CRANFIELD UNIVERSITY DAREN BOWYER JUST WAR DOCTRINE

philosophically the ultimate expression of the liberal tradition, it sees all citizens as
parties before the law of a global super-state. More usually, and with adherents to be
found within both the liberal and international society traditions, the analogy sees states
as persons in an international system and before international law. Suganami cites the
eminent international legal authority Hirsch Lauterpacht in noting a key issue over
which the analogy breaks down: in domestic law, the use of force (except by the
sovereign authority in imposing law) is prescribed but in international law the
acquisition of property (territory) by force, or the conclusion of treaties under duress,
had a long tradition all but enshrined as legitimate in the international system. It was
this anomaly that had to be addressed:
The development of international law towards a true system of law is to a
considerable degree co-extensive with the restoration of the missing link of
analogy of contracts and treaties, i.e. of the freedom of will as a requirement for
the validity of treaties, and with the relegation of force to the category of
sanctions. 8
The Covenant of the League of Nations begins to address just this ‘missing link’ when it
states, at Article 10, that: ‘The Members of the League undertake to respect and
preserve as against external aggression the territorial integrity and existing political
independence of all Members of the League.’ 9 Thus, continues Lauterpacht, the
Covenant ‘may be regarded as containing in gremio, the elements of this development.’
As was outlined in Chapter 1, the Covenant of the League required the submission to
arbitration or judicial settlement of disputes ‘likely to lead to a rupture’, and imposed a
‘cooling off’ period during which recourse to war was prohibited. 10 Moreover, the
Covenant established the principle of collective security: ‘Any war or threat of war,
whether immediately affecting any of the Members of the League or not, is hereby
declared a matter of concern to the whole League, and the League shall take any action
that may be deemed wise and effectual to safeguard the peace of nations.’ 11
The paradigm was further and most substantially developed by the concluding of the
General Treaty for the Renunciation of War, the Kellogg-Briand Pact, of 1928. The
Treaty is short and to the point, consisting of just three concisely worded Articles, the
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