The Future of International Law

by L. Oppenheim

The preparation of the Declaration a pattern for future international legislation.

[43.] This model method must be the method of the future. If, as indicated in §26 above, Art. 5, a permanent commission for the preparation of the Peace Conferences be successfully inaugurated, it will be its task to make preliminary preparations for the legislative activity of the Conferences in the manner just sketched out, and chance will no longer have the same part to play as heretofore. International legislation will no longer produce anything so full of gaps as the 'Regulations respecting the laws of land warfare', which leave essential matters—for instance, capitulations and armistices—without any adequate regulation.

Intentionally incomplete and fragmentary laws.

[44.] Of course, where the interests of different states are still involved in some uncertainty, or are in such antagonism that a complete agreement is impossible, even the fullest preparation and most painstaking deliberation will not procure a more satisfactory treatment for many matters than that the legislation which regulates them should be (so to say) only experimental and intentionally incomplete and fragmentary in character. Thus, for example, the Conventions about the conversion of merchantmen into men-of-war and about the use of mines in naval war can only be considered as legislative experiments, regulating these matters merely temporarily and in an incomplete and unsatisfactory manner. But even conventions which designedly are full of lacunae have their value. They embody all the same an agreement upon some important parts of the respective topics, and provide a regulation which in every case is better than the chaos previously prevailing in the areas in question. They also constitute a firm nucleus round which either custom or future legislation can develop further regulation.

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 to the law, English and American jurists may be said to adapt the law to their cases. It is obvious that this difference of intellectual attitude and of juristic training must exercise a far-reaching influence on the interpretation and construction of international enactments.

Different nations have different canons of interpretation.

[47.] It is because of what has just been explained that the rules for the interpretation of domestic legislation are different with different nations. For example, whilst in Germany and France the judge avails himself more or less liberally of the Materialien[1] of a statute in order to arrive at its meaning, the English judge limits himself to the strict wording of the text, and utterly refuses to listen to an argument based on the historical origin of the statute. The English bench, sticking more closely to the letter of the law, allows also an extensive or restrictive interpretation thereof much more seldom than the continental judiciary does.