Later, the problem of “collective revision” was never seriously tackled. This is not surprising, if only because the very character of such a procedure would presuppose renunciation of their sovereignty by the states. And can such a renunciation be considered in the times we live in? In Philip Brown’s melancholic opinion—“less than ever.”[[30]] For that reason a real forward step in the question as to how war could legally be outlawed was impracticable.
In spite of these intricate complications the Government of the United States and the League of Nations did a great deal to comply with the urgent demands of the nations. They subsequently tried to give the pact a precise content, and “teeth.” The doctrine of international law provided suggestions for this and checked it. Although it remained completely unsuccessful, we shall have to trace this process briefly, because the seed for the ideas contained in the Indictment are to be found here, insofar as its line of argument is not a political or ethical but a legal one.
In its ban on aggression, the Paris Pact unquestionably starts from the political concept of aggression. But that is quite indefinite. Shotwell and Brierly, among others, tried to assist immediately by deducing a legal concept of aggression from the second article of the treaty, which establishes the obligation to follow a procedure of peaceful settlement.[[31]] We can leave open the question whether it is permissible to apply this interpretation to the treaty. In practice nothing is gained by doing so; one kind of difficulty is simply put in the place of another. There are no fewer obscurities. Measures for peaceful settlement presuppose good will on both sides; what if that is lacking on one side or the other? And what still constitutes a measure of peaceful settlement, and what no longer does? The Russian Government were quite right in their note of 31 August 1928 on the Kellogg-Briand Pact when they brought up this question.
Other attempts to help tried to develop a completely new world constitution out of the entirely vague pact by way of logic. They are connected with the name of the American Secretary of State, Stimson, and with the work of the Budapest meeting of the International Law Association in 1934.[[32]] In order to understand this, it will be found necessary to assume that the Kellogg Pact really did bring about, in a legally conceivable manner, the unambiguous and unconditional renunciation of war. Then, of course, there exists no longer any right to wage wars as and when one likes. War waged in defiance of this prohibition is an offense against the constitution of the community of states. We are immediately faced by the question: Can the legal position of a state which attacks contrary to law be the same as that of a state which is being attacked contrary to law?
If one answers “no,” as does for instance the influential French commentator of the League of Nations Covenant, Jean Ray,[[33]] does not this mean the elimination of the most important fundamental principles of classic international law?
(1) Do the international laws of war—which, after all, spring from the right to wage war freely and from the duel-like character of war and certainly from the equality of the belligerents before the law—apply for the qualification of the acts of the belligerent powers against one another?
(2) Is it possible, or indeed permissible, that neutrality should still exist in such a war?
(3) Can the result of the war, assuming that the aggressor is victorious, be valid under law, especially when compressed into the form of a treaty, or must not the community of states deprive the aggressor of the spoils of his victory by a policy of nonrecognition? Should there not be, or must there not be, joint coercive action by the states against the aggressor?
It must be noted that not even theoretical law has drawn all possible conclusions. The practice of the states, after a few tentative beginnings in isolated points, never came to a definite conclusion in a single case.
With regard to the first point, the validity of the international laws of war during a war, whatever its origin, has never so far been seriously disputed by any state. Any doubts that arose were cleared up in a way which allowed of no misunderstandings. I draw attention to Resolution Number 3 of the League of Nations Assembly of 4 October 1921 and to the report of the Committee of Eleven of the League of Nations for the adaptation of the Covenant to the Pact of Paris.[[34]]