¹ Maine, , Ancient Law, 4th ed., London, 1870, p. 24.Google Scholar Toynbee, A. J. expresses the same thought in “Peaceful Change or War,” International Affairs, January, 1936, Vol. 15, p. 27.Google Scholar Dickinson, E. D. suggests that in the society of nations, law has been in advance of opinion because of the influence of certain theories from advanced systems of municipal law in its early development, particularly the theory of natural equality. (The Equality of States in International Law, 1920, p. 5.Google Scholar) But see Goebel, , The Equality of States, 1923, p. 79 Google Scholar ff.

² Maine, op. cit., p. 25.

³ Ibid., p. 19.

⁴ SirWilliams, John Fischer, “Sovereignty, Seisin and the League,” British Year Book of International Law, 1926, p. 35 Google Scholar. See also Brown, W. Jethro, The Austinian Theory of Law, London, 1906, p. 52 Google Scholar.

⁵ Lauterpacht states the limitations upon the use of such analogies, Private Law Sources and Analogies of International Law, 1927, pp. 84-86. See also Dickinson, , Yale Law Journal, Vol. 26, p. 574 Google Scholar ff.; Wright, Q., Mandates under the League of Nations, 1930, p. 347 Google Scholar ff.

⁶ Scott, J. B., The Spanish Origin of International Law, 1934, Part 1, Chap. 1Google Scholar; Oppenheim, , International Law, Vol. 1, sec. 42Google Scholar.

⁷ Dickinson, The Equality of States, p. 29 ff.

⁸ Supra, note 5. See also Habicht, Max, The Power of the International Judge to Give a Decision ex aequo et bono , New Commonwealth Institute, London, 1935.Google Scholar

⁹ Hudson, Manley O., International Legislation, 1931, Vol. 1, p. xviii Google Scholar.

¹⁰ The changes are suggested by the designation of the successive periods in the leading recent history of international law,—the ages of the prince, the judge, and the concert. ( Butler, G. and Maccoby, S., The Development of International Law, London, 1924.Google Scholar) See also historical résumés by Oppenheim, (International Law, Vol. 1, sees. 43-51)Google Scholar and Hershey, A. S. (Essentials of International Public Law and Organization, N. Y., 1927, Chaps. 4-5)Google Scholar, and statement of the trend by Georg Schwarzenberger ( Ladd, William, An Examination of an American Proposal for an International Equity Tribunal, New Commonwealth Institute, London, 1935, p. 77)Google Scholar,, and Potter, P. B. (Manual Digest of Common International Law, N. Y., 1932, p. 124)Google Scholar.

¹¹ H. J. Tobin, The Termination of Multipartite Treaties, 1933. See also Wright, Q., “The Constitutionality of Treaties,” Am. Journ. Int. Law, Vol. 13 (1919), p. 242 Google Scholar; P. B. Potter, Manual Digest, p. 116 ff.; Myers, D. P., Manual of Collections of Treaties, Cambridge, 1922.Google Scholar

¹² Tobin (op. cit., p. 15) makes the following comparison of treaties concluded in the five years following the treaties of Utrecht, Vienna and Versailles.

¹³ Columbia Law Review, January, 1914, Vol. 14, p. 1 ff.

¹⁴ Tobin, op. cii., p. 206 ff.

¹⁵ The Treaties of Vienna (1815) characterized certain stipulations as of “superior and permanent interest,” and various provisions of the Treaty of Versailles were subject to different procedures of revision or termination. (Ibid., pp. 211, 227.) Equally important is a vocabulary to distinguish law-making treaties from treaties having the characteristics of executory contracts, of conveyances, or of articles of incorporation. (See McNair, A. D., “The Function and Differing Legal Character of Treaties,” British Year Book of International Law, 1930, p. 100 ff.)Google Scholar

¹⁶ The Paquete Habana, 175 U. S. 677 (1900): “Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is. . . . In cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their maxims.” West Rand Central Gold Mining Co. Ltd. v. The King, L.R. (1905) 2 KB. 391 : “In many instances their pronouncements must be regarded rather as the embodiments of their views as to what ought to be, from an ethical standpoint, the conduct of nations inter se, than the enunciation of a rule or practice so universally approved or assented to as to be fairly termed, even in the qualified sense in which that word can be understood in reference to the relations between independent political communities, ‘law’.”

¹⁷ Lauterpacht, H., The Development of International Law by the Permanent Court of International Justice, London, 1934, p. 89 ffGoogle Scholar.

¹⁸ See Lauterpacht, H., The Function of Law in the International Community, Oxford, 1933 Google Scholar; Norman Wait Harris Memorial Foundation, An American Foreign Policy Toward International Stability, University of Chicago, Public Policy Pamphlet No. 14, 1934, p. 44 ffGoogle Scholar.

¹⁹ Wright, Q., “The Outlawry of War,” Am. Journ. Int. Law, Vol. 19 (1925), p. 100 CrossRefGoogle Scholar.

²⁰ The aim of this society is “Promotion of international law and order through the creation of an Equity Tribunal and an International Police Force.” (See New Commonwealth Institute, Annual Report, 1935, p. 14, and The New Commonwealth, Vol. 1, No. 1, Oct. 1932, p. 4.) See also Davies, David, The Problem of the Twentieth Century, London, 1930 Google Scholar; Wehberg, Hans, Theory and Practice of International Police, London, 1935 Google Scholar; Leeuw, J. J. Vander, The Necessity of an International Police, London, 1935 Google Scholar, and other memoranda submitted by the New Commonwealth Institute to the International Studies Conference on Collective Security, London, 1935. The feasibility or the expediency of attempting to coerce observance of awards not based on accepted law has often been questioned, and it appears that no treaties have authorized international tribunals to go beyond the law except when authorized by express agreement of the parties for the particular case. (Habicht, op. cit., p. 76.)

²¹ Max Habicht, The Power of the International Judge to Give a Decision ex aequo et bono, New Commonwealth Institute, 1935.

²² Jessup, Philip C., Neutrality, Its History, Economics and Law, N. Y., 1936, Vol. 4 : Today and TomorrowGoogle Scholar; Wright, Q., “The Meaning of the Pact of Paris,” Am. Journ. Int. Law, Vol. 27 (1933), p. 39 ffGoogle Scholar.

²³ Wright, Q., Am. Journ. Int. Law, Vol. 26 (1932), p. 342 ffCrossRefGoogle Scholar.

²⁴ Supra, notes 18,19. A right is an interest defined and protected by law, consequently if the court determines an interest to be a right of a claimant other than the de facto possessor of the interest, it does not transfer the right to that claimant but merely holds that other claimants, even though in possession, had no right. Where, however, the tribunal can go beyond strict law to broader sources of justice, rights valid in strict law may be transferred to another with a stronger claim in equity. Thus transfer of rights through adjudication must always rest upon a distinction between ordinary and extraordinary sources of objective justice often spoken of as the distinction between law and equity, and manifested in many international conventions, particularly in par. 2 of Art. 38 of the Statute of the Permanent Court of International Justice: “This provision shall not prejudice the power of the court to decide a case ex aequo et bono, if the parties agree thereto.’” Habicht (op. cit., pp. 3, 6) has collected some fifty international instruments indicating this distinction.

²⁵ SirWilliams, John Fischer, Some Aspects of the Covenant of the League of Nations London, 1934, p. 182 ff.Google Scholar

²⁶ Tobin, op. cit., p. 250 ff.

²⁷ See Declarations of the Great Powers in London, 1871, Stresa, 1935, and London, 1936, affirming the sanctity of treaties and respectively denouncing breaches by Russia of the Black Sea clauses of the Treaty of Paris f 1856) and by Germany of the disarmament clauses of the Versailles Treaty (1920) and the Rhineland demilitarization clauses of the Versailles and Locarno (1927) Treaties. See also French definition of rebus sic stantibus in Free Zones case (P.C.I.J., Ser. C, No. 58, pp. 109-110), and Research in International Law, Draft Convention on Treaties, Arts. 27-29, 31-32 (Am. Journ. Int. Law, Supp., Vol. 29 (1935), p. 662 ff.). Myers remarks, “Historically treaties were originally of little consequence if they were inconvenient,” and cites numerous instances of treaty violations, particularly in the seventeenth and eighteenth centuries. (D. P. Myers, “Violation of Treaties,” Am. Journ. Int. Law, Vol. 11 (1917), pp. 538 ff., 545; 794 ff.; Vol. 12 (1918), p. 96 ff.)

²⁸ See Research in International Law, Draft Convention on Treaties, Art. 28 supra, and Chesney Hill (“The Doctrine Rebus Sic Staniibus in International Law,” Univ. of Mo. Studies, July, 1934, pp. 75, 83), for evidence supporting this interpretation of rebus sic stantibus. Sir John Fischer Williams (Am. Journ. Int. Law, Vol. 22 (1928), p. 89 ff.), and A. D. McNair (Br. Year Book of Int. Law, 1930, p. 109), regard the doctrine as essentially juridical rather than diplomatic and analogous to the doctrine of frustration of contract in municipal law (at least with respect to treaties of an essentially contractual nature). The doctrine of frustration is, however, based upon the presumed intention of the parties at the time the contract was made and thus is within the conception of the Research in International Law draft, and differs from the political conception of rebus sic stantibus which would permit a State to denounce a treaty whenever it thinks it runs counter to its important interests.

²⁹ Supra, note 23.

³⁰ Tobin discusses the legislative control of the “public law of Europe” by the Great Powers (op. cit., p. 218 ff.). For details see Holland, , The European Concert in the Eastern Question, Oxford, 1885 Google Scholar.

³¹ Graham, Malbone W., In Quest of a Law of Recognition, University of California, 1933 Google Scholar. Establishment of a collective procedure for effecting such changes of rights would inevitably tend to develop a law limiting the exercise of this procedure. The evolution of a law for exercising the powers of the League with respect to termination of mandates is discussed by Ritsher, W. H., Criteria of Capacity for Independence, Jerusalem, 1934 Google Scholar.

³² Supra, note 23, and Wright, “The Legal Foundation of the Stimson Doctrine,” Pacific Affairs, Dec. 1935, Vol. 8, p. 439 ff.

³³ Miller, Hunter, The Drafting of the Covenant, Vol. 2, p. 12 Google Scholar.

³⁴ Ibid., Vol. 2, p. 107. The original Cecil plan had neither territorial guarantees nor provision for territorial revision (ibid., Vol. 2, p. 61). The reason for these omissions was set forth in a foreign office memorandum prepared soon after the armistice but first published during the International Studies Conference of London, 1935. (Zimmern, A Historical Note on Collective Security, 8th Int. Studies Conf. Docs., 1935.)

³⁵ Quoted by W. E. Rappard, International Relations as Viewed from Geneva, 1925, p. 111.

³⁸ League of Nations Assembly, 1921, Records, Plenary Meetings, p. 466. Chesney Hill suggests that the third paragraph reduces the application of Art. 19 to cases of force majeure. (Op. cit., p. 83.)

³⁷ Borgano, Luis Barios, The Problem of the Pacific, together with two Juridical Reports by Davis, John W., LL.D., Baltimore, 1924, p. 180 ff.Google Scholar

³⁸ Harold Nicholson, Peace Making, 1919, pp. 91-92. In a conversation with the American experts on their way to the Peace Conference on Dec. 10, 1918, President Wilson said, according to notes taken by Dr. Isaiah Bowman: “The League of Nations implied political independence and territorial integrity plus later alteration of terms and alteration of boundaries if it could be shown that injustice had been done or that conditions had changed. And such alteration would be the easier to make in time as passion subsided and matters could be viewed in the light of justice rather than in the light of a peace conference at the close of a protracted war.” Miller, op. cit., Vol. 1, p. 42.

³⁹ L. of N., Monthly Summary, Oct. 1929, Vol. 9, p. 311.

⁴⁰ See Potter, P. B., The Revision of Treaties, Geneva Special Studies, 1932, Vol. 3, pp. 9-10 Google Scholar. It was suggested by Belgium in discussions concerning China’s claim to terminate the treaty of 1865 that Art. 19 confirmed the principle rebus sic stantibus by establishing a procedure “which favors the revision of treaties which have become inapplicable.” France took the same position in connection with the Free Zones case before the World Court, and suggested, as had Belgium, that this article precluded unilateral abrogation of treaties on allegation of changed conditions, at least until its procedure had been exhausted. (P.C.I.J., Ser. E, No. 4, p. 151 ; Ser. A. No. 17-1, p. 89.) This position was also taken by M. Negulesco in a dissenting opinion (ibid., Ser. A, No. 22, p. 30; see also Chesney Hill, op. cit., pp. 82-83). To suggest, however, that Art. 19 looks in the same direction as rebus sic stantibus and must be utilized before unilateral abrogation of a treaty is permissible, does not mean that the Assembly must be guided by that doctrine in giving its advice under the article.

⁴¹ “A revision of treaties would not, or at any rate might not, in and by itself, be taken to extend to an alteration of arrangements already executed’in pursuance of a treaty.” (Sir John Fischer Williams, Some Aspects of the Covenant of the League of Nations, p. 177.)

⁴² Sir John Fischer Williams, Some Aspects of the Covenant of the League of Nations, p. 177.

⁴³ The suggestion for a clause covering treaty revision was made by Cecil after Miller had pointed out that Cecil’s proposal withdrawing the guarantee of Art. 10 from territory, transfer of which had been advised, “would simply tend to legalize agitation in Eastern Europe for a future war.” (Miller, op. cit., Vol. 1, pp. 52-53.) Miller was responsible for the further modification of the Wilson and Cecil proposals limiting the Assembly’s power to the giving of advice. (Ibid., Vol. 1, p. 202.)

⁴⁴ Williams suggests that Art. 19 will probably function mainly by supporting the principle of change, in proceedings under Art. 11 or 15 (op. cit., p. 182). Art. 15, par. 8, however, would usually preclude recommendations for transfer of rights under that article. Art. 11, however, authorizes the League to “take any action that may be deemed wise and effectual to safeguard the peace of nations,” and thus is subject to no limitation with respect to domestic questions. Par. 2 of Art. 11, which was repeated in the Council’s resolution of Dec. 10, 1931, as its instruction to the Lytton Commission, closely resembles the second clause of Art. 19, but, instead of “international conditions whose continuance might endanger the’ peace of the world,” it refers to “any circumstance whatever affecting international relations which threatens to disturb international peace or the good understanding between nations upon which peace depends.” The use of the word “circumstance” rather than “conditions” suggests some new event, such as military activities, new tariff or immigration laws or a recent transfer of rights, rather than an established state of affairs deemed unjust. Thus it might be questioned whether demands for revision of established boundaries or old treaties could be brought up under Art. 11 except in connection with the liquidation of some new “circumstance.” The British commentary which accompanied the final text of the Covenant said in regard to Art. 19 only that it should be read together with Art. 11.

The relation of Art. 19 to Art. 20 was noted in the J. W. Davis memorandum referred to (supra, note 37), and Sir Frederick Pollock, in an early commentary on the Covenant, thought Art. 19 looked toward but did not adequately provide for revision of international law, a matter more concretely dealt with in Art. 23. ( Pollock, , The League of Nations, London, 1920, pp. 162, 216.Google Scholar)

⁴⁵ P. 44.

⁴⁶ Memoranda from nationals of certain “revisionist” States submitted to the International Studies Conference on Collective Security (London, 1935) considered effective provisions for revision the prerequisite to collective security, while memoranda from nationals of certain “status quo” States considered proposals for revision of boundaries the greatest obstacle to collective security. Compare particularly documents submitted to Preliminary Study Conference on Collective Security (Paris, May, 1934) by Verdross (Austria, p. 35 ff.) and Coppola (Italy, p. 93 ff.) with that submitted by the Rumanian Social Institute (p. 116 ff.).

⁴⁷ Potter suggests that China, Germany, Austria, Hungary and Bulgaria have not applied for revision under Art. 19 because they have been certain they could not command a favorable vote in the Assembly. (Op. cit., supra, note 40, p. 11.)

⁴⁸ The League commission of jurists, which met in June, 1935, to consider possible action under Art. 11 to deter treaty violation, were unable to agree whether Art. 11 required unanimity or not. (L. of N., Monthly Summary, June, 1935, Vol. 15, p. 147. See also “The Aims, Methods and Activities of the League of Nations, published unofficially by the Secretariat, Geneva, 1935, p. 81.) Similarly inconclusive were the Council’s proceedings under Art. 11 in connection with the early phases of the Manchurian dispute. Malcolm Davis (Councils Against War, Geneva Special Studies, Vol. 3, No. 11, p. 7) thinks these proceedings tend to support the rule of qualified unanimity, while W. W. Willoughby (The Sino-Japanese Controversy and the League of Nations, Baltimore, 1935, p. 44) thinks they support the rule of absolute unanimity.

⁴⁹ P.C.I.J., Ser. B., No. 12. There have been unofficial suggestions for amendment of the Covenant to exclude the vote of interested States under Art. 19. (See Wright, and Kidd, , Reform of the League of Nations, Geneva Special Studies, 1934, Vol. 5, pp. 8, 32.Google Scholar)

⁵⁰ Rappard, op. cit., p. 113; Williams, op. cit., p. 180; Potter, op. cit., p. 10. Miller questions whether “advice” under Art. 19 is covered by the unanimity rule of Art. 5 with reference to “decisions.” (Op. cit., p. 203.)

⁵¹ See Williams, op. cit., pp. 180-181.

⁵² The British League of Nations Union and the Austrian League of Nations Society have proposed the use of such an investigating commission as the recognized procedure under this article. (Wright and Kidd, op. cit., p. 31.)

⁵³ Supra, notes 34, 43.

⁵⁴ Supra, note 44.