Is the pessimism at present exhibited by certain scholars with regard to the current prospects of international law completely reasonable? More particularly, is it really justifiable to speak of a deterioration in the juridical methods of settling disputes between states? However disappointing the course of events may have been during the last ten years, it seems that certain evaluations, inspired by nostalgia for the past, to some extent lose sight of factual conditions which have always, in different degrees, limited the role of law in the solution of international conflicts. It is useful to recall such conditions at a time when excessive discouragement has succeeded unreasonable expectations.

The founding fifty years ago of a society to promote the establishment of international relations on the basis of law and justice was a step marking the progress that had been made at the beginning of the century in the age-long efforts to find a means of substituting reason for force in the settlement of international controversies. At that time arbitration was generally regarded as the most suitable and acceptable substitute for war. Great Britain and the United States had both heavily contributed to that conviction first by submitting to arbitration under the Jay Treaty of 1794 the numerous misunderstandings that developed in carrying out the provisions of the Peace Treaty of 1783, and then three-quarters of a century later in submitting to arbitration by the Treaty of Washington of 1871 the dangerous Alabama Claims dispute following the American Civil War.

On April 6, 1955, during its thirty-fourth year, the International Court of Justice decided one case brought on December 17, 1951, by Liechtenstein against Guatemala—the Nottebohm Case—in favor of Guatemala. It also gave an Advisory Opinion to the General Assembly of the United Nations on June 7, 1955, on the Voting Procedure on Questions relating to Reports and Petitions concerning the Territory of South-West Africa.

The resolution of the General Assembly of December 14, 1955, to admit 16 countries to membership in the United Nations, marked “an event second only to the foundation of the United Nations itself,” and a decisive step towards achieving universality of membership. As the President of the Tenth Session of the Assembly, Mr. Jose Maza (Chile) put it:

The so-called “doctrine and practice of the Continental Shelf,” hardly more than ten years old, has, through many unilateral proclamations highly different in character and contents, led at this time to a situation which only can be characterized as one of confusion and abuse. The whole development, especially in its exaggerated claims, gives the impression of a triumphant upsurge of national sovereignty, and threatens to endanger the long-established principle of the freedom of the high seas—a norm juris cogentis of general customary international law.

So great has been the progress of the inter-American regional system over the past fifty years that it is difficult for a later generation to understand how hesitant and faltering the statesmen of an earlier day could have been in their approach to problems for which we have now found, if not the solution, at least the basis upon which to construct a solution. States were sovereign then, and sovereignty, as the term was practically applied, meant that states were not so much above the law but rather outside its scope in respect to the fundamental and recurrent issue of the defense of national interests.

It seems that the development of the laws of war from the beginnings of our international law to the present day has completed a full circle. With the definitive decentralization of the medieval communitas Christiana and the coming into existence of the national sovereign state, wars appeared in which new methods for the conduct of war—armies of mercenaries on foot, invention of gunpowder—were combined with the deep ideological split between Catholics and Protestants. The wars of that time were conducted with the greatest cruelty and inhumanity, reaching their climax with the terrible Thirty Years’ War, which may well be called a total war.

Since the end of the first World War, the predominant concern of international lawyers, as of statesmen and politicians, has been the horizontal widening of universal international law in a limited but vital sphere: the establishment and strengthening of inter-state covenants and international organizations which would eliminate, or at least greatly reduce, the danger of increasingly destructive wars among the nations, by substituting for the traditional privileges of national sovereignty, i.e., war, reprisals and other acts of force applied at the discretion of the national states, covenants of restraint and methods of peaceful settlement.

During critical phases in the development of a legal system the quality of the craftsmanship which practitioners of the law bring to its service can have a decisive influence on the process of development and on the whole texture of the legal system resulting from that process of development. So it was when the great civilians transformed the law of an overgrown city state into the law of an imperial commonwealth; so it was when the glossators laid the foundations of the modern civil law; so it was when the Bench and Bar of England created the common law; so it is today in the case of international law.

Many recent and important treaties contain provisions in favor of third states. The United Nations Charter, for instance, confers upon non-member states the right to participate in the discussion of disputes in which they are involved (Article 32); the right to bring such disputes to the attention of the Security Council or the General Assembly (Article 35); and the right to consult the Security Council with regard to the solution of special economic problems arising from the application of preventive or enforcement measures (Article 50). Also Articles 2 (7) and 81 have been interpreted and applied as conferring rights upon states not Members of the Organization.

An event which awakened a lively interest on the part of the American business community in the economic activities of the United Nations occurred in December, 1952. A United Nations General Assembly resolution contained the proposition that “the right of peoples freely to use and exploit their natural wealth and resources is inherent in their sovereignty.…”

The United Nations functions in the main by persuasion rather than by coercion. The persuasive influence of its resolutions are powerful in proportion as they have the opinion of governments and peoples behind them, but the mobilization of such an opinion depends in no small degree upon the conviction of all the Members that resolutions are within the competence of United Nations organs. That competence is measured by the concept of domestic jurisdiction. The sentiment of nationalism is such that if many states believe a resolution directed toward a particular state constitutes an intervention in matters which are essentially within its domestic jurisdiction, the state addressed and other states may so resent the resolution that its effect, far from mobilizing world public opinion, will tend to disintegrate the United Nations.

In the Memorandum signed at Moscow, on April 15, 1955,1 the Austrian and Soviet Delegations came to an agreement binding the Austrian Delegation to carry out the following decisions and measures:

1. Referring to the declaration made at the conference of Berlin in 1954 neither to join a military alliance nor to allow foreign military bases in its territory, the Austrian Government will make a declaration in a form which will obligate Austria internationally to practice in perpetuity a neutrality of the type maintained by Switzerland.

2. After having ratified the State Treaty, the Austrian Government will submit this declaration to the Austrian Parliament for confirmation according to the Austrian Federal Constitution.

3. The Austrian Government will take all suitable steps to obtain international recognition of this declaration.

4. The Austrian Government will welcome a guaranty by the four Powers of the independence and territorial integrity of Austria.

5. The Austrian Government will seek to obtain from the governments of France, Great Britain, and the United States of America such a guaranty.

Muslim states have shown in recent years eagerness to participate in international organizations and co-operate with other Powers to promote international peace and security. This is a significant phenomenon in the behavior of states whose traditional law of nations is so radically different from the modern law of nations and the principles implied in the United Nations Charter.

After World War II many Eastern European governments began programs of nationalization in which they took virtually all the private property of foreigners. Under the conditions prevailing it was quite obvious that American nationals would not be able to obtain compensation for the properties taken through local remedies. It thus became necessary for the Department of State to commence negotiations with these various governments with the object of obtaining some compensation for the properties so taken. Very little headway was made in such negotiations and the only practical device available was the economic counter-measure of blocking the assets of those foreign governments which were located in the United States. Such blocked assets could be appropriated (“vested”) where the property involved could be classified as “enemy” property. However, the blocking was purely a delaying tactic where the foreign government was not an “enemy” during World War II.

In this article, which presents an outline of the interesting and important problem of individuals as subjects of international law, special attention will be devoted to an original experiment in the field of public international law. This experiment was carried out on behalf of the Principal Allied Powers after the first World War in the territory of Upper Silesia, which is one of the largest coal, steel, zinc, lead and chemical-producing industrial centers in Europe.

For many centuries the armistice agreement has been the method most frequently employed to bring about a cessation of hostilities in international conflict, particularly where the opposing belligerents have reached what might be termed a stalemate. This practice has not only continued but has probably increased, during the present century.

The enduring value of Chief Justice John Marshall’s contributions to international law is shown by the fact that during the bicentennial year of his birth the Supreme Court of the United States has had occasion in the course of current litigation to apply principles set forth in well-known decisions rendered by Marshall more than a century ago. Likewise there is timeliness, in view of current interest in “treaty law,” in Marshall’s pronouncements on that topic.

Prior to World War II, U. S. commercial treaties either were silent concerning the applicability of their provisions to corporations and other associations, or provided in only a limited way for such entities. From the start, treaties of this kind concluded by the United States have been concerned with the rights and privileges of persons. It was not until 1911, however, that these treaties began to reflect attention to companies as such—artificial, as distinguished from natural—persons. Only during the last ten years have they dealt with companies systematically and comprehensively to a degree comparable with the treatment provided for natural persons.

During the discussion of the United Nations resolution “Uniting for Peace” (hereafter called “Resolution”), many arguments were advanced for and against the Resolution. Opposing interpretations of the Charter and quotations from authorities in international law were amply used to prove the assertions of each side. It seems to be useful to make a systematic survey of the principal legal questions involved, taking duly into account the arguments set forth during the discussion of the Resolution.