1 In 56 A. J. I. L. 514–517 (1962).

2 In 55 ibid. 951–958 (1961).

3 It was therefore necessary to mention that the science of international law started under the influence of traditional natural law and that Grotius, although still near to that natural law, by his secularization, made a fundamental change. This writer is by no means rigid; fifty years of study have shown him abundantly that men, grouped for convenience into a “school,” e.g., of “American legal realists,” may differ among themselves and have different ideas. Thus it is here; the natural law of Hobbes is, of course, very different from that of Locke. This writer agrees that the majority of international lawyers of the seventeenth and eighteenth centuries were “ Grotians”; he only remarks, what is undeniable, that there were tendencies to develop theories in the two opposite directions of pure natural law or of positivism, as in Moser, who wants to teach the “ real ” international law, based exclusively on the practice of states, on “what the princes do .”

4 A peace treaty, if “agreed upon” and ratified, is, from a positivistic point of view, a valid treaty regardless of its content. But the natural law doctrine of belium justum made the justa pax an equally important precondition of a just war. Such ideas can also be found today. The Munich Treaty of 1938 was, regardless of its content, a valid treaty in 1938. But the Declaration of the French National Committee of 1942 held that the Munich Treaty was void ab initio: “nul et non avenu.”

5 Mr. Rubin’s quotation, as an illustration, of the above sentence, of Professor Verdross, is not a happy one, for Professor Verdross is a full adherent of traditional natural law opposed to strict positivism in his philosophy of law, and builds his Treatise on International Law on the philosophy of Francisco Suárez.

6 The conflict between mere enactment and “ reason,” between will and justice is already found in the medieval Catholic Church. The Franciscan monk, William of Occam, taught in the fourteenth century that the moral order of the world is exclusively based on the will of God, who may abolish the Decalogue; no natural law, but only positive orders of God. Verdross, Abendländische Rechtsphilosophie 80 (1958).

7 Summa Theologica.

8 Natural-law terminology is again applied in treaties, as, e.g. the “inherent” right of self-defense in Art. 51 of the U.N. Charter, certainly not a correct formula from a legal-technical point of view. True attitudes of traditional natural law are taken by international lawyers, who are adherents of natural law. Thus, to give an example, J. A. Pastor Ridruejo (La Protección a la Población Civil en Tiempo de Guerra 311 (1959)), in discussing the 1956 Draft Rules of the International Red Cross at the New Delhi Conference, asks whether the states will transform these draft rules into an obligatory convention, but holds that these draft rules are imposed by the minimum exigencies of natural law and are, therefore, already “obligatory legal norms, whether or not the states accept them.” The positive science of international law is accused of having corrupted international law by following merely state practice and ignoring justice. See, for example, the Mexican, Luis Padilla Nervo, in the International Law Commission: “ . . . in international law an unbridled positivism had reigned supreme, whose sole criterion was the practice of states. . . . Once international lawyers had abandoned the criterion of justice . . . “ Quoted in Mr. E. P. Anand’s article in 56 A. J. I. L. 386 (1962). Such natural-law attitudes we find in international lawyers of non-Occidental cultures. The Indian Judge Guha Boy holds that the rules concerning responsibility of states are merely “enacted” customary rules of international law and not norms of “universal” international law, because they are not based on justice, and, referring to a very ancient Occidental source, he adds that he means that justice with which we were made familiar by Plato’s Dialogues. 55 A. J. I. L. 865 (1961).

9 Cf. Heinrich Rommen, “ Natural Law in Decisions of the Federal Supreme Court and the Constitutional Courts of West Germany,” Natural Law Forum, 1959, pp. 1–25.