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Title: The Future of International Law
Author: Oppenheim, L. (Lassa), 1858-1919
Language: English
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Pamphlet Series of the
Carnegie Endowment for International Peace
DIVISION OF INTERNATIONAL LAW
No. 39
THE FUTURE OF
INTERNATIONAL LAW
BY L. OPPENHEIM, LL.D.
MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW
WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE
UNIVERSITY OF CAMBRIDGE, ENGLAND
HON. MEMBER OF THE ROYAL ACADEMY OF JURISPRUDENCE IN MADRID
OXFORD: AT THE CLARENDON PRESS
London, Edinburgh, New York, Toronto, Melbourne and Bombay
HUMPHREY MILFORD
1921
PRINTED IN ENGLAND
AT THE OXFORD UNIVERSITY PRESS
INTRODUCTORY NOTE
In a note prepared in 1915 for the English edition, Professor Oppenheim
stated the circumstances under which his tractate on _The Future of
International Law_ was undertaken and published.
'This little work,' he said, 'originally written in German, was
first published in 1911, under the title _Die Zukunft des
Völkerrechts_ (Leipzig: W. Engelmann), as a contribution to the
_Festschrift_ offered to Professor Karl Binding. Events which
have since happened make it necessary to call the reader's
attention to the date of original publication.
'The translation into English has been made by Dr. John Pawley
Bate. In accordance with the wish of the author some slight
modifications of the original text were made before
translation. The numbers of the paragraphs and the marginal
summaries do not appear in the original.'
As was his wont with all his publications, Professor Oppenheim had sent
the undersigned a copy of the German text. The value of 'this little
work', as its author called it, was at once apparent, and he yielded to
the suggestion that it be put into English, in order that it might be
available to English readers in the four quarters of the globe. It was
accordingly translated, set up in type, and was on the point of
appearing, when on July 28, 1914, the then Austro-Hungarian Monarchy
declared war upon Serbia; on August 1 the then German Empire declared
war upon Russia, and two days later against France, violated the
neutrality of Luxemburg on the same day, and the neutrality of Belgium
on the night of the 3rd and 4th of August--thus beginning the series of
wars which, taken together, are commonly called the World War.
Professor Oppenheim subsequently came to the conclusion that it would be
better to withhold publication until the end of the war. It was done,
and the deposit of ratifications of the Treaty of Versailles on January
10, 1920, removed this obstacle.
It should be said, however, that Professor Oppenheim expressed doubts on
more than one occasion as to the desirability of its publication, but he
allowed himself to be persuaded that an English version might be of
service to the great and worthy cause of international law and of
international organization. Modesty was not the least of his virtues.
From time to time Professor Oppenheim has ventured into the same field.
In 1918, in the performance of his duty 'to lay down such rules and
suggest such measures as may tend to diminish the evils of war and
finally to extinguish war between nations', he delivered three lectures
on _The League of Nations and its Problems_, as holder of the Chair of
International Law, founded by Dr. Whewell in the University of
Cambridge. As in _The Future of International Law_, so in the lectures,
he started from the Hague Conferences and made the work of The Hague the
foundation upon which he would base any scheme of international
organization. The epigraph which he put upon the title-page, _Festina
Lente_, indicated the spirit in which he approached his task and the
advice which he felt called upon to give to the most casual of his
readers. In the lectures he took a step in advance--or backward,
according to the point of view--advocating that all members of a league
of nations should 'agree to unite their economic, military, and naval
forces against any one or more States which resort to arms without
submitting their disputes to International Courts of Justice or
International Councils of Conciliation'.
In the course of 1919, and after the signature of the Treaty of
Versailles on June 28 of that year, Professor Oppenheim contributed to
the _Revue générale de droit international public_ an article in French
on _The Essential Character of the League of Nations_. And what may be
considered as his final views on the subject are contained in the third
edition of his _Treatise on International Law_ (vol. i, pp. 264-310),
the first volume of which appeared in 1920. Professor Oppenheim accepted
the League of Nations, but his eyes were open to its defects as well as
to its merits.
The partisans of the present League of Nations will prefer Professor
Oppenheim's later views, as expressed in his lectures and in the
_Treatise on International Law_. The opponents of the present League of
Nations will prefer his earlier views, contained in the present
publication. The future will decide which are the more acceptable.
At the Oxford session of the Institute of International Law, held a year
to the month before the outbreak of the World War, it was the custom of
its members to pass the evenings together in informal discussion of
their chosen subject. On one occasion the discussion assumed the form of
a dialogue between Professor Oppenheim on the one hand and Mr. Elihu
Root on the other. At an unusually late hour the company broke up, and
Mr. Root, putting out his hand to Professor Oppenheim, said, 'Bon soir,
cher Maître'.
James Brown Scott,
_Director of the Division of International Law_.
WASHINGTON, D.C.
_February 28, 1921._
CONTENTS
INTRODUCTION
PAGE
1. International law in the past 1
2. No international law in antiquity 1
3. How the conception of a family of nations arose 2
4. The law of nature as the basis of the law of nations 2
5. Positive international law 4
6. International legislation initiated by the Congress of
Vienna 4
7. International Administrative Union 5
8. Legislation of the Peace Conferences and of the Naval
Conference of London 5
9. The Permanent Court of Arbitration and other international
courts 6
10. The Hague Peace Conferences as a permanent institution 6
11. Uncertainty as to the fate of the Declaration of London
and of some of the Hague Conventions 7
12. The task of the future 7
CHAPTER I
THE ORGANIZATION OF THE SOCIETY OF STATES
13. Is the law of nations an anarchic law? 9
14. All law is order 9
15. The family of nations is a society ruled by law although
it does not as yet possess special organs 10
16. Not necessary that the family of nations should remain
an unorganized society 11
17. The pacificist ideal of an organization of the family of
nations 11
18. The world-state is not desirable 12
19. The world-state would not exclude war 13
20. War may gradually disappear without a world-state 14
21. Importance of pacificism 15
22. Impossible for the family of nations to organize itself
on the model of the state 16
23. Impossible to draft a plan for the complete organization
of the family of nations 16
24. The Permanent Court of Arbitration the nucleus of the
future organization of the family of nations 17
25. The Hague Peace Conferences as organs of the family of
nations 17
26. Outlines of a constitution of the family of nations 18
27. The proposed constitution leaves state-sovereignty intact 20
28. The equality of states 20
29. Absence of any executive power 21
CHAPTER II
INTERNATIONAL LEGISLATION
30. Quasi-legislation within the domain of international law 23
31. Hague Peace Conferences as an organ for international
legislation 24
32. Difficulties in the way of international legislation. The
language question 25
33. The opposing interests of the several states 25
34. Contrasted methods of drafting 25
35. These difficulties distinct from those due to
carelessness. Article 23 (_h_) of the Hague
Regulations of land war is an example 27
36. The German and the English interpretation of
Article 23 (_h_) 27
37. Davis's interpretation of Article 23 (_h_) 28
38. Impossible to reconcile the divergent views about
Article 23 (_h_) 29
39. Difficulties due to the fact that international law
cannot be made by a majority vote, or repealed save by
a unanimous vote. A way out found in the difference
between universal and general international law 30
40. International laws which are limited in point of time 31
41. International legislation no longer to be left to mere
chance 33
42. The Declaration of London thoroughly prepared beforehand 34
43. The preparation of the Declaration a pattern for future
international legislation 34
44. Intentionally incomplete and fragmentary laws 35
45. Interpretation of international statutes 35
46. International differences as regards interpretation 36
47. Different nations have different canons of interpretation 37
48. Controverted interpretation of the Declaration of London
an example 37
49. Some proposals for the avoidance of difficulties in
interpretation 39
CHAPTER III
INTERNATIONAL ADMINISTRATION OF JUSTICE
50. Law can exist without official administration 41
51. The Hague Court of Arbitration as a permanent institution 41
52. The proposed International Prize Court and Court of
Arbitral Justice 42
53. Does the constitution of the International Prize Court
violate the principle of the equality of states? 43
54. Does the International Prize Court restrict the sovereignty
of the several states? 43
55. Would the formation of an international Prize Court of
Appeal infringe the sovereignty of the several states? 44
56. The powers of the International Prize Court do not curtail
state-sovereignty 45
57. Difference between international courts of arbitration and
real international courts of justice 46
58. Fundamentals of arbitration in contradistinction to
administration of justice by a court 47
59. Opposition to a real international court 48
60. A real international court does not endanger the
peaceable settlement of disputes 49
61. Composition of an international court 50
62. International courts of appeal a necessity 51
63. Are international courts valueless if states are not bound
to submit their disputes to them? 52
64. What is to be done if a state refuses to accept the
decision of an international court? 54
65. Executive power not necessary for an international court 54
66. Right of intervention by third states and war as _ultima
ratio_ 55
CHAPTER IV
THE SCIENCE OF INTERNATIONAL LAW
67. New tasks for the science of international law 56
68. The science of international law must become positive 56
69. The science of international law must be impartial 58
70. The science of international law must free itself from the
tyranny of phrases 58
71. The meaning of '_Kriegsräson geht vor Kriegsmanier_' 59
72. The doctrine of Rousseau concerning war 60
73. The science of international law must become
international 63
74. Necessary to consult foreign literature on
international law 63
75. Necessary to understand foreign juristic methods 64
CONCLUSION
76. The aims defended are not Utopian 66
77. Obstacles to progress 67
INTRODUCTION
[Sidenote: International law in the past.]
1. He who would portray the future of international law must first of
all be exact in his attitude towards its past and present. International
law as the law of the international community of states, such as is the
present-day conception of it, is of comparatively modern origin. Science
dutifully traces it back to Hugo Grotius as its father. In his immortal
work on the _Law of War and of Peace_ he, with masterly touch, focalizes
(as it were) all the tendencies which asserted themselves during the
latter half of the middle ages into a law between independent states, in
such sort that all subsequent development goes back to him. Undoubtedly
the roots of this law reach back into the remotest past of civilization,
for independent states, nay, independent tribes too, cannot have more or
less frequent dealings with each other without developing definite forms
therefor. And so the immunity which must everywhere be conceded to
ambassadors and heralds will probably be the oldest root of
international law.
[Sidenote: No international law in antiquity.]
2. But all attempts to find in the ancient world a law of the same kind
as modern international law must inevitably come to grief on the fact
that the idea of a community of law between civilized states was
entirely foreign to antiquity, and only begins to make its gradual
appearance in the last third of the middle ages. The Jewish ideal of
perpetual peace and the union of all mankind under _One_ God, foreseen
in prophetic vision by Isaiah (ii. 2-4), may be taken as the first
formulation of pacificist doctrine, which of course implies a community
of law between all states, but the prophet does not apprehend this
community of law as an independent idea. This idea was likewise unknown
in its generality to Greek civilization, although certainly looming
before it with some clearness in the international relations of the
Greek city-states one to another. But even if we may speak of a law
resembling in many respects modern international law as prevailing
between the states of ancient Greece, this law must nevertheless be
limited to Greek states, foreign states and peoples standing outside
this community of law as barbarians. On the other hand, Roman law
possessed, it is true, a mass of legal rules for the intercourse between
the Roman Empire and all foreign states, but these rules were _Roman_
law and not rules of an international law such as postulates an
international community of law.
[Sidenote: How the conception of a family of nations arose.]
3. The idea of an international community of law could not have obtained
acceptance before a time when there existed a number of completely
independent states, internally akin in virtue of a community of
intensive civilization and continually brought into contact with one
another by a lively intercourse. It was in this way that an
international community of law was begotten at the end of the middle
ages out of Christian civilization and mutual intercourse. Grotius and
his forerunners would not have been able to create international law,
had not the conception of a community of law between Christian states
enjoyed a general recognition, and had not international intercourse
before their day evolved already a large number of rules of intercourse,
which were based on custom and in part on very ancient usages.
[Sidenote: The law of nature as the basis of the law of nations.]
4. A theoretical basis for the erection of a system of international law
was provided by the law of nature. This likewise is duteously traced
back by science to Grotius, although in this department also he stands
on the shoulders of his predecessors. The riddle, how it was possible to
find a foundation for international law (as also for constitutional law
and other branches of law) in the law of nature, which itself reposed
upon so unstable a basis, is easy of solution for those who contemplate
the historical development of all law with minds clear from prejudice.
The contention of the historical school that all law springs up
'naturally', like language, is chimerical. Wherever a demand for law and
order imperiously asserts itself, rules of law arise there. Every epoch
of history produces alike that mode of legal development which it needs
and that theoretical basis therefor which corresponds to its own
interpretation of the nature of things. Accordingly the growth of law is
everywhere dependent on, or at least influenced by, a conscious or
unconscious creation of law. Custom, usage, habit, religion, morality,
the nature of the thing, tradition, reason, the examples of single
individuals, and many other factors, contribute the material out of
which the requisite rules of law are built up. Where a strong central
authority busies itself, year in year out, with legislation, expressly
enacted law naturally takes the foremost place, and customary law makes
itself felt to a less and less degree. But where such a strong central
authority does not exist or does not busy itself with continuous
legislation, then the above-named factors exercise a more direct
influence upon the development of law, should there arise in actual life
an imperious demand for definite rules of law. The theory of natural law
was only the mirror held up by legal philosophy, in which the rays
emitted by these factors were focused into a homogeneous image.
[Sidenote: Positive international law.]
5. That, by the side of his international law, with its basis in natural
law, there was also a positive international law, was not unrecognized
by Grotius, but his purpose was merely to depict a system of
international law which should compel universal observance irrespective
of time and nation. And shortly after Grotius, Zouche and his followers
did indeed attempt, in opposition to him, to formulate just such a
positive international law, but it could not win for itself, at any rate
in the seventeenth century, any great recognition; development was
overshadowed by the system of Grotius, and many of his rules of natural
law gradually obtained recognition in practice as customary law. But the
increasing intercourse of states in the eighteenth century called forth
a more positive school of international jurists, and the works of
Bynkershoek, Moser, and Martens fertilized the soil on which in the
nineteenth century there could gradually grow a really positive theory
of international law, even if the scales which betoken its past
connexion with natural law still adhere to the international law of
to-day.
[Sidenote: International legislation initiated by the Congress of
Vienna.]
6. A positive theory of international law was demanded by the fact that
in the first quarter of the nineteenth century, with the Final Act of
the Congress of Vienna, the quasi-legislative activity of international
conventions asserted itself for the first time. From then onwards,
general international law was frequently evolved by means of an
international convention. It was in this way that the permanent
neutralization of Switzerland, Belgium, and Luxemburg was effected, the
navigation of the so-called international rivers in Europe declared
free, the slave-trade abolished, the grades of diplomatic agents
regulated, privateering abolished, the necessity of effectiveness in a
blockade recognized, the principle 'free ships, free goods' finally
established, neutral goods on enemy ships declared free, rules provided
in the interest of those wounded in battle, explosive bullets under the
weight of 400 grammes forbidden, the Suez Canal neutralized, and so
forth.
[Sidenote: International Administrative Union.]
7. Another fact of great importance is the endeavour, which first
manifested itself in the World Postal Union of 1874, to carry out the
international administration of common interests, economic and other, by
means of more or less general international unions. In this way a series
of international administrative unions, often conjoined with special
international boards, have been called into existence.
[Sidenote: Legislation of the Peace Conferences and of the Naval
Conference of London.]
8. With the end of the nineteenth and the first decade of the twentieth
century, in which occur the first and second Peace Conferences at The
Hague and the Naval Conference of London, the development of
international law enters upon a new and pregnant epoch. If hitherto,
despite the momentous law-making treaties of the nineteenth century,
international law was essentially a book-law, a system erected by
greater or smaller authorities on the foundations of state practice and
in its details often uncertain and contested, it is now subjected more
and more, and in a wide domain, to the legislating influence of
law-making international conventions. To mention only the principal
matters: A code has been issued which, full of lacunae as it is,
nevertheless encompasses the whole area of land war; it has been laid
down that war shall only be begun by a declaration of war; the
employment of force for the recovery of contract-debts has been
forbidden; the rights and duties of neutrals in land war and naval war,
the treatment of enemy merchant vessels at the outbreak of hostilities,
and the conditions of the conversion of merchant vessels into men-of-war
have been legislatively fixed; rules concerning the laying of submarine
mines, concerning bombardment by naval forces in time of war, concerning
the application of the principles of the Geneva Convention to naval
warfare, concerning certain limitations on the right of prize in naval
warfare have been agreed on; many states have concurred in a prohibition
of the discharge of explosive missiles from air-ships; and a code of the
rules of naval warfare, so far as it touches the trade of neutrals,
dealing with the topics of blockade, contraband of war, unneutral
service, destruction of neutral prizes, sale of enemy merchantmen to
neutrals, enemy property, convoy and so forth, has been agreed on,
though still unratified.
[Sidenote: The Permanent Court of Arbitration and other international
courts.]
9. It is noteworthy that the first Hague Conference established a
permanent international arbitral tribunal and that the second Hague
Conference decided on the establishment of an International Prize Court
and produced a plan for a standing international court at The Hague.
Hitherto there have been no international courts for the decision of
disputes, and if contending powers have been ready to refer their
disputes to arbitration, they have always first had to form an arbitral
tribunal; but now there is in existence an actual International Court of
Arbitration, and other international courts are in contemplation.
[Sidenote: The Hague Peace Conferences as a permanent institution.]
10. Lastly, it is noteworthy that in the Final Act of the second Hague
Conference a recommendation was expressed that the powers should call a
third Conference in the year 1915, and two years before its meeting
should appoint a preparatory committee, entrusted, among other things,
with the task of proposing a system of organization and procedure for
the coming Conference. This recommendation gives the first impetus
towards making the Hague Conferences a permanent institution and so
ensuring their periodic assembly without the need of initiative on the
part of some one power or another.
[Sidenote: Uncertainty as to the fate of the Declaration of London and
of some of the Hague Conventions.]
11. Neither all the results of the second Hague Peace Conference nor
those of the London Naval Conference are as yet assured, for the
Declaration of London has not yet been ratified, and so the fate of the
International Prize Court is still involved in doubt. The fate of some
of the numerous conventions of the second Hague Conference is still in
similar doubt, and many of those conventions which have been ratified
present only a fragmentary and provisional settlement of their
respective topics. Whatever may be the fate of these agreements which
are still in suspense, this much is certain, that international
legislation, international administration of justice, and international
organization occupy the foreground of affairs, have already been in part
established, and must be in ever-increasing requisition by the present
and the coming generation.
[Sidenote: The task of the future.]
12. If in the following pages I undertake the discussion of these three
weighty matters, it is entirely foreign to my purpose to peer into the
future with the eyes of prophecy or to busy my fancy with building
castles in the air. What I propose is only to place in clear light the
problems which are now coming into view and to furnish some indications
which may contribute to their successful solution. If it is only to
happy accident that we owe the assembling of the Peace Conferences, and
likewise the issues of the same, we must all the more attempt in the
future to assure success by dint of careful deliberation, systematic
preparation, and a purposeful consideration of the problems which press
for attention. And the science of international law must bethink itself
and devote itself, with a more exact method than has hitherto been
usual, to the elaboration of the results of past and future Conferences
and to the incorporation of them in its system.
CHAPTER I
THE ORGANIZATION OF THE SOCIETY OF STATES
[Sidenote: Is the law of nations an anarchic law?]
13. International legislation and administration presuppose the
existence of law and order within the society of states, and this latter
topic must therefore be treated before the former. International law has
been called 'anarchic law' on the ground that hitherto the society of
states has not been organized and that it must ever remain unorganized
on account of the complete sovereignty of its members. It seems to me
that this position is untenable. The idea of anarchy forms a contrast to
that of law. Law can as little be anarchic as anarchy can be an
institute of law. The conception of the one excludes the other. He who
cannot conceive of law apart from a superior power enforcing it on its
subjects, may perhaps call the international society of states anarchic,
but then he will also have to contest the existence of an international
law, and, logically, he should also deny the possibility of the
existence of an international society.
[Sidenote: All law is order.]
14. He, however, who identifies law and order, and who, whenever he
finds in any society rules making their appearance which are conceived
as compulsory for the conduct of its members, speaks of law--in contrast
to morality, the observance of which is left to the conscience of the
members--will also be able to speak of law in a society where there is
no relation of superior and subject, provided only that the relation
between the members is regulated in an ordered manner. That the
international society of states is orderly regulated after this wise
will be denied by no one who looks at it without prejudice, and who
does not confuse order in a society with order of such a kind as is
maintained by special organs of the society in question.
[Sidenote: The family of nations is a society ruled by law although it
does not as yet possess special organs.]
15. The admission that hitherto the international society of states has
not possessed any special organs, is not an admission that it has not
been an ordered society. Quite the contrary is the case, for numerous
rules may be pointed to which show that that society is an ordered one.
There are the rules which relate to the independence of each state of
all other states, to the equality of all states, to their supremacy both
personal and territorial, and to their responsibility; and in addition
there are those rules which, exceptionally, allow, or at any rate
excuse, certain inroads on the legal sphere of other states. And the
admission that hitherto this society has possessed no permanent special
organs is not an admission that no ways and means are available for the
maintenance of existing order and for the formation of more
thoroughgoing order, and for the development of a quasi-legislative and
administrative activity. Here, too, quite the contrary is the case.
Every state has possessed and possesses numerous organs for its
international relations, these relations are governed by international
conventions and international custom, and numerous congresses and
conferences assemble from time to time, when it is a question of making
international arrangements of a more general character. In this way it
has been possible, even without permanent organs of the international
society, to increase and multiply the rules of the law of this society.
It does not follow, however, that this society would not attain its aims
better than in the past, if it were able to convert itself from an
unorganized into an organized society.
[Sidenote: Not necessary that the family of nations should remain an
unorganized society.]
16. The assertion that, because of the unlimited sovereignty of its
members, the family of nations must remain for all time an unorganized
society, either has in view the organization of international society
_on the model of a state_, or is founded on an untenable conception of
the idea of sovereignty. If the compression of the whole world into the
form of a single state were attained, the states of the day would
certainly lose their sovereignty and be degraded into provinces. On the
other hand, however, the sovereignty of the members of the international
society just as little excludes its organization as the fact of the
existence of this society excludes the sovereignty of its members.
Sovereignty as the highest earthly authority, which owes allegiance to
no other power, does not exclude the possibility that the sovereign
should subject himself to a self-imposed order, so long as this order
does not place him under any higher earthly power. All members of the
international society thus subject themselves in point of fact to the
law of nations without suffering the least diminution of their
sovereignty. But of course, for him to whom sovereignty is equivalent to
unrestrained power and unlimited arbitrariness of conduct, there cannot
be any international law at all, any more than any constitutional law,
seeing that international and constitutional law are opposed to absolute
arbitrariness, even though they recognize that a sovereign state is the
highest earthly authority.
[Sidenote: The pacificist ideal of an organization of the family of
nations.]
17. Hitherto, the demand for an organization of the international
society has always issued from the pacificist party, in order to render
the suppression of war possible. In the struggle round the pacificist
ideal the chief objection has always been the absence of any judicial
authority over states, and of any supreme executive power, able to
compel, in a dispute between states, the execution of a judicial decree.
Accordingly it has been the aim of the pacificists to obtain an
organization of the international society, such as would compress the
whole world, or at least whole parts of the world, such as Europe and
America, into the form of a federal state or a system of confederated
states. The belief is that only in this way can war be got rid of as a
mode of settling disputes between states, and thereby the
ever-increasing demands of naval and military budgets be avoided.
[Sidenote: The world-state is not desirable.]
18. Whatever else can be urged against a universal federal state and the
like, it is at the present day no longer a physical impossibility.
Distance has been so conquered by the telegraph, the railway, and the
steamboat, that in fact the annual assembly of a world-parliament would
be no impossibility, and in any case a world-government, wherever its
seat might be, would be able to secure almost immediate obedience to its
behests in the uttermost parts of the earth. There is, indeed, only a
quantitative and not a qualitative difference between a command issued
by the British government in London to the remotest part of India or
Africa, and such a command as, in a federal state comprising the whole
world, would issue to the remotest part of the earth from the central
government. Moreover, the ever-increasing international intercourse and
its results--the expression 'internationalism', to denote this, is found
to-day in all languages--has brought the populations of the various
states so near to one another, and has so closely interwoven their
interests, that on this ground also the theoretical possibility of
erecting and maintaining a world-state of the federal type cannot be
denied. But its theoretical and physical possibility prove absolutely
nothing as regards its utility and desirability. In spite of all my
sympathy with the efforts of my idealistic pacificist friends, it is my
firm conviction that the world-state is in no form practically useful or
desirable, for it would bring death instead of life. So far as we can
foresee, the development of mankind is inseparably bound up with the
national development of the different peoples and states. In these
conditions variety brings life, but unity brings death. Just as the
freedom and competition of individuals is needed for the healthy
progress of mankind, so also is the independence and rivalry of the
various nations. A people that is split up into different states may
attain its national development better in a federal state than in a
unitary state, and smaller nations and fragments of nations may (let us
admit) develop better when combined into one state which has grown up
historically out of several nationalities, than each would do in a state
of its own, but the rule nevertheless remains, that strong nations can
develop successfully only in an entirely independent and self-supported
state of their own.
[Sidenote: The world-state would not exclude war.]
19. Further, it is by no means sure that war would necessarily disappear
from a world-state. The example of the duel is instructive here.
Although forbidden in all civilized states and threatened with
penalties, it--certain states excepted--continues to flourish.
Enactments being impotent where the public sentiment of the dominant
class refuses them any moral recognition, the duel will not disappear so
long as the moral attitude of the circles concerned demands it as a
protection for personal honour. And the _Sonderbund_ war of 1847 in
Switzerland, the American war of secession from 1861 to 1865, and the
Austro-Prussian war of 1866 within the German _Bund_, show that
organization into a confederation of states or into a federal state does
not necessarily banish war.
[Sidenote: War may gradually disappear without a world-state.]
20. On the other hand, the gradual disappearance of war, which certainly
is a correct ideal, is to be hoped for and expected quite apart from any
development of a world-state, even if neither to-day nor to-morrow can
be contemplated for the complete realization of this ideal. Many states
have already entered into numerous agreements with other individual
states to refer to arbitration disputed questions of law and questions
about the interpretation of treaties, so far as these disputed questions
do not touch the vital interests, independence, or honour of the
parties. It is here that further development must begin. The man who is
not a victim to prejudice asks the reasonable question, why should vital
interests and the independence and honour of states necessarily be
withdrawn from the domain of judicial decision? If individuals in a
state submit themselves to the judge's sentence, even when their vital
interests, their honour, their economic independence, aye, and their
physical existence are in issue, why should it be impossible for states
to do the same? If only we succeeded in the clear enunciation of legal
rules for all international relations; if only we could succeed in
finding independent and unbiased men to whose judgment a state could
confidently submit its cause; if only we could succeed in bringing such
men together in an independent international court--there would then be
no reason why the great majority of states should not follow the example
of the very small minority which has already agreed to settle all
possible disputes by means of arbitration. The objection that a state
could not submit its honour, for example, to the sentence of a judge is
as little entitled to recognition as is the claim, made by those
dominant classes which in many states glorify the duel, that men of
honour could not settle an affair of their honour by means of a judge's
decree. As long as public sentiment concerning international relations
remains rooted in its present position, it must be confessed that there
can be no talk of any progress, just as the duel also will not disappear
as long as there is no success in bringing about a change of moral
attitude on the part of the classes concerned. But by degrees obsolete
moral positions are undermined by all kinds of influences, then they are
abandoned and higher positions are adopted in their stead.
[Sidenote: Importance of pacificism.]
21. It is here that the importance and value of the modern pacificist
movement emerge with clearness. Wide circles are caught by this
movement, even the governments of all countries are no longer able to
hold aloof from its influence, and its opponents too can no longer fight
it with nothing but scorn and ridicule. Whoever is a believer in the
unlimited progress of civilization will also believe that a time must
come when all states will freely bind themselves to submit all disputes
to judicial or arbitral decision. General disarmament will not hasten
the dawn of this day, for it can only arrive through the deepening of
the public sentiment with reference to international relations. General
disarmament will not make wars to cease, but the ceasing of war will
bring about general disarmament! As already said, not to-day nor
to-morrow will this time come; we stand now only at the very beginning
of the developments that make for the realization of this ideal. It
cannot come to pass unless and until international society develops an
organization of a kind ever tending to perfect itself.
[Sidenote: Impossible for the family of nations to organize itself on
the model of the state.]
22. How then must and will this organization take shape? The proposals
which hitherto have been made for the organization of the world are
freaks of fancy. Of notable value as indications of idealistic
speculation in the midst of an adverse world, they crumble into dust
immediately they are soberly scrutinized. All proposals which aim at the
organization of international society after the pattern of the
organization of the state--whether a unitary state or a federal state,
or a system of confederated states--are either impracticable or do not
meet the needs of the case. Every organization of the community of
states must take as its starting-point the full sovereignty and the
absolute equality of states, and must preserve these characters intact.
There can, therefore, be no talk of a political central authority
standing above individual states; and so the organization in question
must be _sui generis_ and cannot frame itself on the model of state
organization.
[Sidenote: Impossible to draft a plan for the complete organization of
the family of nations.]
23. It is, however, impossible to draft at the present time the plan of
such a complete organization in its details or even in mere outline. The
growth and final shaping of the international organization will go hand
in hand with the progress of the law of nations. Now the progress of the
law of nations is conditioned by the growth of the international
community in mental strength, and this growth in mental strength in its
turn is conditioned by the growth in strength and in bulk, the
broadening and the deepening, of private and public international
interests, and of private and public morale. In the nature of the case
this progress can mature only very slowly. We have here to do with a
process of development lasting over many generations and probably
throughout centuries, the end of which no man can foresee. It is enough
for us to have the beginning of the development before our eyes and, so
far as our strength and insight extend, to have the opportunity of
trying to give it its appropriate aim and direction. More we cannot do.
Much, if not all, depends on whether the _international_ interests of
individual states become stronger than their _national_ interests, for
no state puts its hand to the task of international organization save
when, and so far as, its international interests urge it more or less
irresistibly so to do.
[Sidenote: The Permanent Court of Arbitration the nucleus of the future
organization of the family of nations.]
24. I said, we have the beginning of the development before our eyes. It
consists in the erection of the Permanent Court of Arbitration at The
Hague, and in the permanent Bureau attached thereto. Here we have an
institution belonging not to the individual contracting states but to
the international society of states in contrast to the individual
members, and it is open to the use of all the individual members. If the
Declaration of London be ratified, and if (which scarcely admits of
doubt) it be adopted by all the states which were not represented at the
Conference of London, then the International Prize Court, which was
decided on at the second Hague Conference, will become a fact. This
Court will also become an organ of the international community. Mention
must also be made of the so-called international bureaux of the
so-called international unions, which have come into existence in the
period beginning with 1874; for some at least of them will develop into
organs of international society, although they so far are only organs of
the respective special international unions.
[Sidenote: The Hague Peace Conferences as organs of the family of
nations.]
25. Reference must in conclusion be made to the Hague Peace Conferences
themselves, for it is to be expected that such Conferences will assemble
periodically in the future. If success attends the effort to bring all
members of the international community to an agreement, in virtue of
which a Hague Peace Conference assembles at periodic intervals without
being called together by this or that power, then an organ of
international society will have arisen, the value of which none can
decry. It will then be possible to say that the international community
has become an actually organized society, and it will then be no longer
open to doubt that the organization of this society will gradually
become more and more developed. Before everything else this at least
will then be attained, that an organ of the international society of
states, comparable to the parliaments of individual states, will have
come into existence, which can attend to international legislation as
the needs of the time require, and can cause a continuous growth in the
range of matters submitted to international tribunals. All the same, I
yield myself to no hot-blooded hope of a speedy realization of Utopian
schemes. Even when this organization is already there, progress will be
but slight and gradual, and will encounter unceasing opposition.
Progress in this department has always to reckon on a conflict with
adverse interests and efforts, and it must be expected that in the
continuous struggle between _international_ and _national_ interests the
latter will only slowly prepare themselves to yield.
[Sidenote: Outlines of a constitution of the family of nations.]
26. It is not, however, enough that agreement should make periodic Peace
Conferences a permanent institution. The international community must
provide itself with a constitution, the ground-plan of which would be
something like the following:
1. The society of states is composed of all sovereign states
which mutually recognize each other's internal and external
independence.
2. Every recognized sovereign state has the right to take part
in the Peace Conferences.
3. No state taking part in the Conferences is bound by the
resolutions of the Conferences without its assent. Majority
resolutions only bind the members of that majority. On the
other hand, no state is entitled to require that only such
resolutions be adopted as it assents to.
4. Every participant state has the right to be heard at the
Conferences, to bring forward proposals, to make motions, and
to speak on the proposals and motions of other participants.
5. A standing international commission shall be appointed whose
duty it shall be to summon all the members of the international
community to the Conferences, to make previous inquiries as to
the proposals and motions which are to be brought before the
Conference and to inform all participants of them, and to
prepare and carry out all other business which the Conferences
may from time to time entrust to it.
6. Rules of procedure for the Conferences shall be elaborated,
which shall govern the conduct of the proceedings of the
Conferences, so that the proceedings can follow a defined
course without degenerating into a time-wasting discussion.
7. The question of the presidency of the Conferences shall be
settled once for all, so that no room be left for quarrels and
jealousies about precedence. It might perhaps be found
expedient before every Conference to decide on the presidency
by lot.
8. All resolutions come into force only when and so far as they
are ratified by the respective states. On the other hand, every
state binds itself, once and for all, to carry out in good
faith the resolutions which it has ratified.
9. All states bind themselves to submit to the decisions of the
international tribunals to which they have appealed, so far as
these decisions are within the competence of the respective
tribunals.
Something like this would be the ground-plan of a constitution of the
international community. Rules 5-7 are demanded by the nature of the
case; rules 1-4 and 8-9 contain nothing new, but merely express what
observation would show to be the legal position at present.
[Sidenote: The proposed constitution leaves state-sovereignty intact.]
27. It must be particularly remarked that such a constitution can in no
way infringe on the full sovereignty of individual states. Apart from
the fact that the idea of sovereignty indicates an absolute independence
of any higher earthly power, that idea has never acquired a rigid and
uniformly recognized content. Times and circumstances have influenced
and shaped it in different states and in the mouths of different
authorities. This development of the idea, an idea which has won a place
for itself and the retention of which seems desirable despite all
opposition, may go further still in the future.
[Sidenote: The equality of states.]
28. The proposed constitution, further, makes no inroad at all on the
equality of states. This equality is the indispensable foundation of
international society. The idea of equality merely expresses the fact
that in all resolutions of the international society every state,
whatever may be its size and political importance, obtains one voice and
no more than one, that every state can be bound by a resolution only
with its consent, and that no state can exercise jurisdiction over
another state. It does not and cannot express more. In no circumstances
is it to be asserted that unanimity is a condition for all resolutions
of the Conferences, and that all resolutions are void to which one or
more states refuse their consent. Of course, such resolutions bind those
only who assent to them, and of course unanimous resolutions alone can
be considered to be universally binding. But nothing should hinder the
Conferences--and so it happened in the two first Conferences--from
passing majority resolutions. It must never be lost sight of that such
majority resolutions do not go to form a _universal_ but only a
_general_ law of nations. Only he who repudiates the necessary
distinction between a particular and a general and a universal law of
nations can demand unanimity. Now the development which up to the
present has taken place in the law of nations has shown the necessity of
this distinction. It would be extremely difficult to enumerate any large
number of universally accepted rules of the law of nations--apart from
those which have obtained recognition as customary law. We have only to
think of the Declaration of Paris, to which some states still refuse
assent. History also teaches us that the general law of nations has a
tendency gradually to become the universal law of nations. It is
therefore permissible, when a forward step which fails to gain unanimous
approval has become a practical matter, for that majority of states
which is ready for it to take the step by themselves; the dissenting
states will give in their adhesion in course of time. And if and when
this should turn out not to be the case, such a majority resolution
would anyhow represent, in a narrower circle of international society, a
step forward from which there is no obligation to forbear merely because
others are unwilling to join in taking it.
[Sidenote: Absence of any executive power.]
29. This constitution, finally, makes no provision for any kind of
executive power, and so it avoids the proposal to set up in
international society an organization resembling that of a state. All
proposals for an international executive authority run counter not only
to the idea of sovereignty, but also to the ideal of international peace
and of international law. The aim of this development is not the
coercion of recalcitrant states, but a condition of things in which
there are no recalcitrant states because every state has freely
submitted to the obligation to refer disputes to the international
tribunals and to abide by their decision. It is just in this respect
that the international community of states differs for all time from the
community of individuals who are united into a state, the latter
requiring as _ultima ratio_ executive compulsion on the part of a
central power, while the former consistently with its nature and
definition can never possess such a central power. It will, we must
confess, call for a long development before such a condition of things
is realized, and, until this realization is effected, war will not
disappear but will remain an historic necessity.
CHAPTER II
INTERNATIONAL LEGISLATION
[Sidenote: Quasi-legislation within the domain of international law.]
30. When we speak of legislation we have in view as a rule a state,
wherein there is a law-making power which acts without reference to the
consent of individual subjects. For even if in a constitutional state an
individual does anyhow exercise so much influence upon legislation as
comes from voting at the election of members of parliament, still he has
no direct influence, and must submit to a law that has been enacted
whether he approves of it or not. That is why it is asserted that there
cannot be any talk of legislation in the domain of international law.
And, in fact, that is so if we adhere rigorously to the meaning of the
concept 'legislation', as developed in the domain of internal state
life. The nature of the case does not, however, demand so rigid an
adherence as this; legislation is really nothing more than the conscious
creation of law in contrast to the growth of law out of custom. And it
is an admitted fact that, side by side with international law developed
in this latter way, there is an international law which the members of
the community of states have expressly created by agreement. We might
therefore quite well substitute the term _agreeing a law_ for the term
_decreeing a law_,--but why introduce a new technical term? This
international 'agreeing a law' does consciously and intentionally create
law, and it is therefore a source of law. And provided that we always
bear in mind that this source of law operates only through a
quasi-legislative activity, there is no obstacle to speaking, in a
borrowed sense, of international 'legislation'. Nevertheless, agreeable
and apt as this term is, it must not lead us to assimilate the internal
legislation of a state and international legislation save in the one
respect that in both law is made in a direct, conscious and purposive
manner, in contrast to law that originates in custom.
[Sidenote: Hague Peace Conferences as an organ for international
legislation.]
31. International law of the legislative kind existed before the law of
the Hague Peace Conferences; it issued from the conventions drawn up
from time to time at congresses and conferences. It was a great step
forward that the Congress of Vienna was able, for the first time, to
create general international law by agreement, and that thereby general
international law of the legislative kind could come into existence side
by side with the customary law of nations. But the nineteenth century
introduced international legislation only occasionally. If, as sketched
above, success attends the attempt to make the Hague Peace Conferences a
permanent institution, there would be evolved for the society of states
a legislative organ corresponding to the parliaments of individual
states. A wide field opens thus for further international legislative
activity. Even if the time be not ripe for a comprehensive codification
of the whole law of nations, there is nevertheless a series of matters
in need of international regulation; for example, extradition, the
so-called international private law and international criminal law,
acquisition and loss of nationality, and a series of other matters, not
to mention matters of international administration. Matters which are
already governed by customary law might also be brought within the
domain of enacted law, and at the same time could be put as regards
details upon a surer basis. I have in mind the law of ambassadors and
consuls, the law concerning the open sea and territorial waters, the law
about merchantmen and men-of-war in foreign territorial waters, and more
of this kind.
[Sidenote: Difficulties in the way of international legislation.]
32. The peculiar character of international legislation involves,
however, difficulties of all sorts.
[Sidenote: The language question.]
There is, to begin with, the question of language. Seeing that it is
impossible to employ all languages in the enactment of rules of
international law, an agreement must be made for adopting some one
language for these laws, in the same way that French is used at the
present time. But the difficulty thence arising is not insuperable, and
is hardly greater than that which is encountered in drafting a treaty
between peoples whose speech belongs to different families. It must,
however, be a rigid rule that in every case of doubt the text of the law
in its original language--not that of a translation into the languages
of other countries--is authoritative.
[Sidenote: The opposing interests of the several states.]
33. There is, secondly, the difficulty of contenting the opposite
interests of the members of the community of states. But this, too, is
in practice not insurmountable. Of course, where there is such a
brawling between these interests that no agreement is possible, there
can from the outset be no talk of international legislation. This,
however, is not everywhere the case. On the contrary, it is often and in
different areas the case, that the _international_ interests of states
make themselves felt so urgently and so cogently that these states are
ready to sacrifice their particular interests if only a reasonable
compromise be open to them.
[Sidenote: Contrasted methods of drafting.]
34. There is further the difficulty of finding expression in adequate
language for the intention of the legislator. Even the internal
legislation of states suffers under this difficulty in so far as the
art of legislation is still very clumsy and undeveloped. For
_international_ legislation there is in addition the further difficulty
that different groups of peoples employ very different methods in
drafting their laws. If we were to give to an Englishman, a Frenchman,
and a German the task of drafting a law upon the same topic, and if they
were provided with the point of view from which the regulation of
individual points was to proceed, so that the intention of the draftsmen
would be the same, three very different drafts would nevertheless
emerge. The English draft would deal in the most concrete manner
possible with the situations to which it meant to apply; it would adduce
as many particular cases as possible, and so would run the risk of
forgetting some series of cases altogether. The German draft would be as
abstract as is possible, and would entirely disregard individual cases,
except such as required a special treatment; and so it would expose
itself to the danger that in practice cases would be brought within the
enactment which were outside the intention of the legislator. The French
draft would attach more weight to principles than to individual points,
enunciating principles in a legislative manner and leaving it to
practice to construct out of these principles the rule for the
particular case. Now, seeing that French is the language of
international legislation, and so in the editing of drafts at the Hague
Conferences the lion's share will naturally fall to French jurists
attending the Conference, it will scarcely be possible to prevent the
French method of legislation from obtaining great influence over
international legislation. But there is no need for this mode of
legislation to become dominant. The jurist representatives of other
states must see to it that the French method is perfected by their own;
the English and the Germans must make it their business to bring the
drafts into a more concrete form, and to split up principles into more
abstract rules. In this way, it may in time be possible by means of
common international labour to make essential advance in the art of
legislation.
[Sidenote: These difficulties distinct from those due to carelessness.]
35. But the difficulties inherent in the legislative method must not be
confused with those which come from a careless employment of the method;
the latter must always be avoided, otherwise we arrive at contradictions
of interpretation, and these are insuperable.
[Sidenote: Article 23 (_h_) of the Hague Regulations of land war is an
example.]
An example of such carelessness is afforded by the incorporation--at the
second Hague Conference--of a new provision in the former Article 23 of
the 'Regulations respecting the laws of land warfare'. I am referring to
the provision added under the letter (_h_), which runs as follows: [It
is forbidden] 'to declare extinguished, suspended, or unenforceable in a
court of law, the rights and rights of action of the nationals of the
adverse party'.
[Sidenote: The German and the English interpretation of Article 23
(_h_).]
36. From the German memorandum on the second Peace Conference it is
quite clear that this additional rule, which was proposed by Germany and
adopted by the Conference, was directed to the alteration of the rule,
prevailing in several states, whereby during a war the subjects of one
belligerent lose in the country of the other belligerent their _persona
standi in judicio_, and the like. It is in this sense, then, that the
addition has been unanimously interpreted by German literature, with the
agreement of many foreign writers. The official standpoint of England,
on the contrary, is that Article 23 (_h_) has nothing whatever to do
with the municipal law of the belligerent countries. Article 23 (_h_),
so the English Foreign Office explains, forms a subdivision of Article
23, which itself comes under the second section (headed 'Hostilities')
of the Regulations, and forbids a series of acts which otherwise might
be resorted to in the exercise of hostilities by the members of the
contending armies, and by their commanding officers. That this
interpretation is the right one--so it is further explained by the
English side--is shown by the fact that Article 1 of the Convention
expressly says, with reference to the 'Regulations respecting the laws
of land warfare', that the contracting parties shall issue to their
armed land forces instructions which shall be in conformity with the
'Regulations respecting the laws of land warfare' annexed to the
Convention. It would therefore be the duty of every contracting power to
instruct the commanders of its forces in an enemy's country (among other
things) not 'to declare extinguished, suspended, or unenforceable in a
court of law, the rights and rights of action of the nationals of the
adverse party'.
[Sidenote: Davis's interpretation of Article 23 (_h_)]
37. This is also the opinion of Davis, one of the American delegates to
the second Hague Conference; he gives the following explanation with
regard to Article 23 (_h_), in the third edition of his _Elements of
International Law_ (New York, 1908), p. 578:
In this article a number of acts are described to which neither
belligerent is permitted to resort in the conduct of his
military operations. It was the well-understood purpose of the
Convention of 1899 to impose certain reasonable and wholesome
restrictions upon the authority of commanding generals and
their subordinates in the theatre of belligerent activity. It
is more than probable that this humane and commendable purpose
would fail of accomplishment if a military commander conceived
it to be within his authority to suspend or nullify their
operation, or to regard their application as a matter falling
within his administrative discretion. Especially is this true
where a military officer refuses to receive well-grounded
complaints, or declines to consider demands for redress, in
respect to the acts or conduct of the troops under his command,
from persons subject to the jurisdiction of the enemy, who find
themselves, for the time being, in the territory which he holds
in military occupation. To provide against such a contingency
it was deemed wise to add an appropriate declaratory clause to
the prohibitions of Article 23. The prohibition is included in
section (_h_).
[Sidenote: Impossible to reconcile the divergent views about Article 23
(_h_).]
38. If, from the fact that Davis was an American delegate, we may
conclude that he represents the government view of the United States of
North America, we are confronted by the fact that official England and
America adopt an interpretation of Article 23 (_h_) which is entirely at
variance with that of Germany, and it is quite impossible to build a
bridge of reconciliation between the two camps. This regrettable fact
has its origin simply in the careless use of the legislative method. If
the German conception of Article 23 (_h_) be the correct one, the lines
of subsection (_h_) ought never to have found a shelter in Article 23,
for they have not the slightest connexion with hostilities between the
contending forces. If, on the other hand, the Anglo-American
interpretation be the right one, pains should have been taken to secure
a wholly different draft of the provision in question, for the present
wording is by no means transparently clear. The protocols of the
Conference (_Actes_, i, 101; iii, 14, 103) are not sufficiently explicit
on the matter. The German delegate, Göppert, did indeed explain (cf.
_Actes_, iii, 103) at the session of the first subcommission of the
Second Commission on July 3, 1907, 'that this proposal is in the
direction of not limiting to corporeal goods the inviolability of enemy
property, and that it has in view the whole domain of obligations with
the object of forbidding all legislative measures which, in time of war,
would deprive an enemy subject of the right to take proceedings for the
performance of a contract in the courts of the adverse party'. But we
shall scarcely go wrong if we assume that the members of the Second
Commission, who were entrusted with the consideration of the
'Regulations respecting the laws of land warfare', had not sufficiently
realized the full meaning of the German proposal. It would otherwise be
quite unintelligible that the reporter upon the German proposal could
say (cf. _Actes_, i, 101): 'This addition is deemed a very happy attempt
to bring out in clear language one of the principles admitted in 1899',
for these 'principles' (concerning the immunity of the private property
of enemy subjects in land warfare) have very little indeed to do with
the question of the _persona standi in judicio_ of an enemy subject.
[Sidenote: Difficulties due to the fact that international law cannot be
made by a majority vote, or repealed save by a unanimous vote.]
39. A difficulty of a special kind besets international legislation,
owing to the fact that international rules cannot be created by a
majority vote, and that, when once in existence, they cannot be repealed
save by a unanimous resolution.
[Sidenote: A way out found in the difference between universal and general
international law.]
But when once we free ourselves from the preconception that the equality
of states makes it improper for legislative conferences to adopt any
resolutions which are not unanimously supported, there is nothing to
prevent a substantial result being arrived at even without unanimity. At
this point the difference between general and universal international
law furnishes a way out. Rules of universal international law must
certainly rest on unanimity. It is postulated in the equality of states
that no state can be bound by any law to which it has not given its
consent. But there is naught to prevent a legislative conference from
framing rules of general international law for those states which assent
to it and leaving the dissentient states out of consideration. If the
inclusion in a single convention of all the points under discussion be
avoided, and if the method, adopted at the second Peace Conference, of
dividing the topics of discussion among as many smaller conventions as
possible be followed, it will always be found possible to secure the
support of the greater number of states for the regulation of any given
matter. In no long time thereafter the dissentient states will give in
their adherence to these conventions, either in their existing or some
amended form. Attention will then be paid also to the consolidation of
several smaller laws in a single more comprehensive statute. The nature
of the case and the conditions of international life call for
concessions without which no progress would be practicable. The course
of international legislation hitherto shows unmistakably that the
trodden path is the right path. And it must be emphasized that it is
open to a state to assent to an act of international legislation
although some one or other provision thereof be unacceptable to it. In
such a case the assent of the state in question is given with a
reservation as regards the particular article of the Act, so that it is
in no wise bound by that article. Numerous instances of this could be
adduced: thus, at the Hague Conference of 1907 Germany withheld her
assent to some of the proposed rules of land war, and England to certain
articles in Conventions V and XIII.
[Sidenote: International laws which are limited in point of time.]
40. So also, the difficulty is not insuperable as regards the other
point, namely, that international enactments when once in existence
cannot be repealed or amended save by a unanimous resolution of the
participant states. Here, too, the analogy between municipal and
international legislation must not be pushed too far. Municipal
legislation can at any time be annulled or altered by the sovereign
law-maker; but international legislation, for want of a sovereign over
sovereign states, is not open to such treatment. Here there is a way
out, which was in fact adopted at the second Peace Conference, and also
at the Naval Conference of London, namely, the enactment of laws so
limited in duration to a period of years, that at the expiry of the
period every participant state can withdraw. In this way, for example,
it was agreed that the law about the International Prize Court and the
Declaration of London should only be in force for twelve years, and that
any of the powers which were parties thereto might withdraw twelve
months before the expiry of that period, and that, if and as far as no
withdrawal ensued, these laws should from time to time be continued in
force automatically for a further period of six years. This kind of
international legislation, with its time limit and the right of
denunciation, is to be recommended wherever more or less hazardous
legislative experiments are being made, or where interests are at stake
which in course of time are liable to such an alteration as obliges
states to insist on the amendment or repeal of the previously made law.
For example, the International Prize Court as a whole, and its
composition, constitution, and procedure in particular, form an
unparalleled experiment. But the fact that its institution is only to be
agreed on for a period of twelve years facilitates its general
acceptance, because of the possibility of either abrogating it
altogether, or of reforming it, should experience show this to be
necessary.
[Sidenote: International legislation no longer to be left to mere
chance.]
41. However this may be, one point must be decisively
emphasized,--international legislation can no longer be left to mere
chance. Apart from the Declaration of London and the Geneva Convention,
it has always hitherto been a more or less happy chance which has
controlled international legislation. Of conscious legislative
consideration and deliberation, based on far-reaching, thoroughgoing
preparation, there is no trace. For example, the Declaration of Paris of
1856 was but a by-product of the Peace of Paris of the same year. So
also the legislation of the first Peace Conference was simply due to the
anxiety to accomplish something positive which might conceal the fact
that the proposed aim of the Conference--general disarmament, to
wit--had in no wise been realized. At the second Peace Conference we did
indeed see individual states appear with some well-prepared projects of
legislation, but the preparation was entirely one-sided on the part of
the states in question, and not general; accordingly, the adoption,
rejection, amendment, and final shaping of these projects were also none
the less the result of chance. The second Peace Conference itself took
steps to prevent a repetition of this, calling the attention of the
powers in its Final Act to the necessity of preparing the programme of
the future third Conference a sufficient time in advance to ensure its
deliberations being conducted with the necessary authority and
expedition:
In order to attain this object the Conference considers that it
would be very desirable that, some two years before the
probable date of the meeting, a preparatory committee should be
charged by the Governments with the task of collecting the
various proposals to be submitted to the Conference, of
ascertaining what subjects are ripe for embodiment in an
international regulation, and of preparing a programme which
the Governments should decide upon in sufficient time to enable
it to be carefully examined by each country.
[Sidenote: The Declaration of London thoroughly prepared beforehand.]
42. In contrast to the rules of the Peace Conferences, a really notable
and exemplary preparation took place in connexion with the Declaration
of London, and the befitting result was a law excellent alike in matter
and in form. England, the state which summoned the Naval Conference of
London, made a collection of the topics which would arise, and
communicated it to the states attending the Conference with the request
that they would send in full statements on the subjects mentioned. After
the answers to this request had come in they were collated with regard
to each of the points on which discussion would arise, and _bases de
discussion_ were elaborated which made a thorough examination of each
point possible at the Conference. By this means it was at once made
clear when the different states were in accord and when not. The door to
compromise was opened. And apart from a few vexed questions an agreement
was in this way successfully reached with regard to a comprehensive law
resting at every point on exhaustive deliberation.
[Sidenote: The preparation of the Declaration a pattern for future
international legislation.]
43. This model method must be the method of the future. If, as indicated
in §26 above, Art. 5, a permanent commission for the preparation of the
Peace Conferences be successfully inaugurated, it will be its task to
make preliminary preparations for the legislative activity of the
Conferences in the manner just sketched out, and chance will no longer
have the same part to play as heretofore. International legislation will
no longer produce anything so full of gaps as the 'Regulations
respecting the laws of land warfare', which leave essential
matters--for instance, capitulations and armistices--without any
adequate regulation.
[Sidenote: Intentionally incomplete and fragmentary laws.]
44. Of course, where the interests of different states are still
involved in some uncertainty, or are in such antagonism that a complete
agreement is impossible, even the fullest preparation and most
painstaking deliberation will not procure a more satisfactory treatment
for many matters than that the legislation which regulates them should
be (so to say) only experimental and intentionally incomplete and
fragmentary in character. Thus, for example, the Conventions about the
conversion of merchantmen into men-of-war and about the use of mines in
naval war can only be considered as legislative experiments, regulating
these matters merely temporarily and in an incomplete and unsatisfactory
manner. But even conventions which designedly are full of lacunae have
their value. They embody all the same an agreement upon some important
parts of the respective topics, and provide a regulation which in every
case is better than the chaos previously prevailing in the areas in
question. They also constitute a firm nucleus round which either custom
or future legislation can develop further regulation.
[Sidenote: Interpretation of international statutes.]
45. But even if international legislation attains the degree of success
suggested, there still remains another great difficulty which must
indirectly influence legislation itself, and that is the interpretation
of international statutes once they have been enacted. It is notorious
that no generally received rule of the law of nations exists for the
interpretation of international treaties. Grotius and his successors
applied thereto the rules of interpretation adopted in Roman law, but
these rules, despite their aptness, are not recognized as international
rules of construction. It can scarcely be said, however, that
insurmountable difficulties have arisen hitherto out of this situation,
for the majority of treaties have been between two parties, and the
interpretation thereof is the affair of the contracting parties
exclusively, and can be ultimately settled by arbitration. But in the
case of general or universal international enactments we have to deal
with conventions between a large number of states or between all states,
and the question, accordingly, now becomes acute.
[Sidenote: International differences as regards interpretation.]
46. The difficulty of solving this question is increased by the fact
that jurists of different nations are influenced by their national
idiosyncrasies in the interpretation of enactments, and are dependent on
the method of their school of law. Here are contrarieties which must
always make themselves powerfully felt. The continental turn of mind is
abstract, the turn of the English and American mind is concrete.
Germans, French, and Italians have learnt to apply the abstract rules of
codified law to concrete cases; in their abstract mode of thought they
believe in general principles of law, and they work outwards from these.
English and Americans, on the contrary, learn their law from decided
cases--'law is that which the courts recognize as a coactive rule' is an
accepted and widely current definition of law in the Anglo-American
jurisprudence; they regard abstract legal rules, which for the most part
they do not understand, with marked distrust; they work outwards from
previously decided cases and, when a new case arises, they always look
for the respects in which it is to be taken as covered by previous
cases; they turn away as far as possible from general principles of law,
and always fasten on the characteristic features of the particular case.
If continental jurists may be said to adapt their cases to the law,
English and American jurists may be said to adapt the law to their
cases. It is obvious that this difference of intellectual attitude and
of juristic training must exercise a far-reaching influence on the
interpretation and construction of international enactments.
[Sidenote: Different nations have different canons of interpretation.]
47. It is because of what has just been explained that the rules for the
interpretation of domestic legislation are different with different
nations. For example, whilst in Germany and France the judge avails
himself more or less liberally of the _Materialien_[1] of a statute in
order to arrive at its meaning, the English judge limits himself to the
strict wording of the text, and utterly refuses to listen to an argument
based on the historical origin of the statute. The English bench,
sticking more closely to the letter of the law, allows also an extensive
or restrictive interpretation thereof much more seldom than the
continental judiciary does.
[1] It seems impossible to find any single English phrase which gives
the meaning of _Materialien_ in this context. In the _Materialien_ of a
statute is comprised everything officially put on record concerning it
between the time the draftsman undertakes to draft the measure and the
time it is placed on the statute-book. For instance, the commentary
which a draftsman on the Continent always adds to his draft, giving the
reasons for the provisions of the Bill; the discussions in Parliament
about the Bill; and the like.--TRANSLATOR.
[Sidenote: Controverted interpretation of the Declaration of London an
example.]
48. A good illustration of the factors under consideration was furnished
by the movement in England against the ratification of the Declaration
of London, and the discussion evoked thereby in the press and in
Parliament. It was asserted that many rules of the Declaration were so
indefinitely framed as to lie open, castle and keep, to the arbitrary
inroads of a belligerent interpreter. And when the advocates of
ratification pointed to the official 'General Report presented to the
Naval Conference by its Drafting Committee', which gave a satisfying
solution to the issues raised, the answer came that neither a
belligerent nor the International Prize Court would be bound by the
interpretation of the Declaration contained in this General Report. It
was asserted that the ratification of the Declaration would refer only
to the text itself, and that the General Report, not being thereby
ratified, would not be binding; only by express extension of the
ratification to the General Report could the latter bind.
Continental jurisprudence, if my conception of it be correct, would
stand shaking its head at the whole of this discussion. It would ask how
there could be any talk of ratifying a report, ratification having only
to do with agreements. And as regards the question of the binding
character of the General Report, there might indeed be some objection on
the Continent to the epithet 'binding', but, on the other hand, there
would be no doubt that the interpretation of the Declaration given in
the Report must be accepted on all sides. The Report expressly says:
We now reach the explanation of the Declaration itself, on
which we shall try, by summarizing the reports already approved
by the Conference, to give an exact and uncontroversial
commentary; this, when it has become an official commentary by
receiving the approval of the Conference, would be fit to serve
as a guide to the different authorities--administrative,
military, and judicial--who may be called on to apply it.
Seeing that the Conference unanimously accepted the Report, there is
expressed in it and by it the real and true meaning of the individual
articles of the Declaration as the Conference itself understood and
intended it. Every attempt to procure an inconsistent interpretation
must come to grief on this fact, and so the Report is in this sense
'binding'. The ratification of a treaty extends, of course, not only to
the words themselves, but also to their meaning, and if the Conference
which produces an agreement itself unanimously applies a definite
meaning to the words of the agreement, there cannot remain any doubt
that this is the meaning of the verbal text. Nevertheless, the contrary
was maintained in England by a party of men of legal eminence, and the
explanation of this is only to be found in the fact that these English
lawyers were applying to the interpretation of the Declaration the rules
which govern the interpretation of English statutes. The only way to
enable the English Government to ratify the Declaration seems to be a
statement by the Powers at the time of ratification that the
interpretation of the Declaration expressed in the General Report is
accepted on all sides.
[Sidenote: Some proposals for the avoidance of difficulties in
interpretation.]
49. However this may be, the illustration adduced is sufficient proof
that the interpretation of international enactments creates a difficulty
of its own for international legislation. International legislators must
bring even greater solicitude than municipal legislators to the
expression of their real meaning in rigid terms. And this aim can only
be attained by the most assiduous preparation and consideration of the
contents of the enactment. It would be best if these contents were
published and thereby submitted to expert discussion before they were
finally accepted at the Conferences. The national jurisconsults of the
participant states would thus be enabled to criticize the proposals and
to indicate the points which especially need clearing up. It might also
be possible to consider the enactment, by convention, of an
international ordinance containing a series of rules for the
interpretation and construction of all international statutes. This
much is sure, that the interpretation of international statutes must be
freer than that of municipal statutes, and must therefore be directed
rather to the spirit of the law than to the meaning of the words used.
This is all the more requisite because French legal language is foreign
to most of the states concerned, and because it is not to be expected
that before ratification they should obtain minute information about the
meaning of every single foreign word employed.
CHAPTER III
INTERNATIONAL ADMINISTRATION OF JUSTICE
[Sidenote: Law can exist without official administration.]
50. It is inherent in the nature of law that it should be put in
question whenever from time to time one party raises a claim in the name
of the law which the other resists in the name of the same law. If,
however, it be asserted that there cannot be any law where there is no
official administration of justice, this is a fallacy, and the fallacy
lies in considering the presence of the elements of the more perfect
situation to be presupposed in the less perfect situation. Beyond a
doubt it is the administration of law which gives law the certainty that
its authority will in every case obtain operative effect. But this
operative effect is obtainable even apart from administration, because
those who are subject to the law are in most cases clear as to its
contents, and so they raise no question about it, but submit to its
application without any need of recourse to jurisdictional officials.
All the same, when a dispute does arise, law needs official
administration: and, accordingly, in the long run, no highly developed
legal society can dispense with it.
[Sidenote: The Hague Court of Arbitration as a permanent institution.]
51. Until the end of the nineteenth century the society of states
possessed no organ which made international administration of justice
possible. When states had made up their mind to have a dispute between
them settled amicably, they either appointed the head of a foreign state
or a foreign international jurist as arbiter, or they selected a number
of persons to form an arbitral tribunal. It was a great step forward
when the first Hague Conference established a Permanent Court of
Arbitration and agreed on international rules of procedure for the
conduct of this court. And if, seeing that in every particular instance
the court is ultimately chosen by the parties, the expression 'Permanent
Court of Arbitration' is only a euphemism, nevertheless the permanent
list of persons from among whom the arbiters can be chosen, and, in
addition, the Permanent Bureau of the Court of Arbitration at The Hague,
and, lastly, the international rules of procedure, represent at least
the elements of a permanent court. Thereby an institution is obtained
which is always available if only parties will make use of it, whereas
such an institution was entirely lacking formerly, and if parties wanted
an arbitration they had to enter on lengthy arrangements about the
machinery of the process. And the short experience of twelve years has
already shown how valuable the institution is, and how well adapted to
induce disputant states to make use of it.
[Sidenote: The proposed International Prize Court and Court of Arbitral
Justice.]
52. The second Peace Conference took, however, another great step
forward in the resolution to establish an international court of appeal
in prize matters, and also in the proposal about a really permanent
international court to exist by the side of the Court of Arbitration.
And the United States of North America have recently entered on
negotiations with the object of utilizing the International Prize Court,
should it come into existence, as at the same time a permanent tribunal
for all legal issues. Here present and future touch hands, and these
proposed institutions must therefore be discussed. Attacks upon them
have been made from two sides, it being asserted that they infringe the
principles of the equality and sovereignty of states.
[Sidenote: Does the constitution of the International Prize Court
violate the principle of the equality of states?]
53. It is alleged that the principle of equality is violated in that the
Prize Court is contemplated as consisting of fifteen members, so that,
while the eight Great Powers are always represented by a member, the
thirty-seven smaller states are only represented by seven members who
take their seats in the court in rotation according to a definite plan.
Now it is not clear how the principle of equality can be deemed violated
thereby. This principle has really nothing to do with the constitution
of an international court so long as no state is compelled to submit
itself to such a tribunal against its will. It would be possible to
constitute an international court without basing it on the
representation of definite states, and that is very likely to come to
pass in the future, when fuller confidence in the international
judicature is felt. In the proposed composition of the Prize Court
expression is given, undoubtedly, to the actually existing _political
inequality_ of states, a matter which, however, has not the least
connexion with their _legal equality_. This political inequality will
never disappear from the world, and if in course of time the creation of
an international judicature is really intended, the realization of this
idea is only possible subject to the existence of political inequality.
There is little doubt that when we come to the constituting of the Prize
Court certain smaller states will abstain because no permanent
representation therein is allotted to them. But it may confidently be
expected that the recalcitrant states will give in their adherence in
the future, when they begin to see what beneficent results the
institution has produced.
[Sidenote: Does the International Prize Court restrict the sovereignty
of the several states?]
54. The International Prize Court violates the sovereignty of states
just as little as it violates the principle of equality. No state
submitting itself to an international tribunal submits itself thereby
to the power of any other earthly sovereign so long as no other power is
entrusted with the execution of the awards of the international
tribunal, that is to say, so long as submission to any such award rests
always and entirely on the voluntary submission of the state concerned.
If this be not correct, then there would also be an invasion of
sovereignty whenever--as indeed happens everywhere more or less--a state
submits itself to the decrees of its own courts, and allows its subjects
an appeal to its courts against the measures of the government. In the
latter, as in the former case, what we have is merely the demission to
the determination of the court of the question whether certain acts and
claims are consistent with law. He who at the present day conceives
sovereignty as an unlimited arbitrariness of conduct is guilty of an
anachronism which is everywhere contradicted by the mere fact that there
are such things as international law and constitutional law.
[Sidenote: Would the formation of an international Prize Court of Appeal
infringe the sovereignty of the several states?]
55. It is next alleged that there is a violation of sovereignty in the
fact that the proposed Prize Court is a court of appeal which is to be
competent to reverse the decisions of national prize courts. There is
nothing in this objection also, for it rests on a _petitio principii_.
If we but get rid of the preconception that a sovereign state can only
admit an interpretation of law to be authoritative for itself when
pronounced by its own courts, no reason is visible why an award of an
international court which upsets an award of a national court should be
considered an infringement of state sovereignty. He who alleges it to be
an infringement has really in view, however unconsciously, the power of
execution which is inherent in the decrees of a national court, and he
is unable to conceive a judicial decree without power of execution.
Judicial declarations of law have, however, as little as the essence of
law itself to do with power of execution; otherwise--as indeed happens
in the case of many persons--the law of nations must be denied any legal
character. Now, just as that system of law is more complete behind which
there stands a central authority enforcing it by compulsion, so also
that judicial activity is more complete with which physical power of
execution is conjoined. But alike in the one and in the other case,
physical power is not an essential element in the conception. Just as
there is law which in point of fact is not enforceable by any central
authority, so there can also be jurisdictional functions without any
correlative power of execution. International administration of justice
is, in the nature of the case, dissociated from any power of this kind;
therefore, too, it does not impair the sovereignty of states.
[Sidenote: The powers of the International Prize Court do not curtail
state-sovereignty.]
56. It is imagined that a trump card is played when it is asserted that
Article 7 of the Convention, entered into at the second Peace
Conference, respecting the Prize Court, curtails state-sovereignty when
it provides that, in default of definite agreement and of generally
recognized rules of the law of nations, the Prize Court is to give its
decisions in accordance with the principles of justice and equity, and
that therefore (so the assertion continues) on certain points the Prize
Court can make international law by itself. Whilst up to the present
time custom and convention have been the two sources of the law of
nations, the Prize Court--so it is said--is now to be added as a third,
and the law made by it is to become international law without requiring
the assent of the several states. All this argument rests on a false
assumption. The article in question endues the Prize Court in certain
points with a law-making power which is simply a _delegated_ power. The
states which are concerned with the Prize Court desire, in the interests
of legal security, that the tribunal should not declare itself
incompetent by reason of want of existing rules on any given matter.
They accordingly delegate to this tribunal the power which lies in them
collectively of making rules of international law, and they
prospectively declare themselves at one with regard to the rules which
the tribunal shall declare to be binding in the name of justice and
equity. Now the Prize Court is not hereby made a special and independent
source of international law by the side of convention, but the law which
it declares is law resting on an agreement between states. Even in the
inner life of states we meet with delegation of legislative power to a
limited degree, and yet this does not mean that the authorities in
question are raised into special and independent sources of law side by
side with the government of the state. And just as in the inner life of
a state a delegation of legislative power does not involve an
infringement of sovereignty, so also the delegation of legislative power
to the Prize Court involves no infringement of the sovereignty of the
members of the international community of states.
[Sidenote: Difference between international courts of arbitration and
real international courts of justice.]
57. The step from the International Court of Arbitration to the erection
of a real international court is, on two grounds, a decided step onward.
In the first place, an arbitral tribunal is not a court in the real
sense of the word, for its decisions are not necessarily based on rules
of law, and it does not necessarily deal with legal matters. An arbiter,
unless the terms of the reference otherwise provide, decides _ex aequo
et bono_, whilst a judge founds his decision on rules of law and is only
applied to on legal issues. Valuable as it may be in many cases to
withdraw a matter from the courts and remit it to arbitration, it is in
other cases equally valuable to have a cause decided in legal fashion by
a judge. The experience which we have so far had of arbitral tribunals
shows that they make praiseworthy efforts to arrive at a finding which
shall as far as possible satisfy both parties, and that they have in
view a compromise rather than a genuine declaration of law. Now the
cases are, all the same, numerous enough in which the parties want a
real, genuine declaration of law, and so it would be most valuable if a
real international court were in existence. In the determination to
erect an International Prize Court it has been recognized that prize
cases ought not to be brought, from occasion to occasion, before an
arbitral tribunal and there peaceably arranged, but ought to be decided
by a real court on the basis of the law of prize. If success attends the
attempt to convert the Prize Court into a general international court or
if a special international court is created, this would render it
possible to have other international legal disputes also decided by a
real court upon naked principles of law. Such a possibility is in the
interest of the parties and also in that of international law itself,
for it will be held in higher and surer esteem if a court is provided
for its authoritative interpretation and application.
[Sidenote: Fundamentals of arbitration in contradistinction to
administration of justice by a court.]
58. The second ground referred to is that it is a fundamental part of
the idea of arbitration that in every case the choice of the arbiters as
men in whom the parties have confidence should be left to the parties
themselves, whilst it is fundamental in the conception of a court that
it is once and for all composed of judges appointed independently of the
choice of the parties and permanently to adjudicate upon matters of
law. Such a court secures continuity of jurisprudence, affords a
guarantee for the most exact examination of questions of fact and of
law, deems itself to a greater or a less degree bound by its previous
decisions, contributes thereby to the settlement of open legal
questions, and furthers the growth of law while adding to the respect in
which it is held. Nothing can heighten the respect in which
international law is held more than the existence of a real
international court.
[Sidenote: Opposition to a real international court.]
59. But, incredible as it may sound, this is not generally recognized.
It is just among the old champions of the arbitral decision of
international disputes that the most violent opposition is raised to the
erection of a real court of justice for international law causes. In
such a court they see a great danger for the future. The fact that
arbitration has a tendency to furnish rather a decision which is as far
as possible satisfactory to both parties than one which is based on
naked law, is just the respect which, in the eyes of many, gives it a
higher value than a real court possesses. Not _jural_ but _peaceable_
settlement of disputes is the motto of these men; they do not desiderate
justice in the sense of existing law, but equity such as contents both
parties. And they gain support and approval from those who see in the
law of nations rather a diplomatic than a legal branch of knowledge, and
who therefore resist the upbuilding of the law of nations on the
foundation of firmer, more precise, and more sharply defined rules on
the analogy of the municipal law of states. These persons range
themselves against an international court because such a court would
apply the rules of the law of nations to disputed cases in the same way
in which the courts of a state apply the rules of municipal law to
disputed cases arising within the state; they prefer diplomatic or, at
any rate, arbitral settlement of disputes between states to the purely
legal decision thereof. They also contend that an international court
without an international power of execution is an absurdity.
[Sidenote: A real international court does not endanger the peaceable
settlement of disputes.]
60. This last objection has already been dealt with above (paragraph
55), where it is shown that a judicial award as an authoritative
declaration of the legitimate character of an act or claim has, in and
for itself, nothing to do with the governmental execution of the award.
But as to the fear that the erection of an international court might
endanger the peaceable settlement of disputes and the development of
international arbitration, that is certainly groundless. The contrary is
the case, as is shown by the fact that the happy movement towards the
erection of an international court was initiated by the United States of
North America. This country, which since its entry into the
international community of states has more than any other championed the
idea of the arbitral adjustment of disputes, and has in practice put it
to good use, is well aware of the value of arbitration, but, on the
other hand, it knows also how to prize the purely legal decision of
legal questions. It has actually happened that a state has not ventured
to submit a certain dispute to arbitration because it feared that its
claim would not receive jural treatment in this way. It is just because
the existence of an international court would promote the non-warlike
settlement of international claims that its erection has been put
forward. The reason is that even with the most careful selection of
arbiters, one is never certain beforehand as to the quarter whence they
will derive their ideas of the _aequum et bonum_, whilst with a jural
settlement of claims the decision rests on the sure basis of law.
Further, the erection of an international court is not intended to cause
the suppression of the so-called Permanent Court of Arbitration; on the
contrary, the machinery of this latter is to be retained in full
existence, so that the parties may in every case be able to choose
between the Court of Arbitration and a real court. The future will show
that both can render good service side by side.
[Sidenote: Composition of an international court.]
61. If the erection of an international court comes to pass, the
equipment of it with competent and worthy men will be of the highest
importance. Their selection will have difficulties of all sorts to
overcome. The peculiar character of international law, the conflict
between the positive school and the school which would derive
international law from natural law, the diversity of peoples (consequent
on diversity of speech and of outlook on law and life) and of legal
systems and of constitutional conceptions, and the like--all these bring
the danger that the court in question should become the arena of
national jealousies, of empty talk, and of political collisions of
interest, instead of being the citadel of international justice. All
depends on the spirit in which the different governments make the choice
of judges. Let regard be paid to a good acquaintance with international
law joined to independence, judicial aptitude, and steadfastness of
character. Let what is expected of candidates be the representation not
of political interests but of the interests of international
jurisprudence. Let nomination be made not of such diplomatists as are
conversant with the law of nations, but of jurists who, while conversant
with this branch of law, have had the training required of members of
the highest state judiciary, and have been tested in practice. Let men
be chosen who are masters not only of their own language and of French,
but also of some other of the most widely diffused languages, and who
possess an acquaintance with foreign legal systems. If this be done, all
danger will be avoided. Judges so selected will speedily adapt
themselves to the _milieu_ of the international court and be laid hold
of by it, and their equipment for their task completed. As things are at
present, the institution of an international court is an unheard-of
experiment. But the experiment must be made at some time, and the hope
may be confidently entertained that it will be successful. Petty
considerations based on the weakness of humanity and doubts as to the
sincerity of the efforts of states to submit themselves voluntarily to
international tribunals must be silenced. Fear of international
entanglements and groupings is misplaced. National prejudices and
rivalries must keep in the background. The big state's disdain of the
little state and the little state's mistrust of the big state must give
place to mutual respect. Opposed to the hope and confidence that the
experiment will succeed there are no considerations other than those
which have been arrayed against every step forward in international
life. They will disappear like clouds when the sun of success has once
begun to shine upon the activity of the International Court.
[Sidenote: International courts of appeal a necessity.]
62. Obviously it will not be possible in the long run to stop at a
single international court; the erection over the court of first
instance of an international court of appeal is also a necessity. The
proposed Prize Court will indeed be itself a court of appeal because it
cannot be approached until one or two national courts have spoken. But
the proposed International Court of Justice would be a court of first
instance. Now there are no infallible first-instance decisions. Even
courts are fallible and make mistakes. If this is universally recognized
for municipal administration of justice, it must be recognized for
international administration of justice, all the more as public and not
private interests are then in issue. If states are to feel bound to rely
on their right rather than on their might, and to submit it to a
judicial decision, it must be possible to carry an appeal against a
decision of the International Court of Justice to a higher tribunal.
Many advocates of arbitration will not hear of an appeal. In this they
may be right as regards a real arbitral decision given _ex aequo et
bono_, but their arguments lose all force before the nakedly jural
decision of a real court.
The difficulties which beset the erection of an international court and
the appointment of its members may lead to the renunciation of the
immediate establishment of an international court of appeal. But when
once the International Court is in active working, the demand for a
court of appeal will be raised and it will not be silenced until it has
been satisfied. It would be premature to make proposals now as to the
manner in which such a court of appeal ought to be composed, and as to
the way in which it could be brought into existence. It is enough to
have pointed to the need for it. Directly this need makes itself felt,
ways and means will be found for supplying it.
[Sidenote: Are international courts valueless if states are not bound to
submit their disputes to them?]
63. We next are faced by the objection, what possible value can the
establishment of international courts possess if it be optional to
states either to submit their causes to them or to rely on arms for a
decision of those causes? It is, accordingly, asserted that such courts
can only be of value if states place themselves under a permanent
obligation to submit to them all or at any rate the greater number of
their disputes. This leads to the question of obligatory arbitration
treaties, which played so prominent a part at the second Peace
Conference, and will surely come up again at the third Conference. I
have not the slightest doubt that the third or some later Conference
will agree on the obligatory reference of certain disputes between
states to arbitration, but the matter is of quite subordinate importance
so far as the erection of international courts is in question. Any one
who contemplates international life and the relations of states to one
another, without prejudice and with open eyes, will see quite clearly
that, when once there exist international courts, states will
voluntarily submit a whole series of cases to them. These will, at
first, admittedly, be cases of smaller importance for the most part, but
in time more important cases will also come to them, provided that the
jurisprudence developed in them is of high quality, and such as to give
states a guarantee for decisions at once impartial and purely jural and
free from all political prepossessions. _It is the existence of the
institution which is the vital question now._ Once the machinery is
there, it will be utilized. In all states of the world there are
movements and forces at work to secure the ordered and law-protected
settlement of international disputes. The existence of an international
court will strengthen these movements and forces and render them so
powerful that states will scarcely be able to withdraw themselves from
their influence. And the time when states were ready to draw the sword
on every opportunity belongs to the past. Even for the strongest state
war is now an evil, to which recourse is had only as _ultima ratio_,
when no other way out presents itself.
[Sidenote: What is to be done if a state refuses to accept the decision
of an international court?]
64. In conclusion the great question is, what is to happen if a state
declines to accept the decision of the international court to which it
has appealed?
Important as this question may be in theory, it is a minor one in
practice. It will scarcely happen in point of fact--assuming that there
is an international court of appeal above the court of first
instance--that a state will refuse a voluntary acceptance of the award
of an international court. Only slowly, and only when irresistibly
compelled by their interests so to do, will states submit their disputes
to international courts. But when this is the case these same interests
will also compel them to accept the award then made.
[Sidenote: Executive power not necessary for an international court.]
65. We have neither desire nor need to equip these courts with executive
power. In the internal life of states it is necessary for courts to
possess executive power because the conditions of human nature demand
it. Just as there will always be individual offenders, so there will
always be individuals who will only yield to compulsion. But states are
a different kind of person from individual men; their present-day
constitution on the generally prevalent type has made them, so to say,
more moral than in the times of absolutism. The personal interests and
ambition of sovereigns, and their passion for an increase of their
might, have finished playing their part in the life of peoples. The real
and true interests of states and the welfare of the inhabitants of the
state have taken the place thereof. Machiavellian principles are no
longer prevalent everywhere. The mutual intercourse of states is carried
on in reliance on the sacredness of treaties. Peaceable adjustment of
state disputes is in the interests of the states themselves, for war is
nowadays an immense moral and economic evil even for the victor state.
It may be that a state will decline to submit its cause to the
international tribunal because it thinks that its vital interests do not
allow such submission; but when, after weighing its interests, it has
once declared itself ready to appear before the court, it will also
accept the court's award. All other motives apart, the strong state will
do this, because its strength allows it to make voluntary submission to
the award, and the weak state will also do so because war would be
hopeless for it.
[Sidenote: Right of intervention by third states and war as _ultima
ratio_.]
66. If, however, in spite of all, it should happen that a state declined
such acceptance of an award, the powers who were not parties would have
and would use the right of intervention. For there can be no doubt of
the fact that all states which took part in the erection of an
international court would have a right to intervene if a state which
entered an appearance before an international court should refuse to
accept its award. And of course, in such a case, war is always waiting
in the background as an _ultima ratio_; but it is in the background only
that it waits; while, apart from the erection of an international court,
it is standing in the foreground. The whole problem shows that the
development in question cannot be rushed, but must proceed slowly and
continuously. Step can follow step. The economic and other interests of
states are more powerful than the will of the power-wielders of the day.
These interests have begotten the law of nations, have driven states to
arbitration, have called forth the establishment of a Permanent Court of
Arbitration at The Hague, and are now at work compelling the erection of
international courts. Let us arm ourselves with patience and allow these
interests to widen their sway; they will bring about a voluntary
submission to the judgments of the international court on the part of
all states.
CHAPTER IV
THE SCIENCE OF INTERNATIONAL LAW
[Sidenote: New tasks for the science of international law.]
67. International organization and legislation and the establishment of
international courts are the business of the Hague Peace Conferences;
but to work out the new enactments and to turn them to good account and
to prepare for their practical application, this is the business of the
science of international law. Science obtains thereby a share in the
future of the law of nations, and quite new tasks are allotted to it. As
mentioned earlier, the law of nations was, until the first of the Peace
Conferences, essentially a book-law. Treatises depicted the law such as
it was growing, in the form of custom, out of the practice of states in
international intercourse. There were only a few international
enactments, and there was no international court practice. But that
state of things has now been altered once and for all. International
enactments appear in greater number. Decisions of international courts
will follow, just as we already possess a number of awards of the
Permanent Court of Arbitration. If science is to be equal to its tasks,
it must take good heed to itself, it must become wholly positive and
impartial, it must free itself from the domination of phrases, and it
must become international.
[Sidenote: The science of international law must become positive.]
68. It is indispensably requisite that this science should be positive
in character. What natural law and natural law methods have done for the
law of nations in the past stands high above all doubt, but they have
lost their value and importance for present and future times. Now and
onwards the task is, in the first place, to ascertain and to give
precision to the rules which have grown up in custom, and in the second
place to formulate the enacted rules in their full content and in their
full bearing. In doing so it will come to light that there are many gaps
not yet regulated by law. Many of these gaps may be successfully filled
up by a discreet employment of analogy, but many others will remain
which can only be remedied by international legislation or by the
development of customary law in the practice of the courts or otherwise.
What science can do here is to make proposals _de lege ferenda_ of a
politico-jural character, but it cannot and may not fill up the gaps.
Science may also test and criticize, from the politico-jural standpoint,
the existing rules of customary or enacted law, but, on the other hand,
it may not contest their operation and applicability, even if convinced
of their worthlessness. It must not be said that these are obvious
matters and therefore do not need special emphasis. There are many
recognized rules of customary law the operativeness of which is
challenged by this or that writer because they offend his sense of what
is right and proper. As an example thereof let us take the refusal by
some well-reputed writers to include annexation after effective conquest
(_debellatio_) among the modes, known to international law, of
acquisition of state territory. They teach that _debellatio_ has no
consequences in point of law, but only in point of fact; that it rests
on naked might and brings the annexed area under the power of the victor
only in point of fact and not in point of law. Here they are putting
their politico-jural convictions in the place of a generally recognized
rule of law.
[Sidenote: The science of international law must be impartial.]
69. Science cannot, however, be genuinely positive unless it is
impartial and free from political animosities and national bias. To
believe that it really is at present impartial is a great deception.
Whoever compares the writings of the publicists of the several states
runs up against the contrary at every step. There is no state which in
the past has not allowed itself to be guilty of offences against
international law, but its writers on international law seldom admit
that this has been the case. They perceive the mote in the eye of other
nations, but not the beam in the eye of their own nation. Their writings
teem with ungrounded complaints against other nations, but scarcely
throw the slightest blame on their own country. By such a method
problems are not brought nearer to solution, but only shoved on to one
side. What is wanted, is that an ear should be lent to the principle
_audiatur et altera pars_, that the opponent should be heard and his
motives weighed. It will then often turn out that what was believed to
merit reprobation, as a breach of law, will show itself to be a
one-sided but forceful solution of a disputed question. And even where a
real breach of law has been committed it will be worth while to weigh
the political motives and interests which have driven the perpetrator to
it. It must ever be kept in mind that at the present day no state
lightheartedly commits a breach of the law of nations, and that, when it
does commit such a breach, it is generally because it deems its highest
political interests to be in jeopardy. Such a weighing of motives and
interests does not mean excusing the breach of law, but only trying to
understand it.
[Sidenote: The science of international law must free itself from the
tyranny of phrases.]
70. It is also indispensable that the science should free itself from
the tyranny of phrases. As things are, there is scarcely a doctrine of
the law of nations which is wholly free from the tyranny of phrases. The
so-called fundamental rights are their arena, and the doctrines of
state-sovereignty and of the equality of states are in large measure
dominated by them. Any one who is in touch with the application of
international law in diplomatic practice hears from statesmen every day
the complaint that books put forth fanciful doctrines instead of the
actual rules of law. Now it is often not difficult to push the
irrelevant to one side and to extract what is legally essential from the
waste of phrase-ridden discourse. But there are entire areas in which
the tyranny of phrases so turns the head that rules which absolutely
never were rules of law are represented as such. Two conspicuous
examples may serve to illustrate this statement.
[Sidenote: The meaning of '_Kriegsräson geht vor Kriegsmanier_'.]
71. My first example is taken from the use made of the German maxim
'_Kriegsräson geht vor Kriegsmanier_'. This maxim is a very old one, and
there was nothing in the law of nations which stood in the way of its
unreserved acceptance so long as there was no real _law_ of war, but the
conduct of war rested only on a fluctuating number of general _usages_.
The meaning of '_manier_' is '_usage_', and '_Kriegsräson geht vor
Kriegsmanier_' means that the usages of war can be pushed aside when the
reason of war demands it. At the present day, however, the conduct of
war is no longer entirely under the control of _usages_, but under the
control of _enacted rules of law_ to be found in the 'Regulations
respecting the laws of land war', and the application of the old saw to
these legal rules can only lead to abuses and erroneous interpretations.
What it says is, in short, nothing else than this: If the reason of war
demands it, everything is permissible. But since the first Hague Peace
Conference that is definitely no longer the case. Article 22 of the
'Regulations respecting the laws of land war' expressly says that
belligerents have not an unlimited right of choice of means of injuring
the enemy. _Kriegsräson_, therefore, cannot justify everything. Some
enacted rules about the conduct of war are, indeed, framed with such
latitude as to allow scope for the operation of _Kriegsräson_. But most
of them do not leave it any scope, and they may not remain unobserved
even if _Kriegsräson_ were to make it desirable. It must be admitted
that the general principle of the law of nations, that such acts as are
absolutely necessary for self-preservation may be excused even though
illegal, is applicable to the law of war also. And, further, in the
exercise of justified reprisals, many enacted rules of war can be set
aside. But mere _Kriegsräson_ never extends so far as to dispense with
enacted rules of war. Nevertheless numerous well-reputed German authors
teach the contrary, and even those who perceive the falsity of this
doctrine still retain the old saying and identify _Kriegsräson_ with the
narrower idea of military necessity. If we are to arrive at clearness,
if possible abuses are not to receive in advance the sheltering
protection of law, the maxim '_Kriegsräson geht vor Kriegsmanier_' must
disappear from the science of international law. It has lost its meaning
and has become an empty but dangerous phrase.
[Sidenote: The doctrine of Rousseau concerning war.]
72. My second example is taken from the use to which an assertion of
Rousseau is commonly put. In his _Contrat Social_, Bk. I, ch. iv, is the
following passage: 'War, then, is not a relation of man to man, but a
relation of states in which private persons are enemies only
accidentally; not as men nor even as citizens, but as soldiers; not as
members of their country, but as its defenders. In a word, each state
can only have as enemies other states and not men; seeing that no true
relation can exist between things of different natures.'
It is in this assertion of Rousseau that a basis is found for a quite
common doctrine to the effect that war is a relation only between the
belligerent states and their contending forces. See how much else has
been deduced from this principle and demanded on the strength of it!
That blockade is only permissible in the case of naval ports and
fortified coast-towns, and not in the case of other ports and places.
That breach of blockade is as little punishable as carriage of
contraband, seeing that it is but a commercial act of peaceable
individuals, it being immaterial whether they are subjects of a neutral
power or of the enemy. That the capture of enemy merchant vessels on the
high seas is unlawful, because these vessels are dedicated to peaceful
trade alone, and have naught to do with hostilities. That peaceful
intercourse, and especially commercial intercourse, between the subjects
of the belligerents cannot be forbidden. And more of the same kind.
If now we examine more closely, we find that there is a sound principle
at the core of Rousseau's doctrine, but that the sentence 'war is merely
a relation between the belligerent states and their contending forces'
is an empty, untenable phrase. The sound central principle is that in
fact, according to modern conceptions, war is a struggle between the
belligerent states, carried on by means of their military and naval
forces, and that their subjects can only be attacked or taken prisoners
so far as they take part in hostilities, and that, if they behave
quietly and peaceably, they are spared harsh treatment as far as
possible. But to assume on that account that a war in which his state
is engaged does not affect a subject, and that he is not brought thereby
into hostile relations to the other side so long as he abstains from any
active part in hostilities--this deals a blow in the face to all the
actual facts of war. Certainly, a peaceable subject does enjoy exemption
from avoidable severities, but he is none the less the object of
coercive measures. If at the outbreak of a war he be resident in the
territory of the enemy, cannot he be expelled? If he contribute to a
loan raised by the enemy, will not his own state punish him for treason?
Is it not the law of many states that if they go to war, an end is put
to peaceful intercourse, and especially commercial intercourse, between
their own subjects and the subjects of the enemy state? Must not the
private person submit to requisitions, pay contributions, endure
limitations on his freedom of movement, and obey the commands of the
hostile occupant? Is not his property on many occasions--for example,
during a siege or a bombardment, or on the field of battle--destroyed
without compensation? Must he not, if his fatherland is completely
conquered and annexed by the enemy, reconcile himself to becoming a
subject of the enemy? Whoever has lived in a district occupied by an
enemy knows what an empty phrase the assertion is, that war is not a
hostile relation between a belligerent state and the subjects of its
enemy. Yet the phrase, nevertheless, wanders from book to book and from
mouth to mouth, and must always be available whenever wanted in order to
justify some assertion which contradicts the recognized rules of
warfare. The kernel of truth in Rousseau's doctrine is this, that while
the soldier is put in an actively hostile position, the peaceable
subject of a belligerent is put in a passively hostile position; but
the doctrine is absolutely misunderstood, although the distinction which
it asserts is quite commonly recognized. And so here also it must be
repeated that, if we are to arrive at clearness, if baseless claims are
not to appear under the cover of law, the phrase 'War is only a relation
between the belligerent states and their contending forces' must
disappear, as being misleading, from the science of international law.
[Sidenote: The science of international law must become international.]
73. It is, finally, a pressing necessity that the science of
international law should become international. The science of
international law is essentially a branch of the science of law, and it
can only thrive if this dependence be not suppressed. Now the science of
law must, of necessity, be a national one, even if at the same time it
employs the comparative method. On this ground the science of
international law, forming always a part of a national science of law,
must in this sense be national. When, despite this, I insist that it
must become international, what I have before my eyes is merely the
requirement that it should not limit itself to the employment of
national literature and the jurisprudence of national courts, and that
it must make itself acquainted with foreign juristic methods.
[Sidenote: Necessary to consult foreign literature on international
law.]
74. There is as yet scarcely any systematic reference to foreign
literature on international law. Monographs may possibly cite the old
editions of some wellnigh obsolete text-books, but, with individual
laudable exceptions, there is scarcely any suggestion of the real
utilization of foreign literature. This defect is, admittedly, to be
attributed not so much to writers themselves as to the fact that foreign
literature is for the most part inaccessible to them. There ought to be
in every state at least _one_ library which devotes especial attention
to international law, and makes, on a well-elaborated plan, a judicious
collection of foreign literature on the subject, particularly foreign
periodicals.
[Sidenote: Necessary to understand foreign juristic methods.]
75. In worse plight than even the employment of foreign literature is
the understanding of foreign juristic methods. And yet without such an
understanding the gates are thrown open for misconceptions, for
unfounded claims, and for mutual recriminations. How great is the
divergence of juristic method can only be appreciated by one who has
practised and been called to the teaching of law in different countries.
Now, just as the outlook of its people is incorporated in the law of
every state, so the specific mode of thought and the logical attitude of
any given people are mirrored in its juristic methods. Historical
tradition, political interdependence, and other accidental influences do
indeed also play a great part therein, but the fundamental factor is the
difference of modes of thought and points of view. Seeing, then, that
the law of nations is one and the same for every member of the community
of states, but that on the other hand the science of every state
elaborates the law of nations on the basis of its national juristic
methods, it is unavoidable that discord should arise if the science of
international law of individual states neglect to acquaint itself with
foreign juristic methods. It is not only in scientific treatises, but
also in judicial decisions, that expression is given to these methods,
and the discordance between judicial decisions on the same issue given
in different states is often traceable simply to the difference of
juristic method. That the law is essentially the same is no guarantee
that in all countries there will be a unanimity of judicial
pronouncement on every point thereof. If ever--and it is not outside the
range of practical possibility--an international agreement, including
all states, were arrived at concerning all the topics of the so-called
international private law and international criminal law, there would,
for the reason under consideration, still continue to be no security
that the same law would in every point receive the same treatment from
the courts of all countries. In order to attain this end there would
have to be an international tribunal erected above the municipal courts
of all states, and its judgments would have to be accepted as binding by
the municipal courts concerned. It is just for this reason that the
proposed International Prize Court and the proposed permanent court for
international disputes will aim in the course of their practice at
securing an identical application of the rules of the law of nations.
And the joint labours of judges of diverse nationalities in these
international courts will influence their mutual understanding in a
manner which will be serviceable to the juristic methods of the
different peoples.
CONCLUSION
[Sidenote: The aims defended are not Utopian.]
76. We have reached the end. I have conducted the reader over wide
areas, and have put before him aims which cannot be immediately
attained. But these aims are not on that account nebulous and Utopian.
We are already on the way which leads to them, even though a long time
will still be required before we draw quite near. This hope may be with
certainty indulged in, because the forces at work for the organic
development of the community of states are ever gathering strength. The
governments of states may continue an obstinate opposition to these
forces, but in the end they must give way. Economic interests primarily,
but many others also, prevent individual states from allowing the
international community of states to remain unorganized any longer.
Slowly indeed, and only by degrees, and to a large extent unwillingly
and of compulsion, but nevertheless step by step, states will be
impelled onwards towards a goal still in part unknown. It is amusing to
observe the parts which individual states play in this process of
development. At one time it is one power, and at another time another
power, that is led by its interests to seize on the leading rôle, and
make progressive proposals. At one time a progressive proposal is
joyfully welcomed, at another it is declined, at another time it meets
with partial assent and partial dissent. In the matter before us the
United States of North America play a very prominent part; they have
the merit of having taken a most conspicuous share in the development
of the law of nations, especially of the law of neutrality. It was
America that moved for the erection of a permanent international court,
and in any event she will not give up the idea even if she cannot secure
its speedy realization.
[Sidenote: Obstacles to progress.]
77. Favourable as the auspices are for continuous progress, there are
not wanting, on the other hand, influences and circumstances opposed to
progress.
In the first place, there is national chauvinism, to which the existence
of a law of nations is hateful, and which represents unlimited national
self-seeking. Where it obtains the upper hand, international conflicts
are unavoidable, and cannot be composed by a judicial sentence. In the
second place, there is the fact that the political equilibrium, on which
the whole law of nations rests, presents itself as a system liable to
gradual as well as to sudden alteration. Were the earth's surface
permanently divided between equally great and equally powerful states,
the political equilibrium would be stable, but it is rooted in the
nature of things that this equilibrium can only be unstable. The reason
is that individual states are subject to a perpetual process of
evolution, and thereby to perpetual change. This evolution is for one
state upwards, for another downwards. No state is permanently assured
against break-up, and it is the break-up of existing states and the rise
of new states that threaten the permanent organization of the
international community of states with danger. There is also another
factor demanding attention, and that is the opposition between West and
East, although the glorious example of Japan shows that the nations of
the East are indeed capable of putting themselves on the plane of
Western civilization, and of taking a place in the sun in the
international community of states.
However this may be, we must move onward, putting our trust in the power
of goodness, which in the course of history leads mankind under its
propitious guidance to ever higher degrees of perfection.
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