This declaration of neutrality has often been looked upon as the death blow to the system. The Washington Government would be entitled to reject such a reproach as unjustified. For the system had already been dead for years, provided one is prepared to believe that it was ever actually alive. But many did not realize the fact that it was no longer alive until it was brought into relief by the American declaration of neutrality.
By 1 September 1939 the various experiments, which had been tried since the first World War with a view to replace the “anarchic world order” of classical international law by a better, a genuine, order of peace, were over, that is, to create in the community of states a general statute according to which there would be wars which are forbidden by law and others which are countenanced. These experiments, in the opinion of the major powers of the time, had failed. The greatest military powers of the earth clashed in a struggle in which they pitted their full strength against one another. For the proponents of a materialistic conception of history this meant the second phase in a process developing according to inexorable laws, whereby history swept away all diplomatic and juridical artifices with supreme indifference.
The majority of international lawyers throughout the world maintained that in universal international law as at present applied, there exists no distinction as to forbidden and nonforbidden wars.
Hans Kelsen set this forth in 1942 in his paper Law and Peace in International Relations, which he wrote after painstaking research into literature. He himself belongs to the minority who are prepared to concede a legal distinction between just and unjust wars, so that his statement carries all the more weight.
Now we must ask: Are we in point of fact right in speaking of the collapse of the system of collective security? This would presuppose that such a system at one time existed. Can that really be maintained? This is a question of the greatest importance for this Trial, in which the existence of a world-wide consciousness of right and wrong is taken as the basis for the indictment for breach of the peace.
Let us recall the tragedy of the Kellogg-Briand Pact, that tragedy from which all those have suffered so much who rejoiced when the pact was concluded and who later, after a first period of depression, hailed the Stimson Doctrine as a long overdue step essential for the achievement of real peace and as an encouraging omen of fresh progress.
The United States had a great goal in view in 1927 and 1928, as I already mentioned. In the League of Nations the problem had been tackled only half-heartedly and with half measures, and this had perhaps done more harm than good to the cause of real peace. The Geneva Protocol had failed. Kellogg now wanted to overcome all the difficulties inherent in the problem and bring the world round by vitality and determination. The pact as published, with its two articles containing the renunciation of war and the obligation of peaceful settlement, seemed to still the yearning of humanity eager for some deed.
But the difficulties it was desired to surmount are in part rooted in the problem, and no rules laid down by any legislator will ever fully eliminate them. For even if unambiguous criteria existed, who among fallible mankind would have the authority to give a decision in case of dispute? We do not even possess unambiguous criteria for aggression and defense.[[19]] This holds good both for the so-called political concept, which is in a way natural, and for the legal concept or concepts of aggression and defense.
Yet these were not the only difficulties pointed out, explicitly and implicitly, by the French Government in the preliminary negotiations for the pact; they did so with the full title[[20]] of one who knows Europe and its ancient historical heritage just as the United States Government knows America and its vastly different history.
When the world came to know the notes exchanged during the preliminary negotiations with all their definitions, interpretations, qualifications, and reservations, it became manifest to what extent the opinions of the governments differed behind that wording. One saw the Soviet Government’s frank—even scathing—criticism of the refusal of the Western Powers to disarm and thus create the essential precondition for an effective policy of peace and generally of the vagueness of the treaty;[[21]] but especially of the famous British reservation of a free hand in certain regions of the world, that reservation which has often been called the British Monroe Doctrine or the Chamberlain Doctrine;[[22]] and one knew that in reality there existed only formal agreement behind the signatures and that no two powers were implying exactly the same thing by the treaty. Only on one thing did complete agreement exist: War in self-defense is permitted as an inalienable right to all states; without that right, sovereignty does not exist; and every state is sole judge of whether in a given case it is waging a war of self-defense.