James Wilford Garner has given us a profound, detailed and highly valuable Report on The Law of Treaties. This report contains, it is true, a rule concerning the validity of a treaty which is in conflict with an earlier treaty. On the other hand, there is no consideration, as far as this writer can see, of treaties which are in conflict with general international law, a problem which has been discussed many times.

One of the most striking features of the present Spanish civil war has been the evolution, and devolution, of the international accord for non-intervention in Spain, and the observation and patrol system set up in connection therewith. The purpose motivating the accord was the desire to prevent Europe from becoming so bound up with and so divided over the ideological aspects of the conflict that the fighting would lead to a general European war. If the devices have not succeeded altogether in stopping the entrance of supplies and men into Spain; if they have glossed over or provided a screen behind which violations of pledged undertakings have occurred; if they have become popular laughing-stock, and have allowed unfortunate Spain to become a military laboratory for the testing of weapons and strategy, they have, nevertheless, been instrumental, along with other things perhaps, in averting for at least the first year of the Spanish war an extension of hostilities to other territories. Care need well be exercised lest the entire scheme be dropped, for Spanish civil wars have always been long drawn-out affairs lasting several years, and it should not be supposed that the general crisis is over, or that the mere granting of belligerent rights to the contestants will diminish the dangers.

The Treaty of Versailles came into force on January 10,1920. Many of the matters with which it dealt were not definitely settled but placed within transitional régimes to be liquidated by decisions of the Principal Allied and Associated Powers, by commissions, by plebiscites or by other procedures or events within periods of time stated with more or less definiteness. The maximum time specified for any of these transitional régimes was 15 years. That period applied to the Rhineland occupation and to the régimes of the Saar valley and Upper Silesia. In the first two of these instances the 15 years dated from the coming into force of the Treaty of Versailles. In fact the Rhineland occupation was voluntarily terminated long before 1935. The Saar plebiscite was held during 1935, resulting in the transfer of the territory to Germany.

It is apparent that an examination of the development of the Italo-Ethiopian dispute before the League of Nations which does not consciously take into consideration the political motives from which the conflict arose and by which its course was dictated must remain largely incomplete and to that extent misleading. In the present instance, however, the exclusion of such considerations is not only dictated by the necessity of compressing within reasonable limits an account which might otherwise unduly tax the patience of the reader, but is also suggested by the belief that an inquiry into the operation of the League before and during the crisis of that conflict might in and of itself prove desirable.1

In view of the increased interest in the problem of finding a legal definition for “war” or the “state of war” it seems worth while to consider briefly the hitherto rather neglected contributions to the subject by American and English courts. The problem of defining war has been effectively treated from several other viewpoints, but these English and American cases are worth examination for the further light they may shed on the fundamental questions involved. The fact that these decisions were in part prompted by the necessity of interpreting the phrase “war” or “state of war” in domestic statutes and that in all cases it is merely the voice of a national court speaking, need not detract from the value of the survey. The basis upon which judgment was rendered in most cases was (or at least was asserted to be) that of the law of nations, and, in the words of Chief Justice Marshall, the decisions of national courts “show how the law of nations, in a given case, is understood in that country.”