The Patterns of International Politics and of International Law Author(s): Morton A. Kaplan and Nicholas deB.

Katzenbach Source: The American Political Science Review, Vol. 53, No. 3 (Sep., 1959), pp. 693-712 Published by: American Political Science Association Stable URL: http://www.jstor.org/stable/1951938 . Accessed: 17/01/2011 11:03
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THE PATTERNS OF INTERNATIONAL POLITICS INTERNATIONAL LAW*

MORTON of Chicago University

AND OF

A. KAPLAN AND NICHOLAS DEB. KATZENBACH

of interThe principalaim of this paper is to relate the normativestructure patternsof political behaviorthat have characnational law to the underlying upon the normative terizedthe modernstate system.The political constraint of the law is only one of many; thereare also economic,social, and structure among others.Nonetheless,it providesmany insightsinto ethical constraints, the changingsubstantive content of the law and also illustratesthe way in of subject matter. whichtheoryhelps to provide an understanding A systematicstudy of the structureof the internationalsociety has been models of interattempted elsewhereby one of the authors.' Two different relevanceto thepresenttopic. delineatedtherehave particular nationalsystems politics These are the "balance of power" system,a model of the international and the "loose bipolar" system,a centuries, and nineteenth of the eighteenth politics.The two models,thoughno doubt international model of present-day to demonstrateimless complex than the actual patterns of action, suffice in system structureand behavior that can be related to portant differences normativestandards. society,like the model of any kind of system, A model of the international way. In a attemptsto relate some of the system'svariables in some systematic they social system,one may look at the kinds of members,the role functions under whichtheydo so, and the conditionsnecesssary the conditions perform, to the system'sstability.
I. THE "BALANCE OF POWER" INTERNATIONAL SYSTEM

Certain strikingcharacteristicsof the "balance of power" international place, the membersof the intersystemare immediatelyevident. In the first national society are nation-states,unlike the loose bipolar system,in which and universal thereare also blocs, like NATO and the Warsaw Pact countries, organizationslike the United Nations. forits citizenIn this systemthe nation is the focus of solidarysentiments subjects. It is the protectorof the values, of the economic prospects,of the health and physical safetyof the individual. Withinit he belongsand outside of it he is an alien. But the nation itselfmust depend largely upon its own as further trueforall nation-states abilityto survive.This is not unrestrictedly will demonstrate.Yet it is a centralassumptionupon whichthe modifications participantsin the "balance of power" systemdepends. behaviorof important
Law. of International PoliticalFoundations 1 See Morton A. Kaplan, System Politics,John Wiley and and Processin International
* This article will also appear as a chapter in the authors' forthcoming book, The

Sons, 1957.

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The failureof Spain towardthe close of the period of colonial conquestshad a devastating effect upon Spain's internal life. The demise of the AustroHungarian Empire shatteredAustrian national life and threatenedAustrian viability.The recentdecline of Britain and France has an easily traced effect upon their internal societies and upon their ability to protect themselves. of Germany,in the nineteenth On the otherhand, the unification excentury, cept forthe politicalmisuseof Germanpower,turnedGermanyinto a flourishing and prosperouscountry.All Americansare aware that whether American destinywas manifestor not the policy of national expansionwas essential to the present importance and prosperityof the United States. Today the European Common Market rests upon the belief that only a new supranational organizationcan bringback past glories.But in the eighteenth and nineteenth centuries, the nation was the essentialunit. If one nation did not pursue its possible gains in the international system,anotherwould do so, to the advantage of its own citizensand probablyto the detriment of the citizens of the first. ofnationsto one anotherin such a systemmustbe competiThe relationships tive, suspicious, and primarilyinstrumental.Considerationsof interestand rule of conductforeach nation must expediencymust be paramount.The first be to seek securityfor itself.It will be ready to move fromone alliance to anotherwheneverthis providesmoresecurity. of an unexpectednature mightdisSince changes in national productivity turb the "balance," each nation will strivefora marginof securityforitself. For this reason nations will entercoalitions,partlyto gain prizes of some sort or other,such as territory, and partly resources, shippingfacilities, and so forth, to preventany othernation or combinationof them frombecomingpowerful enoughto pose a decisivethreat. Coalitions in a "balance of power" systemwill tend to become fragilewhen If too successful, theybecometoo strong. theymighteliminatedefeatednations and thus threatenthe interestsof the weaker membersof the successfulcoaliwould thenbecomeprecarious.Also, weak coalitionsmight tion,whosesecurity to a powerful nation that was not alignedwithothernations, make large offers or even to a memberofthe opposed coalition,not forgain but to protectthemselves against loss. Moreover,different issues mightgive rise to different alignof the "balance of power" international ments. Thereforeit is characteristic system that previouslyuncommittednations or even members of its own coalition swing into the "balance" against the predominantcoalition. So the Russian-British-French ententewas consolidatedby 1907, and Italy later split off fromthe Triple Alliance. of the "balance of power" interRestraintin victoryis also a characteristic national system,not necessarilyfor any reasons of altruism,but because reof the membersof the international straintprotectsthe interests society.Each strongnation has an interestin maintainingthe existenceof otherstrongnationsin orderto be confident offuture allies in case of disagreements or clashes of France afterthe defeat of Napoleon withits presentallies. The restoration

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to this need. Even the supportgiven to German was at least partlyresponsive to this aim. unification and to Italian nationalismhad some relationship The "balance of power" systemwas dependent,among other things,upon numberof large and strongnations. A system the maintenanceof a minimum unstable. It mightbe posof threesuch would probablyhave been inherently sible in a three-nation system for the nation defeated in a war to combine victor. But the with the weaker of the victoriousnations against the stronger to undo mistakesminimal.Such a riskswould be great and the opportunities on taking advantage of first, systemwould place a high premiumon striking on forming combinations,and on betrayingallies. In a threeopportunity, nation system,under conditions of conventional capabilities, turmoil and would be the rule; and the numberwould soon be reduced. strife nationspromise On the otherhand, a greaternumberoflarge and important to counterany individual alliance. Numbers of uncoma greateropportunity mittednations would be available to redressthe "balance." The opportunity to attract a memberfromone alliance to another would be relativelygreat. With a large number of great nations, there is a premiumupon delay and Whereaswiththreenations,it is betterto eliminatethe opponents moderation. to beforethey can combine against oneself,with a largernumberit is better preservethem so that they can combine with oneselfin the future.With a large numberof major nations,it is easier to finda coalitionto preventmajor change.In theFirstWorldWar, forinstance,Americaand Japan wereavailable to restorethe "balance" of Europe. Numbersgave time forthoughtand time foraction and provided the nations needed to carryout the actions. in conquerIn such a system,any nation may at some timehave an interest ing other nations. But there will be more nations-provided thereis a miniin preventing this. It interest mally large numberof them-having a contrary therefore to discover in such a system that nawould hardly be surprising normof the system,forit reflects tional "sovereignty"becomesan enforceable essentialneeds of the "balance ofpower," and is compatiblewiththe organization of domestic politics around the unifyingconcept of the nation. Each nation is an independent unit,not subject to conquest,amalgamationor other of political dominationby othernations; each nation preservesforitself forms with regard to alignments;each nation is organizedtermaximumflexibility international on the basis of existingculturegroups.Any permanent ritorially such as we have arrangements or, indeed, any joint institutional organization, today would be an unwarrantedand undesirable drag on the flexiblediplomacy that maintainspoliticalstabilityamongthe greatnationsin the "balance of power" system. The membersof the system have a joint or cooperative interestin maintainingthe system'snorms.And, althoughin one sense each is "free" to violate the norms,each has an interestin protectingthe norms fromviolationsby others. Additionalfactorstended to supportthis state of equilibrium.One we have already emphasized was nationalism. The growthof unifyingsentimentsof and coherencethat loyaltytowardthe nation gave the nation-statea strength

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otherformsof political organizationhad lacked. The strugglefornational inwith the suppressionof minorities, dependencedid not, of course,interfere as in Hungary,wherethey existedas isolated islands withina largergeographical did createa domesticinstability area. These minority problems, however, which and as a result produced affectedthe role of such nations internationally, internationalinstability;the recurrenceof the Balkan problem is the prime example. But wherenationalismwas effective domesticallyit tended to limit expansive internationalobjectives. It is implausible for politicians to preach the values of national independencefor themselveswithout according it to others.Nationalism tends to differentiate beyond the area whichit can unify, of conquest by force.Hitler's pan-Germanism increasing the difficulties had no appeal to non-Germans. One may limitnational independenceof minorities to "civilized" countries;one may accept the suppressionof minorities withina nation; one need not refineor stereotypethe qualities of the nation-stateso far as to insist upon cultural self-determination of a Wilsonian sort. But the existenceof national identityas the focal point for sentimentsof loyalty at home is bound to legitimizeit for otherson principle,and in fact to increase the problems of conquest and annexation of all save border areas of mixed cultural content,like the Sudetenland. to preservingthe "balance of power" system Anotherfactorcontributing stemmedfromthe difficulty, increased by the ideology of nationalism,ofany attemptby one nation to extend controlover another.Consider the situation at the end of the Franco-PrussianWar. Suppose that Bismarckhad desiredto establishGermanhegemonyover France, how successfulwould he have been? Even apart from directintervention by othernationson behalfofFrance, many considerations would have militatedagainst a German attemptat hegemony. Given the state of technology of the period,the answeris, it would have been forBismarck.Factoriesin the remoteprovincesof France would verydifficult have been capable of producingweapons quite comparable in firepower to those used in the Prussian Army.Garrisoning major portionsof France would have immobilized the Prussian Armyin case military problemsarose elsewhere in the worldand would have placed a great strainupon the Prussian economy. Communicationand transportation were not efficient enough to permit the central stationingof an occupation force foruse in the provinces whenever disturbancesbroke out. To occupy a colonial area was one thing; to occupy An attempt to occupy France metropolitanFrance was distinctlydifferent. would have weakenedPrussia relativeto otherpotentialenemies, permanently and a seeminglysuccessfulconquest would also have stimulated others to enmityas a consequence of fear. These factorstended to reinforce a social systemin which the nation as an independentand "sovereign" entity played a key role. Still another factor gave particularsupportto a societyof formally "equal" and "sovereign" nation-states. The "balance ofpower" systemoperatedupon the basis ofalliances interestsof the major nations. designed to adjust immediateand short-term This requireda willingness to considerany nation an acceptable role partner under appropriatecircumstances.

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Some questions handled at the Congress of Vienna become clearer when interpreted in lightof this principle.The quick acceptance of France as a full memberof the Congressafterthe defeatof Napoleon is illustrative.(This may withthe treatment of Germanyat Versailles.)But the difficulties be contrasted over the fate of Napoleon reflected a genuinedilemmaof the European statesmen of the time. If the nations had refusedto deal with Napoleon, as some a degree of interference statesmenadvocated, this would have reflected in the internalaffairsof the nation-stateinconsistent with the state system of the time.On the otherhand, the revolutionary characterof the Napoleonic system and Napoleon's refusalto limithis objectives made it virtuallyimpossibleto to short-term enterintoshort-term alliances,restricted He challenged interests. the "neutrality"of alignments and therefore the characterof the state system itself.Neutralityof alignment-a marriageof conveniencewithoutemotional involvement-is difficult in a revolutionary period when state regimesbecome unstable and when considerable foreignpopular support is available to the revolutionary nation. of the "balance of Neutralityof alignmentwas an essential characteristic power"international system;otherwise the processof forming counteralliances would have been impeded and the system would have developed rigidities making for instability.The "feud" between Germany and France after the forcedcession of Alsace-Lorraine, for example, was one of the major circumstances leading to the breakdownof the "balance of power" system and the eruptionof virtuallytotal war in 1914. If hostility betweennations could impede operationof the principleof neutralityof alignment, controlof one nation by anotherwould also frustrate the same principle.Independenceof the nation therefore was a prerequisite of this in violatsystem.And, althoughany nation mighthave an individualinterest ing thisrule or principle, in each nation had an even stronger commoninterest of all other nations. Moreover, the supportingit against the encroachments appeal to other nations to preventan encroachment would characteristically be phrasedin termsof the legitimate value of national independence.In short, this was necessarilya guidingnormwhichthe existingpolitical circumstances supported against violation and which almost automatically guaranteed the outragedresentment of nations against any violator. It was of the community therefore a key to the legal code of the international society of the late nineteenthcentury.Fear of the revolutionary characterof democracy,to be sure, coupled perhaps with a desire to maintain the old social order,did lead the Holy Alliance to proclaim a doctrine of collective interventionagainst democracy.Had the cases ofapplicationprovedhighly thislimitation exceptional, mighthave been maintained.However,in the nineteenth centuryworld,such an effort was inconsistent with more basic needs of the "balance of power" system.And this exceptionto the rule proved potentiallyso dangerousthat it was abandoned,despite the fact that the collectiveelementof the intervention was designedto minimizeits unstabilizingeffects. in the internalaffairs of anothernation characterizedthe Non-interference "balance of power" international system.The aims of war must stop shortof

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with the kind of diexcept when nations were confronted such interference whichoftencould upon minorprincipalities, lemma Napoleon posed. Influence such violationsofthe code that theyweredisguised not be avoided, represented lest the generalprinciplebe called into question. Even the troubleswithinthe And Britishand French OttomanEmpire were treatedwithrelativerestraint. in Egypt-which was not at the heart of the European world-at interference American dollar diplomacy restricted least maintained the legal formalities. and limitedobjectives. Even so, it was difficult to certaindefinite intervention to accommodatethese actions withinthe normsof the "balance of power" inof the dependentstate had to be adopted to ternationalsystemand the fiction square the circle. fairlywell At least with respectto the major nations, the facts conformed with that it interfered withthe legal norms.No nation had such predominance the internallifeof othernations in any substantialway, whetherby design or simplybecause of the immutablefact of its existenceand weightin the interupon citizensas national picture.Since most actions whichhad any influence of that state, state by the government such were settled withinthe territorial as unlimitedand indivisiblejurisdictionwas a fiction the mythof sovereignty of which did not affectits practical adequacy in exthe logical difficulties in whicheach nation had an interest plainingwhat took place; it was a fiction as an explanation and fostering. The absurdityof auto-limitation maintaining the law should not obscurethe fact that the concept reflected of international real needs which the communityof nations had in protectingthe mythof sovereignty. Now the doctrinespawned fromthe basic idea of a sovereignstate (however almost mystical,and useless for analytical or even descriptivepurfictional, poses) was realisticallymore applicable to the large states than to smaller who made or redressedthe "balance of power," ones, for it was the former whose independencewas essential to the maintenanceof the minimalnumber of states necessaryto "balance," and whose equality withinthat systemcame basis, close to accurate description-not, of course,on a one-to-one moderately but in the abilityof each to equalize the "balance." Its extensionto a number ofsmallerstates withinEurope and Latin America(afterthe Monroe Doctrine, the status quo. The at least) served essentiallythe same purposeof preserving of smaller states on terms of formalequality was not, as in the recognition related to theirutilityas militaryallies or case of the great nations,primarily even to theirdirectimpact on the political or militarycapabilities of the imtheir"sovereign"status was guaranteedby the major portantactors. In effect, alliances it was not possible nations,and fortwo reasons.In a systemofflexible to agree upon any workable or viable division of smallerEuropean countries; of acquisition by military forcewas considerablebecause of and the difficulty national cultures-it the conqueredinto different of assimilating the difficulties if otherscould be persuaded not to do so. Under was scarcelyworththe effort such circumstancesthe best common policy usually was to neutralize the doctrineapplicable to the major nationswas well smallerstates,and extending

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suited to this purpose.Statesmenof minorEuropean nationswere quite aware that their independencewas the product of a "balance" they could not directlyalter, and whichit was to theiradvantage to preserve.They could best avoid dominationby any particularnation by insistingupon their rightsas "(sovereign"entities,while, for their own part, scrupulouslyadheringto the code. The stalemate among the great nations gave the minornations considerable freedom of action so long as theyinvokedstandardswhichwereimpartial. Their interestin preserving theirindependenceand neutralitycoincided with that of the great nations,and so was convertedinto a forceforlaw and order. In Europe, at least, the "balance" was at all timessufficiently fragileto make minorstatesmen"responsible." Althoughthe "sovereignty"of these smallerstates had, as in the case of the great nations, an obvious relation to "nationalism," it had little to do with any universalizedprincipleof "self determination"-at least in Europe-until a much later period. Until Wilsonian idealism coincidedwith the break-up of the "balance" system,therewas no inconsistency acknowledgedbetween the and independenceof states and the existenceof coloniesand other sovereignty forms of "dependent" states. The hegemonyof the great nations over much of the world was simplytaken forgrantedand remainedundisturbed.Equality of rights and freedomfrom interventionwere necessities only where they affected the political positions of the great nations; principally, in therefore, Europe. Military intervention or even lesser formsof interference in the administration of other states could not be tolerated where they had a direct on military effect capability.In otherparts of the worldintervention could be tolerated, and might, indeed,be indispensableto the pursuitofotherobjectives. The great nations had no hesitationin imposingtheirsystemsof values, their cultures,and in forwarding the interestsof theirnationals, in those parts of the world where intervention was tolerable to other great nations. Colonial claimswererecognizedand conceded on a status quo basis; further intervention was tolerated and incorporatedinto the doctrineof dependent statehood to minimizethe potentiallyunfortunate feedbackof intervention as a precedent invalidatingthe general rule in areas where it was necessaryfor the general rule against intervention to apply. Doctrinewithregardto the rights and duties of "states" accordingly became a matterof defining what constituteda "state," and here therewas no reference to national self-determination as a principle. was Inevitably the definition tautological,forit included as one essential a capacity to enterinto relations with otherstates-a capacity whichdepended upon its being a "state"-that is, upon its ability to act independentlyof any of the great nations. A new state came into being only with the acquiescence of the great nations, an acquiescencewhichmightcome fromagreementamong themnot to intervene a geographical or from locationsuch that intervention by a singlenationwould be opposed forcibly by others.An analogous situationoccurredwithregardto the recognition ofnew "governments" of old "states" whenevercrownedheads fellbeforepopular revolutions. was Althoughthe'notionofpopular sovereignty

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anathema to the various governmentalelites, and there was a common interest in suppressingradical ideas, intervention constitutedan even greater danger.One could supportan existing government in variousindirectways,but such assistance had to stop short of measures which would threaten its independence. Now it is clear that a doctrineauthorizing or inhibiting forcible intervention or direct controlof the political institutions of another entity-whatever its justification-is a limitationonly upon the great nations. All states may be equally governedby the same general rule against intervention, but its bite is only against those who have the capacity to intervene.Similarlythe appeal of those intervened against must be to those who have the capacity to protect them.Small states do not interveneagainst large states,whateverthe provocation, and no rule of law is necessaryto preventit. Because the "balance of power" depended upon the large nations-and was the limit upon their independent acts-they occupied a special social position in the familyof nations.The positionof small nationsdependedupon how specific applicationsof policy affected the competitive positionof the greatnations. The greatnations were,so to speak, the informal officeholders in the "balance of power" system. They would intervene, but not be intervenedagainst. Legal normswere those which they promulgatedor acquiesced in. The special position of the great nations in establishingand enforcing international law meantthat the law establishedcould not run contrary to their felt interestsor-to the extent a pluralisticsystem permitted-to the capabilitiesto each. To say this is not to say that the normsestablishedwere incompatiblewith the interests of small nations or, indeed, with the interests of individuals who were not citizens of one of the great nations. Undoubtedly therewere advantages to being born an Englishmanjust as there are advantages to beingbornof a wealthyfamily.But the rules which the great nations promulgated at least had the meritsofformalgenerality and equality. Englishmen did not have formalprivileges internationally because theywere Englishmen, any morethan they did domesticallybecause they were rich. True, such rules mighthave the defectthat Anatole France sardonicallynoted in the law whichequally forbids richand poor alike to sleep in ditchesand underrailroad bridges.But formalequality, howeverunequal in fact,is preferable-at least to the small states-to formal inequality. Nor were the great nations, in theoryor in fact, altogetheroutside or above the rules they put forwardas bindingon all nations. They put forward as rules governing the international community what theyregardedas desirableforthe worldcommunity and what they were willingto abide by themselves-provided othersdid likewise.Like all law, it was subject to change where conditionschanged. During the nineteenthcenturythe great nations came to share a similar economic philosophy,a similarregard for the individual, similar views as to domestic politics-the principal values of a common civilization,a common legal heritage,a commonfaithin laissez-faire economics.They were quite will-

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ing to impose the essentials of this systemon the world at large whereverit touched theirinterests, or the interestsof theirnationals. Among themselves therewas little need to insist on such standards because each was committed to the belief that these principlesserved its national interest.There wasofEuropean despitesome notable exceptions-little desireto bringthe benefits civilizationto the non-European world; administration was the white man's burden.But the great European nations did desireto make the non-European worlda safe place forEuropeans to trade wherevertrade was profitable. This involvedvarious degreesofintervention in less technologically developed parts of the world:intervention to insistupon the paymentof debts,to protectone's nationals or theirproperty, standardsof to insureforone's nationalsminimum and capacity western justice. Depending on the circumstance-the willingness of local governmentsto insure these objectives-the formsof intervention varied froman ad hoclandingof troops (or the threatof a Britishgunboat) to various continuingformsof control: colonies, dominions,dependencies,protectorates,mandates, trusteeships,and so forth.Interventionwas possible onlywhereit did not affect of other to an important degreeimmediateinterests great nations-but formuch of the nineteenthcenturythis took in much of the world.Since it was almost always justifiedby economicobjectives widely shared as "right,"since in generalthe areas administered were open to all for purposes of trade on formally equal terms,and since it did not appear to enwas tolerated.Since danger the securityof othermajor nations,intervention the intervention was justifiedon principle,the law was enforced.It was enforceablebecause it did not threatenthe securityof othermajor nations and did not appear to affect theirpolitical positionsadversely. Thus, despite the conflictsbetween the great nations, in behavior that mightbe analyzed in termsof a competitivegame, these conflicts were moderated by a non-zero-sum cooperative supergame.The supergameestablished norms that bounded the play of the competitivegame. The nations of the of "balance of power" systemthus had an interest in maintaining the integrity of the the great nations; there was an interestin maintainingthe integrity nation's sovereignjurisdictionover its internalaffairs, forotherwiseit would not be a freeagent in its international would dealings.Such a lack of freedom interfere withthe neutrality of alignment necessaryforthe stable operationof the "balance of power" internationalsystem.Even nations at war with one anotherwerebound by commoninterests, fortheymightbe allies at some later date and so had an interestin behaving in ways that would leave room for such futurecooperation.At least minimalconfidence in the possibilityof that degree of futurecooperationwas required.Declarations of war, limitationsof objectives in war, and rules governing the conduct of war all played a role in maintainingthat confidence, that is, in maintaininga social structurewithin whichthe stable "balancing" of the systemcould be effected. The alternative was an unlimitedand unstable war of all against all, in whichall mightbe lost and in whichall would have to contemplateprecariousand dangerousfutures.

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For reasons which cannot be discussed in full here the "balance of power" internationalsystemfell into unstable equilibriumtoward the latter part of centuryand was replaced by the loose bipolar systemafterthe the nineteenth Second World War. Perhaps one of the most importantevents making the old system unstable was the cession of Alsace-Lorraine after the Francoproducedby this event of national sentiment Prussian War. The inflammation made it impossibleduringthe next eightyyears forFrance and Germanyto witheach other.Hostilityand suspicionbetweenthe two enterinto alignment of strongalliances directedagainst each other. nations induced the formation But these alliances necessarilywere somewhatrigid,forthe almost automatic of the old systemwas precludedby the "balancing" and "counter-balancing" Franco-Germanhostility. the other as a As a consequence,the interestof eitherparty in preserving its objectivesin war was also vitiated. The mechamajor nation or of limiting nisms makingforequilibriumthus were gravelyweakened. The range of speof the Hague triand the establishment cial treaties,arbitrationagreements, bunal may be viewed as vague responsesto the need for some other sort of mediatorymechanismto protectthe interestsof the nations. In the absence of nations,treatiesand special agencies were designedto of the self-movement of alignments. role of the shifting fillthe old international Afterthe First World War, the League of Nations was broughtinto beingas a more generalizedremedy. This developmentwas in itself evidence of the system. and rapid declineof "balance of power" international rigidity growing of Wilsonianidealism,the In the eyes of its sponsorsand under the influence League ofNations was viewed as a break withthe "power politics" of the past. Collective securitywas to replace the insecurityof the system of national of national policy. But alliances. War was not yet renouncedas an instrument the old diplomacy,condemnedas insidious because it was secret and selfish because it was generatedby a class-bounddiplomaticservice,was renounced. National self-determination was the orderof the day and everynation was to be the legal equal of everyothernation. The dynamicforceforpeace was to be of the freecitizensof independentnationfoundin the democraticsentiments states, whose interestswere harmoniousand whose energiesfor constructive peace would be mobilized by national independenceand democraticpolitical processes. view ofthe world.France Not all nationssubscribedto thisnew and fanciful guaranteesfromEngland and the United States and, soughtvainly forsecurity an ineffective cordon sanitairearound the defeated in desperation,constructed collectivesecurityvia the proReich. This was not to be. Attemptsto enforce jected Geneva Protocols were transmutedinto the ambiguous Locarno Pact. conThe 1920s saw a ridiculousand possiblydisastrousseriesof disarmament ventions,while eventuallythe United States sank its fleetand agreed to naval that made little sense fromthe standpointof security.Meanwhile limitations

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efforts to outlaw war eventuatedin the suprememonument to human futility, the Kellogg-BriandPact. If the efforts following the First World War to compensateforthe rigidities of the dying "balance of power" systemrespondedto a genuine need of the international community, the means employedwere in utterconflict with the requirements of the situation. If the system of alliances beforethe war was rigidand therefore made it difficult to preventany war frombecominga war to the finish, it at least encouragedeffective action. The weaknessof collective security, however,lay in its fatal tendencyto fragment the oppositionto an expandingnation. It placed an emphasis on collectiveaction withina formal organizationwhen it was to the advantage of some not to act at all and of othersto replyupon still othersto act forthem.Unlike the situationin Korea in 1950, when the United States felt obliged to act since no othernation had the capability,the relativeequality of the great nationsin the interwar period foreclosed the fixing ofresponsibility upon a singlegreatnation. In the absence of an alliance that assumed responsibility automatically,therefore, every nain tion looked to some othernation to act. In the absence of formalagreement advance, it was difficult to arrangeeffective action when troublebrokeout. In the absence of clearlydelineated aims clearlyrelated to the national interest, the reasons for procrastination seemed strongerthan the reasons for action. And collectivesecurityturnedinto collectiveinsecurity. The complete rosterof disappointments does not need to be called; it includesEthiopia, theRhineland,Manchuria,Austria, theSudetenland,and so on. If the failureof the League cannotjustly be ascribedto a singlecause, it would neverthelessbe a serious mistake to underestimatethe degree to which the fromthe collectivesecuritysystemwas decisive. But fragmentation resulting otherfactorsalso enteredin. The refusalof Britain and France, until too late, to cooperatewiththe Soviet Union (assumingthe Russians would have moved) was a freshviolation of a cardinal rule of the "balance of power" system, of alignment.The failureof French and Britishleaders to namely,neutrality recognizethe need to move against expansive nations was an element.And so did the pacifismwhich regardedwar as an inherentevil and alliances as the preludeto war. The actions of the BritishLabour Party in callingfora halt to Nazi aggressionat the same time that its membersopposed increased arms the curiousschizophreniaof the period. budgetsin Commonsillustrates The transitionfromthe "balance of power" to the loose bipolar system, fromthe First World War to the close of World War II, did not produce any variationswith reasonable prospectsforstability.Nor did the period produce standardsof international law whichhad reasonable prospectsforacceptance. The instabilityand transitionalcharacterof the international social structure in the period were directlyresponsibleforthe confusion and instabilityin the standardsoflaw. No law withoutsupport;no supportwithouta social structure withinnations too, that can provide support. But law is usually ineffective duringperiodsofrapid and revolutionary change.Law, by its verynature,con-

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serves the values of a going or past social system.And when the values are in transition, themselves the systemof law gives way to political or quasi-legal activity. RevolutionaryCommunisttribunalswere the product of the effort to build a new social system,not the conservators of an existingsocial system. What was legal in Hungary duringOctober 1956? The answernecessarilydepended on who won. But, even so, both sides foundit difficult ifnot impossible ofany establishedsystemoflaw. When the direction to abide by the procedures of change is visible one may at least hope to discoverthe seed of the new law in the innovationsof the legal process. But when the transitionsfluctuatein several directions in rapid succession,orderappears lacking. Thus the period from1870 to 1945, with briefinterludes,was a period in whichconflicting standardsoflaw wereassertedby nationswhichacted within a changingand transitory social structure.There was inconsistency between withinregions,at least with respect geographicregionsand lack of regularity to the moreimportant law. Some of the norms politicalaspects ofinternational that depended upon economicvalues faredbetter.But it cannot be said that the periodoftransition came to an end withthe conclusionofthe Second World of international War in 1945. The structure action stilllacked the consistency which permits,if it does not guarantee,social stability. Many of the beliefs and activities of the time were founded on premisesdivorced frompolitical realityand therefore divorcedfromthe means wherebylegal normsgain supof nations. port fromthe community For example, the Nurembergtrials could only be justifiedon the assumption that the use of forceforaggressivepurposeswas reallyoutlawed; that the nations of the world had no conflicting interestsof a scope great enough to preventagreementupon a standard outlawingaggressivewar, and that sufficient consensus existed to make the trials of aggressiveleaders an objective processnot merelydependentupon the wills of the victoriousparties. The old concept of "just" wars had been rejected in the age of the modern nation-state,beginningwith the Renaissance, precisely because it was inlimitationof war. Afterthe Thirty Years' War compatiblewith the effective the nations of the seventeenthcenturystate systemwanted to regulate the conduct and conclusionof wars; they therefore to judge the gave up the effort justness of wars, an effort that would have interfered with more important goals. Given the difficulties of gettingwarring parties to agree who had a just with the limitation motive,the attemptto impose such a standard interfered and regulationof the war process.Each nation assertedthe justice of its cause and insisted on its right to use the means necessary to bring the war to a favorableconclusion.The "balance of power" systemrequiredforits stability standardsindependent of the justice of a cause, and the membersof the system had an interestin endorsingsuch standards. The Nurembergtrials are incomprehensible, apart fromtheir functionin of the fascistleaders, if the ad hoc worldopinionby the punishment satisfying tribunalsemployedto hear the cases wereexpectedto function as the standard method for tryingsuch cases rather than as an expedient designed to meet

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immediateneeds; in shorttheywere comprehensible only if the reasons which led to the demise of the concept of the just war no longeroperated. To make sense, these tribunals had to representa development toward an ordered worldcommunity in whichtheuse offorce by nationalauthorities withoutsanction fromsome internationalbody was outlawed and in which effective tribunals forpunishingtransgressors were established (or alternativelya world in whichnationshad no joint or cooperativeinterests-a worldrepresented by a zero-sumgame). Such an orderedworld community did not exist,could not exist under the conditionsthen prevailing,and had not existed at the time of the offense. The United Nations representedthe effort to create such a world. The United Nations representeda concession,in the minds of its authors,to the realities of internationalpolitics. They recognized that the major military capabilitiesof the worldwould be controlledby the United States, the Soviet Union, and Great Britain. It would take militaryforce to keep the peace. Therefore, the main responsibility was given to the new superpowers to keep the peace. The United Nations rested upon the hypothesisthat the great nations would unite to keep the peace and therefore upon the corollarythat the peace was to be kept against the encroachmentsof the smaller nations whilethe defeatedfascistnationswould be preventedfromever again building military machineswithwhichthey could threatenthe peace of the world. There is much to be said forthe view that at least the European aspects of the Second World War were a directconsequence of the aggressiveand even insane ambitionsofAdolfHitler. There is somewhatless to be said forthe view that dictatorships are naturallyaggressive,and even less forthe view that the disarmament of Germanyand Japan would eliminatethe focal points of world danger. But the view that internationalconflictsof intereststem primarily fromthe psychologiesof national leaders and fromthe culturesof particular nations is a great oversimplification of the situation. of Specific conflicts interest may stem from any of the aforementioned sources.But it must be recognizedthat the international societyis, in part at least, a competitive-and not necessarily peacefullycompetitive-society. The lives of individualsand the existenceof social institutions are bound primarily to the largestunit of effective and inclusiveorganization.Withinthis organization hopes are satisfied, values fulfilled, and lives lived. Withinit loyalties are organized and to it loyalties are pledged. For most of modern times, this largest and most effectively inclusive organizationhas been the nation. The greatest danger to any nation must stem from some other nation and the greatestdeprivationmost individualscan sustain must followfromthe defeat of theirnation by an enemy nation. The United Nations was founded upon the hypothesisthat the great nations would cooperate in keeping the peace throughthe machineryof international organization.But two great nations were eliminatedby defeat and disarmament (Germanyand Japan). China had neverbeen a greatnationeffectively,whateverit may some day become under Communistrule. France had

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lost its greatnessin defeat.And a fewyears were to demonstrate the reduction of England to second-classstatus. In effect, two "superpowers"remained,the United States and the Soviet Union. But each of these two nationsconstituted the greatestpotentialdangerto the other.No substantialpolitical or economic change could occur anywherein the world without affecting their relative positions.Nor could any barrierto change be maintainedwithoutinfluencing theirrelativepositions.In short,these two nations were placed in facingpositions in perhaps the greatest conflictof interestthe world has ever known. Almost any dispute would range them on opposite sides. Yet the peace of the world was supposed to rest upon theirharmoniouscooperation.Perhaps the expansive goals of Stalin worsenedthis condition.But one must come to the conclusionthat the organizingconcept of the United Nations was hopelessly inadequate. In effect, two gravitationalpoles forworld political organizationcame into with respectto many importantprobbeing. They were in necessaryconflict lems. Moreover,othernations inevitablymust be attractedto one or another of the poles, formany would findtheirgreatestsafetyagainst the encroachments of one in the protectiveshelter of the other. It took a long time to recognizethis,forall were not as prescientas WinstonChurchillin his Fulton speech. Nor did the awakeningcome all at once; and perhaps it came at all only forextraneousor not quite relevantreasons. The storyneed only briefly be sketchedhere, for these sketchydetails are already well known. Developments in Eastern Europe led to great anger in the West. When the rebellionin Greece and the threat against Turkey appeared to endanger the strategicposition of the United States, the Truman was enunciated.A major objective ofthe Marshall Plan was to reduce doctrine the danger of Communismin WesternEurope and, in accordance with this objective, the steel capacity of Western-occupiedGermany was increased enormously. By the end of 1947, and possiblyin response,the Cominform was organized, ambitious economic plans for Poland and Czechoslovakia were organized,and, early in 1948, the coup took place in Czechoslovakia. One may view the process as one of successive responses and counter-responses. Russian controlof Eastern Europe and the war in Greece constituted a threatto the West. The Truman Doctrinelooked like a military threatto the Communistbloc and the Marshall Plan threatenedthe unity of the Communist Nations. Cominform and Czechoslovakian coup seemed to herald the threatof imminent war, althoughthereis now considerableevidence that war was the last thingStalin wanted then. It was not the threatofwar that endangered the West-at least until 1955but the attractivepowerof the Communistbloc. It was not the visible Cominform,which probably never undertookany major activity,but the organizational characterof the Communistbloc that constituted the truedanger.Once a nation joined that bloc, it would findit difficult to leave, the example of Yugoslavia to the contrarynotwithstanding. It would be attached by party that is, by the power of Moscow to intervene controls, betweencompetingna-

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tional Communistfactionsto maintain controland also by the fact that the national Communistregimewould findit difficult if not impossibleto remain in power withoutthe support of the Soviet Union. In this way the external unity of the Communistnationsis maintained. On the otherhand, if the Westernnationswere to behave as they appropriately had in the "balance of power" period,on the basis of immediateinterest, and the Communistbloc would gain a decisive inthey would be fragmented in international fluence affairs. Only a unitybased upon long-term ratherthan upon short-term advantage could suffice to maintainthe interests of the Western nations.If this unitywas purchasedby a false beliefin the threatofimminentwar, it nevertheless constituted a responseto a real need in the new loose bipolar international system. NATO, that unprecedented organizationwhich established a supranational command and joint militaryfacilitiesin peace time, a new kind of supranational organization, was the Westernresponseto the Soviet bloc. Although efforts weremade to relateNATO to the United Nations, clearlyNATO represented a break withpreviousconceptionsof the role of the United Nations in the worldcommunity. Perhaps forreasonsofpublic opinionor perhapsbecause of policy did not themselvesclearlysee the revolutionary the formulators consequences of theiractions, efforts were made to mute or to camouflageindian adequate and necessarystep to a cations of the change. But it represented of international potentiallystable structure relations. The new loose bipolar systemduringits early stages reflected the development of the new supranationalblocs. There was a sharp gravitationtoward the two poles ofinternational influence. The devastationof the worldafterthe Second World War, the economicimpoverishment of large areas of the world, the economicpower of the United States, Soviet conventionalmilitarycapabilitiesand Americanmonopolyof atomic weapons, disorganization in newly independentex-colonial areas, and the Korean War aided and affectedthis development.With economicrecoveryin WesternEurope, continuedcolonial unrest and the growthof governmentalexperiencein the new nations, the stalemate in Korea, approachingSoviet nuclear parity,and the consolidation of Communistcontrolin China, the situation achieved relative stabilityand some stressesin the opposite directionbegan to appear. The position of the nations was strengthened and the membersof the two blocs beuncommitted gan to exercisesomewhatgreaterindependencein policy.2 The normativelaw that characterizedthe "balance of power" systemcould hardly be expected to survive unchanged duringits period of instabilityand failure.The Hague tribunalsand the League of Nations had providedsufficient to patch up evidencethat the old systemwas collapsingand represented efforts the old systemand to maintainits normativerules. But it was not really posin the internal sibleto keepin theirfullness the rulesgoverning non-interference
2 This storyhas been told in detail in William Reitzel, MortonA. Kaplan, and Constance G. Coblenz, UnitedStates ForeignPolicy: 1945-1956,Washington, The Brookings Institution, 1956.

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affairs of othernations,limitations on objectives,rules governingdeclarations ofwar and practicesin occupied territory, and so forth, forthese rulesweretoo of alignment was a major chardirectly relatedto a systemin whichneutrality acteristic. These were rules for dealing with opponents who might soon be allies. Even the rules governing the treatmentof prisonersof war, so recently sanctifiedin treaty,no longer had as much support as earlier. They would stillbe observedwhennational and culturalvalues supportedthemor whenthe otherside could take measuresin reprisaland one still wanted to protectone's own nationals. But thislast reason stemmedfromexpediencyratherthan from an interest in a normativerule. These changesin international normativelaw, like the political changesthat gave rise to them,preparedthe way forthe new bipolar system.
III. THE BIPOLAR INTERNATIONAL SYSTEM

The loose bipolar internationalsystem-composed of two major blocs, a large number of uncommittednations, and a universal organizationlike the United Nations-came into being as a consequence of the events recountedin the previous section. It differed fromthe "balance of power" international systemin many importantrespectsthat have consequences forthe operation of international law. In the first place, the blocs are more than alliances; they have supranational characteristics.In the second place, the system is not stabilized by the almost automatic operationof immediateinterestthat leads to the formation of alliance and counter-alliance. In the loose bipolar system alignmentmust be on the basis of long-term interestand the blocs become of short-term stable patternsof alignmentwithinwhichconflicts interesttend to be subordinated.Since the membersof the blocs lack an interestin maintaining the independence of the members of the opposing bloc in order to maintain the possibilityof futurecombinationsor coalitions, the particular motivesforlimitationof objectives and non-interference in the internalaffairs of othernationsthat operatedin the "balance ofpower" systemdo not operate in the loose bipolar system. Indeed, apart fromthe positive motivationsto intervene, the negativefactorofthe concentration of capabilitiesin the leading membersof the blocs makes it difficult if not impossibleto refrain fromintervening. Almost any decision of the United States or the Soviet Union must have importantconsequencesforthe othermembersof theirblocs and foruncommitted nations. is especiallygreat in the modernworld. The United States Interdependence cannotship wheat to Yugoslavia withoutaffecting the Canadian wheat farmer. It cannot ship arms to Pakistan withouteffect upon the Indian budget and Indian politics.Americanaid programsaffect the internalpoliticsof the country to which they are addressed regardlessof the termsof the program.And the absence of aid also has its effects. Interference does not have to be overt, forthe knowledgethat the activitiesof a nation will affectthe judgment of the AmericanCongressin voting fundswill itselfhave an influence.There is no way to avoid this influence with the best will in the world,forno govern-

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the possible consequencesofthe loan. mentcan vote fundswithoutconsidering political freefromall "strings,"have important Even Soviet loans, technically withinthe countriesto whichthey are made. repercussions in the internalaffairs of Hungaryis brutaland in Poland Soviet intervention Does not the is obvious. But can the United States avoid all such interference? situation in Algeria necessitate effortsto influence French governmental that it is done in policy?Obviously,but thereare so many internalconstraints changesmay influence manner.And, if governmental a haltingand ineffective Interference the viabilityof NATO, can the United States remainindifferent? be as obvious as in theItalian electionsof 1948, but one eye may not ordinarily must always be alert to the effectof policy upon friendlypolitical parties withinallied bloc countries. usually occurredin colonial, In the "balance of power" system,intervention is dependent,or minorareas; in the loose bipolar systempositive intervention morelikelyto occur withinallied bloc nations than in uncommitedareas. The in reducing betweenthe two leading bloc nations will be effective competition in the ex-colonial areas, as will the proud and new nadirect intervention tionalismof these nations. The organicformsof union among the bloc nations will reduce the barriersbetween membersof the blocs and lead to greater sharingof jurisdictionwhile the most zealous guardingof the nation's "sovereignpowers" will occur withinthe new nations. The fact that the loose bipolar systemhas two blocs has a directbearingon the operation of the system. In the "balance of power" system a minimum numberof five major nations probably was necessaryfor stability. The two Neitherhas an blocs ofthe bipolar system,however,are in directcompetition. by incentiveto maintain the other. Rivalry is directand is limitedprimarily war. No "balancing" role exists in this system the horrorsof thermonuclear and therefore mediation is not a functionof the momentaryfreedomfrom of a particularnation. Nor is alignmentneutral. Communistnacommitment tend toward the Soviet bloc. CommunistChina, forinstance, tions necessarily althoughin many respectsphysicallycapable of assertingits independenceof of the Soviet Union as the Moscow, takes great pains to maintain the priority leading memberof the bloc. And withinthe freeworld thereis a natural proclivity,except among those whose memoriesof colonial controlremainactive, to associate in some way with the United States. Mediation is thus not a generalrole of all nationsof the loose bipolar system but is a specialized role. Uncommittednations are oftenable to exercisethis parties are oftenmost useful for role in the same way in whichuncommitted purposesin industrialbargaining.The process of accommodationis mediatory a difficult one. The blocs would be in considerablygreatertrouble with each otherif they did not have to appeal to uncommitted listenersor if they could not turn to such uncommitted nations to mediate a compromise.Withdrawal and painfulif not eased by froman announced positionmay be both difficult moral pressureand suasion fromindependentand neutralbystanderswho are able to invoke larger principlesas well as theirown independentjudgment.

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Sometimesthe most difficult thingis to get contending parties to talk to each other. The uncommitted nations oftenperform yeoman work here. This task may be done irresponsibly as well as responsiblyand it is possible that the greaterresponsiveness of the democraticnations to world public opinionmay yet weighheavilyand negativelyin the race forsurvival.The mediatoryfunction of the uncommittednations is nonetheless, in principleat least, an importantone forthe stabilityof the loose bipolar system. The positionof the uncommitted nationsis protectedboth by its usefulness to the blocs froma mediatorypoint of view and by the desire of each bloc to keep these areas out of the grasp of the other.Althoughthe uncommitted nations themselveslack importantmilitarycapabilities, they are oftenfor political,economic,or geographicreasons of considerableimportancein the contest betweenthe two blocs. The accession to the Soviet bloc of Southeast Asia, the Near East, or North Africawould be seriousforNATO. Anotherimportant agencywhichperforms is the United mediatory functions Nations. Removed fromits role as the keeper of peace, a role performed more adequately by the two blocs and the conditionof thermonuclear equilibrium, the United Nations can more effectively perform its two remainingroles in the loose bipolar internationalsystem,that of mediator and that of forum. In these it helps to reduce tensionbetween the blocs. It may also, under exceptional circumstances, and with the aid of the other bloc, mobilize the internationalcommunity against one bloc that threatensimmediatelyto undermine world peace. Even here it will play a supporting role to the bloc, as, in the case of Korea, the United Nations played a supporting role to that of the United States. It is in the natureof the loose bipolar systemforthe bloc to subordinatethe interestsof the United Nations to its own interests, for,in the finalanalysis, the bloc must depend upon its own political and military resourcesin orderto survive.However,it is also to the interest of a bloc to subordinatethe interests of the otherbloc to those of the United Nations, forin this fashionit can hope to mobilizesupportagainst that otherbloc. In this way it can best appeal not only to the uncommitted but also to its own bloc membersand to the citizens withinthe nations of the bloc. And the uncommitted nations,of course,have a particularlystronginterestin subordinating the interestsof both blocs to those of the United Nations, forby this means they can best compensatefor theirweakness in order to strengthen theirposition in the internationalsystem. Unlike the major nations in the "balance of power" internationalsystem, the participantsin the loose bipolar systemdo not have a uniform interestor lack of interestin fostering given principlesof international law. Instead their interestvaries with the role they occupy in the system.The uncommitted nations have the strongestinterestin maintainingthe normativerules without distinction as to role or size ofnations,forobservanceoftheserulescorresponds best with the requirementsfor their safety. So they support doctrines of non-interference, "sovereignty,"absence of force,and similarnorms.Reliance

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upon votingin the GeneralAssemblyof the United Nations forthe settlement to theirnumbersand formal votingequality. ofissues givesgreatestimportance The blocs must pay some attentionto these principlesto attractsupportfrom uncommitted nations and to be able to use them against the opposing bloc when conditionsso warrant. However, the blocs cannot safely consign their to the keepingof the General Assembly,forits votingprocesses vital interests may depend upon substantivelyirrelevantconsiderationsand its formally forthe consequencesof their equal membersdo not have to take responsibility decisions.The United States and the Soviet Union may tryto preventothers fromresortingto force but they cannot themselvesrenounce the resort to forceunder conditionsnecessaryto protecttheirvital interests.Nor can they withinanother nation. (This interalways refrainfrominternalinterference ference, except withinthe Soviet bloc, is seldomlikelyto be as directas it was duringthe Suez crisisof 1956.) For these reasons,the law of war and the right of reprisalmay not have changedas much as the authorsof the Charterof the United Nations intended. In attemptingto exemplify the relationshipbetween the structureof the international political systemand some broad and importantelementsof internationallaw, significant differences between the "balance of power" intersystemhave appeared. In national systemand the loose bipolar international in prethe "balance of power" systemeach major nation had a stronginterest in the internal politics of any ventingother major nations frominterfering was self-reinforcing because the othermembers major nation. This prescription ofthe international could always combineagainst the transgressor. community To some extent,although not completely,the norm was applied to otherindependentstates. In the loose bipolar system,on the other hand, each leading bloc member And the competitivebloc actor has an has a direct interestin interference. when applied withinthe bloc itself,as interestin permitting this interference the example of Hungary so fullydemonstrated.The withdrawalof Hungary fromthe Soviet bloc would have constituteda deadly threat to the entire satelliteempireand the loss of that empirewould have threatenedthe parity of the Soviet bloc. The very considerations which forcedSoviet intervention reUnder these circumstances operated to secure Americannon-intervention. sort to thermonuclear war made greatersense, if any, for the Soviet Union than for the United States (if we assume-perhaps incorrectly-that the Soviet Union had nuclear parity with the United States at the time) because a vital threatto the Soviet Union the loss ofthe empirewould have constituted whilethe failureto exploitthe loss fullywas not a seriousthreatto the security of the United States. For political,moraland strategic reasons,the United States cannotintervene in England or France, for instance, by means of militaryforce.It is almost to use subtlerbut not necessarilyless effecnecessarilyconstrained, therefore, of and tive measures political economic intervention. However, this permits is not military, Union to and, the intervention the Soviet since also intervene,

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it is withoutthe consequencesAmericanintervention would have had during the Hungarian uprising. Non-intervention thereforeapplies primarilyto the minor uncommitted areas ratherthan to the major areas oftheworld.And even in theuncommitted areas it is not supportedby a strongsanction but rests only upon a tenuous and relative"balance" betweenthe United States and the Soviet Union which may collapse at any moment.As a consequence, the legal values associated and those associated with "sovereignty"have less place withnon-intervention in the present internationalworld than they had under earlier conditions. Moreover, despite the strongstand of the uncommittednations in favor of these oldervalues, theirstronger objectionsto the vestigesof colonialismhave national jurisdictions. the functionof further restricting Althoughthe United Nations is still hedgingin the cases of Algeria and Cyprus, the pressuresfor are growing.With the declinein the intervention some formof extra-national and communicaimportanceof the lone nation,the miraclesof transportation to all areas ofthe world,almost tion,and the spread ofAmerican-Soviet rivalry interest.It is ironic that the everysituationis investedwith an international of the Charterwere more conservativethan the authors of the League writers of Nations Covenant in protectingthe inviolabilityof national jurisdiction. which Their "realism" has not prevailed, however,against the requirements ofinternational inevitablyflowfrom the new structure politics.Neitherwillthe restrictions against the use of forceand of reprisalhave the same importance which the Charterwriters intended.