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