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6. Sometimes the term "gap" in law is used to characterize merely technical defects in the drafting of a statute, e. g., if a statute provides that an assembly must elect its chairman, and that it must be convoked by its chairman, but contains no provision concerning the convocation of the first meeting of the assembly. However, such technical "gaps" are not decisive as far as the above mentioned doctrine is concerned.
7. The above mentioned fiction is used in the famous paragraph 1 of the Swiss Civil Code which provides that in default of a provision of statutory law applicable (to the case at hand) the judge shall decide in accordance with customary law; and in default of a rule of customary law in accordance with the rules he would establish if he had to legislate.
8. Cf. pp. 59 ff.
III. INTERNATIONAL SECURITY
1. COLLECTIVE SECURITY UNDER GENERAL
(a) The Bellum Justum Principle
As pointed out in the first part of this study, international security is the collective security which states enjoy within the international community constituted by international law. As it is an essential function of any legal order to afford security to the persons subjected to it, general international law, i. e., the system of norms binding upon all the states of the world, must also fulfill this function, provided that it is law in the specific sense, which means law in the same sense as national law, the law of an individual state.
The nature of the normative order called "international law" may be, and actually is, described in different ways. From the considerations in the first part of this study, it follows that this description depends mainly on the answers to two preliminary questions: (1) does this order have a coercive character—that is, do its norms provide for the use of force as a sanction, as a reaction against a violation of certain interests of the states, the persons subjected to this order; and (2) is the use of physical force, which in international relations means armed force, permitted only as a sanction? In other words, is any use of armed force resorted to by one state against another to be considered as illegal, i. e., as a delict, if it does not have the character of a sanction?
As far as the first question is concerned, there is no doubt that there are enforcement measures provided for by general international law to protect certain interests of the states. General international law authorizes the states to react against a violation of these interests by acts called reprisals. Reprisals are usually defined as measures which are normally illegal but are permitted exceptionally as a reaction by one state against a violation of its rights by another state. A reprisal constitutes an interference by one state in the otherwise protected sphere of interests of another. A reprisal is a forcible interference, insofar as it is undertaken against the will of the state against which the action is directed, and in this sense, it is an enforcement measure, the term "force” used in its wider sense. A reprisal may even involve the use of physical, i. e., armed, force, as, for example, in case of a
so-called pacific blockade. However, this forcible interference in the sphere of interests of another state must be limited to the violation of certain interests, in contradistinction to that unlimited interference undertaken by the armed force of a state against another state which is called war.
A reprisal may be interpreted as being a sanction, because a reprisal is provided for by general international law as a reaction against a violation of the law. Hence, general international law may be considered to be a coercive order—that is, a system of norms providing for coercive measures as sanctions.
As far as the second question is concerned, the answer is rather doubtful. It is true that the limited use of force is considered to be illegal, i. e., a delict, if it is not a reaction against a violation of the law—that is, if it is not a sanction. However, as far as the unlimited use of armed force, war, is concerned, two diametrically opposed opinions are advocated in the theory of international law. According to one, war is never a delict under general international law. As a consequence of its sovereignty, every state may resort to war against another state for any reason whatsoever without violating international law, unless a state has assumed an obligation in a treaty which restricts its freedom of action in this respect. Furthermore, war is not a sanction, for general international law does not provide for war, as it does provide for reprisals as specific reactions against the illegal conduct of a state. According to this opinion, only a limited use of force, but not an unlimited use of armed force, is a delict if it is not a sanction. Hence, under general international law there is no force monopoly of the community constituted by this law, not even a decentralized one, analogous to the force monopoly established by national law, constituting a community of individuals. A state which resorts to war against another state, even if it does so in defense against an attack, cannot be considered to act as an organ of the international community enforcing the law against a violator. In a war between two states, whatever the motive or purpose of either enforcement action, there is no legal difference between the use of force by one state and the use of force by the otherboth are equally legal. The question of which of the belligerents is the "aggressor” is irrelevant. Consequently, under a general international law which does not prohibit the resort to war, in case of war there can be no right of self-defense in the specific sense of this term, which means no right to use armed force against an illegal use of armed force. Since a war of aggression is not illegal, a counterwar is not a reaction against an illegal use of armed force. Only a reprisal taken against an illegal action involving the use of limited force may be considered to be an exercise of the right of self-defense.
Reprisals are not possible against an aggressive war because in this case they are not directed against an illegal use of force. If international law does not prohibit the resort to war, it is hardly possible to maintain that it imposes upon the states the mutual obligation to respect their territorial integrity and political independence. The fact that war, as an unlimited use of armed force for the purpose of overpowering the opponent and enforcing upon him the conditions of peace, is not illegal, is incompatible with such an obligation. It is even doubtful whether it can be assumed that under general international law states have any rights—that is, any legally protected interests—if general international law does not prohibit that unlimited interference in the sphere of interests of a state which is called war.
If general international law does not stipulate the obligation that states must refrain from resorting to war except as a reaction against violation of the law, the mutual relations of states under this normative order are not very different from their mutual relations in a state of international anarchy. However, it must be admitted that only if war is not prohibited, which means only if there is no difference between a legal and an illegal war and all belligerents have the same legal status, is the usual interpretation of the status of neutrality consistent. According to this interpretation, neutral states, the states not involved in a war, have equal obligations and equal rights in relation to both belligerents. Strict impartiality of the neutral towards the belligerents is the essential element of the institution of neutrality. Furthermore, it must be admitted that only if all the belligerents are legally on an equal footing is it appropriate to terminate a war by a treaty, a so-called peace treaty concluded between two partners enjoying equality of rights.
The opinion that under general international law war is neither a delict nor a sanction is advocated by the majority of writers on international law. If this view is correct, general international law is not law in the specific sense of the term as defined in the first part of this study. Since it is far from realizing the tendency toward a force monopoly of the community, since it does not forbide that use of armed force which is called war, this normative order does not guarantee any degree of security to the states subjected to it. International security can be established only within particular international organizations on the basis of treaties imposing upon the contracting parties—at least—the obligation not to resort to war, i. e., the use of armed force, in their mutual relations except as a reaction against a state which has resorted to war in violation of the constituent treatythat is, except as a reaction against an aggressor.
According to the opposite opinion, such an obligation is already established by general international law which forbids the resort to war in principle and permits it only as a reaction against a violation of the law-that is, only against a definite conduct of states determined by international law. Like the limited use of force, which is called a reprisal, the unlimited use of force, which is called war, is legal only as a sanction. If it is not a sanction, it is a delict. This is the doctrine of bellum justum or just war, the term “just” meaning legal or in conformity with positive law.
Only if this doctrine is accepted, can general international law be conceived of as law in the specific sense of the term. By prohibiting war and by permitting this unlimited use of force as well as the limited use of force, reprisals, only as sanctions, general international law establishes a force monopoly of the international community, although it is only a decentralized force monopoly. A state resorting to reprisals or war in conformity with international law may be conceived of as enforcing the law, acting as an organ of the community constituted by this law. In a war between two states, only one of the two enforcernent actions can be considered to be legal. The other is illegal. Hence, if the bellum justum principle is recognized, it is necessary to distinguish between these two actions which may be termed war and counterwar. Consequently, the problem of "aggression,” as the illegal use of armed or any other kind of force, is of the greatest importance. If it is necessary to distinguish between a legal and an illegal war, it is impossible to maintain the usual definition of war as a contest between two or more states by their armed forces—that is, as a bilateral action. Only one of the two actions constituting the contest is legal or illegal. Hence, war must be defined as an enforcement action involving the unlimited use of armed force, and the unlimited use of armed force has to be considered to be war even if it is not opposed by a counterwar. War must be considered to be an employment of force directed by one state against another without regard to the counteraction of the latter, not only when war is a delict, but also when war is a sanction. This is of particular importance in case war is a collectivo enforcement action involving the use of armed force taken by an international security organization as a reaction against a violation of international law. By calling such an action a “police action,” we cannot deprive it of the character of war. If there is no legal equality in the relations between the two belligerents, the legal consequence of the status of neutrality may not be the strict impartiality of the nonbelligerents in relation to the belligerents. Hence, the possibility of terminating a war by concluding a treaty between a state which is try