was discussed in connection with the Corfu incident of 1923, opinion being divided. See Wright, this Journal, Vol. 18 (1924), pp. 107, 541; Vol. 19 (1925), pp.87, 91; Vol. 26 (1932), p. 365 ff.

54 League of Nations, 65th Sess. of Council, Min., p. 2953; Wright, “The Manchurian Crisis,” loc. cit.

55 Wright, “ When Does War Exist,” loc. cit.

56 Ibid., pp. 365, 367.

57 Jessup, , “The Birth, Death and Reincarnation of Neutrality,” This Journal, Vol. 26 (1932), p. 790 Google Scholar.

58 Ibid., p. 792.

59 Jessup refers to certain neutrality treaties “peeping through the famous gap in the Covenant” (Ibid. p. 792). Secretary Kellogg, referring in his note of June 23, 1928, to such treaties mentioned by France, assumed that France was concerned with her right to fulfill her obligations under such treaties guaranteeing the neutrality of certain states. He easily answered that as such a guarantee could only operate against a state which had already violated the Pact, the right of France to fulfill these treaties would not be impaired. He did not discuss the compatability with the Pact of treaties by which a state agrees to be neutral if the other party is at war. DeVisscher considers such a treaty between Italy and Jugoslavia as requiring that neither will join a state guilty of aggression against the other, rather than as requiring strict impartiality, and even with that construction suggests that it is imcompatible with the Covenant because “mutual assistance rather than neutrality is for all the members of the League of Nations a positive duty.” Nevertheless he thinks in the light of practical politics this objection may not overrule the practical value of the treaties. The Stabilization of Europe, Chicago, 1924, p. 111. See also Jessup, American neutrality and International Police, World Peace Foundation, 1928, pp. 95–96.

60 The writer has discussed a number of such cases in an article on “Conflicts between international law and treaties,” this Journal, Vol. 11 (1917), pp. 570–672, and 574 note 32.

61 The writer has discussed the conditions leading to these changes in an article on “The Future of Neutrality,” International Conciliation, No. 242, Sept. 1928, pp. 361–368. See also Proc. Am. Soc. Int. Law, 1930, 85–86; Jessup, American Neutrality and International Police, pp. 106–107; Graham, , “The Effect of the League of Nations Covenant on the Theory and Practice of Neutrality.” California Law Rev., July 1927, Vol. 15, p. 372 CrossRefGoogle Scholar ff.

62 Wright, , “Neutrality and Neutral Rights following the Pact of Paris,” Proc. Am. Soc. Int. Law, 1930, p. 78 Google Scholar ff.; Brierly, Br. Y. B., 1929, p. 210. Miss V. M. S. Crichton suggests, in an interesting article on “The Prewar Theory of Neutrality” (ibid., 1928, p. 101), that that theory “in its entirety has become a matter of history.”

63 Morrison, The Outlawry of War.

64 This discussion refers only to the relation of states bound by the pact. The legal position in case of war of the few states not yet parties (Argentine, Brazil, Bolivia, Salvador and Uruguay, the last three of which have expressed an intention to adhere) is extremely complicated and is not here discussed. (For list of ratifications and adhesions to the Pact, see U. S. Treaty Information, Feb. 1932, p. 7, and March, 1932, p. 3.)

65 Jessup, this Journal, Vol. 26 (1932), pp. 792–793.

66 It may be suggested that interference with neutral commerce, even as permitted by the old law of neutrality, would be a use of non-pacific means against the non-participant still entitled to the benefits of the Pact. This would apply with respect to the conduct of the primary belligerent, because he is bound to observe the Pact towards his enemy, but the secondary belligerent is interferring with neutral commerce to settle a controversy with his enemy who has lost the benefits of the Pact.

67 League of Nations, Reports and Resolutions on Article 16 (Legal. 1927. V. 14), p. 88; Wright, The Future of Neutrality, p. 377; “Neutrality arid Neutral Rights following the Pact of Paris,” loc. dt.

68 Wright, Proc. Am. Soc. Int. Law, 1930, pp. 104–105; 1932, pp. 114–115; Miss Wambaugh, ibid., 1930, p. 111; Brierly, Br. Y. B., 1929, pp. 208–209. “ If in spite of all steps here recommended ‘a resort to war’ takes place, it is probable that events will have made it possible to say which state is aggressor and in consequence it will be possible to enforce more rapidly and effectively the provisions of Article 16.” Report approved by the League of Nations Assembly and Council interpreting Art. 11 of the Covenant, Monthly Summary, Oct. 1927, Vol. 7, p. 308; Jan. 1928, Vol. 7, pp. 356, 376–378; Conwell-Evans, The League Council in Action, Oxford, 1929, pp. 282–285.