"Wars of National Liberation" and the Modern Law of Nations: The Soviet Thesis

Abstract

construction, they stand beyond reproach. But, it is here suggested, in daily life a Gresham's law of sorts operates in the legal sphere as well as in the field of high finance. That is to say, in the confrontation between two unequal systems of legal tradition, it is believed that the inferior one will at first prevail, in the sense that the superior product will come down to the level of the other and compete with it on its own plane, instead of vice versa. This, unfortunately, appears to be particularly true in warlike situations, where 8 Engels, Persia and China, N.Y. Daily Tribune, June 5, I857, reprinted in K. MARX & F. ENGELS, ON COLONIALISM III, 115 (Moscow, n.d.). 917 This content downloaded from 207.46.13.76 on Thu, 25 Aug 2016 06:24:19 UTC All use subject to http://about.jstor.org/terms LAW AND CONTEMPORARY PROBLEMS the common denominator regulating the behavior of the combatants is ordinarily the lowest standard discernible in the practice of the opponents. In general, of course, metropolitan troops everywhere do show a marked inclination to behave differently on home territory and overseas or abroad, and even more differently when in a familiar social environment as compared to when they find themselves shipped to a strange location and surrounded by people whom they are conditioned to regard as an inferior form of life. Aside from this factor, however, in the midst of any hostilities there seems to be a natural tendency to treat the enemy just as he treats you and no better. Hence, regardless of academic appeals to historical and economic determinism, it is the pattern set by the more primitive party which has almost always obtained, to the near exclusion of the higher standards which the other belligerent ordinarily professes to recognize. Without being unduly cynical, one may suggest that this has ever been a part of human character and, as the record indicates, contrary opinion has so far proved thoroughly unrealistic, be it that of Engels in his time or that of Communist writers on diplomatic affairs who echo him today.'4 Sad to say, the temptation to reciprocate with like action must just be too irresistible, all strictures notwithstanding. To demand that international law enjoin the colonial powers to wage war according to the lofty ideals set forth in the latest conventions, while the national liberation movements to all intents and purposes behave as they please because they are not sufficiently mature to grasp the essence of these alien rules, is also to tax credulity. Swinging from one extreme to the other cannot furnish and, indeed, has not furnished a workable answer to a problem already difficult enough as it is. Apologists for unbridled imperialism may have been altogether wrong. But then, current apologists for unbridled anti-imperialism, with the Communists in the forefront wielding pseudo-legal arguments such as the above, are no less so. Both insist on misusing and abusing international law for their own immediate ends, with sorry results every time and in a manner unacceptable to most who think of international law as a constructive, rather than a destructive, instrument in the relations between