FORCE BEHIND LAW

By PROFESSOR NORMAN BENTWICH

AFAMOUS painting of Rembrandt, " The School of Anatomy in the Maurits-Huis at the Hague, shows a group of sole Dutch doctors gathered round a body and probing it to discov the cause of death. The image seems appropriate to the prese position of international law. The legal doctors are gathered rou the body and probing it to discover whether it is dead or only si The English society of international lawyers, called after the gm Dutchman Hugo Grotius, has recently held a series of pre-morte examinations on the development of international law and its futur and the results are published in the proceedings of the society f 1941. The British group now includes a number of German refug jurists who took a prominent part in the discussion, and brought a new element of German theorising. What might be called the " ideological bramble-bushes " ha helped to disturb the tranquil positivist outlook of the English sch For generations that school has regarded international law as body of rules regulating the conduct of sovereign States, derived f custom and treaty, and maintained by the consent of nations a moral sanctions. At the end of the last war, indeed, there A general recognition of the need of an advance beyond the exis quate. They were intended to prevent the use of force against la

was to institutions of international law, if the peace of the world preserved. To that end the framers of peace designed the Coven• of the League of Nations and the constitution of the Ferman Court of International Justice. An international assembly execuu judiciary and secretariat were established ; but they proved ina and to secure, if necessary, force for the maintenance of law. fact, force was used to flout the law and to secure the aims aggressor nations. Presages of the collapse of the law were multipl

before the outbreak of the second World War. The Nazi Govern- ment from the outset showed that it had no respect for the funda- mental principle of the law of peace—pacta suet servanda.

A little later came the headlong - challenge of the League by aggressor Japan and aggressor Italy. That was followed by the pathetic spectacle of non-belligerency in the civil war of Spain, when

the aggressor States openly joined in the conflict under the shallow pretence of not declaring war, while the peace-loving States held grimly to old-fashioned doctrines of neutrality. Next, the brutal aggressions on Austria, Czechoslovakia, Albania, in turn, unchecked in deed and made more glaring by wordy protests. And, finally,

we have had- the naked and undisguised tearing-up of the inter- national law of neutrality and the so-called laws of war. The little

neutral States struggled with painful zeal to preserve the rules during the first period of the conflict ; and we on our part were scrupulous in observing them. But win ri the lawless Powers of the Axis over- whelmed the small States, ti e champion of neutrality, the United States of America, recognised the facts and proceeded herself to apply a novel conception of neutrality, which had no foundation in the existing law, but was supported by a stronger motive—the defence of civilisation.

The rules of conduct as between belligerents have always been the most precarious part of the law, because the only effective sanction, apart from the moral sense, is the fear of reprisals. Neither moral sense nor fear of reprisals has any meaning for our enemies ; and the progress of the war has been marked by a crescendo of brutalities: the bombardment of cities and countryside by night, unrestricted submarine warfare, the enslavement of the populations of occupied territories and the open robbery of their property, lastly, the systematic starvation of prisoners. No shred of respect remains in the enemy for international conventions. The impact of these events has made already a deep impression in Great Britain and the U.S.A. It is clear that, if international law is not to be a scholastic

exercise, a radical change of outlook is required. One of the most eminent of A-merican international jurists has summed up. the

position:

" The idea that war is legal and neutrality possible, these out- standing principles of international law as it existed in the nineteenth century, must be junked:.

The Grotius Society has discussed at length what is to be done to regenerate international law. Some of the doctors have said

pessimistically that there is no such law because of the lack of coercive sanction. Others urged what is called a functional approach—i.e., to consider what purpose the law can serve in a society governed by power politics. But in the end the Society adopted a statement which recognises that the substance of the law is there and sound, and what is needed is an international instrument to make it effective. The principal conclusions of the committee acre thus stated :

" From the present chaos there will emerge an overwhelming need for such a development as will make international law an effective instrument for the guidance and control of States, and will thus provide a clear and uncompromising alternative to international anarchy."

The report pointed the difference between the term " law " used In municipal and in international affairs ; an old controversy of the wrists, which has now been forced on the attention of common men.

" In the municipal sphere States are in a position to enforce their laws, and these receive authoritative interpretation from courts of law with unlimited authority to determine all disputes which may arise within their jurisdiction. In regard to international law there is at present no authority having the power and means of enforcement. Consequently some States which are aggressively inclined violate its precepts when they think that their interests so demand. Without enforceability by appropriate organs, international law will continue to be defied with impunity."

The tragic failure of the efforts to keep the peace during the last twenty years " points the need for the abandonment of the diplo- matic' approach to international law, which has left an undue mea- tre of freedom to States, and for the establishment of some system ti international order and authority involving the acceptance of considerable limitations of national sovereignty." Finally the com- mittee observes:

"To ensure universal peace and order, international law must be universal. Its operation, however, requires the existence of some minimum level of civilisation and moral values among the nations subject to it."

We have come to a situation which is the converse of that in which modern international law was created by Grotius and his successors. The break-up of the Christian Commonwealth of Europe impressed the need of framing for a society of independent States rules founded on regard for natural and moral law. Today the disregard for natural and moral law in several of the independent sovereign States has resulted in anarchy in the• society. If law and order and peace are to be preserved, there must be something in the nature of a new commonwealth with authority and force to assert its rules of inter- national law. We are moving in the direction of a united society in economic and social concerns ; the Atlantic Charter adopted by the twenty-six nations is a prelude. A new society will require a fresh framework for the law accepted by its members. But theory and practice must be associated, if international law is to be more than an abstract science. Lord Justice du Parcq uttered a timely word of warning in the debate at the Grotius Society: it was not enough to face the facts ; we had to find a way of controlling the facts, and that will not be easy.

The primary need in the effort to strengthen international law must be to secure American co-operation. On that depends the practical possibility of establishing effective international institu- tions. Hitherto there has been in America, amongst jurists as well as amongst politicians, a strong isolationist attitude. Today there is the chance that America will take her part in the international organisation, if it can be developed from the organs in which she already is active, like the I.L.O. and the Permanent Court of Inter- national Justice. And when American co-operation has been won, it will be equally necessary to get the support of European, Chinese and Indian jurists. It is obvious that a new order cannot be estab- lished according to fine plans drawn up by English and refugee lawyers alone. A hard and stony way must be travelled before the ideal can be turned to the practical.