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diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/33302-8.txt b/33302-8.txt new file mode 100644 index 0000000..788a8ba --- /dev/null +++ b/33302-8.txt @@ -0,0 +1,2811 @@ +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 +with this eBook or online at www.gutenberg.org + + +Title: The Future of International Law + +Author: Lassa Oppenheim + +Release Date: July 31, 2010 [EBook #33302] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK THE FUTURE OF INTERNATIONAL LAW *** + + + + +Produced by allisonamy and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive/American Libraries.) + + + + + + + + + + Pamphlet Series of the + Carnegie Endowment for International Peace + DIVISION OF INTERNATIONAL LAW + No. 39 + + + + + THE FUTURE OF + INTERNATIONAL LAW + + + BY L. OPPENHEIM, LL.D. + + MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW + + WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE + UNIVERSITY OF CAMBRIDGE, ENGLAND + + HON. MEMBER OF THE ROYAL ACADEMY OF JURISPRUDENCE IN MADRID + + + OXFORD: AT THE CLARENDON PRESS + London, Edinburgh, New York, Toronto, Melbourne and Bombay + HUMPHREY MILFORD + 1921 + + + + + PRINTED IN ENGLAND + AT THE OXFORD UNIVERSITY PRESS + + + + +INTRODUCTORY NOTE + + +In a note prepared in 1915 for the English edition, Professor Oppenheim +stated the circumstances under which his tractate on _The Future of +International Law_ was undertaken and published. + + 'This little work,' he said, 'originally written in German, was + first published in 1911, under the title _Die Zukunft des + Völkerrechts_ (Leipzig: W. Engelmann), as a contribution to the + _Festschrift_ offered to Professor Karl Binding. Events which + have since happened make it necessary to call the reader's + attention to the date of original publication. + + 'The translation into English has been made by Dr. John Pawley + Bate. In accordance with the wish of the author some slight + modifications of the original text were made before + translation. The numbers of the paragraphs and the marginal + summaries do not appear in the original.' + +As was his wont with all his publications, Professor Oppenheim had sent +the undersigned a copy of the German text. The value of 'this little +work', as its author called it, was at once apparent, and he yielded to +the suggestion that it be put into English, in order that it might be +available to English readers in the four quarters of the globe. It was +accordingly translated, set up in type, and was on the point of +appearing, when on July 28, 1914, the then Austro-Hungarian Monarchy +declared war upon Serbia; on August 1 the then German Empire declared +war upon Russia, and two days later against France, violated the +neutrality of Luxemburg on the same day, and the neutrality of Belgium +on the night of the 3rd and 4th of August--thus beginning the series of +wars which, taken together, are commonly called the World War. + +Professor Oppenheim subsequently came to the conclusion that it would be +better to withhold publication until the end of the war. It was done, +and the deposit of ratifications of the Treaty of Versailles on January +10, 1920, removed this obstacle. + +It should be said, however, that Professor Oppenheim expressed doubts on +more than one occasion as to the desirability of its publication, but he +allowed himself to be persuaded that an English version might be of +service to the great and worthy cause of international law and of +international organization. Modesty was not the least of his virtues. + +From time to time Professor Oppenheim has ventured into the same field. +In 1918, in the performance of his duty 'to lay down such rules and +suggest such measures as may tend to diminish the evils of war and +finally to extinguish war between nations', he delivered three lectures +on _The League of Nations and its Problems_, as holder of the Chair of +International Law, founded by Dr. Whewell in the University of +Cambridge. As in _The Future of International Law_, so in the lectures, +he started from the Hague Conferences and made the work of The Hague the +foundation upon which he would base any scheme of international +organization. The epigraph which he put upon the title-page, _Festina +Lente_, indicated the spirit in which he approached his task and the +advice which he felt called upon to give to the most casual of his +readers. In the lectures he took a step in advance--or backward, +according to the point of view--advocating that all members of a league +of nations should 'agree to unite their economic, military, and naval +forces against any one or more States which resort to arms without +submitting their disputes to International Courts of Justice or +International Councils of Conciliation'. + +In the course of 1919, and after the signature of the Treaty of +Versailles on June 28 of that year, Professor Oppenheim contributed to +the _Revue générale de droit international public_ an article in French +on _The Essential Character of the League of Nations_. And what may be +considered as his final views on the subject are contained in the third +edition of his _Treatise on International Law_ (vol. i, pp. 264-310), +the first volume of which appeared in 1920. Professor Oppenheim accepted +the League of Nations, but his eyes were open to its defects as well as +to its merits. + +The partisans of the present League of Nations will prefer Professor +Oppenheim's later views, as expressed in his lectures and in the +_Treatise on International Law_. The opponents of the present League of +Nations will prefer his earlier views, contained in the present +publication. The future will decide which are the more acceptable. + +At the Oxford session of the Institute of International Law, held a year +to the month before the outbreak of the World War, it was the custom of +its members to pass the evenings together in informal discussion of +their chosen subject. On one occasion the discussion assumed the form of +a dialogue between Professor Oppenheim on the one hand and Mr. Elihu +Root on the other. At an unusually late hour the company broke up, and +Mr. Root, putting out his hand to Professor Oppenheim, said, 'Bon soir, +cher Maître'. + + James Brown Scott, + _Director of the Division of International Law_. + + WASHINGTON, D.C. + _February 28, 1921._ + + + + +CONTENTS + + + INTRODUCTION + + PAGE + 1. International law in the past 1 + 2. No international law in antiquity 1 + 3. How the conception of a family of nations arose 2 + 4. The law of nature as the basis of the law of nations 2 + 5. Positive international law 4 + 6. International legislation initiated by the Congress of + Vienna 4 + 7. International Administrative Union 5 + 8. Legislation of the Peace Conferences and of the Naval + Conference of London 5 + 9. The Permanent Court of Arbitration and other international + courts 6 + 10. The Hague Peace Conferences as a permanent institution 6 + 11. Uncertainty as to the fate of the Declaration of London + and of some of the Hague Conventions 7 + 12. The task of the future 7 + + + CHAPTER I + + THE ORGANIZATION OF THE SOCIETY OF STATES + + 13. Is the law of nations an anarchic law? 9 + 14. All law is order 9 + 15. The family of nations is a society ruled by law although + it does not as yet possess special organs 10 + 16. Not necessary that the family of nations should remain + an unorganized society 11 + 17. The pacificist ideal of an organization of the family of + nations 11 + 18. The world-state is not desirable 12 + 19. The world-state would not exclude war 13 + 20. War may gradually disappear without a world-state 14 + 21. Importance of pacificism 15 + 22. Impossible for the family of nations to organize itself + on the model of the state 16 + 23. Impossible to draft a plan for the complete organization + of the family of nations 16 + 24. The Permanent Court of Arbitration the nucleus of the + future organization of the family of nations 17 + 25. The Hague Peace Conferences as organs of the family of + nations 17 + 26. Outlines of a constitution of the family of nations 18 + 27. The proposed constitution leaves state-sovereignty intact 20 + 28. The equality of states 20 + 29. Absence of any executive power 21 + + + CHAPTER II + + INTERNATIONAL LEGISLATION + + 30. Quasi-legislation within the domain of international law 23 + 31. Hague Peace Conferences as an organ for international + legislation 24 + 32. Difficulties in the way of international legislation. The + language question 25 + 33. The opposing interests of the several states 25 + 34. Contrasted methods of drafting 25 + 35. These difficulties distinct from those due to + carelessness. Article 23 (_h_) of the Hague + Regulations of land war is an example 27 + 36. The German and the English interpretation of + Article 23 (_h_) 27 + 37. Davis's interpretation of Article 23 (_h_) 28 + 38. Impossible to reconcile the divergent views about + Article 23 (_h_) 29 + 39. Difficulties due to the fact that international law + cannot be made by a majority vote, or repealed save by + a unanimous vote. A way out found in the difference + between universal and general international law 30 + 40. International laws which are limited in point of time 31 + 41. International legislation no longer to be left to mere + chance 33 + 42. The Declaration of London thoroughly prepared beforehand 34 + 43. The preparation of the Declaration a pattern for future + international legislation 34 + 44. Intentionally incomplete and fragmentary laws 35 + 45. Interpretation of international statutes 35 + 46. International differences as regards interpretation 36 + 47. Different nations have different canons of interpretation 37 + 48. Controverted interpretation of the Declaration of London + an example 37 + 49. Some proposals for the avoidance of difficulties in + interpretation 39 + + + CHAPTER III + + INTERNATIONAL ADMINISTRATION OF JUSTICE + + 50. Law can exist without official administration 41 + 51. The Hague Court of Arbitration as a permanent institution 41 + 52. The proposed International Prize Court and Court of + Arbitral Justice 42 + 53. Does the constitution of the International Prize Court + violate the principle of the equality of states? 43 + 54. Does the International Prize Court restrict the sovereignty + of the several states? 43 + 55. Would the formation of an international Prize Court of + Appeal infringe the sovereignty of the several states? 44 + 56. The powers of the International Prize Court do not curtail + state-sovereignty 45 + 57. Difference between international courts of arbitration and + real international courts of justice 46 + 58. Fundamentals of arbitration in contradistinction to + administration of justice by a court 47 + 59. Opposition to a real international court 48 + 60. A real international court does not endanger the + peaceable settlement of disputes 49 + 61. Composition of an international court 50 + 62. International courts of appeal a necessity 51 + 63. Are international courts valueless if states are not bound + to submit their disputes to them? 52 + 64. What is to be done if a state refuses to accept the + decision of an international court? 54 + 65. Executive power not necessary for an international court 54 + 66. Right of intervention by third states and war as _ultima + ratio_ 55 + + + CHAPTER IV + + THE SCIENCE OF INTERNATIONAL LAW + + 67. New tasks for the science of international law 56 + 68. The science of international law must become positive 56 + 69. The science of international law must be impartial 58 + 70. The science of international law must free itself from the + tyranny of phrases 58 + 71. The meaning of '_Kriegsräson geht vor Kriegsmanier_' 59 + 72. The doctrine of Rousseau concerning war 60 + 73. The science of international law must become + international 63 + 74. Necessary to consult foreign literature on + international law 63 + 75. Necessary to understand foreign juristic methods 64 + + + CONCLUSION + + 76. The aims defended are not Utopian 66 + 77. Obstacles to progress 67 + + + + +INTRODUCTION + + +[Sidenote: International law in the past.] + +1. He who would portray the future of international law must first of +all be exact in his attitude towards its past and present. International +law as the law of the international community of states, such as is the +present-day conception of it, is of comparatively modern origin. Science +dutifully traces it back to Hugo Grotius as its father. In his immortal +work on the _Law of War and of Peace_ he, with masterly touch, focalizes +(as it were) all the tendencies which asserted themselves during the +latter half of the middle ages into a law between independent states, in +such sort that all subsequent development goes back to him. Undoubtedly +the roots of this law reach back into the remotest past of civilization, +for independent states, nay, independent tribes too, cannot have more or +less frequent dealings with each other without developing definite forms +therefor. And so the immunity which must everywhere be conceded to +ambassadors and heralds will probably be the oldest root of +international law. + + +[Sidenote: No international law in antiquity.] + +2. But all attempts to find in the ancient world a law of the same kind +as modern international law must inevitably come to grief on the fact +that the idea of a community of law between civilized states was +entirely foreign to antiquity, and only begins to make its gradual +appearance in the last third of the middle ages. The Jewish ideal of +perpetual peace and the union of all mankind under _One_ God, foreseen +in prophetic vision by Isaiah (ii. 2-4), may be taken as the first +formulation of pacificist doctrine, which of course implies a community +of law between all states, but the prophet does not apprehend this +community of law as an independent idea. This idea was likewise unknown +in its generality to Greek civilization, although certainly looming +before it with some clearness in the international relations of the +Greek city-states one to another. But even if we may speak of a law +resembling in many respects modern international law as prevailing +between the states of ancient Greece, this law must nevertheless be +limited to Greek states, foreign states and peoples standing outside +this community of law as barbarians. On the other hand, Roman law +possessed, it is true, a mass of legal rules for the intercourse between +the Roman Empire and all foreign states, but these rules were _Roman_ +law and not rules of an international law such as postulates an +international community of law. + + +[Sidenote: How the conception of a family of nations arose.] + +3. The idea of an international community of law could not have obtained +acceptance before a time when there existed a number of completely +independent states, internally akin in virtue of a community of +intensive civilization and continually brought into contact with one +another by a lively intercourse. It was in this way that an +international community of law was begotten at the end of the middle +ages out of Christian civilization and mutual intercourse. Grotius and +his forerunners would not have been able to create international law, +had not the conception of a community of law between Christian states +enjoyed a general recognition, and had not international intercourse +before their day evolved already a large number of rules of intercourse, +which were based on custom and in part on very ancient usages. + + +[Sidenote: The law of nature as the basis of the law of nations.] + +4. A theoretical basis for the erection of a system of international law +was provided by the law of nature. This likewise is duteously traced +back by science to Grotius, although in this department also he stands +on the shoulders of his predecessors. The riddle, how it was possible to +find a foundation for international law (as also for constitutional law +and other branches of law) in the law of nature, which itself reposed +upon so unstable a basis, is easy of solution for those who contemplate +the historical development of all law with minds clear from prejudice. +The contention of the historical school that all law springs up +'naturally', like language, is chimerical. Wherever a demand for law and +order imperiously asserts itself, rules of law arise there. Every epoch +of history produces alike that mode of legal development which it needs +and that theoretical basis therefor which corresponds to its own +interpretation of the nature of things. Accordingly the growth of law is +everywhere dependent on, or at least influenced by, a conscious or +unconscious creation of law. Custom, usage, habit, religion, morality, +the nature of the thing, tradition, reason, the examples of single +individuals, and many other factors, contribute the material out of +which the requisite rules of law are built up. Where a strong central +authority busies itself, year in year out, with legislation, expressly +enacted law naturally takes the foremost place, and customary law makes +itself felt to a less and less degree. But where such a strong central +authority does not exist or does not busy itself with continuous +legislation, then the above-named factors exercise a more direct +influence upon the development of law, should there arise in actual life +an imperious demand for definite rules of law. The theory of natural law +was only the mirror held up by legal philosophy, in which the rays +emitted by these factors were focused into a homogeneous image. + + +[Sidenote: Positive international law.] + +5. That, by the side of his international law, with its basis in natural +law, there was also a positive international law, was not unrecognized +by Grotius, but his purpose was merely to depict a system of +international law which should compel universal observance irrespective +of time and nation. And shortly after Grotius, Zouche and his followers +did indeed attempt, in opposition to him, to formulate just such a +positive international law, but it could not win for itself, at any rate +in the seventeenth century, any great recognition; development was +overshadowed by the system of Grotius, and many of his rules of natural +law gradually obtained recognition in practice as customary law. But the +increasing intercourse of states in the eighteenth century called forth +a more positive school of international jurists, and the works of +Bynkershoek, Moser, and Martens fertilized the soil on which in the +nineteenth century there could gradually grow a really positive theory +of international law, even if the scales which betoken its past +connexion with natural law still adhere to the international law of +to-day. + + +[Sidenote: International legislation initiated by the Congress of +Vienna.] + +6. A positive theory of international law was demanded by the fact that +in the first quarter of the nineteenth century, with the Final Act of +the Congress of Vienna, the quasi-legislative activity of international +conventions asserted itself for the first time. From then onwards, +general international law was frequently evolved by means of an +international convention. It was in this way that the permanent +neutralization of Switzerland, Belgium, and Luxemburg was effected, the +navigation of the so-called international rivers in Europe declared +free, the slave-trade abolished, the grades of diplomatic agents +regulated, privateering abolished, the necessity of effectiveness in a +blockade recognized, the principle 'free ships, free goods' finally +established, neutral goods on enemy ships declared free, rules provided +in the interest of those wounded in battle, explosive bullets under the +weight of 400 grammes forbidden, the Suez Canal neutralized, and so +forth. + + +[Sidenote: International Administrative Union.] + +7. Another fact of great importance is the endeavour, which first +manifested itself in the World Postal Union of 1874, to carry out the +international administration of common interests, economic and other, by +means of more or less general international unions. In this way a series +of international administrative unions, often conjoined with special +international boards, have been called into existence. + + +[Sidenote: Legislation of the Peace Conferences and of the Naval +Conference of London.] + +8. With the end of the nineteenth and the first decade of the twentieth +century, in which occur the first and second Peace Conferences at The +Hague and the Naval Conference of London, the development of +international law enters upon a new and pregnant epoch. If hitherto, +despite the momentous law-making treaties of the nineteenth century, +international law was essentially a book-law, a system erected by +greater or smaller authorities on the foundations of state practice and +in its details often uncertain and contested, it is now subjected more +and more, and in a wide domain, to the legislating influence of +law-making international conventions. To mention only the principal +matters: A code has been issued which, full of lacunae as it is, +nevertheless encompasses the whole area of land war; it has been laid +down that war shall only be begun by a declaration of war; the +employment of force for the recovery of contract-debts has been +forbidden; the rights and duties of neutrals in land war and naval war, +the treatment of enemy merchant vessels at the outbreak of hostilities, +and the conditions of the conversion of merchant vessels into men-of-war +have been legislatively fixed; rules concerning the laying of submarine +mines, concerning bombardment by naval forces in time of war, concerning +the application of the principles of the Geneva Convention to naval +warfare, concerning certain limitations on the right of prize in naval +warfare have been agreed on; many states have concurred in a prohibition +of the discharge of explosive missiles from air-ships; and a code of the +rules of naval warfare, so far as it touches the trade of neutrals, +dealing with the topics of blockade, contraband of war, unneutral +service, destruction of neutral prizes, sale of enemy merchantmen to +neutrals, enemy property, convoy and so forth, has been agreed on, +though still unratified. + + +[Sidenote: The Permanent Court of Arbitration and other international +courts.] + +9. It is noteworthy that the first Hague Conference established a +permanent international arbitral tribunal and that the second Hague +Conference decided on the establishment of an International Prize Court +and produced a plan for a standing international court at The Hague. +Hitherto there have been no international courts for the decision of +disputes, and if contending powers have been ready to refer their +disputes to arbitration, they have always first had to form an arbitral +tribunal; but now there is in existence an actual International Court of +Arbitration, and other international courts are in contemplation. + + +[Sidenote: The Hague Peace Conferences as a permanent institution.] + +10. Lastly, it is noteworthy that in the Final Act of the second Hague +Conference a recommendation was expressed that the powers should call a +third Conference in the year 1915, and two years before its meeting +should appoint a preparatory committee, entrusted, among other things, +with the task of proposing a system of organization and procedure for +the coming Conference. This recommendation gives the first impetus +towards making the Hague Conferences a permanent institution and so +ensuring their periodic assembly without the need of initiative on the +part of some one power or another. + + +[Sidenote: Uncertainty as to the fate of the Declaration of London and +of some of the Hague Conventions.] + +11. Neither all the results of the second Hague Peace Conference nor +those of the London Naval Conference are as yet assured, for the +Declaration of London has not yet been ratified, and so the fate of the +International Prize Court is still involved in doubt. The fate of some +of the numerous conventions of the second Hague Conference is still in +similar doubt, and many of those conventions which have been ratified +present only a fragmentary and provisional settlement of their +respective topics. Whatever may be the fate of these agreements which +are still in suspense, this much is certain, that international +legislation, international administration of justice, and international +organization occupy the foreground of affairs, have already been in part +established, and must be in ever-increasing requisition by the present +and the coming generation. + + +[Sidenote: The task of the future.] + +12. If in the following pages I undertake the discussion of these three +weighty matters, it is entirely foreign to my purpose to peer into the +future with the eyes of prophecy or to busy my fancy with building +castles in the air. What I propose is only to place in clear light the +problems which are now coming into view and to furnish some indications +which may contribute to their successful solution. If it is only to +happy accident that we owe the assembling of the Peace Conferences, and +likewise the issues of the same, we must all the more attempt in the +future to assure success by dint of careful deliberation, systematic +preparation, and a purposeful consideration of the problems which press +for attention. And the science of international law must bethink itself +and devote itself, with a more exact method than has hitherto been +usual, to the elaboration of the results of past and future Conferences +and to the incorporation of them in its system. + + + + +CHAPTER I + +THE ORGANIZATION OF THE SOCIETY OF STATES + + +[Sidenote: Is the law of nations an anarchic law?] + +13. International legislation and administration presuppose the +existence of law and order within the society of states, and this latter +topic must therefore be treated before the former. International law has +been called 'anarchic law' on the ground that hitherto the society of +states has not been organized and that it must ever remain unorganized +on account of the complete sovereignty of its members. It seems to me +that this position is untenable. The idea of anarchy forms a contrast to +that of law. Law can as little be anarchic as anarchy can be an +institute of law. The conception of the one excludes the other. He who +cannot conceive of law apart from a superior power enforcing it on its +subjects, may perhaps call the international society of states anarchic, +but then he will also have to contest the existence of an international +law, and, logically, he should also deny the possibility of the +existence of an international society. + + +[Sidenote: All law is order.] + +14. He, however, who identifies law and order, and who, whenever he +finds in any society rules making their appearance which are conceived +as compulsory for the conduct of its members, speaks of law--in contrast +to morality, the observance of which is left to the conscience of the +members--will also be able to speak of law in a society where there is +no relation of superior and subject, provided only that the relation +between the members is regulated in an ordered manner. That the +international society of states is orderly regulated after this wise +will be denied by no one who looks at it without prejudice, and who +does not confuse order in a society with order of such a kind as is +maintained by special organs of the society in question. + + +[Sidenote: The family of nations is a society ruled by law although it +does not as yet possess special organs.] + +15. The admission that hitherto the international society of states has +not possessed any special organs, is not an admission that it has not +been an ordered society. Quite the contrary is the case, for numerous +rules may be pointed to which show that that society is an ordered one. +There are the rules which relate to the independence of each state of +all other states, to the equality of all states, to their supremacy both +personal and territorial, and to their responsibility; and in addition +there are those rules which, exceptionally, allow, or at any rate +excuse, certain inroads on the legal sphere of other states. And the +admission that hitherto this society has possessed no permanent special +organs is not an admission that no ways and means are available for the +maintenance of existing order and for the formation of more +thoroughgoing order, and for the development of a quasi-legislative and +administrative activity. Here, too, quite the contrary is the case. +Every state has possessed and possesses numerous organs for its +international relations, these relations are governed by international +conventions and international custom, and numerous congresses and +conferences assemble from time to time, when it is a question of making +international arrangements of a more general character. In this way it +has been possible, even without permanent organs of the international +society, to increase and multiply the rules of the law of this society. +It does not follow, however, that this society would not attain its aims +better than in the past, if it were able to convert itself from an +unorganized into an organized society. + + +[Sidenote: Not necessary that the family of nations should remain an +unorganized society.] + +16. The assertion that, because of the unlimited sovereignty of its +members, the family of nations must remain for all time an unorganized +society, either has in view the organization of international society +_on the model of a state_, or is founded on an untenable conception of +the idea of sovereignty. If the compression of the whole world into the +form of a single state were attained, the states of the day would +certainly lose their sovereignty and be degraded into provinces. On the +other hand, however, the sovereignty of the members of the international +society just as little excludes its organization as the fact of the +existence of this society excludes the sovereignty of its members. +Sovereignty as the highest earthly authority, which owes allegiance to +no other power, does not exclude the possibility that the sovereign +should subject himself to a self-imposed order, so long as this order +does not place him under any higher earthly power. All members of the +international society thus subject themselves in point of fact to the +law of nations without suffering the least diminution of their +sovereignty. But of course, for him to whom sovereignty is equivalent to +unrestrained power and unlimited arbitrariness of conduct, there cannot +be any international law at all, any more than any constitutional law, +seeing that international and constitutional law are opposed to absolute +arbitrariness, even though they recognize that a sovereign state is the +highest earthly authority. + + +[Sidenote: The pacificist ideal of an organization of the family of +nations.] + +17. Hitherto, the demand for an organization of the international +society has always issued from the pacificist party, in order to render +the suppression of war possible. In the struggle round the pacificist +ideal the chief objection has always been the absence of any judicial +authority over states, and of any supreme executive power, able to +compel, in a dispute between states, the execution of a judicial decree. +Accordingly it has been the aim of the pacificists to obtain an +organization of the international society, such as would compress the +whole world, or at least whole parts of the world, such as Europe and +America, into the form of a federal state or a system of confederated +states. The belief is that only in this way can war be got rid of as a +mode of settling disputes between states, and thereby the +ever-increasing demands of naval and military budgets be avoided. + + +[Sidenote: The world-state is not desirable.] + +18. Whatever else can be urged against a universal federal state and the +like, it is at the present day no longer a physical impossibility. +Distance has been so conquered by the telegraph, the railway, and the +steamboat, that in fact the annual assembly of a world-parliament would +be no impossibility, and in any case a world-government, wherever its +seat might be, would be able to secure almost immediate obedience to its +behests in the uttermost parts of the earth. There is, indeed, only a +quantitative and not a qualitative difference between a command issued +by the British government in London to the remotest part of India or +Africa, and such a command as, in a federal state comprising the whole +world, would issue to the remotest part of the earth from the central +government. Moreover, the ever-increasing international intercourse and +its results--the expression 'internationalism', to denote this, is found +to-day in all languages--has brought the populations of the various +states so near to one another, and has so closely interwoven their +interests, that on this ground also the theoretical possibility of +erecting and maintaining a world-state of the federal type cannot be +denied. But its theoretical and physical possibility prove absolutely +nothing as regards its utility and desirability. In spite of all my +sympathy with the efforts of my idealistic pacificist friends, it is my +firm conviction that the world-state is in no form practically useful or +desirable, for it would bring death instead of life. So far as we can +foresee, the development of mankind is inseparably bound up with the +national development of the different peoples and states. In these +conditions variety brings life, but unity brings death. Just as the +freedom and competition of individuals is needed for the healthy +progress of mankind, so also is the independence and rivalry of the +various nations. A people that is split up into different states may +attain its national development better in a federal state than in a +unitary state, and smaller nations and fragments of nations may (let us +admit) develop better when combined into one state which has grown up +historically out of several nationalities, than each would do in a state +of its own, but the rule nevertheless remains, that strong nations can +develop successfully only in an entirely independent and self-supported +state of their own. + + +[Sidenote: The world-state would not exclude war.] + +19. Further, it is by no means sure that war would necessarily disappear +from a world-state. The example of the duel is instructive here. +Although forbidden in all civilized states and threatened with +penalties, it--certain states excepted--continues to flourish. +Enactments being impotent where the public sentiment of the dominant +class refuses them any moral recognition, the duel will not disappear so +long as the moral attitude of the circles concerned demands it as a +protection for personal honour. And the _Sonderbund_ war of 1847 in +Switzerland, the American war of secession from 1861 to 1865, and the +Austro-Prussian war of 1866 within the German _Bund_, show that +organization into a confederation of states or into a federal state does +not necessarily banish war. + + +[Sidenote: War may gradually disappear without a world-state.] + +20. On the other hand, the gradual disappearance of war, which certainly +is a correct ideal, is to be hoped for and expected quite apart from any +development of a world-state, even if neither to-day nor to-morrow can +be contemplated for the complete realization of this ideal. Many states +have already entered into numerous agreements with other individual +states to refer to arbitration disputed questions of law and questions +about the interpretation of treaties, so far as these disputed questions +do not touch the vital interests, independence, or honour of the +parties. It is here that further development must begin. The man who is +not a victim to prejudice asks the reasonable question, why should vital +interests and the independence and honour of states necessarily be +withdrawn from the domain of judicial decision? If individuals in a +state submit themselves to the judge's sentence, even when their vital +interests, their honour, their economic independence, aye, and their +physical existence are in issue, why should it be impossible for states +to do the same? If only we succeeded in the clear enunciation of legal +rules for all international relations; if only we could succeed in +finding independent and unbiased men to whose judgment a state could +confidently submit its cause; if only we could succeed in bringing such +men together in an independent international court--there would then be +no reason why the great majority of states should not follow the example +of the very small minority which has already agreed to settle all +possible disputes by means of arbitration. The objection that a state +could not submit its honour, for example, to the sentence of a judge is +as little entitled to recognition as is the claim, made by those +dominant classes which in many states glorify the duel, that men of +honour could not settle an affair of their honour by means of a judge's +decree. As long as public sentiment concerning international relations +remains rooted in its present position, it must be confessed that there +can be no talk of any progress, just as the duel also will not disappear +as long as there is no success in bringing about a change of moral +attitude on the part of the classes concerned. But by degrees obsolete +moral positions are undermined by all kinds of influences, then they are +abandoned and higher positions are adopted in their stead. + + +[Sidenote: Importance of pacificism.] + +21. It is here that the importance and value of the modern pacificist +movement emerge with clearness. Wide circles are caught by this +movement, even the governments of all countries are no longer able to +hold aloof from its influence, and its opponents too can no longer fight +it with nothing but scorn and ridicule. Whoever is a believer in the +unlimited progress of civilization will also believe that a time must +come when all states will freely bind themselves to submit all disputes +to judicial or arbitral decision. General disarmament will not hasten +the dawn of this day, for it can only arrive through the deepening of +the public sentiment with reference to international relations. General +disarmament will not make wars to cease, but the ceasing of war will +bring about general disarmament! As already said, not to-day nor +to-morrow will this time come; we stand now only at the very beginning +of the developments that make for the realization of this ideal. It +cannot come to pass unless and until international society develops an +organization of a kind ever tending to perfect itself. + + +[Sidenote: Impossible for the family of nations to organize itself on +the model of the state.] + +22. How then must and will this organization take shape? The proposals +which hitherto have been made for the organization of the world are +freaks of fancy. Of notable value as indications of idealistic +speculation in the midst of an adverse world, they crumble into dust +immediately they are soberly scrutinized. All proposals which aim at the +organization of international society after the pattern of the +organization of the state--whether a unitary state or a federal state, +or a system of confederated states--are either impracticable or do not +meet the needs of the case. Every organization of the community of +states must take as its starting-point the full sovereignty and the +absolute equality of states, and must preserve these characters intact. +There can, therefore, be no talk of a political central authority +standing above individual states; and so the organization in question +must be _sui generis_ and cannot frame itself on the model of state +organization. + + +[Sidenote: Impossible to draft a plan for the complete organization of +the family of nations.] + +23. It is, however, impossible to draft at the present time the plan of +such a complete organization in its details or even in mere outline. The +growth and final shaping of the international organization will go hand +in hand with the progress of the law of nations. Now the progress of the +law of nations is conditioned by the growth of the international +community in mental strength, and this growth in mental strength in its +turn is conditioned by the growth in strength and in bulk, the +broadening and the deepening, of private and public international +interests, and of private and public morale. In the nature of the case +this progress can mature only very slowly. We have here to do with a +process of development lasting over many generations and probably +throughout centuries, the end of which no man can foresee. It is enough +for us to have the beginning of the development before our eyes and, so +far as our strength and insight extend, to have the opportunity of +trying to give it its appropriate aim and direction. More we cannot do. +Much, if not all, depends on whether the _international_ interests of +individual states become stronger than their _national_ interests, for +no state puts its hand to the task of international organization save +when, and so far as, its international interests urge it more or less +irresistibly so to do. + + +[Sidenote: The Permanent Court of Arbitration the nucleus of the future +organization of the family of nations.] + +24. I said, we have the beginning of the development before our eyes. It +consists in the erection of the Permanent Court of Arbitration at The +Hague, and in the permanent Bureau attached thereto. Here we have an +institution belonging not to the individual contracting states but to +the international society of states in contrast to the individual +members, and it is open to the use of all the individual members. If the +Declaration of London be ratified, and if (which scarcely admits of +doubt) it be adopted by all the states which were not represented at the +Conference of London, then the International Prize Court, which was +decided on at the second Hague Conference, will become a fact. This +Court will also become an organ of the international community. Mention +must also be made of the so-called international bureaux of the +so-called international unions, which have come into existence in the +period beginning with 1874; for some at least of them will develop into +organs of international society, although they so far are only organs of +the respective special international unions. + + +[Sidenote: The Hague Peace Conferences as organs of the family of +nations.] + +25. Reference must in conclusion be made to the Hague Peace Conferences +themselves, for it is to be expected that such Conferences will assemble +periodically in the future. If success attends the effort to bring all +members of the international community to an agreement, in virtue of +which a Hague Peace Conference assembles at periodic intervals without +being called together by this or that power, then an organ of +international society will have arisen, the value of which none can +decry. It will then be possible to say that the international community +has become an actually organized society, and it will then be no longer +open to doubt that the organization of this society will gradually +become more and more developed. Before everything else this at least +will then be attained, that an organ of the international society of +states, comparable to the parliaments of individual states, will have +come into existence, which can attend to international legislation as +the needs of the time require, and can cause a continuous growth in the +range of matters submitted to international tribunals. All the same, I +yield myself to no hot-blooded hope of a speedy realization of Utopian +schemes. Even when this organization is already there, progress will be +but slight and gradual, and will encounter unceasing opposition. +Progress in this department has always to reckon on a conflict with +adverse interests and efforts, and it must be expected that in the +continuous struggle between _international_ and _national_ interests the +latter will only slowly prepare themselves to yield. + + +[Sidenote: Outlines of a constitution of the family of nations.] + +26. It is not, however, enough that agreement should make periodic Peace +Conferences a permanent institution. The international community must +provide itself with a constitution, the ground-plan of which would be +something like the following: + + 1. The society of states is composed of all sovereign states + which mutually recognize each other's internal and external + independence. + + 2. Every recognized sovereign state has the right to take part + in the Peace Conferences. + + 3. No state taking part in the Conferences is bound by the + resolutions of the Conferences without its assent. Majority + resolutions only bind the members of that majority. On the + other hand, no state is entitled to require that only such + resolutions be adopted as it assents to. + + 4. Every participant state has the right to be heard at the + Conferences, to bring forward proposals, to make motions, and + to speak on the proposals and motions of other participants. + + 5. A standing international commission shall be appointed whose + duty it shall be to summon all the members of the international + community to the Conferences, to make previous inquiries as to + the proposals and motions which are to be brought before the + Conference and to inform all participants of them, and to + prepare and carry out all other business which the Conferences + may from time to time entrust to it. + + 6. Rules of procedure for the Conferences shall be elaborated, + which shall govern the conduct of the proceedings of the + Conferences, so that the proceedings can follow a defined + course without degenerating into a time-wasting discussion. + + 7. The question of the presidency of the Conferences shall be + settled once for all, so that no room be left for quarrels and + jealousies about precedence. It might perhaps be found + expedient before every Conference to decide on the presidency + by lot. + + 8. All resolutions come into force only when and so far as they + are ratified by the respective states. On the other hand, every + state binds itself, once and for all, to carry out in good + faith the resolutions which it has ratified. + + 9. All states bind themselves to submit to the decisions of the + international tribunals to which they have appealed, so far as + these decisions are within the competence of the respective + tribunals. + +Something like this would be the ground-plan of a constitution of the +international community. Rules 5-7 are demanded by the nature of the +case; rules 1-4 and 8-9 contain nothing new, but merely express what +observation would show to be the legal position at present. + + +[Sidenote: The proposed constitution leaves state-sovereignty intact.] + +27. It must be particularly remarked that such a constitution can in no +way infringe on the full sovereignty of individual states. Apart from +the fact that the idea of sovereignty indicates an absolute independence +of any higher earthly power, that idea has never acquired a rigid and +uniformly recognized content. Times and circumstances have influenced +and shaped it in different states and in the mouths of different +authorities. This development of the idea, an idea which has won a place +for itself and the retention of which seems desirable despite all +opposition, may go further still in the future. + + +[Sidenote: The equality of states.] + +28. The proposed constitution, further, makes no inroad at all on the +equality of states. This equality is the indispensable foundation of +international society. The idea of equality merely expresses the fact +that in all resolutions of the international society every state, +whatever may be its size and political importance, obtains one voice and +no more than one, that every state can be bound by a resolution only +with its consent, and that no state can exercise jurisdiction over +another state. It does not and cannot express more. In no circumstances +is it to be asserted that unanimity is a condition for all resolutions +of the Conferences, and that all resolutions are void to which one or +more states refuse their consent. Of course, such resolutions bind those +only who assent to them, and of course unanimous resolutions alone can +be considered to be universally binding. But nothing should hinder the +Conferences--and so it happened in the two first Conferences--from +passing majority resolutions. It must never be lost sight of that such +majority resolutions do not go to form a _universal_ but only a +_general_ law of nations. Only he who repudiates the necessary +distinction between a particular and a general and a universal law of +nations can demand unanimity. Now the development which up to the +present has taken place in the law of nations has shown the necessity of +this distinction. It would be extremely difficult to enumerate any large +number of universally accepted rules of the law of nations--apart from +those which have obtained recognition as customary law. We have only to +think of the Declaration of Paris, to which some states still refuse +assent. History also teaches us that the general law of nations has a +tendency gradually to become the universal law of nations. It is +therefore permissible, when a forward step which fails to gain unanimous +approval has become a practical matter, for that majority of states +which is ready for it to take the step by themselves; the dissenting +states will give in their adhesion in course of time. And if and when +this should turn out not to be the case, such a majority resolution +would anyhow represent, in a narrower circle of international society, a +step forward from which there is no obligation to forbear merely because +others are unwilling to join in taking it. + + +[Sidenote: Absence of any executive power.] + +29. This constitution, finally, makes no provision for any kind of +executive power, and so it avoids the proposal to set up in +international society an organization resembling that of a state. All +proposals for an international executive authority run counter not only +to the idea of sovereignty, but also to the ideal of international peace +and of international law. The aim of this development is not the +coercion of recalcitrant states, but a condition of things in which +there are no recalcitrant states because every state has freely +submitted to the obligation to refer disputes to the international +tribunals and to abide by their decision. It is just in this respect +that the international community of states differs for all time from the +community of individuals who are united into a state, the latter +requiring as _ultima ratio_ executive compulsion on the part of a +central power, while the former consistently with its nature and +definition can never possess such a central power. It will, we must +confess, call for a long development before such a condition of things +is realized, and, until this realization is effected, war will not +disappear but will remain an historic necessity. + + + + +CHAPTER II + +INTERNATIONAL LEGISLATION + + +[Sidenote: Quasi-legislation within the domain of international law.] + +30. When we speak of legislation we have in view as a rule a state, +wherein there is a law-making power which acts without reference to the +consent of individual subjects. For even if in a constitutional state an +individual does anyhow exercise so much influence upon legislation as +comes from voting at the election of members of parliament, still he has +no direct influence, and must submit to a law that has been enacted +whether he approves of it or not. That is why it is asserted that there +cannot be any talk of legislation in the domain of international law. +And, in fact, that is so if we adhere rigorously to the meaning of the +concept 'legislation', as developed in the domain of internal state +life. The nature of the case does not, however, demand so rigid an +adherence as this; legislation is really nothing more than the conscious +creation of law in contrast to the growth of law out of custom. And it +is an admitted fact that, side by side with international law developed +in this latter way, there is an international law which the members of +the community of states have expressly created by agreement. We might +therefore quite well substitute the term _agreeing a law_ for the term +_decreeing a law_,--but why introduce a new technical term? This +international 'agreeing a law' does consciously and intentionally create +law, and it is therefore a source of law. And provided that we always +bear in mind that this source of law operates only through a +quasi-legislative activity, there is no obstacle to speaking, in a +borrowed sense, of international 'legislation'. Nevertheless, agreeable +and apt as this term is, it must not lead us to assimilate the internal +legislation of a state and international legislation save in the one +respect that in both law is made in a direct, conscious and purposive +manner, in contrast to law that originates in custom. + + +[Sidenote: Hague Peace Conferences as an organ for international +legislation.] + +31. International law of the legislative kind existed before the law of +the Hague Peace Conferences; it issued from the conventions drawn up +from time to time at congresses and conferences. It was a great step +forward that the Congress of Vienna was able, for the first time, to +create general international law by agreement, and that thereby general +international law of the legislative kind could come into existence side +by side with the customary law of nations. But the nineteenth century +introduced international legislation only occasionally. If, as sketched +above, success attends the attempt to make the Hague Peace Conferences a +permanent institution, there would be evolved for the society of states +a legislative organ corresponding to the parliaments of individual +states. A wide field opens thus for further international legislative +activity. Even if the time be not ripe for a comprehensive codification +of the whole law of nations, there is nevertheless a series of matters +in need of international regulation; for example, extradition, the +so-called international private law and international criminal law, +acquisition and loss of nationality, and a series of other matters, not +to mention matters of international administration. Matters which are +already governed by customary law might also be brought within the +domain of enacted law, and at the same time could be put as regards +details upon a surer basis. I have in mind the law of ambassadors and +consuls, the law concerning the open sea and territorial waters, the law +about merchantmen and men-of-war in foreign territorial waters, and more +of this kind. + + +[Sidenote: Difficulties in the way of international legislation.] + +32. The peculiar character of international legislation involves, +however, difficulties of all sorts. + +[Sidenote: The language question.] + +There is, to begin with, the question of language. Seeing that it is +impossible to employ all languages in the enactment of rules of +international law, an agreement must be made for adopting some one +language for these laws, in the same way that French is used at the +present time. But the difficulty thence arising is not insuperable, and +is hardly greater than that which is encountered in drafting a treaty +between peoples whose speech belongs to different families. It must, +however, be a rigid rule that in every case of doubt the text of the law +in its original language--not that of a translation into the languages +of other countries--is authoritative. + + +[Sidenote: The opposing interests of the several states.] + +33. There is, secondly, the difficulty of contenting the opposite +interests of the members of the community of states. But this, too, is +in practice not insurmountable. Of course, where there is such a +brawling between these interests that no agreement is possible, there +can from the outset be no talk of international legislation. This, +however, is not everywhere the case. On the contrary, it is often and in +different areas the case, that the _international_ interests of states +make themselves felt so urgently and so cogently that these states are +ready to sacrifice their particular interests if only a reasonable +compromise be open to them. + + +[Sidenote: Contrasted methods of drafting.] + +34. There is further the difficulty of finding expression in adequate +language for the intention of the legislator. Even the internal +legislation of states suffers under this difficulty in so far as the +art of legislation is still very clumsy and undeveloped. For +_international_ legislation there is in addition the further difficulty +that different groups of peoples employ very different methods in +drafting their laws. If we were to give to an Englishman, a Frenchman, +and a German the task of drafting a law upon the same topic, and if they +were provided with the point of view from which the regulation of +individual points was to proceed, so that the intention of the draftsmen +would be the same, three very different drafts would nevertheless +emerge. The English draft would deal in the most concrete manner +possible with the situations to which it meant to apply; it would adduce +as many particular cases as possible, and so would run the risk of +forgetting some series of cases altogether. The German draft would be as +abstract as is possible, and would entirely disregard individual cases, +except such as required a special treatment; and so it would expose +itself to the danger that in practice cases would be brought within the +enactment which were outside the intention of the legislator. The French +draft would attach more weight to principles than to individual points, +enunciating principles in a legislative manner and leaving it to +practice to construct out of these principles the rule for the +particular case. Now, seeing that French is the language of +international legislation, and so in the editing of drafts at the Hague +Conferences the lion's share will naturally fall to French jurists +attending the Conference, it will scarcely be possible to prevent the +French method of legislation from obtaining great influence over +international legislation. But there is no need for this mode of +legislation to become dominant. The jurist representatives of other +states must see to it that the French method is perfected by their own; +the English and the Germans must make it their business to bring the +drafts into a more concrete form, and to split up principles into more +abstract rules. In this way, it may in time be possible by means of +common international labour to make essential advance in the art of +legislation. + + +[Sidenote: These difficulties distinct from those due to carelessness.] + +35. But the difficulties inherent in the legislative method must not be +confused with those which come from a careless employment of the method; +the latter must always be avoided, otherwise we arrive at contradictions +of interpretation, and these are insuperable. + +[Sidenote: Article 23 (_h_) of the Hague Regulations of land war is an +example.] + +An example of such carelessness is afforded by the incorporation--at the +second Hague Conference--of a new provision in the former Article 23 of +the 'Regulations respecting the laws of land warfare'. I am referring to +the provision added under the letter (_h_), which runs as follows: [It +is forbidden] 'to declare extinguished, suspended, or unenforceable in a +court of law, the rights and rights of action of the nationals of the +adverse party'. + + +[Sidenote: The German and the English interpretation of Article 23 +(_h_).] + +36. From the German memorandum on the second Peace Conference it is +quite clear that this additional rule, which was proposed by Germany and +adopted by the Conference, was directed to the alteration of the rule, +prevailing in several states, whereby during a war the subjects of one +belligerent lose in the country of the other belligerent their _persona +standi in judicio_, and the like. It is in this sense, then, that the +addition has been unanimously interpreted by German literature, with the +agreement of many foreign writers. The official standpoint of England, +on the contrary, is that Article 23 (_h_) has nothing whatever to do +with the municipal law of the belligerent countries. Article 23 (_h_), +so the English Foreign Office explains, forms a subdivision of Article +23, which itself comes under the second section (headed 'Hostilities') +of the Regulations, and forbids a series of acts which otherwise might +be resorted to in the exercise of hostilities by the members of the +contending armies, and by their commanding officers. That this +interpretation is the right one--so it is further explained by the +English side--is shown by the fact that Article 1 of the Convention +expressly says, with reference to the 'Regulations respecting the laws +of land warfare', that the contracting parties shall issue to their +armed land forces instructions which shall be in conformity with the +'Regulations respecting the laws of land warfare' annexed to the +Convention. It would therefore be the duty of every contracting power to +instruct the commanders of its forces in an enemy's country (among other +things) not 'to declare extinguished, suspended, or unenforceable in a +court of law, the rights and rights of action of the nationals of the +adverse party'. + + +[Sidenote: Davis's interpretation of Article 23 (_h_)] + +37. This is also the opinion of Davis, one of the American delegates to +the second Hague Conference; he gives the following explanation with +regard to Article 23 (_h_), in the third edition of his _Elements of +International Law_ (New York, 1908), p. 578: + + In this article a number of acts are described to which neither + belligerent is permitted to resort in the conduct of his + military operations. It was the well-understood purpose of the + Convention of 1899 to impose certain reasonable and wholesome + restrictions upon the authority of commanding generals and + their subordinates in the theatre of belligerent activity. It + is more than probable that this humane and commendable purpose + would fail of accomplishment if a military commander conceived + it to be within his authority to suspend or nullify their + operation, or to regard their application as a matter falling + within his administrative discretion. Especially is this true + where a military officer refuses to receive well-grounded + complaints, or declines to consider demands for redress, in + respect to the acts or conduct of the troops under his command, + from persons subject to the jurisdiction of the enemy, who find + themselves, for the time being, in the territory which he holds + in military occupation. To provide against such a contingency + it was deemed wise to add an appropriate declaratory clause to + the prohibitions of Article 23. The prohibition is included in + section (_h_). + + +[Sidenote: Impossible to reconcile the divergent views about Article 23 +(_h_).] + +38. If, from the fact that Davis was an American delegate, we may +conclude that he represents the government view of the United States of +North America, we are confronted by the fact that official England and +America adopt an interpretation of Article 23 (_h_) which is entirely at +variance with that of Germany, and it is quite impossible to build a +bridge of reconciliation between the two camps. This regrettable fact +has its origin simply in the careless use of the legislative method. If +the German conception of Article 23 (_h_) be the correct one, the lines +of subsection (_h_) ought never to have found a shelter in Article 23, +for they have not the slightest connexion with hostilities between the +contending forces. If, on the other hand, the Anglo-American +interpretation be the right one, pains should have been taken to secure +a wholly different draft of the provision in question, for the present +wording is by no means transparently clear. The protocols of the +Conference (_Actes_, i, 101; iii, 14, 103) are not sufficiently explicit +on the matter. The German delegate, Göppert, did indeed explain (cf. +_Actes_, iii, 103) at the session of the first subcommission of the +Second Commission on July 3, 1907, 'that this proposal is in the +direction of not limiting to corporeal goods the inviolability of enemy +property, and that it has in view the whole domain of obligations with +the object of forbidding all legislative measures which, in time of war, +would deprive an enemy subject of the right to take proceedings for the +performance of a contract in the courts of the adverse party'. But we +shall scarcely go wrong if we assume that the members of the Second +Commission, who were entrusted with the consideration of the +'Regulations respecting the laws of land warfare', had not sufficiently +realized the full meaning of the German proposal. It would otherwise be +quite unintelligible that the reporter upon the German proposal could +say (cf. _Actes_, i, 101): 'This addition is deemed a very happy attempt +to bring out in clear language one of the principles admitted in 1899', +for these 'principles' (concerning the immunity of the private property +of enemy subjects in land warfare) have very little indeed to do with +the question of the _persona standi in judicio_ of an enemy subject. + + +[Sidenote: Difficulties due to the fact that international law cannot be +made by a majority vote, or repealed save by a unanimous vote.] + +39. A difficulty of a special kind besets international legislation, +owing to the fact that international rules cannot be created by a +majority vote, and that, when once in existence, they cannot be repealed +save by a unanimous resolution. + +[Sidenote: A way out found in the difference between universal and general +international law.] + +But when once we free ourselves from the preconception that the equality +of states makes it improper for legislative conferences to adopt any +resolutions which are not unanimously supported, there is nothing to +prevent a substantial result being arrived at even without unanimity. At +this point the difference between general and universal international +law furnishes a way out. Rules of universal international law must +certainly rest on unanimity. It is postulated in the equality of states +that no state can be bound by any law to which it has not given its +consent. But there is naught to prevent a legislative conference from +framing rules of general international law for those states which assent +to it and leaving the dissentient states out of consideration. If the +inclusion in a single convention of all the points under discussion be +avoided, and if the method, adopted at the second Peace Conference, of +dividing the topics of discussion among as many smaller conventions as +possible be followed, it will always be found possible to secure the +support of the greater number of states for the regulation of any given +matter. In no long time thereafter the dissentient states will give in +their adherence to these conventions, either in their existing or some +amended form. Attention will then be paid also to the consolidation of +several smaller laws in a single more comprehensive statute. The nature +of the case and the conditions of international life call for +concessions without which no progress would be practicable. The course +of international legislation hitherto shows unmistakably that the +trodden path is the right path. And it must be emphasized that it is +open to a state to assent to an act of international legislation +although some one or other provision thereof be unacceptable to it. In +such a case the assent of the state in question is given with a +reservation as regards the particular article of the Act, so that it is +in no wise bound by that article. Numerous instances of this could be +adduced: thus, at the Hague Conference of 1907 Germany withheld her +assent to some of the proposed rules of land war, and England to certain +articles in Conventions V and XIII. + + +[Sidenote: International laws which are limited in point of time.] + +40. So also, the difficulty is not insuperable as regards the other +point, namely, that international enactments when once in existence +cannot be repealed or amended save by a unanimous resolution of the +participant states. Here, too, the analogy between municipal and +international legislation must not be pushed too far. Municipal +legislation can at any time be annulled or altered by the sovereign +law-maker; but international legislation, for want of a sovereign over +sovereign states, is not open to such treatment. Here there is a way +out, which was in fact adopted at the second Peace Conference, and also +at the Naval Conference of London, namely, the enactment of laws so +limited in duration to a period of years, that at the expiry of the +period every participant state can withdraw. In this way, for example, +it was agreed that the law about the International Prize Court and the +Declaration of London should only be in force for twelve years, and that +any of the powers which were parties thereto might withdraw twelve +months before the expiry of that period, and that, if and as far as no +withdrawal ensued, these laws should from time to time be continued in +force automatically for a further period of six years. This kind of +international legislation, with its time limit and the right of +denunciation, is to be recommended wherever more or less hazardous +legislative experiments are being made, or where interests are at stake +which in course of time are liable to such an alteration as obliges +states to insist on the amendment or repeal of the previously made law. +For example, the International Prize Court as a whole, and its +composition, constitution, and procedure in particular, form an +unparalleled experiment. But the fact that its institution is only to be +agreed on for a period of twelve years facilitates its general +acceptance, because of the possibility of either abrogating it +altogether, or of reforming it, should experience show this to be +necessary. + + +[Sidenote: International legislation no longer to be left to mere +chance.] + +41. However this may be, one point must be decisively +emphasized,--international legislation can no longer be left to mere +chance. Apart from the Declaration of London and the Geneva Convention, +it has always hitherto been a more or less happy chance which has +controlled international legislation. Of conscious legislative +consideration and deliberation, based on far-reaching, thoroughgoing +preparation, there is no trace. For example, the Declaration of Paris of +1856 was but a by-product of the Peace of Paris of the same year. So +also the legislation of the first Peace Conference was simply due to the +anxiety to accomplish something positive which might conceal the fact +that the proposed aim of the Conference--general disarmament, to +wit--had in no wise been realized. At the second Peace Conference we did +indeed see individual states appear with some well-prepared projects of +legislation, but the preparation was entirely one-sided on the part of +the states in question, and not general; accordingly, the adoption, +rejection, amendment, and final shaping of these projects were also none +the less the result of chance. The second Peace Conference itself took +steps to prevent a repetition of this, calling the attention of the +powers in its Final Act to the necessity of preparing the programme of +the future third Conference a sufficient time in advance to ensure its +deliberations being conducted with the necessary authority and +expedition: + + In order to attain this object the Conference considers that it + would be very desirable that, some two years before the + probable date of the meeting, a preparatory committee should be + charged by the Governments with the task of collecting the + various proposals to be submitted to the Conference, of + ascertaining what subjects are ripe for embodiment in an + international regulation, and of preparing a programme which + the Governments should decide upon in sufficient time to enable + it to be carefully examined by each country. + + +[Sidenote: The Declaration of London thoroughly prepared beforehand.] + +42. In contrast to the rules of the Peace Conferences, a really notable +and exemplary preparation took place in connexion with the Declaration +of London, and the befitting result was a law excellent alike in matter +and in form. England, the state which summoned the Naval Conference of +London, made a collection of the topics which would arise, and +communicated it to the states attending the Conference with the request +that they would send in full statements on the subjects mentioned. After +the answers to this request had come in they were collated with regard +to each of the points on which discussion would arise, and _bases de +discussion_ were elaborated which made a thorough examination of each +point possible at the Conference. By this means it was at once made +clear when the different states were in accord and when not. The door to +compromise was opened. And apart from a few vexed questions an agreement +was in this way successfully reached with regard to a comprehensive law +resting at every point on exhaustive deliberation. + + +[Sidenote: The preparation of the Declaration a pattern for future +international legislation.] + +43. This model method must be the method of the future. If, as indicated +in §26 above, Art. 5, a permanent commission for the preparation of the +Peace Conferences be successfully inaugurated, it will be its task to +make preliminary preparations for the legislative activity of the +Conferences in the manner just sketched out, and chance will no longer +have the same part to play as heretofore. International legislation will +no longer produce anything so full of gaps as the 'Regulations +respecting the laws of land warfare', which leave essential +matters--for instance, capitulations and armistices--without any +adequate regulation. + + +[Sidenote: Intentionally incomplete and fragmentary laws.] + +44. Of course, where the interests of different states are still +involved in some uncertainty, or are in such antagonism that a complete +agreement is impossible, even the fullest preparation and most +painstaking deliberation will not procure a more satisfactory treatment +for many matters than that the legislation which regulates them should +be (so to say) only experimental and intentionally incomplete and +fragmentary in character. Thus, for example, the Conventions about the +conversion of merchantmen into men-of-war and about the use of mines in +naval war can only be considered as legislative experiments, regulating +these matters merely temporarily and in an incomplete and unsatisfactory +manner. But even conventions which designedly are full of lacunae have +their value. They embody all the same an agreement upon some important +parts of the respective topics, and provide a regulation which in every +case is better than the chaos previously prevailing in the areas in +question. They also constitute a firm nucleus round which either custom +or future legislation can develop further regulation. + + +[Sidenote: Interpretation of international statutes.] + +45. But even if international legislation attains the degree of success +suggested, there still remains another great difficulty which must +indirectly influence legislation itself, and that is the interpretation +of international statutes once they have been enacted. It is notorious +that no generally received rule of the law of nations exists for the +interpretation of international treaties. Grotius and his successors +applied thereto the rules of interpretation adopted in Roman law, but +these rules, despite their aptness, are not recognized as international +rules of construction. It can scarcely be said, however, that +insurmountable difficulties have arisen hitherto out of this situation, +for the majority of treaties have been between two parties, and the +interpretation thereof is the affair of the contracting parties +exclusively, and can be ultimately settled by arbitration. But in the +case of general or universal international enactments we have to deal +with conventions between a large number of states or between all states, +and the question, accordingly, now becomes acute. + + +[Sidenote: International differences as regards interpretation.] + +46. The difficulty of solving this question is increased by the fact +that jurists of different nations are influenced by their national +idiosyncrasies in the interpretation of enactments, and are dependent on +the method of their school of law. Here are contrarieties which must +always make themselves powerfully felt. The continental turn of mind is +abstract, the turn of the English and American mind is concrete. +Germans, French, and Italians have learnt to apply the abstract rules of +codified law to concrete cases; in their abstract mode of thought they +believe in general principles of law, and they work outwards from these. +English and Americans, on the contrary, learn their law from decided +cases--'law is that which the courts recognize as a coactive rule' is an +accepted and widely current definition of law in the Anglo-American +jurisprudence; they regard abstract legal rules, which for the most part +they do not understand, with marked distrust; they work outwards from +previously decided cases and, when a new case arises, they always look +for the respects in which it is to be taken as covered by previous +cases; they turn away as far as possible from general principles of law, +and always fasten on the characteristic features of the particular case. +If continental jurists may be said to adapt their cases to the law, +English and American jurists may be said to adapt the law to their +cases. It is obvious that this difference of intellectual attitude and +of juristic training must exercise a far-reaching influence on the +interpretation and construction of international enactments. + + +[Sidenote: Different nations have different canons of interpretation.] + +47. It is because of what has just been explained that the rules for the +interpretation of domestic legislation are different with different +nations. For example, whilst in Germany and France the judge avails +himself more or less liberally of the _Materialien_[1] of a statute in +order to arrive at its meaning, the English judge limits himself to the +strict wording of the text, and utterly refuses to listen to an argument +based on the historical origin of the statute. The English bench, +sticking more closely to the letter of the law, allows also an extensive +or restrictive interpretation thereof much more seldom than the +continental judiciary does. + + [1] It seems impossible to find any single English phrase which gives + the meaning of _Materialien_ in this context. In the _Materialien_ of a + statute is comprised everything officially put on record concerning it + between the time the draftsman undertakes to draft the measure and the + time it is placed on the statute-book. For instance, the commentary + which a draftsman on the Continent always adds to his draft, giving the + reasons for the provisions of the Bill; the discussions in Parliament + about the Bill; and the like.--TRANSLATOR. + + +[Sidenote: Controverted interpretation of the Declaration of London an +example.] + +48. A good illustration of the factors under consideration was furnished +by the movement in England against the ratification of the Declaration +of London, and the discussion evoked thereby in the press and in +Parliament. It was asserted that many rules of the Declaration were so +indefinitely framed as to lie open, castle and keep, to the arbitrary +inroads of a belligerent interpreter. And when the advocates of +ratification pointed to the official 'General Report presented to the +Naval Conference by its Drafting Committee', which gave a satisfying +solution to the issues raised, the answer came that neither a +belligerent nor the International Prize Court would be bound by the +interpretation of the Declaration contained in this General Report. It +was asserted that the ratification of the Declaration would refer only +to the text itself, and that the General Report, not being thereby +ratified, would not be binding; only by express extension of the +ratification to the General Report could the latter bind. + +Continental jurisprudence, if my conception of it be correct, would +stand shaking its head at the whole of this discussion. It would ask how +there could be any talk of ratifying a report, ratification having only +to do with agreements. And as regards the question of the binding +character of the General Report, there might indeed be some objection on +the Continent to the epithet 'binding', but, on the other hand, there +would be no doubt that the interpretation of the Declaration given in +the Report must be accepted on all sides. The Report expressly says: + + We now reach the explanation of the Declaration itself, on + which we shall try, by summarizing the reports already approved + by the Conference, to give an exact and uncontroversial + commentary; this, when it has become an official commentary by + receiving the approval of the Conference, would be fit to serve + as a guide to the different authorities--administrative, + military, and judicial--who may be called on to apply it. + +Seeing that the Conference unanimously accepted the Report, there is +expressed in it and by it the real and true meaning of the individual +articles of the Declaration as the Conference itself understood and +intended it. Every attempt to procure an inconsistent interpretation +must come to grief on this fact, and so the Report is in this sense +'binding'. The ratification of a treaty extends, of course, not only to +the words themselves, but also to their meaning, and if the Conference +which produces an agreement itself unanimously applies a definite +meaning to the words of the agreement, there cannot remain any doubt +that this is the meaning of the verbal text. Nevertheless, the contrary +was maintained in England by a party of men of legal eminence, and the +explanation of this is only to be found in the fact that these English +lawyers were applying to the interpretation of the Declaration the rules +which govern the interpretation of English statutes. The only way to +enable the English Government to ratify the Declaration seems to be a +statement by the Powers at the time of ratification that the +interpretation of the Declaration expressed in the General Report is +accepted on all sides. + + +[Sidenote: Some proposals for the avoidance of difficulties in +interpretation.] + +49. However this may be, the illustration adduced is sufficient proof +that the interpretation of international enactments creates a difficulty +of its own for international legislation. International legislators must +bring even greater solicitude than municipal legislators to the +expression of their real meaning in rigid terms. And this aim can only +be attained by the most assiduous preparation and consideration of the +contents of the enactment. It would be best if these contents were +published and thereby submitted to expert discussion before they were +finally accepted at the Conferences. The national jurisconsults of the +participant states would thus be enabled to criticize the proposals and +to indicate the points which especially need clearing up. It might also +be possible to consider the enactment, by convention, of an +international ordinance containing a series of rules for the +interpretation and construction of all international statutes. This +much is sure, that the interpretation of international statutes must be +freer than that of municipal statutes, and must therefore be directed +rather to the spirit of the law than to the meaning of the words used. +This is all the more requisite because French legal language is foreign +to most of the states concerned, and because it is not to be expected +that before ratification they should obtain minute information about the +meaning of every single foreign word employed. + + + + +CHAPTER III + +INTERNATIONAL ADMINISTRATION OF JUSTICE + + +[Sidenote: Law can exist without official administration.] + +50. It is inherent in the nature of law that it should be put in +question whenever from time to time one party raises a claim in the name +of the law which the other resists in the name of the same law. If, +however, it be asserted that there cannot be any law where there is no +official administration of justice, this is a fallacy, and the fallacy +lies in considering the presence of the elements of the more perfect +situation to be presupposed in the less perfect situation. Beyond a +doubt it is the administration of law which gives law the certainty that +its authority will in every case obtain operative effect. But this +operative effect is obtainable even apart from administration, because +those who are subject to the law are in most cases clear as to its +contents, and so they raise no question about it, but submit to its +application without any need of recourse to jurisdictional officials. +All the same, when a dispute does arise, law needs official +administration: and, accordingly, in the long run, no highly developed +legal society can dispense with it. + + +[Sidenote: The Hague Court of Arbitration as a permanent institution.] + +51. Until the end of the nineteenth century the society of states +possessed no organ which made international administration of justice +possible. When states had made up their mind to have a dispute between +them settled amicably, they either appointed the head of a foreign state +or a foreign international jurist as arbiter, or they selected a number +of persons to form an arbitral tribunal. It was a great step forward +when the first Hague Conference established a Permanent Court of +Arbitration and agreed on international rules of procedure for the +conduct of this court. And if, seeing that in every particular instance +the court is ultimately chosen by the parties, the expression 'Permanent +Court of Arbitration' is only a euphemism, nevertheless the permanent +list of persons from among whom the arbiters can be chosen, and, in +addition, the Permanent Bureau of the Court of Arbitration at The Hague, +and, lastly, the international rules of procedure, represent at least +the elements of a permanent court. Thereby an institution is obtained +which is always available if only parties will make use of it, whereas +such an institution was entirely lacking formerly, and if parties wanted +an arbitration they had to enter on lengthy arrangements about the +machinery of the process. And the short experience of twelve years has +already shown how valuable the institution is, and how well adapted to +induce disputant states to make use of it. + + +[Sidenote: The proposed International Prize Court and Court of Arbitral +Justice.] + +52. The second Peace Conference took, however, another great step +forward in the resolution to establish an international court of appeal +in prize matters, and also in the proposal about a really permanent +international court to exist by the side of the Court of Arbitration. +And the United States of North America have recently entered on +negotiations with the object of utilizing the International Prize Court, +should it come into existence, as at the same time a permanent tribunal +for all legal issues. Here present and future touch hands, and these +proposed institutions must therefore be discussed. Attacks upon them +have been made from two sides, it being asserted that they infringe the +principles of the equality and sovereignty of states. + + +[Sidenote: Does the constitution of the International Prize Court +violate the principle of the equality of states?] + +53. It is alleged that the principle of equality is violated in that the +Prize Court is contemplated as consisting of fifteen members, so that, +while the eight Great Powers are always represented by a member, the +thirty-seven smaller states are only represented by seven members who +take their seats in the court in rotation according to a definite plan. +Now it is not clear how the principle of equality can be deemed violated +thereby. This principle has really nothing to do with the constitution +of an international court so long as no state is compelled to submit +itself to such a tribunal against its will. It would be possible to +constitute an international court without basing it on the +representation of definite states, and that is very likely to come to +pass in the future, when fuller confidence in the international +judicature is felt. In the proposed composition of the Prize Court +expression is given, undoubtedly, to the actually existing _political +inequality_ of states, a matter which, however, has not the least +connexion with their _legal equality_. This political inequality will +never disappear from the world, and if in course of time the creation of +an international judicature is really intended, the realization of this +idea is only possible subject to the existence of political inequality. +There is little doubt that when we come to the constituting of the Prize +Court certain smaller states will abstain because no permanent +representation therein is allotted to them. But it may confidently be +expected that the recalcitrant states will give in their adherence in +the future, when they begin to see what beneficent results the +institution has produced. + + +[Sidenote: Does the International Prize Court restrict the sovereignty +of the several states?] + +54. The International Prize Court violates the sovereignty of states +just as little as it violates the principle of equality. No state +submitting itself to an international tribunal submits itself thereby +to the power of any other earthly sovereign so long as no other power is +entrusted with the execution of the awards of the international +tribunal, that is to say, so long as submission to any such award rests +always and entirely on the voluntary submission of the state concerned. +If this be not correct, then there would also be an invasion of +sovereignty whenever--as indeed happens everywhere more or less--a state +submits itself to the decrees of its own courts, and allows its subjects +an appeal to its courts against the measures of the government. In the +latter, as in the former case, what we have is merely the demission to +the determination of the court of the question whether certain acts and +claims are consistent with law. He who at the present day conceives +sovereignty as an unlimited arbitrariness of conduct is guilty of an +anachronism which is everywhere contradicted by the mere fact that there +are such things as international law and constitutional law. + + +[Sidenote: Would the formation of an international Prize Court of Appeal +infringe the sovereignty of the several states?] + +55. It is next alleged that there is a violation of sovereignty in the +fact that the proposed Prize Court is a court of appeal which is to be +competent to reverse the decisions of national prize courts. There is +nothing in this objection also, for it rests on a _petitio principii_. +If we but get rid of the preconception that a sovereign state can only +admit an interpretation of law to be authoritative for itself when +pronounced by its own courts, no reason is visible why an award of an +international court which upsets an award of a national court should be +considered an infringement of state sovereignty. He who alleges it to be +an infringement has really in view, however unconsciously, the power of +execution which is inherent in the decrees of a national court, and he +is unable to conceive a judicial decree without power of execution. +Judicial declarations of law have, however, as little as the essence of +law itself to do with power of execution; otherwise--as indeed happens +in the case of many persons--the law of nations must be denied any legal +character. Now, just as that system of law is more complete behind which +there stands a central authority enforcing it by compulsion, so also +that judicial activity is more complete with which physical power of +execution is conjoined. But alike in the one and in the other case, +physical power is not an essential element in the conception. Just as +there is law which in point of fact is not enforceable by any central +authority, so there can also be jurisdictional functions without any +correlative power of execution. International administration of justice +is, in the nature of the case, dissociated from any power of this kind; +therefore, too, it does not impair the sovereignty of states. + + +[Sidenote: The powers of the International Prize Court do not curtail +state-sovereignty.] + +56. It is imagined that a trump card is played when it is asserted that +Article 7 of the Convention, entered into at the second Peace +Conference, respecting the Prize Court, curtails state-sovereignty when +it provides that, in default of definite agreement and of generally +recognized rules of the law of nations, the Prize Court is to give its +decisions in accordance with the principles of justice and equity, and +that therefore (so the assertion continues) on certain points the Prize +Court can make international law by itself. Whilst up to the present +time custom and convention have been the two sources of the law of +nations, the Prize Court--so it is said--is now to be added as a third, +and the law made by it is to become international law without requiring +the assent of the several states. All this argument rests on a false +assumption. The article in question endues the Prize Court in certain +points with a law-making power which is simply a _delegated_ power. The +states which are concerned with the Prize Court desire, in the interests +of legal security, that the tribunal should not declare itself +incompetent by reason of want of existing rules on any given matter. +They accordingly delegate to this tribunal the power which lies in them +collectively of making rules of international law, and they +prospectively declare themselves at one with regard to the rules which +the tribunal shall declare to be binding in the name of justice and +equity. Now the Prize Court is not hereby made a special and independent +source of international law by the side of convention, but the law which +it declares is law resting on an agreement between states. Even in the +inner life of states we meet with delegation of legislative power to a +limited degree, and yet this does not mean that the authorities in +question are raised into special and independent sources of law side by +side with the government of the state. And just as in the inner life of +a state a delegation of legislative power does not involve an +infringement of sovereignty, so also the delegation of legislative power +to the Prize Court involves no infringement of the sovereignty of the +members of the international community of states. + + +[Sidenote: Difference between international courts of arbitration and +real international courts of justice.] + +57. The step from the International Court of Arbitration to the erection +of a real international court is, on two grounds, a decided step onward. +In the first place, an arbitral tribunal is not a court in the real +sense of the word, for its decisions are not necessarily based on rules +of law, and it does not necessarily deal with legal matters. An arbiter, +unless the terms of the reference otherwise provide, decides _ex aequo +et bono_, whilst a judge founds his decision on rules of law and is only +applied to on legal issues. Valuable as it may be in many cases to +withdraw a matter from the courts and remit it to arbitration, it is in +other cases equally valuable to have a cause decided in legal fashion by +a judge. The experience which we have so far had of arbitral tribunals +shows that they make praiseworthy efforts to arrive at a finding which +shall as far as possible satisfy both parties, and that they have in +view a compromise rather than a genuine declaration of law. Now the +cases are, all the same, numerous enough in which the parties want a +real, genuine declaration of law, and so it would be most valuable if a +real international court were in existence. In the determination to +erect an International Prize Court it has been recognized that prize +cases ought not to be brought, from occasion to occasion, before an +arbitral tribunal and there peaceably arranged, but ought to be decided +by a real court on the basis of the law of prize. If success attends the +attempt to convert the Prize Court into a general international court or +if a special international court is created, this would render it +possible to have other international legal disputes also decided by a +real court upon naked principles of law. Such a possibility is in the +interest of the parties and also in that of international law itself, +for it will be held in higher and surer esteem if a court is provided +for its authoritative interpretation and application. + + +[Sidenote: Fundamentals of arbitration in contradistinction to +administration of justice by a court.] + +58. The second ground referred to is that it is a fundamental part of +the idea of arbitration that in every case the choice of the arbiters as +men in whom the parties have confidence should be left to the parties +themselves, whilst it is fundamental in the conception of a court that +it is once and for all composed of judges appointed independently of the +choice of the parties and permanently to adjudicate upon matters of +law. Such a court secures continuity of jurisprudence, affords a +guarantee for the most exact examination of questions of fact and of +law, deems itself to a greater or a less degree bound by its previous +decisions, contributes thereby to the settlement of open legal +questions, and furthers the growth of law while adding to the respect in +which it is held. Nothing can heighten the respect in which +international law is held more than the existence of a real +international court. + + +[Sidenote: Opposition to a real international court.] + +59. But, incredible as it may sound, this is not generally recognized. +It is just among the old champions of the arbitral decision of +international disputes that the most violent opposition is raised to the +erection of a real court of justice for international law causes. In +such a court they see a great danger for the future. The fact that +arbitration has a tendency to furnish rather a decision which is as far +as possible satisfactory to both parties than one which is based on +naked law, is just the respect which, in the eyes of many, gives it a +higher value than a real court possesses. Not _jural_ but _peaceable_ +settlement of disputes is the motto of these men; they do not desiderate +justice in the sense of existing law, but equity such as contents both +parties. And they gain support and approval from those who see in the +law of nations rather a diplomatic than a legal branch of knowledge, and +who therefore resist the upbuilding of the law of nations on the +foundation of firmer, more precise, and more sharply defined rules on +the analogy of the municipal law of states. These persons range +themselves against an international court because such a court would +apply the rules of the law of nations to disputed cases in the same way +in which the courts of a state apply the rules of municipal law to +disputed cases arising within the state; they prefer diplomatic or, at +any rate, arbitral settlement of disputes between states to the purely +legal decision thereof. They also contend that an international court +without an international power of execution is an absurdity. + + +[Sidenote: A real international court does not endanger the peaceable +settlement of disputes.] + +60. This last objection has already been dealt with above (paragraph +55), where it is shown that a judicial award as an authoritative +declaration of the legitimate character of an act or claim has, in and +for itself, nothing to do with the governmental execution of the award. +But as to the fear that the erection of an international court might +endanger the peaceable settlement of disputes and the development of +international arbitration, that is certainly groundless. The contrary is +the case, as is shown by the fact that the happy movement towards the +erection of an international court was initiated by the United States of +North America. This country, which since its entry into the +international community of states has more than any other championed the +idea of the arbitral adjustment of disputes, and has in practice put it +to good use, is well aware of the value of arbitration, but, on the +other hand, it knows also how to prize the purely legal decision of +legal questions. It has actually happened that a state has not ventured +to submit a certain dispute to arbitration because it feared that its +claim would not receive jural treatment in this way. It is just because +the existence of an international court would promote the non-warlike +settlement of international claims that its erection has been put +forward. The reason is that even with the most careful selection of +arbiters, one is never certain beforehand as to the quarter whence they +will derive their ideas of the _aequum et bonum_, whilst with a jural +settlement of claims the decision rests on the sure basis of law. +Further, the erection of an international court is not intended to cause +the suppression of the so-called Permanent Court of Arbitration; on the +contrary, the machinery of this latter is to be retained in full +existence, so that the parties may in every case be able to choose +between the Court of Arbitration and a real court. The future will show +that both can render good service side by side. + + +[Sidenote: Composition of an international court.] + +61. If the erection of an international court comes to pass, the +equipment of it with competent and worthy men will be of the highest +importance. Their selection will have difficulties of all sorts to +overcome. The peculiar character of international law, the conflict +between the positive school and the school which would derive +international law from natural law, the diversity of peoples (consequent +on diversity of speech and of outlook on law and life) and of legal +systems and of constitutional conceptions, and the like--all these bring +the danger that the court in question should become the arena of +national jealousies, of empty talk, and of political collisions of +interest, instead of being the citadel of international justice. All +depends on the spirit in which the different governments make the choice +of judges. Let regard be paid to a good acquaintance with international +law joined to independence, judicial aptitude, and steadfastness of +character. Let what is expected of candidates be the representation not +of political interests but of the interests of international +jurisprudence. Let nomination be made not of such diplomatists as are +conversant with the law of nations, but of jurists who, while conversant +with this branch of law, have had the training required of members of +the highest state judiciary, and have been tested in practice. Let men +be chosen who are masters not only of their own language and of French, +but also of some other of the most widely diffused languages, and who +possess an acquaintance with foreign legal systems. If this be done, all +danger will be avoided. Judges so selected will speedily adapt +themselves to the _milieu_ of the international court and be laid hold +of by it, and their equipment for their task completed. As things are at +present, the institution of an international court is an unheard-of +experiment. But the experiment must be made at some time, and the hope +may be confidently entertained that it will be successful. Petty +considerations based on the weakness of humanity and doubts as to the +sincerity of the efforts of states to submit themselves voluntarily to +international tribunals must be silenced. Fear of international +entanglements and groupings is misplaced. National prejudices and +rivalries must keep in the background. The big state's disdain of the +little state and the little state's mistrust of the big state must give +place to mutual respect. Opposed to the hope and confidence that the +experiment will succeed there are no considerations other than those +which have been arrayed against every step forward in international +life. They will disappear like clouds when the sun of success has once +begun to shine upon the activity of the International Court. + + +[Sidenote: International courts of appeal a necessity.] + +62. Obviously it will not be possible in the long run to stop at a +single international court; the erection over the court of first +instance of an international court of appeal is also a necessity. The +proposed Prize Court will indeed be itself a court of appeal because it +cannot be approached until one or two national courts have spoken. But +the proposed International Court of Justice would be a court of first +instance. Now there are no infallible first-instance decisions. Even +courts are fallible and make mistakes. If this is universally recognized +for municipal administration of justice, it must be recognized for +international administration of justice, all the more as public and not +private interests are then in issue. If states are to feel bound to rely +on their right rather than on their might, and to submit it to a +judicial decision, it must be possible to carry an appeal against a +decision of the International Court of Justice to a higher tribunal. +Many advocates of arbitration will not hear of an appeal. In this they +may be right as regards a real arbitral decision given _ex aequo et +bono_, but their arguments lose all force before the nakedly jural +decision of a real court. + +The difficulties which beset the erection of an international court and +the appointment of its members may lead to the renunciation of the +immediate establishment of an international court of appeal. But when +once the International Court is in active working, the demand for a +court of appeal will be raised and it will not be silenced until it has +been satisfied. It would be premature to make proposals now as to the +manner in which such a court of appeal ought to be composed, and as to +the way in which it could be brought into existence. It is enough to +have pointed to the need for it. Directly this need makes itself felt, +ways and means will be found for supplying it. + + +[Sidenote: Are international courts valueless if states are not bound to +submit their disputes to them?] + +63. We next are faced by the objection, what possible value can the +establishment of international courts possess if it be optional to +states either to submit their causes to them or to rely on arms for a +decision of those causes? It is, accordingly, asserted that such courts +can only be of value if states place themselves under a permanent +obligation to submit to them all or at any rate the greater number of +their disputes. This leads to the question of obligatory arbitration +treaties, which played so prominent a part at the second Peace +Conference, and will surely come up again at the third Conference. I +have not the slightest doubt that the third or some later Conference +will agree on the obligatory reference of certain disputes between +states to arbitration, but the matter is of quite subordinate importance +so far as the erection of international courts is in question. Any one +who contemplates international life and the relations of states to one +another, without prejudice and with open eyes, will see quite clearly +that, when once there exist international courts, states will +voluntarily submit a whole series of cases to them. These will, at +first, admittedly, be cases of smaller importance for the most part, but +in time more important cases will also come to them, provided that the +jurisprudence developed in them is of high quality, and such as to give +states a guarantee for decisions at once impartial and purely jural and +free from all political prepossessions. _It is the existence of the +institution which is the vital question now._ Once the machinery is +there, it will be utilized. In all states of the world there are +movements and forces at work to secure the ordered and law-protected +settlement of international disputes. The existence of an international +court will strengthen these movements and forces and render them so +powerful that states will scarcely be able to withdraw themselves from +their influence. And the time when states were ready to draw the sword +on every opportunity belongs to the past. Even for the strongest state +war is now an evil, to which recourse is had only as _ultima ratio_, +when no other way out presents itself. + + +[Sidenote: What is to be done if a state refuses to accept the decision +of an international court?] + +64. In conclusion the great question is, what is to happen if a state +declines to accept the decision of the international court to which it +has appealed? + +Important as this question may be in theory, it is a minor one in +practice. It will scarcely happen in point of fact--assuming that there +is an international court of appeal above the court of first +instance--that a state will refuse a voluntary acceptance of the award +of an international court. Only slowly, and only when irresistibly +compelled by their interests so to do, will states submit their disputes +to international courts. But when this is the case these same interests +will also compel them to accept the award then made. + + +[Sidenote: Executive power not necessary for an international court.] + +65. We have neither desire nor need to equip these courts with executive +power. In the internal life of states it is necessary for courts to +possess executive power because the conditions of human nature demand +it. Just as there will always be individual offenders, so there will +always be individuals who will only yield to compulsion. But states are +a different kind of person from individual men; their present-day +constitution on the generally prevalent type has made them, so to say, +more moral than in the times of absolutism. The personal interests and +ambition of sovereigns, and their passion for an increase of their +might, have finished playing their part in the life of peoples. The real +and true interests of states and the welfare of the inhabitants of the +state have taken the place thereof. Machiavellian principles are no +longer prevalent everywhere. The mutual intercourse of states is carried +on in reliance on the sacredness of treaties. Peaceable adjustment of +state disputes is in the interests of the states themselves, for war is +nowadays an immense moral and economic evil even for the victor state. +It may be that a state will decline to submit its cause to the +international tribunal because it thinks that its vital interests do not +allow such submission; but when, after weighing its interests, it has +once declared itself ready to appear before the court, it will also +accept the court's award. All other motives apart, the strong state will +do this, because its strength allows it to make voluntary submission to +the award, and the weak state will also do so because war would be +hopeless for it. + + +[Sidenote: Right of intervention by third states and war as _ultima +ratio_.] + +66. If, however, in spite of all, it should happen that a state declined +such acceptance of an award, the powers who were not parties would have +and would use the right of intervention. For there can be no doubt of +the fact that all states which took part in the erection of an +international court would have a right to intervene if a state which +entered an appearance before an international court should refuse to +accept its award. And of course, in such a case, war is always waiting +in the background as an _ultima ratio_; but it is in the background only +that it waits; while, apart from the erection of an international court, +it is standing in the foreground. The whole problem shows that the +development in question cannot be rushed, but must proceed slowly and +continuously. Step can follow step. The economic and other interests of +states are more powerful than the will of the power-wielders of the day. +These interests have begotten the law of nations, have driven states to +arbitration, have called forth the establishment of a Permanent Court of +Arbitration at The Hague, and are now at work compelling the erection of +international courts. Let us arm ourselves with patience and allow these +interests to widen their sway; they will bring about a voluntary +submission to the judgments of the international court on the part of +all states. + + + + +CHAPTER IV + +THE SCIENCE OF INTERNATIONAL LAW + + +[Sidenote: New tasks for the science of international law.] + +67. International organization and legislation and the establishment of +international courts are the business of the Hague Peace Conferences; +but to work out the new enactments and to turn them to good account and +to prepare for their practical application, this is the business of the +science of international law. Science obtains thereby a share in the +future of the law of nations, and quite new tasks are allotted to it. As +mentioned earlier, the law of nations was, until the first of the Peace +Conferences, essentially a book-law. Treatises depicted the law such as +it was growing, in the form of custom, out of the practice of states in +international intercourse. There were only a few international +enactments, and there was no international court practice. But that +state of things has now been altered once and for all. International +enactments appear in greater number. Decisions of international courts +will follow, just as we already possess a number of awards of the +Permanent Court of Arbitration. If science is to be equal to its tasks, +it must take good heed to itself, it must become wholly positive and +impartial, it must free itself from the domination of phrases, and it +must become international. + + +[Sidenote: The science of international law must become positive.] + +68. It is indispensably requisite that this science should be positive +in character. What natural law and natural law methods have done for the +law of nations in the past stands high above all doubt, but they have +lost their value and importance for present and future times. Now and +onwards the task is, in the first place, to ascertain and to give +precision to the rules which have grown up in custom, and in the second +place to formulate the enacted rules in their full content and in their +full bearing. In doing so it will come to light that there are many gaps +not yet regulated by law. Many of these gaps may be successfully filled +up by a discreet employment of analogy, but many others will remain +which can only be remedied by international legislation or by the +development of customary law in the practice of the courts or otherwise. +What science can do here is to make proposals _de lege ferenda_ of a +politico-jural character, but it cannot and may not fill up the gaps. +Science may also test and criticize, from the politico-jural standpoint, +the existing rules of customary or enacted law, but, on the other hand, +it may not contest their operation and applicability, even if convinced +of their worthlessness. It must not be said that these are obvious +matters and therefore do not need special emphasis. There are many +recognized rules of customary law the operativeness of which is +challenged by this or that writer because they offend his sense of what +is right and proper. As an example thereof let us take the refusal by +some well-reputed writers to include annexation after effective conquest +(_debellatio_) among the modes, known to international law, of +acquisition of state territory. They teach that _debellatio_ has no +consequences in point of law, but only in point of fact; that it rests +on naked might and brings the annexed area under the power of the victor +only in point of fact and not in point of law. Here they are putting +their politico-jural convictions in the place of a generally recognized +rule of law. + + +[Sidenote: The science of international law must be impartial.] + +69. Science cannot, however, be genuinely positive unless it is +impartial and free from political animosities and national bias. To +believe that it really is at present impartial is a great deception. +Whoever compares the writings of the publicists of the several states +runs up against the contrary at every step. There is no state which in +the past has not allowed itself to be guilty of offences against +international law, but its writers on international law seldom admit +that this has been the case. They perceive the mote in the eye of other +nations, but not the beam in the eye of their own nation. Their writings +teem with ungrounded complaints against other nations, but scarcely +throw the slightest blame on their own country. By such a method +problems are not brought nearer to solution, but only shoved on to one +side. What is wanted, is that an ear should be lent to the principle +_audiatur et altera pars_, that the opponent should be heard and his +motives weighed. It will then often turn out that what was believed to +merit reprobation, as a breach of law, will show itself to be a +one-sided but forceful solution of a disputed question. And even where a +real breach of law has been committed it will be worth while to weigh +the political motives and interests which have driven the perpetrator to +it. It must ever be kept in mind that at the present day no state +lightheartedly commits a breach of the law of nations, and that, when it +does commit such a breach, it is generally because it deems its highest +political interests to be in jeopardy. Such a weighing of motives and +interests does not mean excusing the breach of law, but only trying to +understand it. + + +[Sidenote: The science of international law must free itself from the +tyranny of phrases.] + +70. It is also indispensable that the science should free itself from +the tyranny of phrases. As things are, there is scarcely a doctrine of +the law of nations which is wholly free from the tyranny of phrases. The +so-called fundamental rights are their arena, and the doctrines of +state-sovereignty and of the equality of states are in large measure +dominated by them. Any one who is in touch with the application of +international law in diplomatic practice hears from statesmen every day +the complaint that books put forth fanciful doctrines instead of the +actual rules of law. Now it is often not difficult to push the +irrelevant to one side and to extract what is legally essential from the +waste of phrase-ridden discourse. But there are entire areas in which +the tyranny of phrases so turns the head that rules which absolutely +never were rules of law are represented as such. Two conspicuous +examples may serve to illustrate this statement. + + +[Sidenote: The meaning of '_Kriegsräson geht vor Kriegsmanier_'.] + +71. My first example is taken from the use made of the German maxim +'_Kriegsräson geht vor Kriegsmanier_'. This maxim is a very old one, and +there was nothing in the law of nations which stood in the way of its +unreserved acceptance so long as there was no real _law_ of war, but the +conduct of war rested only on a fluctuating number of general _usages_. +The meaning of '_manier_' is '_usage_', and '_Kriegsräson geht vor +Kriegsmanier_' means that the usages of war can be pushed aside when the +reason of war demands it. At the present day, however, the conduct of +war is no longer entirely under the control of _usages_, but under the +control of _enacted rules of law_ to be found in the 'Regulations +respecting the laws of land war', and the application of the old saw to +these legal rules can only lead to abuses and erroneous interpretations. +What it says is, in short, nothing else than this: If the reason of war +demands it, everything is permissible. But since the first Hague Peace +Conference that is definitely no longer the case. Article 22 of the +'Regulations respecting the laws of land war' expressly says that +belligerents have not an unlimited right of choice of means of injuring +the enemy. _Kriegsräson_, therefore, cannot justify everything. Some +enacted rules about the conduct of war are, indeed, framed with such +latitude as to allow scope for the operation of _Kriegsräson_. But most +of them do not leave it any scope, and they may not remain unobserved +even if _Kriegsräson_ were to make it desirable. It must be admitted +that the general principle of the law of nations, that such acts as are +absolutely necessary for self-preservation may be excused even though +illegal, is applicable to the law of war also. And, further, in the +exercise of justified reprisals, many enacted rules of war can be set +aside. But mere _Kriegsräson_ never extends so far as to dispense with +enacted rules of war. Nevertheless numerous well-reputed German authors +teach the contrary, and even those who perceive the falsity of this +doctrine still retain the old saying and identify _Kriegsräson_ with the +narrower idea of military necessity. If we are to arrive at clearness, +if possible abuses are not to receive in advance the sheltering +protection of law, the maxim '_Kriegsräson geht vor Kriegsmanier_' must +disappear from the science of international law. It has lost its meaning +and has become an empty but dangerous phrase. + + +[Sidenote: The doctrine of Rousseau concerning war.] + +72. My second example is taken from the use to which an assertion of +Rousseau is commonly put. In his _Contrat Social_, Bk. I, ch. iv, is the +following passage: 'War, then, is not a relation of man to man, but a +relation of states in which private persons are enemies only +accidentally; not as men nor even as citizens, but as soldiers; not as +members of their country, but as its defenders. In a word, each state +can only have as enemies other states and not men; seeing that no true +relation can exist between things of different natures.' + +It is in this assertion of Rousseau that a basis is found for a quite +common doctrine to the effect that war is a relation only between the +belligerent states and their contending forces. See how much else has +been deduced from this principle and demanded on the strength of it! +That blockade is only permissible in the case of naval ports and +fortified coast-towns, and not in the case of other ports and places. +That breach of blockade is as little punishable as carriage of +contraband, seeing that it is but a commercial act of peaceable +individuals, it being immaterial whether they are subjects of a neutral +power or of the enemy. That the capture of enemy merchant vessels on the +high seas is unlawful, because these vessels are dedicated to peaceful +trade alone, and have naught to do with hostilities. That peaceful +intercourse, and especially commercial intercourse, between the subjects +of the belligerents cannot be forbidden. And more of the same kind. + +If now we examine more closely, we find that there is a sound principle +at the core of Rousseau's doctrine, but that the sentence 'war is merely +a relation between the belligerent states and their contending forces' +is an empty, untenable phrase. The sound central principle is that in +fact, according to modern conceptions, war is a struggle between the +belligerent states, carried on by means of their military and naval +forces, and that their subjects can only be attacked or taken prisoners +so far as they take part in hostilities, and that, if they behave +quietly and peaceably, they are spared harsh treatment as far as +possible. But to assume on that account that a war in which his state +is engaged does not affect a subject, and that he is not brought thereby +into hostile relations to the other side so long as he abstains from any +active part in hostilities--this deals a blow in the face to all the +actual facts of war. Certainly, a peaceable subject does enjoy exemption +from avoidable severities, but he is none the less the object of +coercive measures. If at the outbreak of a war he be resident in the +territory of the enemy, cannot he be expelled? If he contribute to a +loan raised by the enemy, will not his own state punish him for treason? +Is it not the law of many states that if they go to war, an end is put +to peaceful intercourse, and especially commercial intercourse, between +their own subjects and the subjects of the enemy state? Must not the +private person submit to requisitions, pay contributions, endure +limitations on his freedom of movement, and obey the commands of the +hostile occupant? Is not his property on many occasions--for example, +during a siege or a bombardment, or on the field of battle--destroyed +without compensation? Must he not, if his fatherland is completely +conquered and annexed by the enemy, reconcile himself to becoming a +subject of the enemy? Whoever has lived in a district occupied by an +enemy knows what an empty phrase the assertion is, that war is not a +hostile relation between a belligerent state and the subjects of its +enemy. Yet the phrase, nevertheless, wanders from book to book and from +mouth to mouth, and must always be available whenever wanted in order to +justify some assertion which contradicts the recognized rules of +warfare. The kernel of truth in Rousseau's doctrine is this, that while +the soldier is put in an actively hostile position, the peaceable +subject of a belligerent is put in a passively hostile position; but +the doctrine is absolutely misunderstood, although the distinction which +it asserts is quite commonly recognized. And so here also it must be +repeated that, if we are to arrive at clearness, if baseless claims are +not to appear under the cover of law, the phrase 'War is only a relation +between the belligerent states and their contending forces' must +disappear, as being misleading, from the science of international law. + + +[Sidenote: The science of international law must become international.] + +73. It is, finally, a pressing necessity that the science of +international law should become international. The science of +international law is essentially a branch of the science of law, and it +can only thrive if this dependence be not suppressed. Now the science of +law must, of necessity, be a national one, even if at the same time it +employs the comparative method. On this ground the science of +international law, forming always a part of a national science of law, +must in this sense be national. When, despite this, I insist that it +must become international, what I have before my eyes is merely the +requirement that it should not limit itself to the employment of +national literature and the jurisprudence of national courts, and that +it must make itself acquainted with foreign juristic methods. + + +[Sidenote: Necessary to consult foreign literature on international +law.] + +74. There is as yet scarcely any systematic reference to foreign +literature on international law. Monographs may possibly cite the old +editions of some wellnigh obsolete text-books, but, with individual +laudable exceptions, there is scarcely any suggestion of the real +utilization of foreign literature. This defect is, admittedly, to be +attributed not so much to writers themselves as to the fact that foreign +literature is for the most part inaccessible to them. There ought to be +in every state at least _one_ library which devotes especial attention +to international law, and makes, on a well-elaborated plan, a judicious +collection of foreign literature on the subject, particularly foreign +periodicals. + + +[Sidenote: Necessary to understand foreign juristic methods.] + +75. In worse plight than even the employment of foreign literature is +the understanding of foreign juristic methods. And yet without such an +understanding the gates are thrown open for misconceptions, for +unfounded claims, and for mutual recriminations. How great is the +divergence of juristic method can only be appreciated by one who has +practised and been called to the teaching of law in different countries. +Now, just as the outlook of its people is incorporated in the law of +every state, so the specific mode of thought and the logical attitude of +any given people are mirrored in its juristic methods. Historical +tradition, political interdependence, and other accidental influences do +indeed also play a great part therein, but the fundamental factor is the +difference of modes of thought and points of view. Seeing, then, that +the law of nations is one and the same for every member of the community +of states, but that on the other hand the science of every state +elaborates the law of nations on the basis of its national juristic +methods, it is unavoidable that discord should arise if the science of +international law of individual states neglect to acquaint itself with +foreign juristic methods. It is not only in scientific treatises, but +also in judicial decisions, that expression is given to these methods, +and the discordance between judicial decisions on the same issue given +in different states is often traceable simply to the difference of +juristic method. That the law is essentially the same is no guarantee +that in all countries there will be a unanimity of judicial +pronouncement on every point thereof. If ever--and it is not outside the +range of practical possibility--an international agreement, including +all states, were arrived at concerning all the topics of the so-called +international private law and international criminal law, there would, +for the reason under consideration, still continue to be no security +that the same law would in every point receive the same treatment from +the courts of all countries. In order to attain this end there would +have to be an international tribunal erected above the municipal courts +of all states, and its judgments would have to be accepted as binding by +the municipal courts concerned. It is just for this reason that the +proposed International Prize Court and the proposed permanent court for +international disputes will aim in the course of their practice at +securing an identical application of the rules of the law of nations. +And the joint labours of judges of diverse nationalities in these +international courts will influence their mutual understanding in a +manner which will be serviceable to the juristic methods of the +different peoples. + + + + +CONCLUSION + + +[Sidenote: The aims defended are not Utopian.] + +76. We have reached the end. I have conducted the reader over wide +areas, and have put before him aims which cannot be immediately +attained. But these aims are not on that account nebulous and Utopian. +We are already on the way which leads to them, even though a long time +will still be required before we draw quite near. This hope may be with +certainty indulged in, because the forces at work for the organic +development of the community of states are ever gathering strength. The +governments of states may continue an obstinate opposition to these +forces, but in the end they must give way. Economic interests primarily, +but many others also, prevent individual states from allowing the +international community of states to remain unorganized any longer. +Slowly indeed, and only by degrees, and to a large extent unwillingly +and of compulsion, but nevertheless step by step, states will be +impelled onwards towards a goal still in part unknown. It is amusing to +observe the parts which individual states play in this process of +development. At one time it is one power, and at another time another +power, that is led by its interests to seize on the leading rôle, and +make progressive proposals. At one time a progressive proposal is +joyfully welcomed, at another it is declined, at another time it meets +with partial assent and partial dissent. In the matter before us the +United States of North America play a very prominent part; they have +the merit of having taken a most conspicuous share in the development +of the law of nations, especially of the law of neutrality. It was +America that moved for the erection of a permanent international court, +and in any event she will not give up the idea even if she cannot secure +its speedy realization. + + +[Sidenote: Obstacles to progress.] + +77. Favourable as the auspices are for continuous progress, there are +not wanting, on the other hand, influences and circumstances opposed to +progress. + +In the first place, there is national chauvinism, to which the existence +of a law of nations is hateful, and which represents unlimited national +self-seeking. Where it obtains the upper hand, international conflicts +are unavoidable, and cannot be composed by a judicial sentence. In the +second place, there is the fact that the political equilibrium, on which +the whole law of nations rests, presents itself as a system liable to +gradual as well as to sudden alteration. Were the earth's surface +permanently divided between equally great and equally powerful states, +the political equilibrium would be stable, but it is rooted in the +nature of things that this equilibrium can only be unstable. The reason +is that individual states are subject to a perpetual process of +evolution, and thereby to perpetual change. This evolution is for one +state upwards, for another downwards. No state is permanently assured +against break-up, and it is the break-up of existing states and the rise +of new states that threaten the permanent organization of the +international community of states with danger. There is also another +factor demanding attention, and that is the opposition between West and +East, although the glorious example of Japan shows that the nations of +the East are indeed capable of putting themselves on the plane of +Western civilization, and of taking a place in the sun in the +international community of states. + +However this may be, we must move onward, putting our trust in the power +of goodness, which in the course of history leads mankind under its +propitious guidance to ever higher degrees of perfection. + + + + + +End of Project Gutenberg's The Future of International Law, by Lassa Oppenheim + +*** END OF THIS PROJECT GUTENBERG EBOOK THE FUTURE OF INTERNATIONAL LAW *** + +***** This file should be named 33302-8.txt or 33302-8.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/3/3/3/0/33302/ + +Produced by allisonamy and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive/American Libraries.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Future of International Law + +Author: Lassa Oppenheim + +Release Date: July 31, 2010 [EBook #33302] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK THE FUTURE OF INTERNATIONAL LAW *** + + + + +Produced by allisonamy and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive/American Libraries.) + + + + + + +</pre> + +<p class="center"><a class="pagenum_invisible" name="Page_i" id="Page_i" href="#Page_i" title="[Pg i]"></a> + + + +<br /> +<br /> +<br /> +<br /> +Pamphlet Series of the<br /> +<big>Carnegie Endowment for International Peace</big><br /> +<small>DIVISION OF INTERNATIONAL LAW</small><br /> +No. 39</p> +<p><a class="pagenum_invisible" name="Page_ii" id="Page_ii" href="#Page_ii" title="[Pg ii]"></a><br /> + +<br /> +<br /> +<br /> +<br /></p> + +<p><a class="pagenum_invisible" name="Page_iii" id="Page_iii" href="#Page_iii" title="[Pg iii]"></a></p> +<h1>THE FUTURE OF +INTERNATIONAL LAW</h1> + + +<p class="center"><span class="smcap"><big>By L. OPPENHEIM, LL.D.</big></span><br /> +<br /> +<small>MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW<br /> +WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE UNIVERSITY OF CAMBRIDGE, ENGLAND<br /> +HON. MEMBER OF THE ROYAL ACADEMY OF JURISPRUDENCE IN MADRID</small></p> + +<p><br /> +<br /> +<br /> +<br /></p> + +<p class="center">OXFORD: AT THE CLARENDON PRESS<br /> +London, Edinburgh, New York, Toronto, Melbourne and Bombay<br /> +HUMPHREY MILFORD<br /> +1921</p> + +<p><a class="pagenum_invisible" name="Page_iv" id="Page_iv" href="#Page_iv" title="[Pg iv]"></a> + +<br /> +<br /> +<br /> +<br /></p> + +<p class="center"><small>PRINTED IN ENGLAND<br /> +AT THE OXFORD UNIVERSITY PRESS</small></p> + + +<hr style="width: 65%;" /> +<p><a class="pagenum" name="Page_v" id="Page_v" href="#Page_v" title="[Pg v]"></a></p> +<h2><a name="INTRODUCTORY_NOTE" id="INTRODUCTORY_NOTE"></a>INTRODUCTORY NOTE</h2> + + +<p>In a note prepared in 1915 for the English edition, +Professor Oppenheim stated the circumstances under +which his tractate on <i>The Future of International Law</i> +was undertaken and published.</p> + +<blockquote><p>'This little work,' he said, 'originally written in +German, was first published in 1911, under the title +<i lang="de" xml:lang="de">Die Zukunft des Völkerrechts</i> (Leipzig: W. Engelmann), +as a contribution to the <i lang="de" xml:lang="de">Festschrift</i> 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.</p> + +<p>'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.'</p></blockquote> + +<p>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 +<a class="pagenum" name="Page_vi" id="Page_vi" href="#Page_vi" title="[Pg vi]"></a>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 <i>The League of Nations and its Problems</i>, as +holder of the Chair of International Law, founded by +Dr. Whewell in the University of Cambridge. As in +<i>The Future of International Law</i>, 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, <i lang="la" xml:lang="la">Festina Lente</i>, 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<a class="pagenum" name="Page_vii" id="Page_vii" href="#Page_vii" title="[Pg vii]"></a> +submitting their disputes to International Courts of +Justice or International Councils of Conciliation'.</p> + +<p>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 <i lang="fr" xml:lang="fr">Revue générale de droit +international public</i> an article in French on <i>The Essential +Character of the League of Nations</i>. And what may be +considered as his final views on the subject are contained +in the third edition of his <i>Treatise on International Law</i> +(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.</p> + +<p>The partisans of the present League of Nations will +prefer Professor Oppenheim's later views, as expressed +in his lectures and in the <i>Treatise on International Law</i>. +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.</p> + +<p>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, <span lang="fr" xml:lang="fr">'Bon +soir, cher Maître'.</span></p> + +<p style="margin-left: 50%; text-indent: 5em;"> +James Brown Scott,<br /> +<i>Director of the Division of International Law</i>.<br /></p> + +<p style="margin-left: 4em; text-indent: -2em;"><span class="smcap">Washington, D.C.</span><br /> +<i>February 28, 1921.</i></p> +<p><a class="pagenum" name="Page_viii" id="Page_viii" href="#Page_viii" title="[Pg viii]"></a><br /></p> + + + +<hr style="width: 65%;" /> +<p><a class="pagenum" name="Page_ix" id="Page_ix" href="#Page_ix" title="[Pg ix]"></a></p> +<h2><a name="CONTENTS" id="CONTENTS"></a>CONTENTS</h2> + + + + +<h3>INTRODUCTION</h3> + +<ul class="TOC"><li> <span class="ralign">PAGE</span></li> +<li><a href="#Section_1">1. International law in the past</a> <span class="ralign">1</span></li> +<li><a href="#Section_2">2. No international law in antiquity</a> <span class="ralign">1</span></li> +<li><a href="#Section_3">3. How the conception of a family of nations arose</a> <span class="ralign">2</span></li> +<li><a href="#Section_4">4. The law of nature as the basis of the law of nations</a> <span class="ralign">2</span></li> +<li><a href="#Section_5">5. Positive international law</a> <span class="ralign">4</span></li> +<li><a href="#Section_6">6. International legislation initiated by the Congress of Vienna</a> <span class="ralign">4</span></li> +<li><a href="#Section_7">7. International Administrative Union</a> <span class="ralign">5</span></li> +<li><a href="#Section_8">8. Legislation of the Peace Conferences and of the Naval Conference of London</a> <span class="ralign">5</span></li> +<li><a href="#Section_9">9. The Permanent Court of Arbitration and other international courts</a> <span class="ralign">6</span></li> +<li><a href="#Section_10">10. The Hague Peace Conferences as a permanent institution</a> <span class="ralign">6</span></li> +<li><a href="#Section_11">11. Uncertainty as to the fate of the Declaration of London and of some of the Hague Conventions</a> <span class="ralign">7</span></li> +<li><a href="#Section_12">12. The task of the future</a> <span class="ralign">7</span></li></ul> + + +<h3>CHAPTER I<br /> +<br /> +THE ORGANIZATION OF THE SOCIETY OF STATES</h3> + +<ul class="TOC"> +<li><a href="#Section_13">13. Is the law of nations an anarchic law?</a> <span class="ralign">9</span></li> +<li><a href="#Section_14">14. All law is order</a> <span class="ralign">9</span></li> +<li><a href="#Section_15">15. The family of nations is a society ruled by law although it does not as yet possess special organs</a> <span class="ralign">10</span></li> +<li><a href="#Section_16">16. Not necessary that the family of nations should remain an unorganized society</a> <span class="ralign">11</span></li> +<li><a href="#Section_17">17. The pacificist ideal of an organization of the family of nations</a> <span class="ralign">11</span></li> +<li><a href="#Section_18">18. The world-state is not desirable</a> <span class="ralign">12</span></li> +<li><a href="#Section_19">19. The world-state would not exclude war</a> <span class="ralign">13</span></li> +<li><a href="#Section_20">20. War may gradually disappear without a world-state</a> <span class="ralign">14</span></li> +<li><a href="#Section_21">21. Importance of pacificism</a> <span class="ralign">15</span><a class="pagenum" name="Page_x" id="Page_x" href="#Page_x" title="[Pg x]"></a></li> +<li><a href="#Section_22">22. Impossible for the family of nations to organize itself on the model of the state</a> <span class="ralign">16</span></li> +<li><a href="#Section_23">23. Impossible to draft a plan for the complete organization of the family of nations</a> <span class="ralign">16</span></li> +<li><a href="#Section_24">24. The Permanent Court of Arbitration the nucleus of the future organization of the family of nations</a> <span class="ralign">17</span></li> +<li><a href="#Section_25">25. The Hague Peace Conferences as organs of the family of nations</a> <span class="ralign">17</span></li> +<li><a href="#Section_26">26. Outlines of a constitution of the family of nations</a> <span class="ralign">18</span></li> +<li><a href="#Section_27">27. The proposed constitution leaves state-sovereignty intact</a> <span class="ralign">20</span></li> +<li><a href="#Section_28">28. The equality of states</a> <span class="ralign">20</span></li> +<li><a href="#Section_29">29. Absence of any executive power</a> <span class="ralign">21</span></li></ul> + + +<h3>CHAPTER II<br /> +<br /> +INTERNATIONAL LEGISLATION</h3> + +<ul class="TOC"> +<li><a href="#Section_30">30. Quasi-legislation within the domain of international law</a> <span class="ralign">23</span></li> +<li><a href="#Section_31">31. Hague Peace Conferences as an organ for international legislation</a> <span class="ralign">24</span></li> +<li><a href="#Section_32">32. Difficulties in the way of international legislation. The language question</a> <span class="ralign">25</span></li> +<li><a href="#Section_33">33. The opposing interests of the several states</a> <span class="ralign">25</span></li> +<li><a href="#Section_34">34. Contrasted methods of drafting</a> <span class="ralign">25</span></li> +<li><a href="#Section_35">35. These difficulties distinct from those due to carelessness. Article 23 (<i>h</i>) of the Hague Regulations of land war is an example</a> <span class="ralign">27</span></li> +<li><a href="#Section_36">36. The German and the English interpretation of Article 23 (<i>h</i>)</a> <span class="ralign">27</span></li> +<li><a href="#Section_37">37. Davis's interpretation of Article 23 (<i>h</i>)</a> <span class="ralign">28</span></li> +<li><a href="#Section_38">38. Impossible to reconcile the divergent views about Article 23 (<i>h</i>)</a> <span class="ralign">29</span></li> +<li><a href="#Section_39">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</a> <span class="ralign">30</span></li> +<li><a href="#Section_40">40. International laws which are limited in point of time</a> <span class="ralign">31</span></li> +<li><a href="#Section_41">41. International legislation no longer to be left to mere chance</a> <span class="ralign">33</span></li> +<li><a href="#Section_42">42. The Declaration of London thoroughly prepared beforehand</a> <span class="ralign">34</span></li> +<li><a href="#Section_43">43. The preparation of the Declaration a pattern for future international legislation</a> <span class="ralign">34</span><a class="pagenum" name="Page_xi" id="Page_xi" href="#Page_xi" title="[Pg xi]"></a></li> +<li><a href="#Section_44">44. Intentionally incomplete and fragmentary laws</a> <span class="ralign">35</span></li> +<li><a href="#Section_45">45. Interpretation of international statutes</a> <span class="ralign">35</span></li> +<li><a href="#Section_46">46. International differences as regards interpretation</a> <span class="ralign">36</span></li> +<li><a href="#Section_47">47. Different nations have different canons of interpretation</a> <span class="ralign">37</span></li> +<li><a href="#Section_48">48. Controverted interpretation of the Declaration of London an example</a> <span class="ralign">37</span></li> +<li><a href="#Section_49">49. Some proposals for the avoidance of difficulties in interpretation</a> <span class="ralign">39</span></li></ul> + + +<h3>CHAPTER III<br /> +<br /> +INTERNATIONAL ADMINISTRATION OF JUSTICE</h3> + +<ul class="TOC"> +<li><a href="#Section_50">50. Law can exist without official administration</a> <span class="ralign">41</span></li> +<li><a href="#Section_51">51. The Hague Court of Arbitration as a permanent institution</a> <span class="ralign">41</span></li> +<li><a href="#Section_52">52. The proposed International Prize Court and Court of Arbitral Justice</a> <span class="ralign">42</span></li> +<li><a href="#Section_53">53. Does the constitution of the International Prize Court violate the principle of the equality of states?</a> <span class="ralign">43</span></li> +<li><a href="#Section_54">54. Does the International Prize Court restrict the sovereignty of the several states?</a> <span class="ralign">43</span></li> +<li><a href="#Section_55">55. Would the formation of an international Prize Court of Appeal infringe the sovereignty of the several states?</a> <span class="ralign">44</span></li> +<li><a href="#Section_56">56. The powers of the International Prize Court do not curtail state-sovereignty</a> <span class="ralign">45</span></li> +<li><a href="#Section_57">57. Difference between international courts of arbitration and real international courts of justice</a> <span class="ralign">46</span></li> +<li><a href="#Section_58">58. Fundamentals of arbitration in contradistinction to administration of justice by a court</a> <span class="ralign">47</span></li> +<li><a href="#Section_59">59. Opposition to a real international court</a> <span class="ralign">48</span></li> +<li><a href="#Section_60">60. A real international court does not endanger the peaceable settlement of disputes</a> <span class="ralign">49</span></li> +<li><a href="#Section_61">61. Composition of an international court</a> <span class="ralign">50</span></li> +<li><a href="#Section_62">62. International courts of appeal a necessity</a> <span class="ralign">51</span></li> +<li><a href="#Section_63">63. Are international courts valueless if states are not bound to submit their disputes to them?</a> <span class="ralign">52</span></li> +<li><a href="#Section_64">64. What is to be done if a state refuses to accept the decision of an international court?</a> <span class="ralign">54</span></li> +<li><a href="#Section_65">65. Executive power not necessary for an international court</a> <span class="ralign">54</span></li> +<li><a href="#Section_66">66. Right of intervention by third states and war as <i lang="la" xml:lang="la">ultima ratio</i></a> <span class="ralign">55</span><a class="pagenum" name="Page_xii" id="Page_xii" href="#Page_xii" title="[Pg xii]"></a></li></ul> + + +<h3>CHAPTER IV<br /> +<br /> +THE SCIENCE OF INTERNATIONAL LAW</h3> + +<ul class="TOC"> +<li><a href="#Section_67">67. New tasks for the science of international law</a> <span class="ralign">56</span></li> +<li><a href="#Section_68">68. The science of international law must become positive</a> <span class="ralign">56</span></li> +<li><a href="#Section_69">69. The science of international law must be impartial</a> <span class="ralign">58</span></li> +<li><a href="#Section_70">70. The science of international law must free itself from the tyranny of phrases</a> <span class="ralign">58</span></li> +<li><a href="#Section_71">71. The meaning of '<i lang="de" xml:lang="de">Kriegsräson geht vor Kriegsmanier</i>'</a> <span class="ralign">59</span></li> +<li><a href="#Section_72">72. The doctrine of Rousseau concerning war</a> <span class="ralign">60</span></li> +<li><a href="#Section_73">73. The science of international law must become international</a> <span class="ralign">63</span></li> +<li><a href="#Section_74">74. Necessary to consult foreign literature on international law</a> <span class="ralign">63</span></li> +<li><a href="#Section_75">75. Necessary to understand foreign juristic methods</a> <span class="ralign">64</span></li></ul> + + +<h3>CONCLUSION</h3> + +<ul class="TOC"> +<li><a href="#Section_76">76. The aims defended are not Utopian</a> <span class="ralign">66</span></li> +<li><a href="#Section_77">77. Obstacles to progress</a> <span class="ralign">67</span></li></ul> + + + +<hr style="width: 65%;" /> +<p><a class="pagenum" name="Page_1" id="Page_1" href="#Page_1" title="[Pg 1]"></a></p> +<h2><a name="INTRODUCTION" id="INTRODUCTION"></a>INTRODUCTION</h2> + + +<div class="sidenote">International +law +in the past.</div> + +<p><a name="Section_1" id="Section_1">1.</a> 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 <i>Law of War and of Peace</i> 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.</p> + +<div class="sidenote">No international +law +in antiquity.</div> + +<p><a name="Section_2" id="Section_2">2.</a> 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 <em>One</em> 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<a class="pagenum" name="Page_2" id="Page_2" href="#Page_2" title="[Pg 2]"></a> +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 <em>Roman</em> law +and not rules of an international law such as postulates +an international community of law.</p> + +<div class="sidenote">How the +conception +of a family +of nations +arose.</div> + +<p><a name="Section_3" id="Section_3">3.</a> 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.</p> + +<div class="sidenote">The law of +nature as +the basis of +the law of +nations.</div> + +<p><a name="Section_4" id="Section_4">4.</a> 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<a class="pagenum" name="Page_3" id="Page_3" href="#Page_3" title="[Pg 3]"></a> +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.<a class="pagenum" name="Page_4" id="Page_4" href="#Page_4" title="[Pg 4]"></a></p> + +<div class="sidenote">Positive +international +law.</div> + +<p><a name="Section_5" id="Section_5">5.</a> 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.</p> + +<div class="sidenote">International +legislation +initiated by +the Congress of +Vienna.</div> + +<p><a name="Section_6" id="Section_6">6.</a> 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<a class="pagenum" name="Page_5" id="Page_5" href="#Page_5" title="[Pg 5]"></a> +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.</p> + +<div class="sidenote">International +Administrative +Union.</div> + +<p><a name="Section_7" id="Section_7">7.</a> 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.</p> + +<div class="sidenote">Legislation +of the Peace +Conferences +and of the +Naval Conference +of +London.</div> + +<p><a name="Section_8" id="Section_8">8.</a> 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<a class="pagenum" name="Page_6" id="Page_6" href="#Page_6" title="[Pg 6]"></a> +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.</p> + +<div class="sidenote">The Permanent +Court +of Arbitration +and +other international +courts.</div> + +<p><a name="Section_9" id="Section_9">9.</a> 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.</p> + +<div class="sidenote">The Hague +Peace Conferences +as +a permanent +institution.</div> + +<p><a name="Section_10" id="Section_10">10.</a> 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 organiza<a class="pagenum" name="Page_7" id="Page_7" href="#Page_7" title="[Pg 7]"></a>tion +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.</p> + +<div class="sidenote">Uncertainty +as to the fate +of the +Declaration +of London +and of some +of the Hague +Conventions.</div> + +<p><a name="Section_11" id="Section_11">11.</a> 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.</p> + +<div class="sidenote">The task of +the future.</div> + +<p><a name="Section_12" id="Section_12">12.</a> 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 class="pagenum" name="Page_8" id="Page_8" href="#Page_8" title="[Pg 8]"></a> +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.</p> + + + +<hr style="width: 65%;" /> +<p><a class="pagenum" name="Page_9" id="Page_9" href="#Page_9" title="[Pg 9]"></a></p> +<h2><a name="CHAPTER_I" id="CHAPTER_I"></a>CHAPTER I<br /> +<br /> +THE ORGANIZATION OF THE SOCIETY OF STATES</h2> + + +<div class="sidenote">Is the law of +nations an +anarchic +law?</div> + +<p><a name="Section_13" id="Section_13">13.</a> 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.</p> + +<div class="sidenote">All law is +order.</div> + +<p><a name="Section_14" id="Section_14">14.</a> 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<a class="pagenum" name="Page_10" id="Page_10" href="#Page_10" title="[Pg 10]"></a> +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.</p> + +<div class="sidenote">The family +of nations +is a society +ruled by law +although it +does not as +yet possess +special +organs.</div> + +<p><a name="Section_15" id="Section_15">15.</a> 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.<a class="pagenum" name="Page_11" id="Page_11" href="#Page_11" title="[Pg 11]"></a></p> + +<div class="sidenote">Not necessary +that +the family of +nations +should +remain an +unorganized +society.</div> + +<p><a name="Section_16" id="Section_16">16.</a> 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 <em>on the +model of a state</em>, 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.</p> + +<div class="sidenote">The pacificist +ideal of an +organization +of the family +of nations.</div> + +<p><a name="Section_17" id="Section_17">17.</a> 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 execu<a class="pagenum" name="Page_12" id="Page_12" href="#Page_12" title="[Pg 12]"></a>tive +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.</p> + +<div class="sidenote">The world-state +is not +desirable.</div> + +<p><a name="Section_18" id="Section_18">18.</a> 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<a class="pagenum" name="Page_13" id="Page_13" href="#Page_13" title="[Pg 13]"></a> +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.</p> + +<div class="sidenote">The world-state +would +not exclude +war.</div> + +<p><a name="Section_19" id="Section_19">19.</a> 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 <i lang="de" xml:lang="de">Sonderbund</i> war of 1847 in Switzerland, the American +war of secession from 1861 to 1865, and the Austro-Prussian +war of 1866 within the German <i lang="de" xml:lang="de">Bund</i>, show<a class="pagenum" name="Page_14" id="Page_14" href="#Page_14" title="[Pg 14]"></a> +that organization into a confederation of states or into +a federal state does not necessarily banish war.</p> + +<div class="sidenote">War may +gradually +disappear +without +a world-state.</div> + +<p><a name="Section_20" id="Section_20">20.</a> 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<a class="pagenum" name="Page_15" id="Page_15" href="#Page_15" title="[Pg 15]"></a> +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.</p> + +<div class="sidenote">Importance +of pacificism.</div> + +<p><a name="Section_21" id="Section_21">21.</a> 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.<a class="pagenum" name="Page_16" id="Page_16" href="#Page_16" title="[Pg 16]"></a></p> + +<div class="sidenote">Impossible +for the +family of +nations to +organize +itself on the +model of the +state.</div> + +<p><a name="Section_22" id="Section_22">22.</a> 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 <i lang="la" xml:lang="la">sui generis</i> and +cannot frame itself on the model of state organization.</p> + +<div class="sidenote">Impossible +to draft +a plan for +the complete +organization +of the family +of nations.</div> + +<p><a name="Section_23" id="Section_23">23.</a> 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 begin<a class="pagenum" name="Page_17" id="Page_17" href="#Page_17" title="[Pg 17]"></a>ning +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 +<em>international</em> interests of individual states become stronger +than their <em>national</em> 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.</p> + +<div class="sidenote">The Permanent +Court +of Arbitration +the +nucleus of +the future +organization +of the family +of nations.</div> + +<p><a name="Section_24" id="Section_24">24.</a> 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.</p> + +<div class="sidenote">The Hague +Peace Conferences +as +organs of +the family +of nations.</div> + +<p><a name="Section_25" id="Section_25">25.</a> 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<a class="pagenum" name="Page_18" id="Page_18" href="#Page_18" title="[Pg 18]"></a> +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 <em>international</em> and +<em>national</em> interests the latter will only slowly prepare +themselves to yield.</p> + +<div class="sidenote">Outlines of +a constitution +of the +family of +nations.</div> + +<p><a name="Section_26" id="Section_26">26.</a> 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:</p> + +<div class="wider_margin"><p>1. The society of states is composed of all sovereign +states which mutually recognize each other's +internal and external independence.<a class="pagenum" name="Page_19" id="Page_19" href="#Page_19" title="[Pg 19]"></a></p> + +<p>2. Every recognized sovereign state has the right to +take part in the Peace Conferences.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p></div><p><a class="pagenum" name="Page_20" id="Page_20" href="#Page_20" title="[Pg 20]"></a></p> + +<p>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.</p> + +<div class="sidenote">The proposed +constitution +leaves state-sovereignty +intact.</div> + +<p><a name="Section_27" id="Section_27">27.</a> 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.</p> + +<div class="sidenote">The equality +of states.</div> + +<p><a name="Section_28" id="Section_28">28.</a> 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<a class="pagenum" name="Page_21" id="Page_21" href="#Page_21" title="[Pg 21]"></a>—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 <em>universal</em> but only a <em>general</em> 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.</p> + +<div class="sidenote">Absence of +any executive +power.</div> + +<p><a name="Section_29" id="Section_29">29.</a> 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<a class="pagenum" name="Page_22" id="Page_22" href="#Page_22" title="[Pg 22]"></a> +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 <i lang="la" xml:lang="la">ultima ratio</i> 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.</p> + + + +<hr style="width: 65%;" /> +<p><a class="pagenum" name="Page_23" id="Page_23" href="#Page_23" title="[Pg 23]"></a></p> +<h2><a name="CHAPTER_II" id="CHAPTER_II"></a>CHAPTER II<br /> +<br /> +INTERNATIONAL LEGISLATION</h2> + + +<div class="sidenote">Quasi-legislation +within +the domain +of international +law.</div> + +<p><a name="Section_30" id="Section_30">30.</a> 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 <em>agreeing a law</em> for the term <em>decreeing +a law</em>,—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<a class="pagenum" name="Page_24" id="Page_24" href="#Page_24" title="[Pg 24]"></a> +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.</p> + +<div class="sidenote">Hague Peace +Conferences +as an organ +for international +legislation.</div> + +<p><a name="Section_31" id="Section_31">31.</a> 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<a class="pagenum" name="Page_25" id="Page_25" href="#Page_25" title="[Pg 25]"></a> +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.</p> + +<div class="sidenote">Difficulties +in the way +of international +legislation.</div> + +<p><a name="Section_32" id="Section_32">32.</a> The peculiar character of international legislation +involves, however, difficulties of all sorts.</p> + +<div class="sidenote">The +language +question.</div> + +<p>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.</p> + +<div class="sidenote">The opposing +interests of +the several +states.</div> + +<p><a name="Section_33" id="Section_33">33.</a> 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 <em>international</em> +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.</p> + +<div class="sidenote">Contrasted +methods of +drafting.</div> + +<p><a name="Section_34" id="Section_34">34.</a> 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<a class="pagenum" name="Page_26" id="Page_26" href="#Page_26" title="[Pg 26]"></a> +difficulty in so far as the art of legislation is still very +clumsy and undeveloped. For <em>international</em> 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<a class="pagenum" name="Page_27" id="Page_27" href="#Page_27" title="[Pg 27]"></a> +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.</p> + +<div class="sidenote">These difficulties +distinct from +those due +to carelessness.</div> + +<p><a name="Section_35" id="Section_35">35.</a> 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.</p> + +<div class="sidenote">Article 23 (<i>h</i>) +of the Hague +Regulations +of land war is +an example.</div> + +<p>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 (<i>h</i>), 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'.</p> + +<div class="sidenote">The German +and the +English +interpretation +of +Article 23 (<i>h</i>).</div> + +<p><a name="Section_36" id="Section_36">36.</a> 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 <i lang="la" xml:lang="la">persona standi in judicio</i>, 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 (<i>h</i>) has +nothing whatever to do with the municipal law of the +belligerent countries. Article 23 (<i>h</i>), so the English Foreign +Office explains, forms a subdivision of Article 23, which<a class="pagenum" name="Page_28" id="Page_28" href="#Page_28" title="[Pg 28]"></a> +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'.</p> + +<div class="sidenote">Davis's interpretation +of +Article 23 (<i>h</i>)</div> + +<p><a name="Section_37" id="Section_37">37.</a> 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 (<i>h</i>), in the third edition of his <i>Elements of International +Law</i> (New York, 1908), p. 578:</p> + +<blockquote><p>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<a class="pagenum" name="Page_29" id="Page_29" href="#Page_29" title="[Pg 29]"></a> +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 (<i>h</i>).</p></blockquote> + +<div class="sidenote">Impossible +to reconcile +the divergent +views about +Article 23 (<i>h</i>).</div> + +<p><a name="Section_38" id="Section_38">38.</a> 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 (<i>h</i>) 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 (<i>h</i>) be the correct one, the lines of subsection +(<i>h</i>) 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 (<i lang="fr" xml:lang="fr">Actes</i>, i, 101; iii, 14, 103) are not sufficiently +explicit on the matter. The German delegate, <span lang="de" xml:lang="de">Göppert</span>, +did indeed explain (cf. <i lang="fr" xml:lang="fr">Actes</i>, 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,<a class="pagenum" name="Page_30" id="Page_30" href="#Page_30" title="[Pg 30]"></a> +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. <i lang="fr" xml:lang="fr">Actes</i>, 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 <i lang="la" xml:lang="la">persona +standi in judicio</i> of an enemy subject.</p> + +<div class="sidenote">Difficulties +due to the +fact that +international +law cannot +be made by +a majority +vote, or +repealed save +by a unanimous +vote.</div> + +<p><a name="Section_39" id="Section_39">39.</a> 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.</p> + +<div class="sidenote">A way out +found in the +difference +between universal +and +general +international +law.</div> + +<p>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<a class="pagenum" name="Page_31" id="Page_31" href="#Page_31" title="[Pg 31]"></a> +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.</p> + +<div class="sidenote">International +laws which +are limited +in point of +time.</div> + +<p><a name="Section_40" id="Section_40">40.</a> 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<a class="pagenum" name="Page_32" id="Page_32" href="#Page_32" title="[Pg 32]"></a> +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.<a class="pagenum" name="Page_33" id="Page_33" href="#Page_33" title="[Pg 33]"></a></p> + +<div class="sidenote">International +legislation +no longer +to be left +to mere chance.</div> + +<p><a name="Section_41" id="Section_41">41.</a> 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:</p> + +<blockquote><p>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<a class="pagenum" name="Page_34" id="Page_34" href="#Page_34" title="[Pg 34]"></a> +which the Governments should decide upon in sufficient +time to enable it to be carefully examined by +each country.</p></blockquote> + +<div class="sidenote">The Declaration +of +London +thoroughly +prepared +beforehand.</div> + +<p><a name="Section_42" id="Section_42">42.</a> 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 <i lang="fr" xml:lang="fr">bases de discussion</i> 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.</p> + +<div class="sidenote">The preparation +of the +Declaration +a pattern +for future +international +legislation.</div> + +<p><a name="Section_43" id="Section_43">43.</a> This model method must be the method of the +future. If, as indicated in §26 above, Art. 5, a permanent +commission for the preparation of the Peace Conferences +be successfully inaugurated, it will be its task to make +preliminary preparations for the legislative activity of +the Conferences in the manner just sketched out, and +chance will no longer have the same part to play as heretofore. +International legislation will no longer produce +anything so full of gaps as the 'Regulations respecting +the laws of land warfare', which leave essential matters<a class="pagenum" name="Page_35" id="Page_35" href="#Page_35" title="[Pg 35]"></a>—for +instance, capitulations and armistices—without any +adequate regulation.</p> + +<div class="sidenote">Intentionally +incomplete +and fragmentary +laws.</div> + +<p><a name="Section_44" id="Section_44">44.</a> 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.</p> + +<div class="sidenote">Interpretation +of +international +statutes.</div> + +<p><a name="Section_45" id="Section_45">45.</a> 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 insur<a class="pagenum" name="Page_36" id="Page_36" href="#Page_36" title="[Pg 36]"></a>mountable +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.</p> + +<div class="sidenote">International +differences +as regards +interpretation.</div> + +<p><a name="Section_46" id="Section_46">46.</a> 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<a class="pagenum" name="Page_37" id="Page_37" href="#Page_37" title="[Pg 37]"></a> +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.</p> + +<div class="sidenote">Different +nations have +different +canons of +interpretation.</div> + +<p><a name="Section_47" id="Section_47">47.</a> 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 <i lang="de" xml:lang="de">Materialien</i><a name="FNanchor_1" id="FNanchor_1"></a><a href="#Footnote_1" class="fnanchor">[1]</a> 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.</p> + +<div class="footnote"><p><a name="Footnote_1" id="Footnote_1"></a><a href="#FNanchor_1"><span class="label">[1]</span></a> It seems impossible to find any single English phrase which gives +the meaning of <i lang="de" xml:lang="de">Materialien</i> in this context. In the <i lang="de" xml:lang="de">Materialien</i> 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.—<span class="smcap">Translator.</span></p></div> + +<div class="sidenote">Controverted +interpretation +of the +Declaration +of London +an example.</div> + +<p><a name="Section_48" id="Section_48">48.</a> 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<a class="pagenum" name="Page_38" id="Page_38" href="#Page_38" title="[Pg 38]"></a> +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.</p> + +<p>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:</p> + +<blockquote><p>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.</p></blockquote> + +<p>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<a class="pagenum" name="Page_39" id="Page_39" href="#Page_39" title="[Pg 39]"></a> +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.</p> + +<div class="sidenote">Some proposals +for +the avoidance +of +difficulties +in interpretation.</div> + +<p><a name="Section_49" id="Section_49">49.</a> 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 interpre<a class="pagenum" name="Page_40" id="Page_40" href="#Page_40" title="[Pg 40]"></a>tation +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.</p> + + + +<hr style="width: 65%;" /> +<p><a class="pagenum" name="Page_41" id="Page_41" href="#Page_41" title="[Pg 41]"></a></p> +<h2><a name="CHAPTER_III" id="CHAPTER_III"></a>CHAPTER III<br /> +<br /> +INTERNATIONAL ADMINISTRATION OF JUSTICE</h2> + + +<div class="sidenote">Law can +exist without +official administration.</div> + +<p><a name="Section_50" id="Section_50">50.</a> 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.</p> + +<div class="sidenote">The Hague +Court of +Arbitration +as a permanent +institution.</div> + +<p><a name="Section_51" id="Section_51">51.</a> 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<a class="pagenum" name="Page_42" id="Page_42" href="#Page_42" title="[Pg 42]"></a> +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.</p> + +<div class="sidenote">The proposed +International +Prize Court +and Court +of Arbitral +Justice.</div> + +<p><a name="Section_52" id="Section_52">52.</a> 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.<a class="pagenum" name="Page_43" id="Page_43" href="#Page_43" title="[Pg 43]"></a></p> + +<div class="sidenote">Does the +constitution +of the International +Prize Court +violate the +principle of +the equality +of states?</div> + +<p><a name="Section_53" id="Section_53">53.</a> 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 +<em>political inequality</em> of states, a matter which, however, +has not the least connexion with their <em>legal equality</em>. +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.</p> + +<div class="sidenote">Does the +International +Prize Court +restrict the +sovereignty +of the several +states?</div> + +<p><a name="Section_54" id="Section_54">54.</a> 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<a class="pagenum" name="Page_44" id="Page_44" href="#Page_44" title="[Pg 44]"></a> +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.</p> + +<div class="sidenote">Would the +formation of +an international +Prize Court +of Appeal +infringe the +sovereignty +of the several +states?</div> + +<p><a name="Section_55" id="Section_55">55.</a> 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 <i lang="la" xml:lang="la">petitio principii</i>. 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.<a class="pagenum" name="Page_45" id="Page_45" href="#Page_45" title="[Pg 45]"></a> +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.</p> + +<div class="sidenote">The powers +of the International +Prize Court +do not curtail +state-sovereignty.</div> + +<p><a name="Section_56" id="Section_56">56.</a> 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<a class="pagenum" name="Page_46" id="Page_46" href="#Page_46" title="[Pg 46]"></a> +points with a law-making power which is simply a <em>delegated</em> +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.</p> + +<div class="sidenote">Difference +between +international +courts of +arbitration +and real +international +courts of +justice.</div> + +<p><a name="Section_57" id="Section_57">57.</a> 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 <i lang="la" xml:lang="la">ex aequo et bono</i>, whilst a judge founds +his decision on rules of law and is only applied to on legal<a class="pagenum" name="Page_47" id="Page_47" href="#Page_47" title="[Pg 47]"></a> +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.</p> + +<div class="sidenote">Fundamentals +of +arbitration +in contradistinction +to administration +of +justice by +a court.</div> + +<p><a name="Section_58" id="Section_58">58.</a> 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<a class="pagenum" name="Page_48" id="Page_48" href="#Page_48" title="[Pg 48]"></a> +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.</p> + +<div class="sidenote">Opposition +to a real +international +court.</div> + +<p><a name="Section_59" id="Section_59">59.</a> 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 <em>jural</em> but <em>peaceable</em> 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<a class="pagenum" name="Page_49" id="Page_49" href="#Page_49" title="[Pg 49]"></a> +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.</p> + +<div class="sidenote">A real international +court does +not endanger +the +peaceable +settlement +of disputes.</div> + +<p><a name="Section_60" id="Section_60">60.</a> 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 <i lang="la" xml:lang="la">aequum<a class="pagenum" name="Page_50" id="Page_50" href="#Page_50" title="[Pg 50]"></a> +et bonum</i>, 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.</p> + +<div class="sidenote">Composition +of an international +court.</div> + +<p><a name="Section_61" id="Section_61">61.</a> 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<a class="pagenum" name="Page_51" id="Page_51" href="#Page_51" title="[Pg 51]"></a> +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 <i lang="fr" xml:lang="fr">milieu</i> 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.</p> + +<div class="sidenote">International +courts of +appeal a +necessity.</div> + +<p><a name="Section_62" id="Section_62">62.</a> 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<a class="pagenum" name="Page_52" id="Page_52" href="#Page_52" title="[Pg 52]"></a> +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 <i lang="la" xml:lang="la">ex aequo et bono</i>, but their arguments lose all force +before the nakedly jural decision of a real court.</p> + +<p>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.</p> + +<div class="sidenote">Are international +courts valueless +if states +are not +bound to +submit their +disputes to +them?</div> + +<p><a name="Section_63" id="Section_63">63.</a> 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<a class="pagenum" name="Page_53" id="Page_53" href="#Page_53" title="[Pg 53]"></a> +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. <em>It is the +existence of the institution which is the vital question now.</em> +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 <i lang="la" xml:lang="la">ultima ratio</i>, when no other way out presents itself.<a class="pagenum" name="Page_54" id="Page_54" href="#Page_54" title="[Pg 54]"></a></p> + +<div class="sidenote">What is to +be done if +a state +refuses to +accept the +decision of +an international +court?</div> + +<p><a name="Section_64" id="Section_64">64.</a> 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?</p> + +<p>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.</p> + +<div class="sidenote">Executive +power not +necessary +for an +international +court.</div> + +<p><a name="Section_65" id="Section_65">65.</a> 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<a class="pagenum" name="Page_55" id="Page_55" href="#Page_55" title="[Pg 55]"></a> +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.</p> + +<div class="sidenote">Right of +intervention +by third +states and +war as <i lang="la" xml:lang="la">ultima +ratio</i>.</div> + +<p><a name="Section_66" id="Section_66">66.</a> 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 <i lang="la" xml:lang="la">ultima ratio</i>; 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.</p> + + + +<hr style="width: 65%;" /> +<p><a class="pagenum" name="Page_56" id="Page_56" href="#Page_56" title="[Pg 56]"></a></p> +<h2><a name="CHAPTER_IV" id="CHAPTER_IV"></a>CHAPTER IV<br /> +<br /> +THE SCIENCE OF INTERNATIONAL LAW</h2> + + +<div class="sidenote">New tasks +for the +science of +international +law.</div> + +<p><a name="Section_67" id="Section_67">67.</a> 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.</p> + +<div class="sidenote">The science +of international +law must +become +positive.</div> + +<p><a name="Section_68" id="Section_68">68.</a> 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<a class="pagenum" name="Page_57" id="Page_57" href="#Page_57" title="[Pg 57]"></a> +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 <i lang="la" xml:lang="la">de lege +ferenda</i> 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 (<i lang="la" xml:lang="la">debellatio</i>) among the +modes, known to international law, of acquisition of +state territory. They teach that <i lang="la" xml:lang="la">debellatio</i> 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.<a class="pagenum" name="Page_58" id="Page_58" href="#Page_58" title="[Pg 58]"></a></p> + +<div class="sidenote">The science +of international +law +must be +impartial.</div> + +<p><a name="Section_69" id="Section_69">69.</a> 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 <i lang="la" xml:lang="la">audiatur et altera pars</i>, 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.</p> + +<div class="sidenote">The science +of international +law +must free +itself from +the tyranny +of phrases.</div> + +<p><a name="Section_70" id="Section_70">70.</a> It is also indispensable that the science should free +itself from the tyranny of phrases. As things are, there<a class="pagenum" name="Page_59" id="Page_59" href="#Page_59" title="[Pg 59]"></a> +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.</p> + +<div class="sidenote">The meaning +of +'<i lang="de" xml:lang="de">Kriegsräson +geht vor +Kriegsmanier</i>'.</div> + +<p><a name="Section_71" id="Section_71">71.</a> My first example is taken from the use made of +the German maxim '<i lang="de" xml:lang="de">Kriegsräson geht vor Kriegsmanier</i>'. +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 +<em>law</em> of war, but the conduct of war rested only on +a fluctuating number of general <em>usages</em>. The meaning +of '<em lang="fr" xml:lang="fr">manier</em>' is '<em>usage</em>', and '<i lang="de" xml:lang="de">Kriegsräson geht vor Kriegsmanier</i>' +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 <em>usages</em>, but under the control of <em>enacted +rules of law</em> 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<a class="pagenum" name="Page_60" id="Page_60" href="#Page_60" title="[Pg 60]"></a> +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. <i lang="de" xml:lang="de">Kriegsräson</i>, +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 +<i lang="de" xml:lang="de">Kriegsräson</i>. But most of them do not leave it any +scope, and they may not remain unobserved even if +<i lang="de" xml:lang="de">Kriegsräson</i> 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 <i lang="de" xml:lang="de">Kriegsräson</i> 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 <i lang="de" xml:lang="de">Kriegsräson</i> 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 +'<i lang="de" xml:lang="de">Kriegsräson geht vor Kriegsmanier</i>' must disappear from +the science of international law. It has lost its meaning +and has become an empty but dangerous phrase.</p> + +<div class="sidenote">The doctrine +of Rousseau +concerning +war.</div> + +<p><a name="Section_72" id="Section_72">72.</a> My second example is taken from the use to which +an assertion of Rousseau is commonly put. In his +<i lang="fr" xml:lang="fr">Contrat Social</i>, 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<a class="pagenum" name="Page_61" id="Page_61" href="#Page_61" title="[Pg 61]"></a> +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.'</p> + +<p>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.</p> + +<p>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 class="pagenum" name="Page_62" id="Page_62" href="#Page_62" title="[Pg 62]"></a> +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<a class="pagenum" name="Page_63" id="Page_63" href="#Page_63" title="[Pg 63]"></a> +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.</p> + +<div class="sidenote">The science +of international +law +must become +international.</div> + +<p><a name="Section_73" id="Section_73">73.</a> 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.</p> + +<div class="sidenote">Necessary +to consult +foreign +literature +on international +law.</div> + +<p><a name="Section_74" id="Section_74">74.</a> 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 <em>one</em> +library which devotes especial attention to international<a class="pagenum" name="Page_64" id="Page_64" href="#Page_64" title="[Pg 64]"></a> +law, and makes, on a well-elaborated plan, a judicious +collection of foreign literature on the subject, particularly +foreign periodicals.</p> + +<div class="sidenote">Necessary to +understand +foreign +juristic +methods.</div> + +<p><a name="Section_75" id="Section_75">75.</a> 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<a class="pagenum" name="Page_65" id="Page_65" href="#Page_65" title="[Pg 65]"></a> +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.</p> + + + +<hr style="width: 65%;" /> +<p><a class="pagenum" name="Page_66" id="Page_66" href="#Page_66" title="[Pg 66]"></a></p> +<h2><a name="CONCLUSION" id="CONCLUSION"></a>CONCLUSION</h2> + + +<div class="sidenote">The aims +defended are +not Utopian.</div> + +<p><a name="Section_76" id="Section_76">76.</a> We have reached the end. I have conducted the +reader over wide areas, and have put before him aims +which cannot be immediately attained. But these aims +are not on that account nebulous and Utopian. We are +already on the way which leads to them, even though +a long time will still be required before we draw quite +near. This hope may be with certainty indulged in, +because the forces at work for the organic development +of the community of states are ever gathering strength. +The governments of states may continue an obstinate +opposition to these forces, but in the end they must give +way. Economic interests primarily, but many others +also, prevent individual states from allowing the international +community of states to remain unorganized any +longer. Slowly indeed, and only by degrees, and to +a large extent unwillingly and of compulsion, but nevertheless +step by step, states will be impelled onwards +towards a goal still in part unknown. It is amusing to +observe the parts which individual states play in this +process of development. At one time it is one power, +and at another time another power, that is led by its +interests to seize on the leading rôle, and make progressive +proposals. At one time a progressive proposal +is joyfully welcomed, at another it is declined, at another +time it meets with partial assent and partial dissent. +In the matter before us the United States of North +America play a very prominent part; they have the<a class="pagenum" name="Page_67" id="Page_67" href="#Page_67" title="[Pg 67]"></a> +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.</p> + +<div class="sidenote">Obstacles to +progress.</div> + +<p><a name="Section_77" id="Section_77">77.</a> Favourable as the auspices are for continuous progress, +there are not wanting, on the other hand, influences +and circumstances opposed to progress.</p> + +<p>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<a class="pagenum" name="Page_68" id="Page_68" href="#Page_68" title="[Pg 68]"></a> +civilization, and of taking a place in the sun in the international +community of states.</p> + +<p>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.</p> + + + + + + + + +<pre> + + + + + +End of Project Gutenberg's The Future of International Law, by Lassa Oppenheim + +*** END OF THIS PROJECT GUTENBERG EBOOK THE FUTURE OF INTERNATIONAL LAW *** + +***** This file should be named 33302-h.htm or 33302-h.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/3/3/3/0/33302/ + +Produced by allisonamy and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive/American Libraries.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The Future of International Law + +Author: Lassa Oppenheim + +Release Date: July 31, 2010 [EBook #33302] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK THE FUTURE OF INTERNATIONAL LAW *** + + + + +Produced by allisonamy and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive/American Libraries.) + + + + + + + + + + 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 + +*** END OF THIS PROJECT GUTENBERG EBOOK THE FUTURE OF INTERNATIONAL LAW *** + +***** This file should be named 33302.txt or 33302.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/3/3/3/0/33302/ + +Produced by allisonamy and the Online Distributed +Proofreading Team at http://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive/American Libraries.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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