Salient. An Organ of Student Opinion at Victoria College, Wellington, N.Z. Vol. 3, No. 4. 1940
Observance of International Law. — Professor McGechan
Observance of International Law.
A conviction that International Order could only be achieved with and through a compulsory International Court was expressed by Professor McGechan, speaking on "The Observance of International Law" in his inaugural lecture at V. U. C.
An over-insistence on the definition of law as the command of a sovereign, he said, had led to a denial that International Law was law at all. But the impressive record of the Permanent Court of International Justice, which was so often resorted to as a means to finality in diplomatic wrangles that it had to sit all the year round, not to mention the diplomatic law of immunity, showed that International Law was not to be dismissed as non-existent.
The effectiveness of International Law depended of the annexation of legal consequences to its breaches. The expulsion of a Covenant-breaker from, the League, as enforced against. Russia for her aggression in Finland, was obviously a weapon that the League could control. This Professor McGechan contrasted with the economic blockade in its present form, which even when it was applied on the concurrence of 40 or so national opinions, required the continued support of all these.
The future importance of expulsion from the League as a legal consequence, depended on the extent of the benefits of the co-operation of other nations, and this in turn on the amount of co-operation. What International Law needed was many more such automatic consequences and therein lay one of the important arguments for a compulsory court. The matter seldom turned on the quality of the consequence alone. It was virtually impossible to apply economic sanctions to a large number of wars.
Professor McGechan pointed out the analogy between the hopelessness of outlawing war by a treaty, however solemn, and the impossibility found by America, of enforcing the Volstead or Prohibition Act - to breaches of neither was it possible to annex legal consequences.
"Would it not be better for the body of nations, or the majority thereof, or better still a Court, to sanction the legal right to make war to remedy specified injuries?" he asked. That sanction would be sought, and the mere seeking of it would reduce the number of wars without it. The prospect of a sanctioned war would effectively discourage conduct which would occasion it.
The superior capacity of an International Court for reaching finality was shown by she increasing number of cases sent by the League Council to the permanent court for its advisory opinion.
Professor McGechan hoped that the world would continue to consist of a number of states no one of which could successfully overcome the determination of all the others to meet with force any resistance to legal consequences. Unfortunately, the majority of states under present conditions of International Law were either too unprepared, too uninterested, or too pusillanimous for an international hue and cry to be raised.
Small nations would seldom contest the annexation of legal consequences to their acts, and a Great Power could only do so when the other Great Powers failed to combine to sufficient extent to compel these consequences.page break
Professor McGechan saw no alternative, therefore, if International Law was to toe observed, but for it to be in conformity with the wishes of the Great Powers - that is, laws acceptable to the majority of small powers, but not to the majority of the Great Powers should not he part of International Law.
"For the rest, the picture is not altogether gloomy", he said. After war, conditions were definitely favourable to International Law, Progress had been made for a decade and a half after 1919, and he confidently hoped for an International Court with considerable compulsory jurisdiction, after this war, and a legislature competent to change International Law to meet new needs and avoid too great rigidity. The need of the post-war world was recognized to be peaceful reconstruction, and for this was necessary the co-operation which was the basic condition for the formulation of International Law.