The Future of International Law

by L. Oppenheim

All law is order.

[14.] He, however, who identifies law and order, and who, whenever he finds in any society rules making their appearance which are conceived as compulsory for the conduct of its members, speaks of law—in contrast to morality, the observance of which is left to the conscience of the members—will also be able to speak of law in a society where there is no relation of superior and subject, provided only that the relation between the members is regulated in an ordered manner. That the international society of states is orderly regulated after this wise will be denied by no one who looks at it without prejudice, and who does not confuse order in a society with order of such a kind as is maintained by special organs of the society in question.

The family of nations is a society ruled by law although it does not as yet possess special organs.

[15.] The admission that hitherto the international society of states has not possessed any special organs, is not an admission that it has not been an ordered society. Quite the contrary is the case, for numerous rules may be pointed to which show that that society is an ordered one. There are the rules which relate to the independence of each state of all other states, to the equality of all states, to their supremacy both personal and territorial, and to their responsibility; and in addition there are those rules which, exceptionally, allow, or at any rate excuse, certain inroads on the legal sphere of other states. And the admission that hitherto this society has possessed no permanent special organs is not an admission that no ways and means are available for the maintenance of existing order and for the formation of more thoroughgoing order, and for the development of a quasi-legislative and administrative activity. Here, too, quite the contrary is the case. Every state has possessed and possesses numerous organs for its international relations, these relations are governed by international conventions and international custom, and numerous congresses and conferences assemble from time to time, when it is a question of making international arrangements of a more general character. In this way it has been possible, even without permanent organs of the international society, to increase and multiply the rules of the law of this society. It does not follow, however, that this society would not attain its aims better than in the past, if it were able to convert itself from an unorganized into an organized society.

Not necessary that the family of nations should remain an unorganized society.

[16.] The assertion that, because of the unlimited sovereignty of its members, the family of nations must remain for all time an unorganized society, either has in view the organization of international society on the model of a state, or is founded on an untenable conception of the idea of sovereignty. If the compression of the whole world into the form of a single state were attained, the states of the day would certainly lose their sovereignty and be degraded into provinces. On the other hand, however, the sovereignty of the members of the international society just as little excludes its organization as the fact of the existence of this society excludes the sovereignty of its members. Sovereignty as the highest earthly authority, which owes allegiance to no other power, does not exclude the possibility that the sovereign should subject himself to a self-imposed order, so long as this order does not place him under any higher earthly power. All members of the international society thus subject themselves in point of fact to the law of nations without suffering the least diminution of their sovereignty. But of course, for him to whom sovereignty is equivalent to unrestrained power and unlimited arbitrariness of conduct, there cannot be any international law at all, any more than any constitutional law, seeing that international and constitutional law are opposed to absolute arbitrariness, even though they recognize that a sovereign state is the highest earthly authority.

The pacificist ideal of an organization of the family of nations.

[17.] Hitherto, the demand for an organization of the international society has always issued from the pacificist party, in order to render the suppression of war possible. In the struggle round the pacificist ideal the chief objection has always been the absence of any judicial authority over states, and of any supreme executive power, able to compel, in a dispute between states, the execution of a judicial decree. Accordingly it has been the aim of the pacificists to obtain an organization of the international society, such as would compress the whole world, or at least whole parts of the world, such as Europe and America, into the form of a federal state or a system of confederated states. The belief is that only in this way can war be got rid of as a mode of settling disputes between states, and thereby the ever-increasing demands of naval and military budgets be avoided.

The world-state is not desirable.

[18.] Whatever else can be urged against a universal federal state and the like, it is at the present day no longer a physical impossibility. Distance has been so conquered by the telegraph, the railway, and the steamboat, that in fact the annual assembly of a world-parliament would be no impossibility, and in any case a world-government, wherever its seat might be, would be able to secure almost immediate obedience to its behests in the uttermost parts of the earth. There is, indeed, only a quantitative and not a qualitative difference between a command issued by the British government in London to the remotest part of India or Africa, and such a command as, in a federal state comprising the whole world, would issue to the remotest part of the earth from the central government. Moreover, the ever-increasing international intercourse and its results—the expression 'internationalism', to denote this, is found to-day in all languages—has brought the populations of the various states so near to one another, and has so closely interwoven their interests, that on this ground also the theoretical possibility of erecting and maintaining a world-state of the federal type cannot be denied. But its theoretical and physical possibility prove absolutely nothing as regards its utility and desirability. In spite of all my sympathy with the efforts of my idealistic pacificist friends, it is my firm conviction that the world-state is in no form practically useful or desirable, for it would bring death instead of life. So far as we can foresee, the development of mankind is inseparably bound up with the national development of the different peoples and states. In these conditions variety brings life, but unity brings death. Just as the freedom and competition of individuals is needed for the healthy progress of mankind, so also is the independence and rivalry of the various nations. A people that is split up into different states may attain its national development better in a federal state than in a unitary state, and smaller nations and fragments of nations may (let us admit) develop better when combined into one state which has grown up historically out of several nationalities, than each would do in a state of its own, but the rule nevertheless remains, that strong nations can develop successfully only in an entirely independent and self-supported state of their own.