History of international law: Radically opposed epochs

The Internationalists cuts the time axis of the modern age since the 17th century into two radically opposed epochs. Each period has an ‘underlying logic’ that remains ‘constant’.^{Footnote 4} The era of the Old World Order, to begin with, was a ‘bloody, brutal and unjust’^{Footnote 5} world in which waging war was not only lawful, but ‘an instrument of justice’.^{Footnote 6} The privilege to use violence was the core principle. War was even regarded as ‘civilized politics’,^{Footnote 7} soldiers and sovereigns, who could not be punished for killing in wars, had a ‘license to kill’.^{Footnote 8} That was the ‘law of the world’.^{Footnote 9} The main participants of international law, the states, were based on war, too. The DNA of the state in the Old World Order was war (my words). Referring to the US historian Charles Tilly (1929–2008), the authors write that ‘war made states, and vice versa’ because, from the 17th century on, ‘states began to operate a monopoly on violence’.^{Footnote 10} This era lasted until the conclusion of the Peace Pact in 1928 when war was outlawed. Although the Peace Pact did not abruptly do away with the Old World Order, it marked the beginning of its end.^{Footnote 11}

The New World Order, in contrast, is the ‘photo negative’ of the Old.^{Footnote 12} Its core rule is the prohibition on war that entered the world with the Peace Pact and finally was embodied by the United Nations.^{Footnote 13} The outlawry of war made its career in steps, the first of which being Henry Stimson’s doctrine of non-recognition of conquests.^{Footnote 14} It was practised for the first time in the Manchuria crisis in 1931. Via this doctrine, the principle underlying the Pact found its way into the American–British Atlantic Charter of 1941 and from there into the Declaration of the United Nations of 1942, the ‘global manifesto of the New World Order’.^{Footnote 15} In the era of the New World Order, annexations and conquests – that hitherto used to produce bigger and stronger states – are no longer lawful endeavours.^{Footnote 16} Small states are protected and do not have to fear being conquered. Interstate violence has become the exception. ‘[T]he light bramble of the New World Order’, the authors write, cannot be compared to the ‘deep and dark’ ‘woods of the Old World Order’.^{Footnote 17}

Argument: Practice of interstate war and conquest

The periodisation decision – with the year 1928 being the pivotal point – is buttressed by empirical data. The authors have analysed 254 instances of territorial changes between 1816 and 2014, and they conclude that conquest has ‘nearly disappeared’ after the outlawry of war.^{Footnote 18} This claim is remarkable. Most people associate a series of disasters and tragedies with the years after 1928: international crises, conquests, the decline of the League of Nations and, of course, World War II. The authors argue, though, that most of the conquests after 1928 were of a merely temporary nature and finally reversed. They emphasise the importance of Stimson’s doctrine of non-recognition of conquests in this context. It was the first step in dismantling the Old Word Order, Manchukuo, for example, was not permitted to accede to international conventions and to participate in commissions and associations. The impression that little changed immediately after 1928 is wrong, the authors write. Even though it took World War II to end conquest,^{Footnote 19} the crucial turn with respect to territorial changes happened after 1928. World War II destroyed more lives than World War I, but the transfer of territory caused by it was radically less.^{Footnote 20} World War I literally ‘remade’ and changed Europe, whereas World War II led only to ‘small shifts’ on the margins.^{Footnote 21}

It is important first to maintain that periodisation decisions are not questions of ‘right’ or ‘wrong’.^{Footnote 22} Periods and epochs are not facts, but intellectual tools that help us to organise our knowledge; hence they are just plausible or less convincing.^{Footnote 23} With respect to The Internationalists, the starting point of my discussion is that it presents us a classical progress narrative with a ‘bad’ first and a ‘good’ second period – tertium non datur.^{Footnote 24} Semantics is clear and strong: dark, violent, photo negative etc. The periodisation decision is justified by the discovery of new facts, with the emphasis on the later reversal of most conquests of the 1930s and only relatively small territorial changes in the aftermath of World War II. The way The Internationalists combines new knowledge with notorious facts, has in my view the merit of shedding new light on a number of important aspects of the interwar history.^{Footnote 25} The Stimson doctrine of non-recognition of conquests, for example, does not appear as a naïve attempt to develop a better practice before the big storm broke out, but as a brave and pioneering move towards a better state of affairs. Stimson becomes a co-architect of the new order, and the whole interwar period appears in a somewhat better light than in conventional narratives. That most conquests were later reversed, lends the post-Pact years a bit of a ‘coming of age’ character. Interestingly the perception of the United Nations changes, too. Its establishment is no longer the ‘Stunde Null’ of the era which we all live in. Rather, it appears as the completion of the outlawry project. On the whole, the suggested periodisation decision is surprising, but in my view not entirely counter-intuitive. It goes well with our intuition that it was the ‘ius ad bellum’ that separates the ‘now’ from the past. In the narrative of the book, the Peace Pact appears as the ‘counteract’ to this disturbing rule.

Critical topics: Ambiguities and continuities

A critical consequence of the periodisation decision is, however, the way in which ambivalences are dealt with. Working with two radically opposed epochs produces incentives or even pressure to downplay ambiguities and to describe shades of grey as either black or white in order to increase the plausibility of the story. The portrayal of the League of Nations is, in my view, clearly a victim of this pressure. The Internationalists describes it in an entirely unambiguous language as ‘built on Old World Order principles’,^{Footnote 26} relying ‘on war’^{Footnote 27} and completely different from the United Nations which was a ‘fundamental departure’^{Footnote 28} from it. The authors do not attach any importance, for example, to the many efforts in the early post-World War I years to better protect peace and prevent war: by defining peace as a matter of concern ‘to the whole League’, with the mechanism of ‘cooling-off periods’, with disarmament negotiations in the framework of the League,^{Footnote 29} with arbitration treaty systems such as the Locarno Treaty, with the establishment of the Permanent Court of International Justice etc. ^{Footnote 30} I do not, of course, claim that these efforts were successful – how could I? But what the The Internationalists claims about the League simply does not go together with the many effects of the cultural shock, which World War I caused (to which I will come back a bit later), with what was called the ‘spirit of Geneva’ and meant the beginning of a new, cooperative, and modern age, and with the ‘peace through law’ movement.^{Footnote 31} Connections and common ground between the League and the United Nations are downplayed: that the United Nations was given the same primary architecture with an assembly, a committee (Council/Security Council), and a secretariat, and that they both were organisations of collective security.^{Footnote 32} Of the differences, we are all aware, but the narrative of The Internationalists lacks ambiguity, there is no balancing with respect to the League, no evolutionary perspective.

Another critical unambiguity concerns the ‘DNA’ of the state. The state of the Old World Order is described as based on war: it is war’s product and in turn reproduces war.^{Footnote 33} That is not entirely wrong, of course. But nevertheless it omits so much that it comes close to being wrong. What is missing is the main reason for the modern territorial state’s coming into being in the early modern age and its long-term success as a way of organising political communities. Its rise was in many respects the result of the desperate need for peace during times of horrifying civil wars among the Christian confessions. The monopoly on violence of the state on a certain territory was an effective ‘tool’ to pacify large regions – the emphasis being on ‘monopoly’, not on ‘violence’. This was an important progress at the time, for it provided security. The modern state was the solution to civil wars fought in the name of God’s truth, not their offspring in spirit.^{Footnote 34} A fundamental problem of The Internationalists is that it leaves all of this out. The narrative starts – and gains plausibility from this decision – with the state’s ‘right to wage war’ under post-Westphalia conditions that indeed can be regarded as a co-cause of World War I.^{Footnote 35} In this respect, it was a disastrous concept. But even the ‘ius ad bellum’, as paradoxical as it may sound, at the time of its emergence was not as unambiguous as the authors assume. In a world of confessional passions, the right of the single state to wage war had the effect of ‘disentangling’ conflicts. As long as wars had constituted breaches of law, as was the case in the 16th century, they almost automatically got further states involved. After the Thirty Years War, the ‘ius ad bellum’ contributed to confining conflicts and helped to avoid another military conflagration in Europe.

Important continuities are downplayed in the book as well. Generally speaking, this typically is the case where discontinuity buttresses the narrative. The way the two world wars are portrayed is a good example. The Internationalists describes them as wars with different spirits: World War I as a ‘Grotian War to right wrongs’,^{Footnote 36} an Old World Order war, and World War II as an important step towards the New World Order, led by the Allies in the name of the new ideas. It is presented as a fight between representatives of the two world orders. The authors make the differences with respect to territorial changes, which were less comprehensive after World War II, the key element of their argument.^{Footnote 37} The idea is clear, but can the overall claim be sustained? Already World War I was, on the side of the Allies, led in the name of peace and law.^{Footnote 38} By attacking Belgium, Germany had broken a treaty of 1839 that had guaranteed the neutrality of the newly created Belgium. The territorial changes in Europe after World War I had a lot to do with the fact that three old multi-nation empires dissolved – Austria–Hungary, the Ottoman Empire and the Empire of the Russian Tsar – and new states emerged. Also, decolonisation was not ‘triggered’ by World War II. After World War I, Germany’s colonies and colonial protectorates became ‘mandates’ of the League of Nations, which opened at least a vague perspective of future statehood. Finally, the Soviet Union got territorial compensation for its particularly high losses and, with the new communist states in Middle and Eastern Europe, a ‘cordon sanitaire’. Both world wars are the instances of modern long-term industrialised interstate warfare, with immense costs and triggered by an amalgam of highly aggressive nationalism and social darwinist world-views.

I also see ‘forced’ discontinuity with respect to neutrality and neutrality law. The Internationalists diagnoses a fundamental change or even break in this field after 1928. There was a strict neutrality law before the conclusion of the Peace Pact, not even allowing for economic sanctions, and the possibility to impose economic sanctions after. Giving up the strict conception became, according to the authors, the second step in dismantling the Old World Order. In my view, this claim can hardly be sustained, mainly for two reasons: there already was a smaller break after World War I, and continuities were on the whole rather predominant. When the League of Nations was set up, obligations of neutral states were a heavily discussed topic. It was clear that the obligations arising from neutrality must be compatible with the aim of the League as they were stated in the preamble of the Covenant: cooperation and achieving peace. The League was an organisation for collective security, so what could be required from neutrals? It was decided that they were under an obligation to participate in economic sanctions against a peace breaker, but not in military ones. Switzerland became a neutral member in 1920 under these conditions. Switzerland would fully support economic sanctions, but could not be dragged into a war. Within the framework of the United Nations, the situation is not so different. There is an obligation to participate in economic and other non-military sanctions adopted under Chapter VII, but not to actively participate in military action. Non-UN members were not even obliged to participate in economic sanctions. Switzerland, for example, did not participate in the sanctions against apartheid South Africa in the late 1980s. In my view, the continuities in the field of neutrality were much bigger than The Internationalists suggests. It remained and still is a grey zone in many respects, legally and morally.

Social change: Legal core principle as key agent

What caused the epochal transformation from the Old to the New World Order? This evidently is another key topic of the book. In the social sciences, explanations of transformations are called models (or conceptions) of ‘social change’.^{Footnote 39} They give reasons why societies do not remain the same and develop in certain directions and not in others. The Internationalists suggests such a conception which is key for the sweep of the narrative. The subtitle of the book mentions it, promising to tell us how the ‘plan to outlaw war’ ‘remade’ the world. For the authors, the change of the core principle regarding use of violence between states was the driving force of change. They regard it as the main cause, even though they do not claim it was the only factor.

Formulations vary. The authors write, for example, that the Peace Pact ‘sparked a series of events’^{Footnote 40} that led to the New World Order, and that the Pact ‘began a cascade of events that would give birth to the modern global order’.^{Footnote 41} One can find stronger and weaker wording. ‘Levinson’s outlawry movement’ led to a ‘global revolution’,^{Footnote 42} the Pact was the ‘decisive’^{Footnote 43} break with the past and made the world ‘far more peaceful’,^{Footnote 44} and it was ‘a – and overlooked – crucial trigger’.^{Footnote 45} Whatever the differences in detail, it is clear: the authors install the core rule with respect to interstate violence in the driver’s seat of history. The model seems to explain the transformation of the whole order. This is a clearly implied key idea underlying the book. The authors write, for example, that outlawry of war has not only affected when and how often states go to war, but it has also changed ‘how they relate to each other’^{Footnote 46} in times of peace. It has affected international relations in their totality, albeit not in every detail.

Argument: No predominant other cause(s)

The change conception is justified by dismissing other possible explanations. The argument can be summarised as follows: There were other factors, but they were not decisive and profited themselves from the Pact. They cannot explain the data that indicate that the crucial changes happened after 1928 – and not after 1945.^{Footnote 47} Outlawry of war is made the overarching cause. The authors briefly discuss, for example, the role of nuclear weapons. They write that they helped to keep the peace, but that the threat of a nuclear attack was never used for territorial aggrandisement.^{Footnote 48} Nuclear weapons could play a stabilising role only against a background where war was already being prohibited. With a similar argument, they dismiss the ‘spread of democracy’ as the driving force of change. It helped reduce interstate violence, because democratic leaders must justify their actions vis-à-vis the electorate, but the key fact was that conquest no longer ‘counted’ as a legitimate policy goal.^{Footnote 49} Again, outlawry of war appears as the main cause. A third factor discussed and dismissed is global trade. It undoubtedly contributed to peace, the authors write, but it was at least as much a consequence of the outlawry of war as a self-standing cause for peace.^{Footnote 50} Given the strategic role of the conception of social change in the narrative, the authors spend remarkably little energy on defending it. I presume that they assumed that the data – change with respect to conquests after 1928 – speak for themselves.

I see a certain merit in the emphasis on law’s transformative power. In social science, law is often described only as a result or product of other factors, which understates its potential as a self-standing factor. The law says what is to be regarded as normal, standard conduct and thereby influences how society develops. The authors point to the example of the Declaration of Independence that in their view sparked a series of events before its ideas finally were realised by the Constitution of 1787. For understanding The Internationalists, it is important to see that the authors want to organise their narrative around this idea taken from US history. They want to convince us that the Pact was in a similar way ‘crucial’, ‘decisive’ etc for the emergence of the New World Order. Of course, the authors are aware that ‘legal revolutions’ – as they call revolutions set in motion by law – do not end with the passing of the law, but begin with it. But they claim that law can be crucial and even decisive for social change. Whether the Pact really was the cause of the transformation, as the authors claim, is a different question.

Critical topics: Causalities, ‘law as agent’ claim

‘Crucial trigger’ conceptions of social change tend to take favourable circumstances for a certain transformation for the cause itself. Developments after the triggering event appear as a mere unfolding of the initial idea, not as self-standing co-causes, and possibly only loose connections tend to become ‘hard’ causalities.

In The Internationalists, the key argument for the claim ‘Pact as trigger’ is data. The timely coincidence of the conclusion of the Peace Pact, on one side, and the reversal of most conquest after 1928 (even though later reversed), on the other, ‘proves’ that the change model is correct. The problem with this – at first sight not implausible – conclusion is that it omits something important. The conquests were reversed only, roughly, after the Axis Powers had lost the war. Hence it was a retroactive reversal. In The Internationalists, however, for the purpose of justifying the change model, no difference is made between immediate and retroactive reversal. Events and developments after 1928 thereby are subtly excluded as causes for the reversal.

Was the Pact really the crucial cause for the retroactive reversal? It could be, of course – but there are other possibilities. A more conventional and later competitor cause is ‘simply’ World War II. In the authors’ ‘crucial trigger’ model, however, any step towards the New World Order after 1928 appears as mere unfolding of the Pact’s idea. The Pact becomes the only possible ‘ultimate’ explanation, and the narrative thereby immunises itself against other possible explanations. By tautological argument, independent causes after 1928 are excluded: as the Pact was the ‘crucial trigger’, any development towards the New World Order after 1928 was mere unfolding of the Pact, and as developments after 1928 were mere unfolding of the Pact, the Pact was the crucial trigger. At one point the authors use the formulation that the Pact was ‘a […] crucial trigger’ – which logically seems inconsistent to me, but telling in this context. Either an event is only ‘an’ important factor, if it is not the predominant one, or it is ‘the’ crucial factor and thereby ‘the’ trigger. I read the hybrid as an indication of doubts.

A further aspect I would like to shed some light on is the ‘law as agent’ claim as such. I already highlighted its merits. But there also is a critical side to it. The model assumes that law itself – here: the core rule with respect to interstate violence – can be regarded as the driving force behind societal transformations. As it is, however, not only a producer of effects, but as much a product of political, economic, social, and cultural factors, treating it as the key agent risks inappropriately downplaying the self-standing role these factors have. In the ‘law as agent’ model they are ‘aggregated’ to one big cause. In The Internationalists this seems a major problem to me. For the narrative though, it is crucial as it allows focusing on the drafting history of the Pact and its protagonists. The wider context, however, that ‘triggered’ the drafting process, is to a large extent omitted.

This leads me to a point where I fundamentally disagree with Hathaway and Shapiro’s book. We cannot understand the interwar years without highlighting the impact of World War I on Western society in general. The ‘Great War’ deeply changed the perception of war: in art (Dada movement), in literature (‘All Quiet on the Western Front’ by Erich Maria Remarque), in popular culture etc. Photographs of soldiers wearing gas masks that gave them the appearance of primeval creatures irreversibly damaged the idea of warfare as heroic human activity. Bravely attacking an enemy that uses machine guns and poison gas is as futile as it is stupid. The ‘post-heroic age’ began, as the German political scientist Herfried Münkler writes, and it essentially began with this war.^{Footnote 51} In industrialised wars, as opposed to short ‘old-style wars’ of the 19th century, the enemy typically is not even visible and losses are monstrous. World War I was an immense cultural shock for Western civilisation that triggered a complex interplay of cultural, political and legal developments that led, inter alia, to the League, the failed Geneva Protocol, the Locarno Treaties, the Peace Pact and, after World War II, to the UN Charter. I see the outlawry movement as no different from other efforts to preserve peace in the first years after World War I: as expressions of this cultural change.^{Footnote 52} The ‘law as agent’ claim may be appropriate in some instances, but it is too simple in this case. Its narrow lens leads to an overstatement of the role played by those who were part of the drafting process of the Peace Pact. This too narrow lens becomes palpable when the authors write that Salmon Levinson ‘had a simple but profound idea’, namely ‘that the real disease of the world is the legality and availability of war’.^{Footnote 53} Levinson’s contribution was important, of course, but the way the story is told dramatically understates the effects of the epochal cultural transformation in Western societies. And the enabling condition for telling the story this way is the ‘law as agent’ claim.

Concept of international law: System operated by a core principle

International law can be conceptualised in many ways: as composed of loosely connected regimes (regime theory), as a hierarchic or even constitutionalised legal order (global constitutionalism), as a logically coherent system etc. And the way it is conceptualised evidently has important consequences for the role it can claim in historical narratives. A strong and homogeneous international legal order can better be installed as a self-standing agent than a fragmented international law.

The Internationalists regards international law as a ‘complete system’^{Footnote 54} whose rules ‘rise or fall together’.^{Footnote 55} The guiding idea is that it rests on a core principle – the rule concerning the lawfulness of interstate violence – that in principle shapes the rest. At least the key rules are imagined as derived from this core principle, they have a ‘necessary logical connection to one another’.^{Footnote 56} One reads, for example, that the Peace Pact ‘formed the background’ of rules and assumptions which ‘the rest of the new system operated’.^{Footnote 57} Some passages imply a very high degree of homogeneity of the system, tight connections between the centre and the periphery, whereas other formulations are weaker. What is always clear, however, is that the authors ‘think’ international law from the Archimedean point of a core rule.

The system claim is important for the narrative as a whole. It supports both the progress narrative (Element I) and the change conception (Element II). As regards the first, conceiving of international law as a coherent whole indirectly buttresses the claim of radically opposed epochs. When the law of an epoch is a ‘unit’, when it breathes the spirit of one core principle, then the law of the epoch with the opposite core principle is radically different. The conception of international law helps to describe the Old World Order as dark as possible, run by a ‘bad’ core principle, and the New World Order as the bright ‘photo negative’. The system conception also buttresses the change conception. The ‘Pact as trigger’ claim becomes more plausible when the core rule on the use of violence has the role of an operating principle of the whole legal order. The ‘international law as a system’ idea helps to make the ‘law as agent’ claim more plausible – installing the core principle in the driver’s seat.

Argument: Long-term evolution of international law

The Internationalists argues that the ‘evolution’ of international law over the course of four centuries ‘teaches’ international law’s system character.^{Footnote 58} The argument essentially is: The role of the core principle is proved by historical analysis, by the history of ideas. In the era of the Old World Order, for example, the authors find close connections between what is nowadays the law on the use of force and the law of armed conflicts or international humanitarian law. There is the right of the sovereign to wage war and the ‘complementary’ immunity of the soldier to kill enemy soldiers, both of which being manifestations of ‘a licence to kill’ as the ‘law of the world’.^{Footnote 59} The authors see a right to mass murder, ‘morally monstrous’,^{Footnote 60} at work, which is characteristic for the old ‘might makes right’ world.

The authors also highlight the connections between neutrality law and the privilege to use violence. The argument that economic sanctions by neutrals were prohibited in the Old World Order, as this protected the ‘justice of war’,^{Footnote 61} is repeated several times. Strict neutrality was in the interest of the ‘might makes right’ system, it protected against economic disruptions because of wars between other states. The intellectual authorities, to which The Internationalists refers to support the system claim, are Hugo Grotius and Hersch Lauterpacht. Grotius ‘understood’ that international law, in order to function, the authors write, ‘must form a complete system’.^{Footnote 62} The legacy of Lauterpacht was ‘nothing less than a system of rules embodying the idea that war is an illegitimate tool for establishing or enforcing legal rights’.^{Footnote 63} They elaborate on Lauterpacht’s idea to derive international law from the new core principle of outlawry of war.

The conception has the merit of highlighting many side effects of the ‘ius ad bellum’. The problem is not only this rule as such. The authors draw attention to how it poisoned other branches of international law and to what becomes possible when it is substituted by the ‘good’ core principle, outlawry of war. This impressively is illustrated when possible justifications for criminal liability of individuals before the Nuremberg Tribunal for waging aggressive wars are discussed in the book. There was no crime of aggression then, the ‘ius ad bellum’ had provided a disastrous immunity for those in power. If the core rule is read, however, ‘like a constitutional principle’, as Lauterpacht suggested, then outlawry of war could be understood as a removal of the legal protection that aggressors enjoyed when there was a ‘right to wage war’.^{Footnote 64} The system conception opens up space for constructive new solutions to problems where no appropriate rule is available.

Critical topics: Contradictions and complementarities

The system claim’s Achilles’ heel is international law’s heterogeneity. Formulas like ‘licence to kill’ or ‘might makes right’ imply a homogeneity international law never had and most likely never will have. The law of armed conflict, for example, always was to a considerable extent a bundle of rules to minimise the damage resulting from the ‘right to wage war’. Increase of the law of armed conflict meant more constraints on warfare; it acted as a certain counterweight to the ‘ius ad bellum’ and had multi-purpose character. The ‘system claim’, however, downplays contradictions, internal tensions, and logical deficiencies. Analogous considerations apply to the way neutrality law and neutrality are discussed. The authors consequently look at them in light of the obstacles they created to impose sanctions in the Old World Order. Their claim is that neutrality law’s prohibition on economic sanctions (the claim is debatable anyway) served the privilege to use violence. The authors suppose, however, too close ties between neutrality and the core rule.^{Footnote 65} For a number of small states it always was, more than anything else, an institution that simply helped them to survive, to avoid being dragged into conflicts between great powers. For them it was not an ‘excuse’,^{Footnote 66} as the authors write, but connected to self-preservation. From a Swiss perspective, things look different than from an American one. Economic profitability was an aspect of neutrality in the Old World Order, but rather a (critical) side effect than the essence.

The system conception also understates the persistently dominant role of particularly powerful States. Whatever the core principle is, from a sociological perspective the most powerful always had and still have a special role. International law consists both of highly developed and archaic elements or layers. If one wants to properly understand its functioning, it is crucial to be aware of this juxtaposition and partially even overlap of highly developed and archaic elements.^{Footnote 67} In international law, as in archaic legal orders, the most powerful are not only addressees of the rules, but they also have a crucial role with respect to law creation and law enforcement. The emergence of the continental shelf regime is a telling example. It became customary international law because the United States, beginning with the so-called ‘Truman Declaration’, claimed it against existing customary law. Economic stakes were high; the law was changed by its breach, notably in the era of the New World Order. The topic cannot be discussed in some length here, but my point should have been made clear. The system conception of international law – good when the core principle is good, bad when the core rule is bad – neglects persistent power realities. The intellectual authorities, to which The Internationalists refers to support the system claim, provide no help. Both depart from the premise that international law is a system. Hugo Grotius derived the system character from God’s reason and – through the ‘etiamsi’ idea – ultimately natural reason. Given God’s infinite power and reason, completeness can be assumed. One of Hersch Lauterpacht’s key ideas was that the principles of reason underlying international law provide reasonable solutions to any political problem. There is no ‘non liquet’ in his thinking after 1933.^{Footnote 68} System thinking, by its very nature, tends to downplay the connections between international law and power constellations.