The next few years are likely to be of critical importance in the development of the technique of international legislation by means of multipartite agreements. The interruption of the normal rhythm of international legislative activity by the war, the need to revise a substantial proportion of the principal existing multipartite legislative instruments in the light of the new conditions precipitated by the war, and the wide range of problems not dealt with in such instruments hitherto which have now been thrust into the foreground, will combine to produce an intensification of international legislative activity comparable to that of the years immediately following the first world war. The first steps are already being taken by the formulation of plans for a wide range of new international organisations, and when the necessary constituent instruments have been framed the whole of the existing corpus of international legislation is likely to be progressively reconsidered over a period of years.

The norm pacta sunt servanda, which has constituted “since times immemorial the axiom, postulate and categorical imperative of the science of international law” and has very rarely been denied on principle, is undoubtedly a positive norm of general international law. But the meaning of this norm is controversial. Most writers lay the accent on the term servanda. One school of thought affirms that “treaties” are always binding, whereas a second tells us that the norm can only mean that valid treaties are binding.; Within this second school of thought some writers object that the norm appears as a deus ex machina, as international law does not lay down rules for the validity of international treaties, whereas others maintain, that not all, but only certain treaties are binding, that the norm admits “exceptions,” or speak of the relativité de la règle pacta sunt servanda.

For the first time in over one hundred years the American public has large numbers of foreign prisoners of war in its midst. While German naval prisoners were held in the United States during the last World War they numbered only a few thousand men, as compared with the total today of over three hundred thousand Germans with additional numbers still pouring into our ports. The task of housing and feeding these prisoners, of providing for their other needs as well as of guarding them and putting them to work at productive labor, has been the responsibility of the War Department. With few precedents and practically no experience to fall back upon, it has done and is doing an enormous job with results that, as a whole, are a credit to the good name of the United States.

International law was no more prepared for the dynamics of the present war than was the Maginot school of military strategy. International lawyers had given little serious thought to the legal problems which total war would bring. Consequently, while international arrangements were concluded on special questions (e.g. on aerial warfare), the main body of the 1907 Hague Convention, including the section dealing with military occupation,remained unchanged. Military occupation was still conceived of as a temporary phenomenon with limited objectives. But totalitarian warfare as waged by the Axis powers has had unlimited objectives, aimed at nothing less than the complete political and economic subjugation of the occupied territory. In practice the enemy has recognized no restraints of either law or custom save the threat of immediate retaliation. Far from “respecting, unless absolutely prevented, the laws in force in the country,” as the Hague regulations require, the Axis has systematically destroyed the political and legal order in the occupied territories. It has substituted quislings in the place of duly constituted local authorities, and has employed them for economic as well as political ends.

Since the collapse of the European system of the Middle Ages and the birth of modem international law most jurists have worked on the assumption that the principles underlying the international legal order are radically different from those that lie at the base of national law. With the disintegration of the authority of the Pope and the Emperor there had come into being a number of independent states that recognized no political superior and hence considered themselves as equals. In their relations with each other, at least, these states acted like the sovereign bodies which in fact they were. In so far as international relations were concerned the world had returned to a condition of complete anarchy. The states of the world lived in that condition of natural equality described by Hobbes where each was the potential enemy of every other. In the formulation of their policies and in their acts each state took into account its own interests only and when these interests came into conflict, as they inevitably did, the only arbiter was brute force.

Modern international private law has adopted the hypothesis of the equality of foreign and domestic law. As Savigny says, the judge must apply the law of the place with which the case is connected without considering whether this law is that of his own country or of a foreign country.

The problem of war criminals has aroused controversy between those who insist that enemy persons guilty of acts which have shocked the conscience of mankind shall be punished and those who insist that the United Nations must observe principles of civilized justice. Those principles require that an individual shall not be punished for an act, however shocking, unless the act was a crime under the law applicable at the time and place where it was committed (nulla poena sine lege), and unless the guilt of the individual has been established by a competent court utilizing fair procedures (due process of law).