The twenty-ninth year of the Court at The Hague was marked by sustained and fruitful activity. Two judgments were handed down in the Colombian-Peruvian Case Relating to Asylum, and four advisory opinions were given at the request of the General Assembly of the United Nations. Proceedings in the Franco-Egyptian Case on Protection of French Nationals in Egypt were discontinued. At the close of the year four cases were on the Court’s list: the Anglo-Norwegian Fisheries Case, the Rights of American Nationals in Morocco Case, a second Colombian-Peruvian Asylum Case, and a request for an advisory opinion concerning Reservations to the Genocide Convention. The progress registered during the year in the extension of the Court’s jurisdiction was disappointingly slight.

Once more, as he did sixteen years ago, this writer wants to raise his voice in order to point at the actual chaotic status of the laws of war, at the grave inherent dangers, and at the urgent necessity for the revision of this part of international law. The problem involves the very survival of our Western Christian civilization, if not of mankind. Under these circumstances it becomes the duty of an international lawyer to treat this subject, notwithstanding its “unpopularity” since 1920. It was Grotius who, under the impression of the “total war” of thirty years urged upon men the necessity of the “temperamenta belli.” It is amazing to see that the men of this generation, living under a more terrible total war, turn their backs upon the laws of war. This neglect is the outcome of different and often contradictory ideologies: indifference, apathy, over-optimistic wishful thinking, political wishes to keep one’s hands free in the next war, and pessimistic fatalism. All the arguments for this neglect are untenable, are in contradiction with the law as well as the facts; and yet, strong drives by writers and statesmen have nearly succeeded in putting over men a veil of voluntary blindness in adopting a policy of the ostrich which may lead to disaster, to the return of new and more terrible “dark ages.” A full exposé would need a book, not an article. But while no full picture can be given here, it will be attempted to give, at least, a complete sketch, dealing with the law and the facts, with the arguments pro and con.

In the case of Sei Fujii v. The State, the District Court of Appeals of California held that a State statute which prohibited aliens ineligible to citizenship from acquiring land within the State was “in direct conflict with the plain terms” of provisions concerning human rights in the United Nations Charter, a treaty binding upon the United States. Consequently, land granted to a Japanese in 1948 did not escheat to the State. The case involves important questions of United States constitutional law, of international law, and of legal policy.

On the issue of constitutional law the opinion follows a long and unbroken tradition that if State legislation conflicts with obligations undertaken by the United States in a treaty, the legislation will not be applied by the courts. The terms of Article 6, paragraph 2, of the Constitution are unambiguous:

The matter of public international rules for the protection of private property rights has frequently received the attention of publicists, courts and treaty-makers. Some recent developments, bearing upon different aspects of the general subject, seem to attest its current and continuing importance. For example, the presentation to Congress of President Truman’s Point Four plan occasioned questions as to the guaranteeing of overseas investments of United States citizens. A few weeks later, at a meeting of the Economic and Social Council of the United Nations, a Belgian speaker and a representative of the International Chamber of Commerce emphasized the need for treating lenders according to certain standards of decency and fair play, and expressed the view that an economic climate encouraging to foreign investment was as far away as ever. On a somewhat broader plane, the appearance in the Universal Declaration of Human Rights (1948), but not in the more recently evolved International Covenant on Human Rights (1950), of provisions looking to the right of individuals to own property (“alone as well as in association with others”) and to be free from being arbitrarily deprived of it, raises questions as to whether the right of private property is not a basic “human” right.

The question of including in an international multilateral instrument provisions defining the application of the instrument to the dependent territories of the contracting states has been a controversial subject in the United Nations. Such provisions, generally known as “colonial clauses,” may take one of three forms. They may provide for the optional application of an instrument to the dependent territories of the contracting states, so that the instrument does not apply to the dependent territories of any contracting state unless the latter chooses to extend the application of the instrument to all or any of its dependent territories. On the other hand, they may provide for the optional exclusion from the application of the instrument of the dependent territories of the contracting states, so that the instrument applies to the dependent territories unless a contracting state chooses to exclude from the application of the instrument all or any of its dependent territories. A third type of colonial clauses may provide for the automatic application of the instrument to the dependent territories of all contracting states. However, there are instruments, notably the Convention on the Privileges and Immunities of the United Nations, which do not contain any reference at all with respect to their application to dependent territories. In such cases, the general rule seems to be that, subject to express or implied provisions to the contrary, the instruments apply to all the territories of the contracting states, including their dependent territories. The following is an account of the developments in connection with several multilateral instruments considered by the General Assembly of the United Nations or concluded under the auspices of the United Nations.

Members of the American Society of International Law are by inference charged by the Constitution of their Society with doing all that is possible to promote the study and development of international law and the conduct of international affairs on the basis of law and justice. For this purpose it is not sufficient to study and advocate the development of the law itself or for its own sake. Much attention must be given, certainly much more than has been given in the past, to the second section of the mandate, partly because of its own importance and partly to provide the kind of international situation where the law can thrive and be effective— which in turn is calculated to promote peace and justice. Friends of international law cannot afford to evade even the most difficult and delicate issues in the field of international relations on the ground that they are purely political in character.

The problem of reservations to multilateral treaties signed at the close of international conferences is one that has long been a matter of concern to the regional Organization of the American States, as it is now to the Secretariat of the United Nations. How can we promote the general acceptance of international agreements and yet recognize that, after the text of the treaty has been agreed upon and signed by representatives of the executive department of a state, the popularly elected Congress, which in democratic constitutions must give its assent to the ratification of the treaty, may object to certain provisions of the treaty and refuse to approve the agreement without making exception of one or more objectionable articles?

The simplest answer would be to say that we simply cannot recognize any such intervention on the part of the legislative body. Once the treaty has been signed, the treaty must be ratified in the form signed or not ratified at all. But such a position would be needlessly extreme. What if the other signatories of the treaty find no objection to the proposed reservation, looking upon it as being no more than the expression of a national complex which the particular state may have with respect to possible effects of the treaty not contemplated by themselves, or in any case as not constituting any substantial obstacle to the attainment of the objectives of the treaty? In such a case the other signatories might readily agree to accept the proposed reservation under the belief that it is better to have the particular state cooperate in that restricted way than not at all; and if they are willing to do so, why not let them?

The International Law Commission held its second session in Geneva from June 5 to July 29, 1950. Two members were absent and the Soviet member, Professor Koretsky, withdrew when the Commission refused to exclude the member who was a national of China. The Chairman ruled, and was upheld by the Commission, that Mr. Koretsky’s proposal was out of order since the members of the Commission serve in a personal capacity and not as representatives of governments. Professor Georges Scelle was elected Chairman.

On the agenda were several topics, the treatment of which can only be briefly noted here. The General Assembly had asked the International Law Commision to formulate the principles of international law recognized in the Charter and in the judgment of the Nürnberg Tribunal. The Commission took the view that its task was not to express any appreciation of the Nürnberg principles as principles of international law, but merely to formulate them in accordance with instructions. Seven principles were stated and were referred back to the General Assembly.

Coincident with the outbreak of the “cold war” the Soviet Union began a series of propagandistic attacks on the United States, its leaders and its policies, using every medium of communication for this purpose, but with special emphasis on radio propaganda. For some time the United States Government suffered these attacks to go unanswered, but in February, 1947, the “Voice of America” began to include among its other foreign programs regular broadcasts in Russian to the Soviet Union. At first these programs were confined almost entirely to music and straight news reports, but gradually more and more time was devoted to answering Soviet attacks considered hostile to the United States or harmful to its national interests.

In retaliation Moscow, on April 24, 1949, embarked on a vast effort to jam the American programs, and is at present devoting over 1000 broadcasting stations to this single purpose. The American Government protested through diplomatic channels and to the International Telecommunications Union against this jamming campaign. Furthermore, jamming was condemned by the United Nations Sub-Commission on Freedom of Information and of the Press at its Montevideo meeting in May, 1950, as a violation of accepted principles of freedom of information. Also, the Economic and Social Council, at its eleventh session, held in Geneva during the summer of 1950, adopted a resolution recommending to the General Assembly that it call on all Members to refrain from jamming.

A landmark of the law of naturalization in the United States, established by the Supreme Court after a tortuous course of decision, has now found legislative confirmation in a provision in the Internal Security Act of 1950.

The oath of petitioners for naturalization provided for in §4 (3) of the Act of 1906 required a declaration of willingness “to support the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same”; and the Act provided that the naturalization court must be satisfied that during his residence the petitioner has behaved as a man “attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.”

For some years the question was put to petitioners, “If necessary, are you willing to take up arms in defense of this country?” A negative answer to this question led to a denial of the petition in U. S. v. Schwimmer (1929), 279 U. S. 644. This was followed in U. S. v. Macintosh (1931), 283 U. S. 589, and U. S. v. Bland (1931), 283 U. S. 636. Despite these decisions, no change was made in the required oath when the Nationality Act was revised in 1940. Yet the three earlier decisions were overruled in U. S. v. Girouard (1946), 328 U. S. 61, on the ground that the required oath might properly be taken by a person unwilling on religious grounds to bear arms.