The Future of International Law

by L. Oppenheim

The doctrine of Rousseau concerning war.

[72.] My second example is taken from the use to which an assertion of Rousseau is commonly put. In his Contrat Social, Bk. I, ch. iv, is the following passage: 'War, then, is not a relation of man to man, but a relation of states in which private persons are enemies only accidentally; not as men nor even as citizens, but as soldiers; not as members of their country, but as its defenders. In a word, each state can only have as enemies other states and not men; seeing that no true relation can exist between things of different natures.'

It is in this assertion of Rousseau that a basis is found for a quite common doctrine to the effect that war is a relation only between the belligerent states and their contending forces. See how much else has been deduced from this principle and demanded on the strength of it! That blockade is only permissible in the case of naval ports and fortified coast-towns, and not in the case of other ports and places. That breach of blockade is as little punishable as carriage of contraband, seeing that it is but a commercial act of peaceable individuals, it being immaterial whether they are subjects of a neutral power or of the enemy. That the capture of enemy merchant vessels on the high seas is unlawful, because these vessels are dedicated to peaceful trade alone, and have naught to do with hostilities. That peaceful intercourse, and especially commercial intercourse, between the subjects of the belligerents cannot be forbidden. And more of the same kind.

If now we examine more closely, we find that there is a sound principle at the core of Rousseau's doctrine, but that the sentence 'war is merely a relation between the belligerent states and their contending forces' is an empty, untenable phrase. The sound central principle is that in fact, according to modern conceptions, war is a struggle between the belligerent states, carried on by means of their military and naval forces, and that their subjects can only be attacked or taken prisoners so far as they take part in hostilities, and that, if they behave quietly and peaceably, they are spared harsh treatment as far as possible. But to assume on that account that a war in which his state is engaged does not affect a subject, and that he is not brought thereby into hostile relations to the other side so long as he abstains from any active part in hostilities—this deals a blow in the face to all the actual facts of war. Certainly, a peaceable subject does enjoy exemption from avoidable severities, but he is none the less the object of coercive measures. If at the outbreak of a war he be resident in the territory of the enemy, cannot he be expelled? If he contribute to a loan raised by the enemy, will not his own state punish him for treason? Is it not the law of many states that if they go to war, an end is put to peaceful intercourse, and especially commercial intercourse, between their own subjects and the subjects of the enemy state? Must not the private person submit to requisitions, pay contributions, endure limitations on his freedom of movement, and obey the commands of the hostile occupant? Is not his property on many occasions—for example, during a siege or a bombardment, or on the field of battle—destroyed without compensation? Must he not, if his fatherland is completely conquered and annexed by the enemy, reconcile himself to becoming a subject of the enemy? Whoever has lived in a district occupied by an enemy knows what an empty phrase the assertion is, that war is not a hostile relation between a belligerent state and the subjects of its enemy. Yet the phrase, nevertheless, wanders from book to book and from mouth to mouth, and must always be available whenever wanted in order to justify some assertion which contradicts the recognized rules of warfare. The kernel of truth in Rousseau's doctrine is this, that while the soldier is put in an actively hostile position, the peaceable subject of a belligerent is put in a passively hostile position; but the doctrine is absolutely misunderstood, although the distinction which it asserts is quite commonly recognized. And so here also it must be repeated that, if we are to arrive at clearness, if baseless claims are not to appear under the cover of law, the phrase 'War is only a relation between the belligerent states and their contending forces' must disappear, as being misleading, from the science of international law.

The science of international law must become international.

[73.] It is, finally, a pressing necessity that the science of international law should become international. The science of international law is essentially a branch of the science of law, and it can only thrive if this dependence be not suppressed. Now the science of law must, of necessity, be a national one, even if at the same time it employs the comparative method. On this ground the science of international law, forming always a part of a national science of law, must in this sense be national. When, despite this, I insist that it must become international, what I have before my eyes is merely the requirement that it should not limit itself to the employment of national literature and the jurisprudence of national courts, and that it must make itself acquainted with foreign juristic methods.

Necessary to consult foreign literature on international law.

[74.] There is as yet scarcely any systematic reference to foreign literature on international law. Monographs may possibly cite the old editions of some wellnigh obsolete text-books, but, with individual laudable exceptions, there is scarcely any suggestion of the real utilization of foreign literature. This defect is, admittedly, to be attributed not so much to writers themselves as to the fact that foreign literature is for the most part inaccessible to them. There ought to be in every state at least one library which devotes especial attention to international law, and makes, on a well-elaborated plan, a judicious collection of foreign literature on the subject, particularly foreign periodicals.

Necessary to understand foreign juristic methods.

[75.] In worse plight than even the employment of foreign literature is the understanding of foreign juristic methods. And yet without such an understanding the gates are thrown open for misconceptions, for unfounded claims, and for mutual recriminations. How great is the divergence of juristic method can only be appreciated by one who has practised and been called to the teaching of law in different countries. Now, just as the outlook of its people is incorporated in the law of every state, so the specific mode of thought and the logical attitude of any given people are mirrored in its juristic methods. Historical tradition, political interdependence, and other accidental influences do indeed also play a great part therein, but the fundamental factor is the difference of modes of thought and points of view. Seeing, then, that the law of nations is one and the same for every member of the community of states, but that on the other hand the science of every state elaborates the law of nations on the basis of its national juristic methods, it is unavoidable that discord should arise if the science of international law of individual states neglect to acquaint itself with foreign juristic methods. It is not only in scientific treatises, but also in judicial decisions, that expression is given to these methods, and the discordance between judicial decisions on the same issue given in different states is often traceable simply to the difference of juristic method. That the law is essentially the same is no guarantee that in all countries there will be a unanimity of judicial pronouncement on every point thereof. If ever—and it is not outside the range of practical possibility—an international agreement, including all states, were arrived at concerning all the topics of the so-called international private law and international criminal law, there would, for the reason under consideration, still continue to be no security that the same law would in every point receive the same treatment from the courts of all countries. In order to attain this end there would have to be an international tribunal erected above the municipal courts of all states, and its judgments would have to be accepted as binding by the municipal courts concerned. It is just for this reason that the proposed International Prize Court and the proposed permanent court for international disputes will aim in the course of their practice at securing an identical application of the rules of the law of nations. And the joint labours of judges of diverse nationalities in these international courts will influence their mutual understanding in a manner which will be serviceable to the juristic methods of the different peoples.