When the present European war broke out and neutral rights came into the foreground of America’s anxieties, the President advised the public to study the conduct of the United States during the Civil War. That desperate struggle is inevitably the American touchstone for belligerent rights because, as Secretary of State Seward pointed out in 1863.

The rights secured by the United States through the conclusion of the Hay-Pauncefote Treaty and the Hay-Varilla Convention afforded the United States legal bases upon which to embark upon the excavation, construction, operation and protection of an interoceanic canal in the Isthmus of Panama. They formed a foundation for the erection of a vast edifice of powers and jurisdiction over the Panama Canal, the Canal Zone, and over vessels and persons in and about the Canal.

At the beginning of this war, September 3, 1939, the usual legal concept of the term “enemy alien,” as it was known in the war of 1914–1918, appeared again in Great Britain, France, and Germany. Great Britain, in the Enemy Act of 1939, defines an enemy subject as “an individual who not being either a British subject or a British protected person, possesses the nationality of a state at war with His Majesty the King”; France defines the term as “les ressortissants ennemis”; the Reich, as aliens belonging to an enemy state, and includes those persons without nationality who before the loss of their nationality were citizens of an enemy Power.

I. In the field of international law every subject generally acts in person, through its own organs, without resorting to cooperation with other subjects. However, international practice shows that members of the community of nations sometimes act on behalf of other members, with the legal effect that the transactions performed by the acting subject in the name and for the account of the other have for the latter the same legal consequences as if it had acted in person. This happens, for example, when a state, duly authorized, concludes through its own organs a treaty for another state: the latter is thus bound by the treaty exactly in the same way as if it had concluded the treaty itself, through its own organs. This legal phenomenon implies a split between the immediately acting international person and the person to whom the legal effects of these acts are imputed.

While recognized members of the community of nations are bound by the established rules of international law without any explicit act of acceptance, they cannot become bound by new rules without express or implied consent. International law and municipal law have different sources and sanctions, consequently a state’s municipal law cannot be taken as the measure of either its rights or its obligations under international law.

“We await a jurist with the mastery of the legal materials, the philosophical vision, and the juristic faith which enabled Grotius to set up a law of nations almost at one stroke,” declared Dean Pound in concluding his address before the Thirty-Third Annual Meeting of the American Society of International Law on “The Idea of Law in International Relations.” That is a statement which challenges the attention and arouses the curiosity of a present-day international lawyer. Although accustomed as such a lawyer is to the notion of Grotius as the founder and father of the law of nations, it is a little startling to be told that the answer to the current dilemma of international law is contingent upon the advent of a jurist with his accomplishments. What is there in his De Jure Belli ac Pads to warrant such confidence? What would he have to offer as a guide to a lawyer seeking to extend and to reenforce the domain of law in international relations?

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?

Early in the afternoon of January 21, 1940, the Japanese steamship Asama Maru, proceeding from Honolulu to Yokohama, was stopped at a point 35 nautical miles off the coast of Japan by a British man-of-war. The British warship boarded the Asama Maru, and, “claiming to act under a right in international law but without explaining in detail the reasons for its actions and without even disclosing its name,” forcibly removed 21 of the 50 Germans on board.

The tendency in recent world history toward the establishment of political parties based on class or racial ideologies in which no place of respect is given to established territorial boundaries has greatly intensified the problem of the responsibility of states in connection with international propaganda. Two main questions arise: (1) Are states themselves obliged under international law to refrain from spreading propaganda in a foreign country hostile to its government? and (2) Are they obliged to use due diligence to prevent private individuals and organizations from engaging in such activity? The purpose of this study is to seek the answer to these questions through an analysis of the sources of international law referred to in Article 38 of the Statute of the Permanent Court of International Justice: (a) international conventions, (b) diplomatic exchanges, giving evidence of international custom, (c) general principles embodied in municipal laws and judicial decisions, and (d) the attitude of writers on international law. Treatment of the subject will begin here with the period of the French Revolution and will be limited to peace-time political propaganda. The problem is, of course, much older and broader than these limits suggest, but it is believed that their extension would not contribute materially to the purpose at hand.

Beginning with participation in the Cape Spartel Light Convention of May 31, 1865, the United States has become a party to about a hundred multipartite administrative treaties, including revisions and amendments of the same. The number of parties to a treaty varies with the treaty, from three or four, as in the case of the Fur Seals Convention of July 7, 1911, to ninety, as in the case of the Universal Postal Convention concluded at Cairo, March 20, 1934. The agreements, usually technical in character, deal with a variety of humanitarian, economic, and cultural subjects, ranging from agriculture to whales. Many of these agreements, such as those dealing with postal matters, publicity of customs documents, and publication of customs tariffs, are primarily of concern to administrative services.

One of the most distinct features of European imperialism in its nineteenth century form was the peculiar alliance between missionary activity in backward areas and the political exploitation of the same for reasons of prestige, strategy or economics. No better example of this alignment can be found than in the French protectorate exercised over Roman Catholic missionary activity in China. Here the establishment of a definite political protectorate in the nineteenth century has a long historical background in which one may trace the transition from what G. L. Beer called “The Old Colonial System” to imperialism in its modern form. The question of “origins” here follows a sequence from Portuguese conquests and the Patronage (Padroado) in the Far East through the period of French expansion under Louis XIV to the final acceptance by the European world of the French protectorate over all Catholic missions in China.