The Future of International Law

by L. Oppenheim

[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 international tribunal 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 a petitio 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 certain points with a law-making power which is simply a delegated power. 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, decides ex aequo et bono, whilst a judge founds his decision on rules of law and is only applied to on legal issues. 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 permanently to 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.