The Future of International Law

CHAPTER I. The Organization of the Society of States

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

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 Difficulties due to the fact that international law cannot be made by a majority vote, or repealed save by a unanimous vote.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

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

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

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.

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.

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.

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.

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