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The Trend of International Law
Published online by Cambridge University Press: 12 April 2017
Extract
If we ask ourselves what it was that secured to the world since the time of the Reformation a fair measure of peace and security, the answer will surely lie in the fact that a firm conviction pervaded all minds of the sacredness and sanctity of territory. It was not a reasoned conviction: no conviction based on reason is of compelling force. Its force lay in the fact that an invasion of territory deprived the invaded party of reason: it was a touch on a nerve, which would provoke an automatic violent reaction: its consequences were incalculable. It is these irrational urges which lie at the base of all our reasoning and assumptions. In this case, it was not so much that an invaded state would feel stung to resist the invader, however hopelessly; it was rather that an invaded state could not but resist—had no idea of not resisting.
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- Copyright © by the American Society of International Law 1939
References
1 Where troops are already and rightfully within the territory of another state, an entirely different set of considerations arises should they exercise violence (as of course it must have been contemplated by all parties that they might; otherwise, why were they there?). The resulting operations may or may not be war, according to circumstances. Where, again, the invaded territory is independent of any recognized state, another set of considerations comes into play. We deal here with the simple case of the actual invasion of the acknowledged territory of an ordinary state.
2 Vide The Canons of International Law (Murray, London, 1930); “The Abuse of Terms,” this Journal, Vol. 30 (1936), p. 377.
3 As in the instance of Vienna.
4 The classical instance of such a dispossession occurred when the Bourbon dynasty was completely expelled from France, but carried on the struggle to return, with the help of Russia and Austria, a struggle which, until Austerlitz, no one could call entirely hopeless.
5 See the proceedings of the Mexican Arbitrations (1927), and cf. Silvanie, H., “Responsibility of States for Acts of Insurgent Governments,” this Journal , Vol. 33 (1939), p. 95 Google Scholar.
6 See the writer’s “Abuse of Terms,” loc.cit.
7 Murray (London), 1934.
8 Unless, perhaps, it is carrying on the struggle from outside.
9 Or long prescription.
10 “The Relation of Invaders to Insurgents,” Yale Law Journal, May, 1927, p. 978.
11 In collectivist states, we may say “of the genius of the nation.”
12 See British and Foreign State Papers, Vol. I (2), p. 1550 (letter of 5 April, 1814).
13 “Danger-Signals in International Law,” 34 Yale Law Journal, 457.
14 Cheung, Chung Chi v. The King, this Journal , Vol. 33 (1939), p. 376 Google Scholar.
15 Cf. Raestad, “Guerre Civile et Droit International,” apud XIX Revue de Droit International, p. 607.