The Future of International Law

by L. Oppenheim

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 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.

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.

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.

The meaning of 'Kriegsräson geht vor Kriegsmanier'.

[71.] My first example is taken from the use made of the German maxim 'Kriegsräson 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 'Kriegsräson 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. Kriegsräson, 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 Kriegsräson. But most of them do not leave it any scope, and they may not remain unobserved even if Kriegsräson 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 Kriegsräson 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 Kriegsräson 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 'Kriegsräson geht vor Kriegsmanier' must disappear from the science of international law. It has lost its meaning and has become an empty but dangerous phrase.