The Future of International Law Part 4

[Sidenote: 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 _pet.i.tio 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 p.r.o.nounced 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.

[Sidenote: 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 a.s.serted 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 a.s.sertion 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 a.s.sent of the several states. All this argument rests on a false a.s.sumption. 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.

[Sidenote: 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 fas.h.i.+on 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.

[Sidenote: 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.

[Sidenote: Opposition to a real international court.]

59. But, incredible as it may sound, this is not generally recognized.

It is just among the old champions of the arbitral decision of international disputes that the most violent opposition is raised to the erection of a real court of justice for international law causes. In such a court they see a great danger for the future. The fact that arbitration has a tendency to furnish rather a decision which is as far as possible satisfactory to both parties than one which is based on naked law, is just the respect which, in the eyes of many, gives it a higher value than a real court possesses. Not _jural_ but _peaceable_ settlement of disputes is the motto of these men; they do not desiderate justice in the sense of existing law, but equity such as contents both parties. And they gain support and approval from those who see in the law of nations rather a diplomatic than a legal branch of knowledge, and who therefore resist the upbuilding of the law of nations on the foundation of firmer, more precise, and more sharply defined rules on the a.n.a.logy of the munic.i.p.al law of states. These persons range themselves against an international court because such a court would apply the rules of the law of nations to disputed cases in the same way in which the courts of a state apply the rules of munic.i.p.al law to disputed cases arising within the state; they prefer diplomatic or, at any rate, arbitral settlement of disputes between states to the purely legal decision thereof. They also contend that an international court without an international power of execution is an absurdity.

[Sidenote: A real international court does not endanger the peaceable settlement of disputes.]

60. This last objection has already been dealt with above (paragraph 55), where it is shown that a judicial award as an authoritative declaration of the legitimate character of an act or claim has, in and for itself, nothing to do with the governmental execution of the award.

But as to the fear that the erection of an international court might endanger the peaceable settlement of disputes and the development of international arbitration, that is certainly groundless. The contrary is the case, as is shown by the fact that the happy movement towards the erection of an international court was initiated by the United States of North America. This country, which since its entry into the international community of states has more than any other championed the idea of the arbitral adjustment of disputes, and has in practice put it to good use, is well aware of the value of arbitration, but, on the other hand, it knows also how to prize the purely legal decision of legal questions. It has actually happened that a state has not ventured to submit a certain dispute to arbitration because it feared that its claim would not receive jural treatment in this way. It is just because the existence of an international court would promote the non-warlike settlement of international claims that its erection has been put forward. The reason is that even with the most careful selection of arbiters, one is never certain beforehand as to the quarter whence they will derive their ideas of the _aequum et bonum_, whilst with a jural settlement of claims the decision rests on the sure basis of law.

Further, the erection of an international court is not intended to cause the suppression of the so-called Permanent Court of Arbitration; on the contrary, the machinery of this latter is to be retained in full existence, so that the parties may in every case be able to choose between the Court of Arbitration and a real court. The future will show that both can render good service side by side.

[Sidenote: Composition of an international court.]

61. If the erection of an international court comes to pa.s.s, the equipment of it with competent and worthy men will be of the highest importance. Their selection will have difficulties of all sorts to overcome. The peculiar character of international law, the conflict between the positive school and the school which would derive international law from natural law, the diversity of peoples (consequent on diversity of speech and of outlook on law and life) and of legal systems and of const.i.tutional conceptions, and the like--all these bring the danger that the court in question should become the arena of national jealousies, of empty talk, and of political collisions of interest, instead of being the citadel of international justice. All depends on the spirit in which the different governments make the choice of judges. Let regard be paid to a good acquaintance with international law joined to independence, judicial apt.i.tude, and steadfastness of character. Let what is expected of candidates be the representation not of political interests but of the interests of international jurisprudence. Let nomination be made not of such diplomatists as are conversant with the law of nations, but of jurists who, while conversant with this branch of law, have had the training required of members of the highest state judiciary, and have been tested in practice. Let men be chosen who are masters not only of their own language and of French, but also of some other of the most widely diffused languages, and who possess an acquaintance with foreign legal systems. If this be done, all danger will be avoided. Judges so selected will speedily adapt themselves to the _milieu_ of the international court and be laid hold of by it, and their equipment for their task completed. As things are at present, the inst.i.tution of an international court is an unheard-of experiment. But the experiment must be made at some time, and the hope may be confidently entertained that it will be successful. Petty considerations based on the weakness of humanity and doubts as to the sincerity of the efforts of states to submit themselves voluntarily to international tribunals must be silenced. Fear of international entanglements and groupings is misplaced. National prejudices and rivalries must keep in the background. The big state's disdain of the little state and the little state's mistrust of the big state must give place to mutual respect. Opposed to the hope and confidence that the experiment will succeed there are no considerations other than those which have been arrayed against every step forward in international life. They will disappear like clouds when the sun of success has once begun to s.h.i.+ne upon the activity of the International Court.

[Sidenote: International courts of appeal a necessity.]

62. Obviously it will not be possible in the long run to stop at a single international court; the erection over the court of first instance of an international court of appeal is also a necessity. The proposed Prize Court will indeed be itself a court of appeal because it cannot be approached until one or two national courts have spoken. But the proposed International Court of Justice would be a court of first instance. Now there are no infallible first-instance decisions. Even courts are fallible and make mistakes. If this is universally recognized for munic.i.p.al administration of justice, it must be recognized for international administration of justice, all the more as public and not private interests are then in issue. If states are to feel bound to rely on their right rather than on their might, and to submit it to a judicial decision, it must be possible to carry an appeal against a decision of the International Court of Justice to a higher tribunal.

Many advocates of arbitration will not hear of an appeal. In this they may be right as regards a real arbitral decision given _ex aequo et bono_, but their arguments lose all force before the nakedly jural decision of a real court.

The difficulties which beset the erection of an international court and the appointment of its members may lead to the renunciation of the immediate establishment of an international court of appeal. But when once the International Court is in active working, the demand for a court of appeal will be raised and it will not be silenced until it has been satisfied. It would be premature to make proposals now as to the manner in which such a court of appeal ought to be composed, and as to the way in which it could be brought into existence. It is enough to have pointed to the need for it. Directly this need makes itself felt, ways and means will be found for supplying it.

[Sidenote: Are international courts valueless if states are not bound to submit their disputes to them?]

63. We next are faced by the objection, what possible value can the establishment of international courts possess if it be optional to states either to submit their causes to them or to rely on arms for a decision of those causes? It is, accordingly, a.s.serted that such courts can only be of value if states place themselves under a permanent obligation to submit to them all or at any rate the greater number of their disputes. This leads to the question of obligatory arbitration treaties, which played so prominent a part at the second Peace Conference, and will surely come up again at the third Conference. I have not the slightest doubt that the third or some later Conference will agree on the obligatory reference of certain disputes between states to arbitration, but the matter is of quite subordinate importance so far as the erection of international courts is in question. Any one who contemplates international life and the relations of states to one another, without prejudice and with open eyes, will see quite clearly that, when once there exist international courts, states will voluntarily submit a whole series of cases to them. These will, at first, admittedly, be cases of smaller importance for the most part, but in time more important cases will also come to them, provided that the jurisprudence developed in them is of high quality, and such as to give states a guarantee for decisions at once impartial and purely jural and free from all political prepossessions. _It is the existence of the inst.i.tution which is the vital question now._ Once the machinery is there, it will be utilized. In all states of the world there are movements and forces at work to secure the ordered and law-protected settlement of international disputes. The existence of an international court will strengthen these movements and forces and render them so powerful that states will scarcely be able to withdraw themselves from their influence. And the time when states were ready to draw the sword on every opportunity belongs to the past. Even for the strongest state war is now an evil, to which recourse is had only as _ultima ratio_, when no other way out presents itself.

[Sidenote: What is to be done if a state refuses to accept the decision of an international court?]

64. In conclusion the great question is, what is to happen if a state declines to accept the decision of the international court to which it has appealed?

Important as this question may be in theory, it is a minor one in practice. It will scarcely happen in point of fact--a.s.suming that there is an international court of appeal above the court of first instance--that a state will refuse a voluntary acceptance of the award of an international court. Only slowly, and only when irresistibly compelled by their interests so to do, will states submit their disputes to international courts. But when this is the case these same interests will also compel them to accept the award then made.

[Sidenote: Executive power not necessary for an international court.]

65. We have neither desire nor need to equip these courts with executive power. In the internal life of states it is necessary for courts to possess executive power because the conditions of human nature demand it. Just as there will always be individual offenders, so there will always be individuals who will only yield to compulsion. But states are a different kind of person from individual men; their present-day const.i.tution on the generally prevalent type has made them, so to say, more moral than in the times of absolutism. The personal interests and ambition of sovereigns, and their pa.s.sion for an increase of their might, have finished playing their part in the life of peoples. The real and true interests of states and the welfare of the inhabitants of the state have taken the place thereof. Machiavellian principles are no longer prevalent everywhere. The mutual intercourse of states is carried on in reliance on the sacredness of treaties. Peaceable adjustment of state disputes is in the interests of the states themselves, for war is nowadays an immense moral and economic evil even for the victor state.

It may be that a state will decline to submit its cause to the international tribunal because it thinks that its vital interests do not allow such submission; but when, after weighing its interests, it has once declared itself ready to appear before the court, it will also accept the court's award. All other motives apart, the strong state will do this, because its strength allows it to make voluntary submission to the award, and the weak state will also do so because war would be hopeless for it.

[Sidenote: Right of intervention by third states and war as _ultima ratio_.]

66. If, however, in spite of all, it should happen that a state declined such acceptance of an award, the powers who were not parties would have and would use the right of intervention. For there can be no doubt of the fact that all states which took part in the erection of an international court would have a right to intervene if a state which entered an appearance before an international court should refuse to accept its award. And of course, in such a case, war is always waiting in the background as an _ultima ratio_; but it is in the background only that it waits; while, apart from the erection of an international court, it is standing in the foreground. The whole problem shows that the development in question cannot be rushed, but must proceed slowly and continuously. Step can follow step. The economic and other interests of states are more powerful than the will of the power-wielders of the day.

These interests have begotten the law of nations, have driven states to arbitration, have called forth the establishment of a Permanent Court of Arbitration at The Hague, and are now at work compelling the erection of international courts. Let us arm ourselves with patience and allow these interests to widen their sway; they will bring about a voluntary submission to the judgments of the international court on the part of all states.

CHAPTER IV

THE SCIENCE OF INTERNATIONAL LAW

[Sidenote: 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.

[Sidenote: 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 a.n.a.logy, 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.

[Sidenote: 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.