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.
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 tothe 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.
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 theMaterialien[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 ofMaterialienin this context. In theMaterialienof 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.
[1]It seems impossible to find any single English phrase which gives the meaning ofMaterialienin this context. In theMaterialienof 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.
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 byits 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.
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 mustcome 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.
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.
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.
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 firstHague 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.
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.
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 existingpolitical inequalityof states, a matter which, however, has not the least connexion with theirlegal 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.
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 internationaltribunal 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.
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 apetitio 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.
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 certainpoints with a law-making power which is simply adelegatedpower. 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.
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, decidesex aequo et bono, whilst a judge founds his decision on rules of law and is only applied to on legalissues. 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.
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 permanentlyto 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.
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. Notjuralbutpeaceablesettlement 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 therules 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.
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 theaequumet 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.
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 beentested 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 themilieuof 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.
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 courtof 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 givenex 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.
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 themselvesunder 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 asultima ratio, when no other way out presents itself.
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.
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 maybe 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.
Right of intervention by third states and war asultima 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 anultima 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.
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.
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 theirvalue 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 proposalsde lege ferendaof 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 thatdebellatiohas 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.
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 principleaudiatur 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.
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, thereis 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.