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Pamphlet Series of the
Carnegie Endowment for International Peace
DIVISION OF INTERNATIONAL LAW
No. 39
THE FUTURE OF
INTERNATIONAL LAW
BY L. OPPENHEIM, LL.D.
MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW
WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE
UNIVERSITY OF CAMBRIDGE, ENGLAND
HON. MEMBER OF THE ROYAL ACADEMY OF JURISPRUDENCE IN MADRID
OXFORD: AT THE CLARENDON PRESS
London, Edinburgh, New York, Toronto, Melbourne and Bombay
HUMPHREY MILFORD
1921
PRINTED IN ENGLAND
AT THE OXFORD UNIVERSITY PRESS
INTRODUCTORY NOTE
In a note prepared in 1915 for the English edition, Professor Oppenheim
stated the circumstances under which his tractate on _The Future of
International Law_ was undertaken and published.
'This little work,' he said, 'originally written in German, was
first published in 1911, under the title _Die Zukunft des
Voelkerrechts_ (Leipzig: W. Engelmann), as a contribution to the
_Festschrift_ offered to Professor Karl Binding. Events which
have since happened make it necessary to call the reader's
attention to the date of original publication.
'The translation into English has been made by Dr. John Pawley
Bate. In accordance with the wish of the author some slight
modifications of the original text were made before
translation. The numbers of the paragraphs and the marginal
summaries do not appear in the original.'
As was his wont with all his publications, Professor Oppenheim had sent
the undersigned a copy of the German text. The value of 'this little
work', as its author called it, was at once apparent, and he yielded to
the suggestion that it be put into English, in order that it might be
available to English readers in the four quarters of the globe. It was
accordingly translated, set up in type, and was on the point of
appearing, when on July 28, 1914, the then Austro-Hungarian Monarchy
declared war upon Serbia; on August 1 the then German Empire declared
war upon Russia, and two days later against France, violated the
neutrality of Luxemburg on the same day, and the neutrality of Belgium
on the night of the 3rd and 4th of August--thus beginning the series of
wars which, taken together, are commonly called the World War.
Professor Oppenheim subsequently came to the conclusion that it would be
better to withhold publication until the end of the war. It was done,
and the deposit of ratifications of the Treaty of Versailles on January
10, 1920, removed this obstacle.
It should be said, however, that Professor Oppenheim expressed doubts on
more than one occasion as to the desirability of its publication, but he
allowed himself to be persuaded that an English version might be of
service to the great and worthy cause of international law and of
international organization. Modesty was not the least of his virtues.
From time to time Professor Oppenheim has ventured into the same field.
In 1918, in the performance of his duty 'to lay down such rules and
suggest such measures as may tend to diminish the evils of war and
finally to extinguish war between nations', he delivered three lectures
on _The League of Nations and its Problems_, as holder of the Chair of
International Law, founded by Dr. Whewell in the University of
Cambridge. As in _The Future of International Law_, so in the lectures,
he started from the Hague Conferences and made the work of The Hague the
foundation upon which he would base any scheme of international
organization. The epigraph which he put upon the title-page, _Festina
Lente_, indicated the spirit in which he approached his task and the
advice which he felt called upon to give to the most casual of his
readers. In the lectures he took a step in advance--or backward,
according to the point of view--advocating that all members of a league
of nations should 'agree to unite their economic, military, and naval
forces against any one or more States which resort to arms without
submitting their disputes to International Courts of Justice or
International Councils of Conciliation'.
In the course of 1919, and after the signature of the Treaty of
Versailles on June 28 of that year, Professor Oppenheim contributed to
the _Revue generale de droit international public_ an article in French
on _The Essential Character of the League of Nations_. And what may be
considered as his final views on the subject are contained in the third
edition of his _Treatise on International Law_ (vol. i, pp. 264-310),
the first volume of which appeared in 1920. Professor Oppenheim accepted
the League of Nations, but his eyes were open to its defects as well as
to its merits.
The partisans of the present League of Nations will prefer Professor
Oppenheim's later views, as expressed in his lectures and in the
_Treatise on International Law_. The opponents of the present League of
Nations will prefer his earlier views, contained in the present
publication. The future will decide which are the more acceptable.
At the Oxford session of the Institute of International Law, held a year
to the month before the outbreak of the World War, it was the custom of
its members to pass the evenings together in informal discussion of
their chosen subject. On one occasion the discussion assumed the form of
a dialogue between Professor Oppenheim on the one hand and Mr. Elihu
Root on the other. At an unusually late hour the company broke up, and
Mr. Root, putting out his hand to Professor Oppenheim, said, 'Bon soir,
cher Maitre'.
James Brown Scott,
_Director of the Division of International Law_.
WASHINGTON, D.C.
_February 28, 1921._
CONTENTS
INTRODUCTION
PAGE
1. International law in the past 1
2. No international law in antiquity 1
3. How the conception of a family of nations arose 2
4. The law of nature as the basis of the law of nations 2
5. Positive international law 4
6. International legislation initiated by the Congress of
Vienna 4
7. International Administrative Union 5
8. Legislation of the Peace Conferences and of the Naval
Conference of London 5
9. The Permanent Court of Arbitration and other international
courts 6
10. The Hague Peace Conferences as a permanent institution 6
11. Uncertainty as to the fate of the Declaration of London
and of some of the Hague Conventions 7
12. The task of the future 7
CHAPTER I
THE ORGANIZATION OF THE SOCIETY OF STATES
13. Is the law of nations an anarchic law? 9
14. All law is order 9
15. The family of nations is a society ruled by law although
it does not as yet possess special organs 10
16. Not necessary that the family of nations should remain
an unorganized society 11
17. The pacificist ideal of an organization of the family of
nations 11
18. The world-state is not desirable 12
19. The world-state would not exclude war 13
20. War may gradually disappear without a world-state 14
21. Importance of pacificism 15
22. Impossible for the family of nations to organize itself
on the model of the state 16
23. Impossible to draft a plan for the complete organization
of the family of nations 16
24. The Permanent Court of Arbitration the nucleus of the
future organization of the family of nations 17
25. The Hague Peace Conferences as organs of the family of
nations 17
26. Outlines of a constitution of the family of nations 18
27. The proposed constitution leaves state-sovereignty intact 20
28. The equality of states 20
29. Absence of any executive power 21
CHAPTER II
INTERNATIONAL LEGISLATION
30. Quasi-legislation within the domain of international law 23
31. Hague Peace Conferences as an organ for international
legislation 24
32. Difficulties in the way of international legislation. The
language question 25
33. The opposing interests of the several states 25
34. Contrasted methods of drafting 25
35. These difficulties distinct from those due to
carelessness. Article 23 (_h_) of the Hague
Regulations of land war is an example 27
36. The German and the English interpretation of
Article 23 (_h_) 27
37. Davis's interpretation of Article 23 (_h_) 28
38. Impossible to reconcile the divergent views about
Article 23 (_h_) 29
39. Difficulties due to the fact that international law
cannot be made by a majority vote, or repealed save by
a unanimous vote. A way out found in the difference
between universal and general international law 30
40. International laws which are limited in point of time 31
41. International legislation no longer to be left to mere
chance 33
42. The Declaration of London thoroughly prepared beforehand 34
43. The preparation of the Declaration a pattern for future
international legislation 34
44. Intentionally incomplete and fragmentary laws 35
45. Interpretation of international statutes 35
46. International differences as regards interpretation 36
47. Different nations have different canons of interpretation 37
48. Controverted interpretation of the Declaration of London
an example 37
49. Some proposals for the avoidance of difficulties in
interpretation 39
CHAPTER III
INTERNATIONAL ADMINISTRATION OF JUSTICE
50. Law can exist without official administration 41
51. The Hague Court of Arbitration as a permanent institution 41
52. The proposed International Prize Court and Court of
Arbitral Justice 42
53. Does the constitution of the International Prize Court
violate the principle of the equality of states? 43
54. Does the International Prize Court restrict the sovereignty
of the several states? 43
55. Would the formation of an international Prize Court of
Appeal infringe the sovereignty of the several states? 44
56. The powers of the International Prize Court do not curtail
state-sovereignty 45
57. Difference between international courts of arbitration and
real international courts of justice 46
58. Fundamentals of arbitration in contradistinction to
administration of justice by a court 47
59. Opposition to a real international court 48
60. A real international court does not endanger the
peaceable settlement of disputes 49
61. Composition of an international court 50
62. International courts of appeal a necessity 51
63. Are international courts valueless if states are not bound
to submit their disputes to them? 52
64. What is to be done if a state refuses to accept the
decision of an international court? 54
65. Executive power not necessary for an international court 54
66. Right of intervention by third states and war as _ultima
ratio_ 55
CHAPTER IV
THE SCIENCE OF INTERNATIONAL LAW
67. New tasks for the science of international law 56
68. The science of international law must become positive 56
69. The science of international law must be impartial 58
70. The science of international law must free itself from the
tyranny of phrases 58
71. The meaning of '_Kriegsraeson geht vor Kriegsmanier_' 59
72. The doctrine of Rousseau concerning war 60
73. The science of international law must become
international 63
74. Necessary to consult foreign literature on
international law 63
75. Necessary to understand foreign juristic methods 64
CONCLUSION
76. The aims defended are not Utopian 66
77. Obstacles to progress 67
INTRODUCTION
[Sidenote: International law in the past.]
1. He who would portray the future of international law must first of
all be exact in his attitude towards its past and present. International
law as the law of the international community of states, such as is the
present-day conception of it, is of comparatively modern origin. Science
dutifully traces it back to Hugo Grotius as its father. In his immortal
work on the _Law of War and of Peace_ he, with masterly touch, focalizes
(as it were) all the tendencies which asserted themselves during the
latter half of the middle ages into a law between independent states, in
such sort that all subsequent development goes back to him. Undoubtedly
the roots of this law reach back into the remotest past of civilization,
for independent states, nay, independent tribes too, cannot have more or
less frequent dealings with each other without developing definite forms
therefor. And so the immunity which must everywhere be conceded to
ambassadors and heralds will probably be the oldest root of
international law.
[Sidenote: No international law in antiquity.]
2. But all attempts to find in the ancient world a law of the same kind
as modern international law must inevitably come to grief on the fact
that the idea of a community of law between civilized states was
entirely foreign to antiquity, and only begins to make its gradual
appearance in the last third of the middle ages. The Jewish ideal of
perpetual peace and the union of all mankind under _One_ God, foreseen
in prophetic vision by Isaiah (ii. 2-4), may be taken as the first
formulation of pacificist doctrine, which of course implies a community
of law between all states, but the prophet does not apprehend this
community of law as an independent idea. This idea was likewise unknown
in its generality to Greek civilization, although certainly looming
before it with some clearness in the international relations of the
Greek city-states one to another. But even if we may speak of a law
resembling in many respects modern international law as prevailing
between the states of ancient Greece, this law must nevertheless be
limited to Greek states, foreign states and peoples standing outside
this community of law as barbarians. On the other hand, Roman law
possessed, it is true, a mass of legal rules for the intercourse between
the Roman Empire and all foreign states, but these rules were _Roman_
law and not rules of an international law such as postulates an
international community of law.
[Sidenote: How the conception of a family of nations arose.]
3. The idea of an international community of law could not have obtained
acceptance before a time when there existed a number of completely
independent states, internally akin in virtue of a community of
intensive civilization and continually brought into contact with one
another by a lively intercourse. It was in this way that an
international community of law was begotten at the end of the middle
ages out of Christian civilization and mutual intercourse. Grotius and
his forerunners would not have been able to create international law,
had not the conception of a community of law between Christian states
enjoyed a general recognition, and had not international intercourse
before their day evolved already a large number of rules of intercourse,
which were based on custom and in part on very ancient usages.
[Sidenote: The law of nature as the basis of the law of nations.]
4. A theoretical basis for the erection of a system of international law
was provided by the law of nature. This likewise is duteously traced
back by science to Grotius, although in this department also he stands
on the shoulders of his predecessors. The riddle, how it was possible to
find a foundation for international law (as also for constitutional law
and other branches of law) in the law of nature, which itself reposed
upon so unstable a basis, is easy of solution for those who contemplate
the historical development of all law with minds clear from prejudice.
The contention of the historical school that all law springs up
'naturally', like language, is chimerical. Wherever a demand for law and
order imperiously asserts itself, rules of law arise there. Every epoch
of history produces alike that mode of legal development which it needs
and that theoretical basis therefor which corresponds to its own
interpretation of the nature of things. Accordingly the growth of law is
everywhere dependent on, or at least influenced by, a conscious or
unconscious creation of law. Custom, usage, habit, religion, morality,
the nature of the thing, tradition, reason, the examples of single
individuals, and many other factors, contribute the material out of
which the requisite rules of law are built up. Where a strong central
authority busies itself, year in year out, with legislation, expressly
enacted law naturally takes the foremost place, and customary law makes
itself felt to a less and less degree. But where such a strong central
authority does not exist or does not busy itself with continuous
legislation, then the above-named factors exercise a more direct
influence upon the development of law, should there arise in actual life
an imperious demand for definite rules of law. The theory of natural law
was only the mirror held up by legal philosophy, in which the rays
emitted by these factors were focused into a homogeneous image.
[Sidenote: Positive international law.]
5. That, by the side of his international law, with its basis in natural
law, there was also a positive international law, was not unrecognized
by Grotius, but his purpose was merely to depict a system of
international law which should compel universal observance irrespective
of time and nation. And shortly after Grotius, Zouche and his followers
did indeed attempt, in opposition to him, to formulate just such a
positive international law, but it could not win for itself, at any rate
in the seventeenth century, any great recognition; development was
overshadowed by the system of Grotius, and many of his rules of natural
law gradually obtained recognition in practice as customary law. But the
increasing intercourse of states in the eighteenth century called forth
a more positive school of international jurists, and the works of
Bynkershoek, Moser, and Martens fertilized the soil on which in the
nineteenth century there could gradually grow a really positive theory
of international law, even if the scales which betoken its past
connexion with natural law still adhere to the international law of
to-day.
[Sidenote: International legislation initiated by the Congress of
Vienna.]
6. A positive theory of international law was demanded by the fact that
in the first quarter of the nineteenth century, with the Final Act of
the Congress of Vienna, the quasi-legislative activity of international
conventions asserted itself for the first time. From then onwards,
general international law was frequently evolved by means of an
international convention. It was in this way that the permanent
neutralization of Switzerland, Belgium, and Luxemburg was effected, the
navigation of the so-called international rivers in Europe declared
free, the slave-trade abolished, the grades of diplomatic agents
regulated, privateering abolished, the necessity of effectiveness in a
blockade recognized, the principle 'free ships, free goods' finally
established, neutral goods on enemy ships declared free, rules provided
in the interest of those wounded in battle, explosive bullets under the
weight of 400 grammes forbidden, the Suez Canal neutralized, and so
forth.
[Sidenote: International Administrative Union.]
7. Another fact of great importance is the endeavour, which first
manifested itself in the World Postal Union of 1874, to carry out the
international administration of common interests, economic and other, by
means of more or less general international unions. In this way a series
of international administrative unions, often conjoined with special
international boards, have been called into existence.
[Sidenote: Legislation of the Peace Conferences and of the Naval
Conference of London.]
8. With the end of the nineteenth and the first decade of the twentieth
century, in which occur the first and second Peace Conferences at The
Hague and the Naval Conference of London, the development of
international law enters upon a new and pregnant epoch. If hitherto,
despite the momentous law-making treaties of the nineteenth century,
international law was essentially a book-law, a system erected by
greater or smaller authorities on the foundations of state practice and
in its details often uncertain and contested, it is now subjected more
and more, and in a wide domain, to the legislating influence of
law-making international conventions. To mention only the principal
matters: A code has been issued which, full of lacunae as it is,
nevertheless encompasses the whole area of land war; it has been laid
down that war shall only be begun by a declaration of war; the
employment of force for the recovery of contract-debts has been
forbidden; the rights and duties of neutrals in land war and naval war,
the treatment of enemy merchant vessels at the outbreak of hostilities,
and the conditions of the conversion of merchant vessels into men-of-war
have been legislatively fixed; rules concerning the laying of submarine
mines, concerning bombardment by naval forces in time of war, concerning
the application of the principles of the Geneva Convention to naval
warfare, concerning certain limitations on the right of prize in naval
warfare have been agreed on; many states have concurred in a prohibition
of the discharge of explosive missiles from air-ships; and a code of the
rules of naval warfare, so far as it touches the trade of neutrals,
dealing with the topics of blockade, contraband of war, unneutral
service, destruction of neutral prizes, sale of enemy merchantmen to
neutrals, enemy property, convoy and so forth, has been agreed on,
though still unratified.
[Sidenote: The Permanent Court of Arbitration and other international
courts.]
9. It is noteworthy that the first Hague Conference established a
permanent international arbitral tribunal and that the second Hague
Conference decided on the establishment of an International Prize Court
and produced a plan for a standing international court at The Hague.
Hitherto there have been no international courts for the decision of
disputes, and if contending powers have been ready to refer their
disputes to arbitration, they have always first had to form an arbitral
tribunal; but now there is in existence an actual International Court of
Arbitration, and other international courts are in contemplation.
[Sidenote: The Hague Peace Conferences as a permanent institution.]
10. Lastly, it is noteworthy that in the Final Act of the second Hague
Conference a recommendation was expressed that the powers should call a
third Conference in the year 1915, and two years before its meeting
should appoint a preparatory committee, entrusted, among other things,
with the task of proposing a system of organization and procedure for
the coming Conference. This recommendation gives the first impetus
towards making the Hague Conferences a permanent institution and so
ensuring their periodic assembly without the need of initiative on the
part of some one power or another.
[Sidenote: Uncertainty as to the fate of the Declaration of London and
of some of the Hague Conventions.]
11. Neither all the results of the second Hague Peace Conference nor
those of the London Naval Conference are as yet assured, for the
Declaration of London has not yet been ratified, and so the fate of the
International Prize Court is still involved in doubt. The fate of some
of the numerous conventions of the second Hague Conference is still in
similar doubt, and many of those conventions which have been ratified
present only a fragmentary and provisional settlement of their
respective topics. Whatever may be the fate of these agreements which
are still in suspense, this much is certain, that international
legislation, international administration of justice, and international
organization occupy the foreground of affairs, have already been in part
established, and must be in ever-increasing requisition by the present
and the coming generation.
[Sidenote: The task of the future.]
12. If in the following pages I undertake the discussion of these three
weighty matters, it is entirely foreign to my purpose to peer into the
future with the eyes of prophecy or to busy my fancy with building
castles in the air. What I propose is only to place in clear light the
problems which are now coming into view and to furnish some indications
which may contribute to their successful solution. If it is only to
happy accident that we owe the assembling of the Peace Conferences, and
likewise the issues of the same, we must all the more attempt in the
future to assure success by dint of careful deliberation, systematic
preparation, and a purposeful consideration of the problems which press
for attention. And the science of international law must bethink itself
and devote itself, with a more exact method than has hitherto been
usual, to the elaboration of the results of past and future Conferences
and to the incorporation of them in its system.
CHAPTER I
THE ORGANIZATION OF THE SOCIETY OF STATES
[Sidenote: Is the law of nations an anarchic law?]
13. International legislation and administration presuppose the
existence of law and order within the society of states, and this latter
topic must therefore be treated before the former. International law has
been called 'anarchic law' on the ground that hitherto the society of
states has not been organized and that it must ever remain unorganized
on account of the complete sovereignty of its members. It seems to me
that this position is untenable. The idea of anarchy forms a contrast to
that of law. Law can as little be anarchic as anarchy can be an
institute of law. The conception of the one excludes the other. He who
cannot conceive of law apart from a superior power enforcing it on its
subjects, may perhaps call the international society of states anarchic,
but then he will also have to contest the existence of an international
law, and, logically, he should also deny the possibility of the
existence of an international society.
[Sidenote: All law is order.]
14. He, however, who identifies law and order, and who, whenever he
finds in any society rules making their appearance which are conceived
as compulsory for the conduct of its members, speaks of law--in contrast
to morality, the observance of which is left to the conscience of the
members--will also be able to speak of law in a society where there is
no relation of superior and subject, provided only that the relation
between the members is regulated in an ordered manner. That the
international society of states is orderly regulated after this wise
will be denied by no one who looks at it without prejudice, and who
does not confuse order in a society with order of such a kind as is
maintained by special organs of the society in question.
[Sidenote: The family of nations is a society ruled by law although it
does not as yet possess special organs.]
15. The admission that hitherto the international society of states has
not possessed any special organs, is not an admission that it has not
been an ordered society. Quite the contrary is the case, for numerous
rules may be pointed to which show that that society is an ordered one.
There are the rules which relate to the independence of each state of
all other states, to the equality of all states, to their supremacy both
personal and territorial, and to their responsibility; and in addition
there are those rules which, exceptionally, allow, or at any rate
excuse, certain inroads on the legal sphere of other states. And the
admission that hitherto this society has possessed no permanent special
organs is not an admission that no ways and means are available for the
maintenance of existing order and for the formation of more
thoroughgoing order, and for the development of a quasi-legislative and
administrative activity. Here, too, quite the contrary is the case.
Every state has possessed and possesses numerous organs for its
international relations, these relations are governed by international
conventions and international custom, and numerous congresses and
conferences assemble from time to time, when it is a question of making
international arrangements of a more general character. In this way it
has been possible, even without permanent organs of the international
society, to increase and multiply the rules of the law of this society.
It does not follow, however, that this society would not attain its aims
better than in the past, if it were able to convert itself from an
unorganized into an organized society.
[Sidenote: Not necessary that the family of nations should remain an
unorganized society.]
16. The assertion that, because of the unlimited sovereignty of its
members, the family of nations must remain for all time an unorganized
society, either has in view the organization of international society
_on the model of a state_, or is founded on an untenable conception of
the idea of sovereignty. If the compression of the whole world into the
form of a single state were attained, the states of the day would
certainly lose their sovereignty and be degraded into provinces. On the
other hand, however, the sovereignty of the members of the international
society just as little excludes its organization as the fact of the
existence of this society excludes the sovereignty of its members.
Sovereignty as the highest earthly authority, which owes allegiance to
no other power, does not exclude the possibility that the sovereign
should subject himself to a self-imposed order, so long as this order
does not place him under any higher earthly power. All members of the
international society thus subject themselves in point of fact to the
law of nations without suffering the least diminution of their
sovereignty. But of course, for him to whom sovereignty is equivalent to
unrestrained power and unlimited arbitrariness of conduct, there cannot
be any international law at all, any more than any constitutional law,
seeing that international and constitutional law are opposed to absolute
arbitrariness, even though they recognize that a sovereign state is the
highest earthly authority.
[Sidenote: The pacificist ideal of an organization of the family of
nations.]
17. Hitherto, the demand for an organization of the international
society has always issued from the pacificist party, in order to render
the suppression of war possible. In the struggle round the pacificist
ideal the chief objection has always been the absence of any judicial
authority over states, and of any supreme executive power, able to
compel, in a dispute between states, the execution of a judicial decree.
Accordingly it has been the aim of the pacificists to obtain an
organization of the international society, such as would compress the
whole world, or at least whole parts of the world, such as Europe and
America, into the form of a federal state or a system of confederated
states. The belief is that only in this way can war be got rid of as a
mode of settling disputes between states, and thereby the
ever-increasing demands of naval and military budgets be avoided.
[Sidenote: The world-state is not desirable.]
18. Whatever else can be urged against a universal federal state and the
like, it is at the present day no longer a physical impossibility.
Distance has been so conquered by the telegraph, the railway, and the
steamboat, that in fact the annual assembly of a world-parliament would
be no impossibility, and in any case a world-government, wherever its
seat might be, would be able to secure almost immediate obedience to its
behests in the uttermost parts of the earth. There is, indeed, only a
quantitative and not a qualitative difference between a command issued
by the British government in London to the remotest part of India or
Africa, and such a command as, in a federal state comprising the whole
world, would issue to the remotest part of the earth from the central
government. Moreover, the ever-increasing international intercourse and
its results--the expression 'internationalism', to denote this, is found
to-day in all languages--has brought the populations of the various
states so near to one another, and has so closely interwoven their
interests, that on this ground also the theoretical possibility of
erecting and maintaining a world-state of the federal type cannot be
denied. But its theoretical and physical possibility prove absolutely
nothing as regards its utility and desirability. In spite of all my
sympathy with the efforts of my idealistic pacificist friends, it is my
firm conviction that the world-state is in no form practically useful or
desirable, for it would bring death instead of life. So far as we can
foresee, the development of mankind is inseparably bound up with the
national development of the different peoples and states. In these
conditions variety brings life, but unity brings death. Just as the
freedom and competition of individuals is needed for the healthy
progress of mankind, so also is the independence and rivalry of the
various nations. A people that is split up into different states may
attain its national development better in a federal state than in a
unitary state, and smaller nations and fragments of nations may (let us
admit) develop better when combined into one state which has grown up
historically out of several nationalities, than each would do in a state
of its own, but the rule nevertheless remains, that strong nations can
develop successfully only in an entirely independent and self-supported
state of their own.
[Sidenote: The world-state would not exclude war.]
19. Further, it is by no means sure that war would necessarily disappear
from a world-state. The example of the duel is instructive here.
Although forbidden in all civilized states and threatened with
penalties, it--certain states excepted--continues to flourish.
Enactments being impotent where the public sentiment of the dominant
class refuses them any moral recognition, the duel will not disappear so
long as the moral attitude of the circles concerned demands it as a
protection for personal honour. And the _Sonderbund_ war of 1847 in
Switzerland, the American war of secession from 1861 to 1865, and the
Austro-Prussian war of 1866 within the German _Bund_, show that
organization into a confederation of states or into a federal state does
not necessarily banish war.
[Sidenote: War may gradually disappear without a world-state.]
20. On the other hand, the gradual disappearance of war, which certainly
is a correct ideal, is to be hoped for and expected quite apart from any
development of a world-state, even if neither to-day nor to-morrow can
be contemplated for the complete realization of this ideal. Many states
have already entered into numerous agreements with other individual
states to refer to arbitration disputed questions of law and questions
about the interpretation of treaties, so far as these disputed questions
do not touch the vital interests, independence, or honour of the
parties. It is here that further development must begin. The man who is
not a victim to prejudice asks the reasonable question, why should vital
interests and the independence and honour of states necessarily be
withdrawn from the domain of judicial decision? If individuals in a
state submit themselves to the judge's sentence, even when their vital
interests, their honour, their economic independence, aye, and their
physical existence are in issue, why should it be impossible for states
to do the same? If only we succeeded in the clear enunciation of legal
rules for all international relations; if only we could succeed in
finding independent and unbiased men to whose judgment a state could
confidently submit its cause; if only we could succeed in bringing such
men together in an independent international court--there would then be
no reason why the great majority of states should not follow the example
of the very small minority which has already agreed to settle all
possible disputes by means of arbitration. The objection that a state
could not submit its honour, for example, to the sentence of a judge is
as little entitled to recognition as is the claim, made by those
dominant classes which in many states glorify the duel, that men of
honour could not settle an affair of their honour by means of a judge's
decree. As long as public sentiment concerning international relations
remains rooted in its present position, it must be confessed that there
can be no talk of any progress, just as the duel also will not disappear
as long as there is no success in bringing about a change of moral
attitude on the part of the classes concerned. But by degrees obsolete
moral positions are undermined by all kinds of influences, then they are
abandoned and higher positions are adopted in their stead.
[Sidenote: Importance of pacificism.]
21. It is here that the importance and value of the modern pacificist
movement emerge with clearness. Wide circles are caught by this
movement, even the governments of all countries are no longer able to
hold aloof from its influence, and its opponents too can no longer fight
it with nothing but scorn and ridicule. Whoever is a believer in the
unlimited progress of civilization will also believe that a time must
come when all states will freely bind themselves to submit all disputes
to judicial or arbitral decision. General disarmament will not hasten
the dawn of this day, for it can only arrive through the deepening of
the public sentiment with reference to international relations. General
disarmament will not make wars to cease, but the ceasing of war will
bring about general disarmament! As already said, not to-day nor
to-morrow will this time come; we stand now only at the very beginning
of the developments that make for the realization of this ideal. It
cannot come to pass unless and until international society develops an
organization of a kind ever tending to perfect itself.
[Sidenote: Impossible for the family of nations to organize itself on
the model of the state.]
22. How then must and will this organization take shape? The proposals
which hitherto have been made for the organization of the world are
freaks of fancy. Of notable value as indications of idealistic
speculation in the midst of an adverse world, they crumble into dust
immediately they are soberly scrutinized. All proposals which aim at the
organization of international society after the pattern of the
organization of the state--whether a unitary state or a federal state,
or a system of confederated states--are either impracticable or do not
meet the needs of the case. Every organization of the community of
states must take as its starting-point the full sovereignty and the
absolute equality of states, and must preserve these characters intact.
There can, therefore, be no talk of a political central authority
standing above individual states; and so the organization in question
must be _sui generis_ and cannot frame itself on the model of state
organization.
[Sidenote: Impossible to draft a plan for the complete organization of
the family of nations.]
23. It is, however, impossible to draft at the present time the plan of
such a complete organization in its details or even in mere outline. The
growth and final shaping of the international organization will go hand
in hand with the progress of the law of nations. Now the progress of the
law of nations is conditioned by the growth of the international
community in mental strength, and this growth in mental strength in its
turn is conditioned by the growth in strength and in bulk, the
broadening and the deepening, of private and public international
interests, and of private and public morale. In the nature of the case
this progress can mature only very slowly. We have here to do with a
process of development lasting over many generations and probably
throughout centuries, the end of which no man can foresee. It is enough
for us to have the beginning of the development before our eyes and, so
far as our strength and insight extend, to have the opportunity of
trying to give it its appropriate aim and direction. More we cannot do.
Much, if not all, depends on whether the _international_ interests of
individual states become stronger than their _national_ interests, for
no state puts its hand to the task of international organization save
when, and so far as, its international interests urge it more or less
irresistibly so to do.
[Sidenote: The Permanent Court of Arbitration the nucleus of the future
organization of the family of nations.]
24. I said, we have the beginning of the development before our eyes. It
consists in the erection of the Permanent Court of Arbitration at The
Hague, and in the permanent Bureau attached thereto. Here we have an
institution belonging not to the individual contracting states but to
the international society of states in contrast to the individual
members, and it is open to the use of all the individual members. If the
Declaration of London be ratified, and if (which scarcely admits of
doubt) it be adopted by all the states which were not represented at the
Conference of London, then the International Prize Court, which was
decided on at the second Hague Conference, will become a fact. This
Court will also become an organ of the international community. Mention
must also be made of the so-called international bureaux of the
so-called international unions, which have come into existence in the
period beginning with 1874; for some at least of them will develop into
organs of international society, although they so far are only organs of
the respective special international unions.
[Sidenote: The Hague Peace Conferences as organs of the family of
nations.]
25. Reference must in conclusion be made to the Hague Peace Conferences
themselves, for it is to be expected that such Conferences will assemble
periodically in the future. If success attends the effort to bring all
members of the international community to an agreement, in virtue of
which a Hague Peace Conference assembles at periodic intervals without
being called together by this or that power, then an organ of
international society will have arisen, the value of which none can
decry. It will then be possible to say that the international community
has become an actually organized society, and it will then be no longer
open to doubt that the organization of this society will gradually
become more and more developed. Before everything else this at least
will then be attained, that an organ of the international society of
states, comparable to the parliaments of individual states, will have
come into existence, which can attend to international legislation as
the needs of the time require, and can cause a continuous growth in the
range of matters submitted to international tribunals. All the same, I
yield myself to no hot-blooded hope of a speedy realization of Utopian
schemes. Even when this organization is already there, progress will be
but slight and gradual, and will encounter unceasing opposition.
Progress in this department has always to reckon on a conflict with
adverse interests and efforts, and it must be expected that in the
continuous struggle between _international_ and _national_ interests the
latter will only slowly prepare themselves to yield.
[Sidenote: Outlines of a constitution of the family of nations.]
26. It is not, however, enough that agreement should make periodic Peace
Conferences a permanent institution. The international community must
provide itself with a constitution, the ground-plan of which would be
something like the following:
1. The society of states is composed of all sovereign states
which mutually recognize each other's internal and external
independence.
2. Every recognized sovereign state has the right to take part
in the Peace Conferences.
3. No state taking part in the Conferences is bound by the
resolutions of the Conferences without its assent. Majority
resolutions only bind the members of that majority. On the
other hand, no state is entitled to require that only such
resolutions be adopted as it assents to.
4. Every participant state has the right to be heard at the
Conferences, to bring forward proposals, to make motions, and
to speak on the proposals and motions of other participants.
5. A standing international commission shall be appointed whose
duty it shall be to summon all the members of the international
community to the Conferences, to make previous inquiries as to
the proposals and motions which are to be brought before the
Conference and to inform all participants of them, and to
prepare and carry out all other business which the Conferences
may from time to time entrust to it.
6. Rules of procedure for the Conferences shall be elaborated,
which shall govern the conduct of the proceedings of the
Conferences, so that the proceedings can follow a defined
course without degenerating into a time-wasting discussion.
7. The question of the presidency of the Conferences shall be
settled once for all, so that no room be left for quarrels and
jealousies about precedence. It might perhaps be found
expedient before every Conference to decide on the presidency
by lot.
8. All resolutions come into force only when and so far as they
are ratified by the respective states. On the other hand, every
state binds itself, once and for all, to carry out in good
faith the resolutions which it has ratified.
9. All states bind themselves to submit to the decisions of the
international tribunals to which they have appealed, so far as
these decisions are within the competence of the respective
tribunals.
Something like this would be the ground-plan of a constitution of the
international community. Rules 5-7 are demanded by the nature of the
case; rules 1-4 and 8-9 contain nothing new, but merely express what
observation would show to be the legal position at present.
[Sidenote: The proposed constitution leaves state-sovereignty intact.]
27. It must be particularly remarked that such a constitution can in no
way infringe on the full sovereignty of individual states. Apart from
the fact that the idea of sovereignty indicates an absolute independence
of any higher earthly power, that idea has never acquired a rigid and
uniformly recognized content. Times and circumstances have influenced
and shaped it in different states and in the mouths of different
authorities. This development of the idea, an idea which has won a place
for itself and the retention of which seems desirable despite all
opposition, may go further still in the future.
[Sidenote: The equality of states.]
28. The proposed constitution, further, makes no inroad at all on the
equality of states. This equality is the indispensable foundation of
international society. The idea of equality merely expresses the fact
that in all resolutions of the international society every state,
whatever may be its size and political importance, obtains one voice and
no more than one, that every state can be bound by a resolution only
with its consent, and that no state can exercise jurisdiction over
another state. It does not and cannot express more. In no circumstances
is it to be asserted that unanimity is a condition for all resolutions
of the Conferences, and that all resolutions are void to which one or
more states refuse their consent. Of course, such resolutions bind those
only who assent to them, and of course unanimous resolutions alone can
be considered to be universally binding. But nothing should hinder the
Conferences--and so it happened in the two first Conferences--from
passing majority resolutions. It must never be lost sight of that such
majority resolutions do not go to form a _universal_ but only a
_general_ law of nations. Only he who repudiates the necessary
distinction between a particular and a general and a universal law of
nations can demand unanimity. Now the development which up to the
present has taken place in the law of nations has shown the necessity of
this distinction. It would be extremely difficult to enumerate any large
number of universally accepted rules of the law of nations--apart from
those which have obtained recognition as customary law. We have only to
think of the Declaration of Paris, to which some states still refuse
assent. History also teaches us that the general law of nations has a
tendency gradually to become the universal law of nations. It is
therefore permissible, when a forward step which fails to gain unanimous
approval has become a practical matter, for that majority of states
which is ready for it to take the step by themselves; the dissenting
states will give in their adhesion in course of time. And if and when
this should turn out not to be the case, such a majority resolution
would anyhow represent, in a narrower circle of international society, a
step forward from which there is no obligation to forbear merely because
others are unwilling to join in taking it.
[Sidenote: Absence of any executive power.]
29. This constitution, finally, makes no provision for any kind of
executive power, and so it avoids the proposal to set up in
international society an organization resembling that of a state. All
proposals for an international executive authority run counter not only
to the idea of sovereignty, but also to the ideal of international peace
and of international law. The aim of this development is not the
coercion of recalcitrant states, but a condition of things in which
there are no recalcitrant states because every state has freely
submitted to the obligation to refer disputes to the international
tribunals and to abide by their decision. It is just in this respect
that the international community of states differs for all time from the
community of individuals who are united into a state, the latter
requiring as _ultima ratio_ executive compulsion on the part of a
central power, while the former consistently with its nature and
definition can never possess such a central power. It will, we must
confess, call for a long development before such a condition of things
is realized, and, until this realization is effected, war will not
disappear but will remain an historic necessity.