¹ The General Pact for the Renunciation of War, text of the pact as signed, notes and other papers, Washington, Government Printing Office, 1928. See also Shotwell, “ The Pact of Paris with Historical Commentary,” International Conciliation Pamphlet, Oct. 1928, No. 243; War as an Instrument of National Policy and Its Renunciation in the Pact of Paris, New York, 1928; and Supplement to this J o u r n a l , Oct. 1928 (Vol. 22), p. 171.

² Miller, The Peace Pact of Paris, N. Y., 1928, p. 118; Foreign Policy Association, Information Series, Nov. 9, 1928, The Anti-War Pact, p. 372; U. S. Daily, Aug. 9, 1928.

³ Miller, op. cit., p. 119.

⁴ But see Miller, op. cit., p. 144.

⁵ M. Briand recognized in his address on signature that the pact itself did not organize a machinery for peaceful settlement. “ Peace is proclaimed; that is well; that is much; but it still remains to organize it. In the solution of all differences, right not might must prevail; that is to be the work of tomorrow.” International Conciliation, No. 243, p. 520. Shotwell considers Secretary Kellogg's interpretation that each Power “ alone is competent to decide whether circumstances require war in self-defense” as the “ real reservation to the pact.” Op. cit., p. 217.

⁶ Miller, however, finds in Article 2 of the pact by which the parties agree that “ the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them shall never be sought except by pacific means,”a formula for precisely determining breaches of the treaty. Assuming that this requires pacific settlement of all disputes, if war occurs, he writes, “ the treaty is broken by the party (conceivably though not likely both of them) that did not try for pacific settlement” (p. 126). Thus he finds in the pact a prohibition of aggressive war as defined in the Fifth Assembly of the League—resort to war following a refusal to arbitrate. (The same definition is in the Geneva protocol, the Locarno treaty and the Capper resolution introduced in the Senate Dec. 16, 1927. Wright, this Jo u r n a l , Vol. 19, pp. 88, 95; International Conciliation pamphlet, No. 242, pp. 422, 441.) This, however, Mr. Miller recognizes, is all based on the assumption, hardly justified by a literal interpretation of the text, that “ one party favoring the status quo” may not “ simply remain passive, refrain from any attempt at settlement of the claims set up by the other state and decline any and all pacific means ofadjustment which might be suggested” (p. 124). Miller in fact, later, seems to admit justthis procedure as permissible under the treaty (pp. 138-139). Secretary Kellogg has statedthat there is no definition of aggression in the treaty. Note to France, Feb. 27, 1928, andaddress to Council on Foreign Relations, N. Y., March 15, 1928, in which he endorsed SirAusten Chamberlain's assertion that attempts to define the aggressor are “ a trap for theinnocent and a signpost for the guilty.” The General Pact for the Renunciation of War, op.cit., pp. 19, 64. Shotwell seems to think this definition is implied though he admits it isnot expressed. Op. cit., p. 210.

⁷ “ Both publicists and international tribunals incline to the view that the universally accepted principles of interpretation of private law contracts and statutes may be appliedto the interpretation of treaties.” Lauterpacht, Private Law Sources and Analogies of International Law, London, 1927, pp. 178-179.

⁸ Holland, Jurisprudence, 11th ed., pp. 418-419.

⁹ Gsell-Trumpi, Zur Rechtlichen Natur des Volkerbundsmandate, Glarus, 1928, p. 11.

¹⁰ Holland, loc. cit.

¹¹ Holland, loc. cit. Lieber, Legal and Political Hermeneutics, 3rd ed., 1880, p. 239; Phillimore, International Law, 3rd ed., Vol. 2, p. 97, et. seq.

¹² Called by Lieber merely “ interpretation.”

¹³ See Lieber, op. cit., pp. 11, 44; Wharton, Commentaries on American Law, pp. 739-741, who calls this “ construction” to be distinguished from “ interpretation” as a question of law rather than of fact.

¹⁴ Holland, loc. cit.; Salmond, Jurisprudence, London, 1902, p. 126 et seq. Wigmore (The Law of Evidence, Vol. 4, Sec. 2458) distinguishes “ the standard of interpretation,” or sense in which the terms are employed, from the “ sources of interpretation,” or materials for ascertaining the tenor of the Standard. He recognizes four commonly used standards, the popular (usage in the community at large), the local (usage in a special class of the community),the mutual (usage by the parties to a bilateral act), and the individual (usage by a particular person). A special type of the local standard might be the legal, or technical usage among lawyers. Doctrinal interpretation assumes the legal or the popular standard, i.e., that terms are used according to the dictates of law, grammar, logic and reason generally accepted in the community in question. Historic investigation is thus of value only to discover what their dictates were at the time, though in organic and constitutional documents it is frequently avoided even for that purpose, thus making it possible for the meaning of the instrument to evolve with the natural evolution of law, language, logic and ideas. (Wright, this Journal , Vol. 14, p. 579).

¹⁵ Wharton, American Law, pp. 749-750, citing Rex v. Whittaker, 2 C. and K., 640; Barbot v. Allen, 7 Ex. 616; U. S. v. Union Pacific R. R. 91 U. S. 72, et al. See also Wilberforce,Statute Law, London, 1881, pp. 105-106; Maxwell, On the Interpretation of Statutes, 6thed., London, 1920, p. 5; Endlich, Interpretation of Statutes, 1888, Sec. 30.

¹⁶ “ The first and most elementary rule of construction (of statutes) is that it is to be assumed that the words and phrases are used in their technical meaning if they have acquired one, and in their popular meaning if they have not, and that the phrases and sentences areto be construed according to the rules of grammar, and from this presumption it is notallowable to depart unless adequate grounds are found either in the context or in the consequenceswhich would result from the literal interpretation for concluding that that interpretationdoes not give the real intention of the legislature.” Maxwell, op. cit., p. 3. Seealso Salmond, op. cit., p. 126 et seq. Wharton allows considerable weight to “ national antecedentsand conditions” at the time the statute or written constitution is made (op. cit., pp.411-412, 750-752), in which he is supported by most writers. They distinguish the general history of legislation and common law on the subject, which can properly be utilized toestablish the legal meaning of terms, and the general intent of the legislature (by the mischiefand remedy rule, Heydon's case, 3 Rep. 7b), from the parliamentary history of the act, whichcan not ordinarily be used. (Wilberforce, op. cit., p. 107; Maxwell, op. cit., p. 51; Endlich,op. cit., Secs. 29-30.)

¹⁷ Such evidence can be used only to discover the meaning or sense of the words and phrases used, i.e., the fixed association between the symbol and some external object, not to discover directly the will or intention of the parties. “ The question … is not what was the intention of the parties, but what is the meaning of the words they have used.” (Denman,L. C. J., Riches v. Carstairs, 5 B. and Ad. 663 (1833).) With this limitation, however, thetendency of the law has been to allow continually wider latitude in the use of extrinsicevidence. The old rules against disturbing the clear meaning of terms and constructionwithin the four comers of the instrument have tended to become obsolete, i.e., the originaltendency to insist upon the legal or the popular standard as against the local or mutual isbecoming modified in the case of contracts. The legal or popular standard is still assumedfor statutes, while the individual standard is valuable only for wills or other unilateral documents.Wigmore, op. cit., Vol. 4, Secs. 2458, 2459, 2462, 2465, 2470, and supra, note 14.See also Wharton, op. cit., p. 750, citing 1 Serg. and R. (Penn.) 27, 464; 11 Mass. 30; 12Johns. (N. Y.) 77.

¹⁸ Lauterpacht, op. cit., p. 156. See also U. S. v. D'Auterive, 11 How. 609. Wharton (International Law Digest, Vol. 2. p. 36), outlines the respects in which treaties resembleand differ from contracts. See also Moore, Digest of International Law, Vol. 1, pp. 250, 252.A treaty “ possesses in ordinary the same essential qualities as a contract between individuals.”France v. Venezuela, 1902, Ralston, Report, p. 44, cited in Ralston, The Law andProcedure of International Tribunals, 1926, p. 6.

¹⁹ Hyde, “ Concerning the Interpretation of Treaties, ” this Journal , Vol. 3, p. 46 (1909), and International Law, Vol. 2, pp. 64, 68; Crandall, Treaties, Their Making and Enforcement, 2nd ed., 1916, Sec. 166; Ralston, op. cit., p. 192 where numerous instances from the practice of arbitral tribunals are cited. See also Oppenheim, International Law, p. 700.Miller (Reservations to Treaties, 1919, pp. 89, 171; The Peace Pact of Paris, 1928, pp. 119 -122), considers the difference between explanatory notes and reservations merely formal.“ Considering that the evidence seems to show that the intention of the parties to the treatyof 1919, as indicated by the records of the negotiation, and by the subsequent attitude of thegovernments, was to admit the United States to such fishery, the tribunal is of opinion, etc.”North Atlantic Fisheries Arbitration, Wilson, The Hague Arbitration Cases, p. 189. “ Theofficial preliminaries recited are to be considered as part of the treaty.” Chile v. Peru, 1875,Moore, Int. Arbitrations, Vol. 2, p. 2092. In support of this the arbitrator cites statementsfrom Wheaton (Lawrence 6th Am. Ed. p. 318, Dana ed., p. 329) and Field (Outlines of anInternational Code) to the effect that “ All communications, written or verbal between theparties to a treaty, preceding its signature and relating to the subject thereof, are merged inthe treaty,” but the doctrine of merger would rather exclude consideration of such preliminarymaterial on the theory that “ the final and common intention of the parties which mayhave undergone change during the progress of the negotiations” is recorded by the writteninstrument alone. Crandall, op. cit., sec. 166.

²⁰ Oppenheim, op. cit., Vol. 1, p. 654.

²¹ Triepel, VSlkerrecht und Landesrecht, 1899, p. 53; cited Lauterpacht, op. cit., p. 158.See also W. Kaufmann, Die Rechtskraft des Internationalen Rechtes und das Verhaltnisse des Staatsorgan zu demselben, Stuttgart, 1899, p. 31; Jellinek, System des Subjectiven Rechtes, pp.195-196, says “ such unions are not in the character of contracts for they shape no jus intra partes but a jus supra partes.”

²² Scelle, Le Pacte des Nations et sa liaison avec la traiti de paix, Paris, 1919, p. 49, citedGsell-Trumpi, op. cit., p. 10.

²³ Hudson, this Journal , Supp., April, 1928, Vol. 22, pp. 90-108. See also Hudson,Cornell Law Quarterly, 1925, Vol. 10, p. 433; Gsell-Trumpi, op. cit., p. 10, and Lauterpacht,op. cit., pp. 35, 157-169, who somewhat questions this distinction.

²⁴ Hudson, “ The Development of International Law since the War,” this Journal , April,1928, Vol. 22, pp. 340-341.

²⁵ Hill, “ Unanimous Consent in International Organization,” this Joubnal , April, 1928,Vol. 22, p. 319 et seq.; Knudson, Methods of International Legislation, Geneva, 1928. Theprinciple that only parties are bound, tends to give interpretative statements by single partiesthe character of conditions and so to increase their importance, but this effect is less in aconference than in a diplomatic negotiation, and less still where unanimity is not observedin the preparation of a draft convention.

²⁶ Wright, “ The Legal Nature of Treaties,” this Journal , Oct., 1916, Vol. 10, pp. 708,717;Picciotto, The Relation of International Law to the law of England and of the United Statesof America, 1915, c. 4.

²⁷ “ All treaties made or which shall be made under the authority of the United States shall be the supreme law of the land.” U. S. Constitution, Art. VI, Sec. 2. “ It is a rule in construingtreaties as well as laws, to give reasonable meaning to all their provisions, if that bepracticable.” Geofroy v. Riggs, 133 U. S. 258, 270 (1890); Moore, Digest, Vol. 5, p. 249.There is danger that the habit of looking upon treaties as national legislation will cause themto be looked upon as nothing else, as noted by John Jay. “ Some insist and profess tobelieve that treaties, like acts of assembly, should be repealable at pleasure. This idea seemsto be new and peculiar to this country, but new errors as well as new truths often appear.Those gentlemen would do well to reflect that a treaty is only another name for a bargain,and that it would be impossible to find a nation who would make any bargain with us whichshould be binding on them absolutely but on us only so long and so far as we may thinkproper to be bound by it.” (The Federalist, No. 64, Ford ed., p. 431.)

²⁸ Oppenheim, International Law, 3rd ed., Vol. 1, p. 577; Wright, “ International Law inits Relation to Constitutional Law,” this Journal , Vol. 17, pp. 240-241 (1923). The Japanesejurist, Hozumi, devotes a chapter to treaties in his Principles of the Constitution(Kempo Taiyo, 1910, part 5, Chap. 8, pp. 763-786), in which he argues that treaties arecontracts between states and not commands of the state to its subjects. While the stateought to assure obedience to its treaties by its subjects, the act giving this assurance is juridicallydistinct from that making the treaty, though they may be formally the same. (Thewriter was supplied a translation of this chapter by Mr. Sterling H. Takeuchi.)

²⁹ For this reason some writers hold that law-making treaties necessarily are lawthe states united by that legal order, in the same way as national law is law within all thestates of a federation. Kaufmann, op. cit., p. 31. The same seems to flow from the Declarationof the Rights of Nations of the American Institute of International Law, 1916, that“ International law is at one and the same time both national and international.” Evenstates, like England, which do not automatically attribute to treaties internal legal effect,usually provide for such effect by special legislation, and Kaufmann (loc cit.) regards this asthe final step in making the treaty. After exchange of ratifications the treaty is concluded(abgescfdossen), but not till this final act is it in force (Vottziehbar).

³⁰ Gsell-Trumpi, op. cit., p. 11.

³¹ Phillimore, International Law, 3rd ed., Vol. 2, p. 95.

³² The constitutions of corporations have in private law characteristics of both statutes and contracts. See Lauterpacht, op. cit., p. 157

³³ This in general follows the accepted view of statutory interpretation. {Supra, notes 15,16.) Salmond insists on keeping close to the text of statutes to avoid substituting the will ofthe interpreter for the will of the legislature. He thinks it would be improper to say that thelegislature “ did not say what it meant or mean what it said” {op. cit., p. 127). Gsell-Trumpi urges an avoidance of historic materials which would limit an instrument intended tobe permanent and general by particular circumstances {op. cit., p. 11). Wharton says “ lawsare evolved in large measure unconsciously from the conditions in which the community isplaced,” and consequently what the makers say about it is not necessarily “ equally authoritativewith what they did and what caused their action.” (American Law, pp. 410, 750.)

³⁴ Supra, note 19; infra, note 39.

³⁵ Moore, Digest, Vol. 5, p. 284; Wright, “ Amendments and Reservations to the Treaty,”Minn. Law Rev., Dec. 1919, p. 28. All of the cases cited by Crandall on the use of preliminarymaterial relate to bilateral treaties {op. cit., Sec. 166).

³⁶ Moore, Digest, Vol. 3, p. 138, Vol. 5, pp. 205-206; Crandall, op. cit., pp. 85, 381; Bigelow, Breaches of Anglo American Treaties, pp. 116-149, discusses at length the effectiveness of these and other documents alleged to be explanatory of the Clayton-Bulwer Treaty. TheMexican agreement is printed in Malloy, Treaties, etc., p. 1119. See Wright, Minn. LawRev., Dec. 1919, pp. 16, 22.

³⁷ Reservations and interpretations of the Hague conventions were in all cases formally submitted at signature or exchange of ratifications. See Scott, Reports to the Hague Conferences of 1899 and 1907, pp. xxv-xxviii; Wright, Minn. Law Rev., Dec. 1919, pp. 21-25;Miller, Reservations to Treaties, p. 154.

³⁸ The Federico, Conseil d'Etat, July 18, 1916, Hall, International Law (Higgins), 8th ed., p. 823; Gamer, Prize Law During the World War, pp. 614—616.

³⁹ Publications of the Permanent Court of International Justice, Ser. B, No. 4, pp. 23-25;No. 14, pp. 31-35; Ser. C, No. 2, pp. 75-82. In general, the Permanent Court of InternationalJustice has relied on textual analysis and legal principle for interpreting treaties (Ser.B, Nos. 2 and 3, p. 41; No. 6, p. 37; No. 7, p. 20; No. 13, p. 14), though it has sometimescited preliminary material in interpreting provisions of bilateral treaties or provisions ofmultilateral treaties affecting only two states. (Ibid., Ser. B, No. 10, pp. 10, 22; No. 11,pp. 37, 40; No. 12, p. 22.) As an exception may be noted the reference to an earlier draft ofthe mandate for Palestine to confirm a conclusion reached from the text itself. (Ibid.,Ser. A, No. 2, p. 24.) In the case of the Muscat Dhows the Hague Arbitration Tribunal heldthat the terms of the General Act of Brussels, 1890, if not expressly defined, “ must be understoodin the sense which corresponds best as well to the elevated aims of the conference andits Final Act, as to the principles of the law of nations, as they have been expressed in thetreaties existing at that time, in internationally recognized legislation and in internationalpractice.” Crandall, op. cit., p. 395. Only rarely have the peace conference debates beencited in discussion by the League organs of the meaning of the articles of the Covenant.

⁴⁰ League of Nations Official Journal, Vol. 8, pp. 770, 800, 880-884. (Minutes 45thSession of the Council, 1927.)

⁴¹ Declaration of London, Art. 65, and Renault's report thereon; Protocol No. 24 of theParis Congress, 1856, with reference to the Declaration of Paris, Naval War College, International Law Topics, 1909, p. 155; 1905, p. 110; Wright, Minn. Law Rev., Dec. 1919, p. 20.

⁴² See Convention, protocol and declaration concerning import and export prohibitions and restrictions, L. N. O. J., Vol. 8, p. 1653. ‘

⁴³ The concluding paragraph of Secretary Kiellogg's note of Aug. 27, 1928, to 48 Powers inviting their adherence reads: “ I shall shortly transmit for your excellency's convenient reference a printed pamphlet containing the text in translation of M. Briand's original proposal to my government of July 20, 1927, and the complete record of the subsequent diplomaticcorrespondence on the subject of a multilateral treaty for the renunciation of war. Ishall also transmit, as soon as received from my government, a certified copy of the signedtreaty.” The General Pact for the Renunciation of War, op. cit., p. 56.

⁴⁴ On the principle that “ assent must be given to the same thing in the same sense” to complete an agreement. Wright, Minn. Law Rev., Dec., 1919, p. 17; Miller, Reservations to Treaties, pp. 76-80. This interpretation was implied by the notes accompanying adhesionfrom Russia, Egypt, Persia, and Turkey. Foreign Policy Association, Information Service,Nov. 9, 1928, pp. 369, 373; International Conciliation, Oct. 1928, No. 243, p. 531.

⁴⁵ “ Nothing in this Covenant shall be deemed to affect the validity of … regionalunderstandings like the Monroe Doctrine for securing the maintenance of peace.”

⁴⁶ It is a truism to say that international law permits action in accord with internationally recognized regional understandings. The real problem is to determine whether an allegedregional understanding has really been internationally recognized. An established protectorateor a treaty, such as that between the United States and Cuba (1903), or a League ofNations mandate, would seem sufficient evidence, but whether unilateral assertion and practice,even if acquiesced in for a considerable time, will do so is more doubtful. See Wright,“ The Outlawry of War,” this J o u r n a l , Jan., 1925, Vol. 19, pp. 90-91; “ Territorial Propinquity,”Ibid., July 1918, Vol. 12, pp. 519-561; “ The Distinction between Legal and PoliticalQuestions,” Am. Soc. Int. Law, Proc., 1924, p. 63. Shotwell (op. cit., pp. 213-216) seeks tojustify the British note by pointing out that legitimate defense need not stop at the geographicalfrontier, for aggression “ lies in the political conditions which are violated and notin the violation of actual territory.” Defense, however, would cover any forcible measureswhatever if each state were free to consider any disturbance of political conditions anaggression. Thus Shotwell recognizes that if the “ territorial frontier” is abandoned as thetest, a “ juristic frontier” must be substituted, and such a frontier he finds in the populardefinition of aggression as resort to hostilities without having utilized all procedures forpacific settlement to which the state has agreed to submit. Useful as this definition may be,and it has been accepted in a number of international documents, it is difficult to findjuridical justification for reading it into the Kellogg pact. (Supra, note 6.) Furthermore,it would hardly cover the case which Great Britain probably had in mind in her note.State A invades Egypt or the Hedjaz and yet, being bound by no pacific settlement agreementwith those countries (neither of whom is a member of the League of Nations), wouldnot be an aggressor under this definition and Great Britain would be precluded from interfering.For general purposes, the definition is too narrow in limiting aggression to theviolation of pacific settlement treaties. To say, as does Shotwell, that “ the definition ofdefense and of aggression is only a denial of improper means of redress; and no means areimproper in the hands of a sovereign state unless it has previously renounced them by treatywith other nations,” is to ignore the numerous limitations which customary internationallaw imposes both on the methods by and the occasions upon which states may properlyresort to force. (See this J o u r n a l , Vol. 18, p. 756, Vol. 19, pp. 83, 94, infra, Note 48.) AState may have vital interests recognized and protected by customary international law aloneand encroachment upon or immediate threat to such interests may constitute aggression andjustify forcible measures of defense.

⁴⁷ Question might be raised with respect to Secretary Kellogg's assertion that “ as a matterof law violations of a multilateral anti-war treaty, through resort to war by one party thereto,would automatically release the other parties from their obligation to the treaty-breakingstate.” That would not seem to be true of all multilateral treaties, as for instance theHague Convention on Land Neutrality. (See Wright, “ The Future of Neutrality,” InternationalConciliation, Sept. 1928, No. 242, pp. 37-371.) But the point is specified in thepreamble of the peace pact, which denies the benefit of the treaty to “ any signatory Power-which shall hereafter seek to promote its national interests by resort to war.” This wouldseem to have authoritative interpretative value.

⁴⁸ Article 8 of the League of Nations Covenant recognizes “ national safety and the enforcementby common action of international obligations” as the only legitimate uses ofnational armaments. Article 2 of the Geneva Protocol (1924) forbade resort to war “ exceptin case of resistance to acts of aggression or when acting in agreement with the Council or theAssembly of the League of Nations in accordance with the provisions of the Covenant andof the present protocol.” The Locarno Treaty (1925) forbade attack, invasion or resort towar between Germany, on the one hand, and Belgium and France, on the other, except in:

“ 1. The exercise of the right of legitimate defense, that is to say, resistance to a violation of the undertaking contained in the previous paragraphs or to a flagrant breach of Arts. 42 and 43 of the said Treaty of Versailles, if such breach constitutes an unprovoked act of aggression and by reason of the assembly of armed forces in the demilitarized zone immediate action is necessary.

“ 2. Action in pursuance of Art. 16 of the Covenant of the League of Nations.

“ 3. Action as the result of a decision taken by the Assembly or by the Council of the League of Nations, or in pursuance of Art. 15, par. 7, of the Covenant of the League of Nations, provided that in this last event the action is directed against a state which was the first to attack.”

Grotius set forth three grounds of just war—defense, recovery of property, and punishment of wrong. “ Plerique beUorum tres statuunt causas justas, defensionem, recuperationem rerum, et punitionem.” (De Jure Belli ac Pads, lib. ii, c. i, 2, 2.) Practice indicates that apart from the fact of war, “ the only circumstances in which modem international law recognizes the use of force as a legitimate procedure” are “ (1) instant and overwhelming necessity for defense of territory or citizens (or government), (2) redress of properly validated legal claims (after available peaceful methods have failed), (3) prevention of flagrant violations of international law (immediately pending), (4) fulfillment of privileges expressly given by treaty (or established custom), and (5) enforcement of law within the state’s own jurisdiction.” Wright, “ The Outlawry of War,” this Journal , Jan. 1925, Vol. 19, p. 94. For proposed definition of “ aggression,” which also amounts to a definition of “ defense,” see supra, note 6.