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+Project Gutenberg's The Future of International Law, by Lassa Oppenheim
+
+This eBook is for the use of anyone anywhere at no cost and with
+almost no restrictions whatsoever.  You may copy it, give it away or
+re-use it under the terms of the Project Gutenberg License included
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+Title: The Future of International Law
+
+Author: Lassa Oppenheim
+
+Release Date: July 31, 2010 [EBook #33302]
+
+Language: English
+
+Character set encoding: ASCII
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+*** START OF THIS PROJECT GUTENBERG EBOOK THE FUTURE OF INTERNATIONAL LAW ***
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+
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+Produced by allisonamy and the Online Distributed
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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
+     Voelkerrechts_ (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 generale 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 Maitre'.
+
+                                      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 '_Kriegsraeson 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, Goeppert, 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 Sec.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 '_Kriegsraeson geht vor Kriegsmanier_'.]
+
+71. My first example is taken from the use made of the German maxim
+'_Kriegsraeson 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 '_Kriegsraeson 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. _Kriegsraeson_, 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 _Kriegsraeson_. But most
+of them do not leave it any scope, and they may not remain unobserved
+even if _Kriegsraeson_ 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 _Kriegsraeson_ 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 _Kriegsraeson_ 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 '_Kriegsraeson 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 role, 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.
+
+
+
+
+
+End of Project Gutenberg's The Future of International Law, by Lassa Oppenheim
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