Non-recognition by the United States Government of the absorption of Estonia, Latvia, and Lithuania by the Union of Soviet Socialist Republics in 1940 has confronted our courts with a series of questions reminiscent of the period of our non-recognition of the Soviet Government.

A large-scale problem for the principal belligerents in the present war is that of the treatment of civilians of enemy nationality in their respective jurisdictions. Measured in terms of the number of human beings involved, national safety considerations, and the possibly unfortunate effect at home of mishandling it, the problem assumes far-reaching importance. There is need for clear law as well as positive action. There is need for perspective. In relation to international law, the distinctiveness of the classification of “civilian alien enemy,” past effort looking to the construction of internationally binding rules prescribing treatment, and practice in the current war, merit attention.

A careful examination of the nature of international relations and the specific technique of international law shows a basic difficulty confronting every attempt to regulate relations between States. It is the fact that in case of disputes between States there exists no authority accepted generally and obligatorily as competent to settle international conflicts, that is, to answer impartially the question: which of the parties to the conflict is right and which is wrong. If the States do not reach an agreement, or do not voluntarily submit their dispute to arbitration, each State is left to decide for itself the question whether the other State has violated, or is about to violate, its right; and the State which considers itself injured is free to enforce the law, and that means what it considers to be the law, by resorting to war or reprisals against the alleged wrongdoer. Since the other State has the same competence to decide for itself the question of law, the fundamental legal problem remains without impartial solution. The objective examination and unbiased decision of the question whether or not the law has been violated is the most important and essential stage in any legal procedure. As long as it is not possible to remove from the States in dispute the prerogative to answer for themselves this question of law and transfer it once and for all to an impartial authority, namely, an international court, further progress toward the reign of law and order in the world will be slow indeed.

Few periods of history disclose less harmony, mutual respect and trust among nations than the present. It may therefore seem inappropriate in such an atmosphere to discuss the place of law and courts, since they can function effectively only in periods of relative stability. Yet the very fact that international law is in some respects passing through a depression may sharpen our perspective and emancipate us from the illusions of the recent past. We may get a better grasp on realities and more correctly gauge the prospects for an ordered international life.

The Italian Code for the Merchant Marine enacted in 1865, four years after the proclamation of the Kingdom of Italy, and which in part is still in force, was intended to regulate all legal aspects of navigation in peace and wartime. It therefore contained provisions (Arts. 225–229) dealing with prize jurisdiction. Article 225 provided: “Judgment on the lawfulness of captures and on seizures shall be pronounced by a special commission which will be appointed by royal decree according to the rules to be enacted by special regulation.”

On January 13, 1942, eight governments-in-exile and the Free French National Committee adopted at London a resolution which pledges them to postwar punishment of every person guilty and responsible for certain criminal acts of violence committed by the German armies and their accomplices in occupied territories contrary to the law of war as formulated, in particular in the Fourth Hague Convention of 1907 concerning land warfare, or as generally understood by the civilized world. Several of the signers of this document spoke of the acts in question as social or international crimes and intimated that new legal conceptions would govern responsibility for and punishment of them. It seems opportune, therefore, to reexamine the established legal principles relating to these issues and to inquire whether any new rules of international law have been accepted recently with regard to the legal nature and punishment of criminal acts of violence committed by members of the armed services of a nation contrary to the laws and customs of war.

Too little attention has been given to the remarkable development of international arbitration in the Union of International Transport by Rail. Within the limited field of this Union arbitration has been organized on a solid and continuing basis, and a permanent tribunal for the settlement of disputes has been maintained for half a century.

Writers on international law agree that its development in its present form began in the 16th century among the Christian States of Europe, when the feudal organization of the continent gave place to its modern organization in the “sovereign, independent” States of the traditional terminology, and that originally it was considered as not applying, or as not fully applying, to States outside the pale of Christian civilization. At the end of the 18th and until well into the 19th centuries it was common for treatises on the subject to bear titles referring not to “International Law” but to “European International Law,” although such a title had ceased to be appropriate after the attainment of independence by the United States. It is also usually said that Turkey, the first Mohammedan State to join the family of States between which international law is in force, was brought into the family and made for the first time a subject or “person” of international law by Article 7 of the Treaty of Paris of March 30, 1856, which terminated the Crimean War. This view has, however, been disputed by A. H. Smith who argues that “for many centuries Turkey had maintained diplomatic intercourse and concluded treaties with Great Britain and other European Powers and … the general body of international law was considered to apply,” and that the alleged recognition appears to have made no practical difference; and who accordingly suggests the meaning of the article to be that Turkey was formally “admitted to the specifically European group of nations which was deemed to have been established by the Vienna settlement of 1815.” Smith gives no details regarding the evidence on which his view is based, and other writers habitually content themselves with quoting the text of the article. It may be interesting to consider what light contemporary evidence throws upon the matter.

The present totalitarian war and the emergency situations which preceded it and which are following in its wake have caused the creation of many new concepts which perhaps owe their basis to the theory that in the conduct of foreign affairs and in the conduct of war the executive arm of the government must be unhampered. In several recent cases the United States Supreme Court has held that under the Constitution the conduct of foreign relations is committed to the political departments of the Federal Government, and that the propriety of the exercise of that power is not open to judicial inquiry. However, it is now equally well settled that where a conflict of property rights under statutes and treaties is presented, the determination of these rights by the executive department is subject to review by the courts. The doctrine excluding from judicial inquiry the conduct of foreign relations by the political departments of the government has encouraged the creation of concepts which permeate the entire field relating to the alien and his property.

The fact is not very widely known that the League of Nations and governments acting in coöperation during a period of just over twenty years between the two world wars have built up an effective international drug administration spanning the entire world. It may perhaps be said that the general public has come to realize that a useful piece of work has been and is being done with good results, but only a few specialists know the main principles on which international coöperation in regard to narcotic drugs is based; and perhaps still fewer have any knowledge of the fact that to make possible effective control of narcotics it was necessary to create special international machinery with wide powers of supervision, regulation, and even sanctions. It should be mentioned at the outset that this international administration has survived the onslaught of the present world crisis which proved fatal to many other efforts in international coöperation. This signifies that the governments of countries of the free peoples of the world have maintained national control of drugs and have continued their coöperation with each other and with the League of Nations and the international drug organs. A proof of this is the fact that in January, 1943, one of these organs—the Supervisory Body—had received from governments of all the free countries in the world except one, Liberia, the estimates of the drug requirements for 1943 which governments are required to furnish under the terms of one of the drug conventions.

When faced with the problem of how enemy property should be treated in the present war the belligerents have evidently followed in general the procedure of examining the measures taken during the last world war and the application of the provisions in the treaty of peace, in conjunction with their own national laws. They have apparently also considered how closely they should hold to the time-honored principle that during a war the property of enemy individuals and companies should be merely sequestered and not confiscated. Their decision on this point has in some cases apparently been influenced by the nature and extent of enemy property within their territories and by the degree to which it had been and could be utilized for carrying on economic as well as political warfare against the state which had given the property its protection.