The Supreme Court of the United States, by Mr. Justice Brandeis, recently handed down its decision in Tutun v. United States, and Neuberger v. United States. This is the latest of the important Supreme Court cases determining the law of naturalization, of citizenship, and of expatriation. During the past fifteen years they have comprised Johannessen v. United States, Mansour v. United States, Luria v. United States, Maibaum v. United States, Mackenzie v. Hare, United States v. Ginsberg, United States v. Ness, United States v. Morena, Ozawa v. United States, Yamashita v. Hinkle, United States v. Thind, Kaplan v. Tod, and Toyota v. United States.

Throughout his career, Philip C. Jessup was passionately committed to the use of law and diplomacy for the peaceful settlement of international disputes. He provided a generation of leadership in the wide and difficult endeavor that he characterized as “transnational law”—by which he meant to emphasize the importance of a wider storehouse of rules and avoidance of the dogmas and fictions associated with traditional international law.

In the Notes and Comments section of the January 1991 issue of the Journal, Professor Richard Lillich presented a thorough and timely analysis of the Soering decision of the European Court of Human Rights, a significant addition to international human rights law. His evaluation of the Soering judgment and his reflections on several of its wider ramifications are especially relevant to the United States military, for the decision constitutes a serious threat to the administration of U.S. military justice overseas and to the treaty relationships between the United States and its NATO allies. A recent European case, Short v. Kingdom of the Netherlands, demonstrates that this threat is far from hypothetical.

The conception of a permanent neutrality for Switzerland sharply differentiates itself from the various phases of neutralization created chiefly after the Congress of Vienna in Europe and elsewhere in the important respect that in the case of Switzerland the Powers did no more than attempt to crystallize in diplomatic and lasting form a political condition which had, as we have heretofore seen, characterized the country during nearly three centuries. The Powers, consequently, merely recognized an existing status and one deemed essential as well to the peace of Europe as to the welfare of Switzerland itself. But at Vienna it was clearly seen that recognition would prove valueless were it not supported by an international guarantee, and one, moreover, which would not only necessarily take the shape of an international protection of Switzerland against outside aggression, but also conserve a unitary and harmonious federal administration within the Swiss boundaries. We are not surprised, accordingly, to find the conception of such a guarantee appearing in the various diplomatic documents heretofore noted which create or attest Swiss neutrality, as in the Treaty of Lunéville, February 9, 1801, and the identical treaties concluded at Paris, May 30,1814, known as the First Peace of Paris (noted in Part I of this series, April, 1918, Journal, p. 241, at p. 246), in which Swiss independence and self-government are expressly recognized: “La Suisse, indépendante, continuera de se gouverner par elle-même.” (Art. VI)

A Thousand peace proposals doubtless could be accounted for in the last five hundred years. Some of them for one reason or another are famous. Dubois, Crucé, Podebrad, Henry IV, Rousseau, Kant, Bentham, Penn, Ladd, are names in this connection quickly recalled to memory.

Now why did all these proposals fail to be heeded by war-weary humanity? Two reasons may be given: first, for the most part they were paper proposals; there was not sufficient driving power behind them; they were written out, the ink dried, and the task was done. No more can a peace proposal organize itself on paper than can a corporation manufacture steel billets with a red-ribboned charter. There must be responsible and powerful initiative, and this initiative must come from a state. Of course, every paper proposal helps to fertilize the ground against the time when nature in its blind way is ready with a favorable wind to implant the germinal substance of a harvest, be it only of thistles or ragweed.

A romantic view of life has it that law grows, that it can not be created. Another similarly romantic allied notion is that man is a product of the earth like a plant. We would not deny the element of truth in these views which flourish or have flourished in the shadow of great names. But is not there something of one-sidedness in this; is not there some exaggeration? Does not destiny hold out some encouragement in the achievement of metaphysical purpose, of final ends, to the use of man’s creative intelligence as a part of the process? It is fortunate for these reflections that on this philosophical jousting-ground, the beliefs, the practices, habits, and experiences of most men are often — or seem to be — favorable to effort.

On the 9th of April, 1911, the Hague court will celebrate its first decennial. The first decade of the court was opened by the submission on the part of the United States and Mexico of the Pious Fund case to the tribunal for its decision, and of the eight cases so far submitted to the court and brought to trial during the first decade, the United States has been a party in four, and in a fifth, the Japanese House Tax case, the United States agreed to abide by the result. The last case to be tried was the Orinoco Steamship Company case submitted by the United States and Venezuela.

Both the Pious Fund and the Orinoco Steamship Company case raised important questions vitally affecting the future of international arbitration. Both cases were peculiar in that they dealt with a question which had already been once before decided by an arbitral tribunal. In both cases the effect of the previous arbitral decision was submitted as a preliminary question to the Hague court. In the Pious Fund case the preliminary question submitted was as to whether the claim, as a consequence of the former decision of Sir Edward Thornton, umpire under the convention between the United States and Mexico of 1868, was within the principle of res judicata. The court sustained the contention of the United States, by holding that the rule of res judicata applies to international arbitral sentences “ rendered within the limits of the jurisdiction fixed by the compromise,” and accordingly rendered judgment in favor of the United States, without considering the merits of the claim.

The decisions of the British courts in The Arantzazu Mendi and Banco de Bilbao v. Sancha and Rey that the British Government had accorded de facto recognition to the Franco insurgents become all the more curious in the light of unequivocal denials by the Prime Minister and the Foreign Secretary in the House of Commons that such recognition had been accorded prior to the dates of these decisions. An examination of these statements in the House of Commons raises an interesting question: What constitutes de facto recognition? More particularly, do (1) the conclusion of an agreement of a “provisional” nature with an unrecognized régime, or (2) the institution of “unofficial” relations (relations officieuses) therewith, or (3) the granting of immunities to executive agents, constitute de facto recognition of the régime so treated?