A Modern Law Of Nations (Paperback)

A MODERN LAW OF NATIONS AN INTRODUCTION BY PHILIP G. JESSUP THE MACMILLAN COMPANY NEW YORK 1948 Copyright, 1946, W and 1948, by THE MACMILLAN COMPANY. All rights reserved no part of this book may be reproduced in any form without permission in writing from the publisher, except by a reviewer who wishes to quote brief passages in connection with a review written for inclusion in magazine or newspaper. First Printing. PRINTED IN THE UNITED STATES OF AMERICA TO L. K. J. CONTENTS PAGK PREFACE vii NOTE ON ABBREVIATIONS k CHAPTER I. INTRODUCTION i H. THE SUBJECTS OF A MODERN LAW OF NATIONS 15 III. RECOGNITION 43 IV. NATIONALITY AND THE RIGHTS OF MAN 68 V. RESPONSIBILITY OF STATES FOR INJURIES TO INDIVIDUALS 94 VI. THE LAW OF CONTRACTUAL AGREEMENTS 123 VII. THE LEGAL REGULATION OF THE USE OF FORCE 157 VIII. RIGHTS AND DUTIES IN CASE OF ILLEGAL USE OF FORCE 188 INDEX 223 CHAPTER I INTRODUCTION THERE is MORE AGREEMENT today than at any earlier period on the need for some change in the traditional international system of a community of sovereign states. Unlimited sovereignty is no longer automatically accepted as the most prized possession o even as a desirable attribute of states. The postwar revulsion against war and against an international system in which war is not only possible but tolerated is stronger as our most recent experience with war is more frightful. The potentialities of atomic warfare give more widespread support to the effort to exercise greater ingenuity, to achieve more success, in the science of politics. It is natural that some minds seek a complete change through the immediate creation of a world govern ment. Others would prefer to build more slowly through the medium ofwhat is generally called international organization or administra tion, now typified by the United Nations. One point of agreement may be found in all plans and proposals, whether they come from statesmen or from laymen, from experts or from novices. That com mon point is the necessity for an adequate international law. This feeling is naturally the more pronounced in countries devoted to the slogan that government should be of laws and not of men. Interna tional lawyers and laymen alike admit or assert defects in the present system of international law. Some deny that any such system even has an existence. Leaving that argument momentarily aside, it may be coifceded that there is at this time both need and opportunity for the development of a modern law of nations. No system of law springs into existence full-panoplied. All legal systems from the most primitive to the most advanced have their backgrounds and roots in the society which they govern. It is there fore not enough for the future of the international society to say that we must have a rule governing the use of atomic bombs and other weapons of mass destruction. It is not enough merely to have a law 2 A MODERN LAW OF NATIONS making war illegal. Such rules, even if backed by an adequate form of organization or government, would fail to create a well-ordered inter national society, the existence of which is a prerequisite to the success ful functioning of any legal system. If there be no adequate body of law governing the solution of the conflicts which are inherent in any human relations, frictions and tensions will develop to a point which will bring about breaches of the primary rules about weapons and wars even in the mosthighly developed societies, underlying inequi ties and resulting strains produce riots, revolutions, and civil wars. It is the purpose of this book to explore some of the possible bases for a modern law of nations. The exploration proceeds upon the basis of an examination of the way in which peoples and nations have attempted, however inadequately, in the past to govern their inter relationships. Jt proceeds upon the assumption that progress must and can be made in the social sciences to come abreast of the new ad vances in the physical sciences...