The Future of International Law Part 5

[Sidenote: 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 ill.u.s.trate this statement.

[Sidenote: The meaning of '_Kriegsrason geht vor Kriegsmanier_'.]

71. My first example is taken from the use made of the German maxim '_Kriegsrason 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 '_Kriegsrason 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. _Kriegsrason_, therefore, cannot justify everything. Some enacted rules about the conduct of war are, indeed, framed with such lat.i.tude as to allow scope for the operation of _Kriegsrason_. But most of them do not leave it any scope, and they may not remain un.o.bserved even if _Kriegsrason_ 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 _Kriegsrason_ 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 _Kriegsrason_ 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 '_Kriegsrason geht vor Kriegsmanier_' must disappear from the science of international law. It has lost its meaning and has become an empty but dangerous phrase.

[Sidenote: The doctrine of Rousseau concerning war.]

72. My second example is taken from the use to which an a.s.sertion of Rousseau is commonly put. In his _Contrat Social_, Bk. I, ch. iv, is the following pa.s.sage: '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 a.s.sertion 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 a.s.sume 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 a.s.sertion 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 a.s.sertion 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 pa.s.sively hostile position; but the doctrine is absolutely misunderstood, although the distinction which it a.s.serts 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.

[Sidenote: 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.

[Sidenote: 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.

[Sidenote: 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 att.i.tude 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 p.r.o.nouncement 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 munic.i.p.al courts of all states, and its judgments would have to be accepted as binding by the munic.i.p.al 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.

CONCLUSION

[Sidenote: The aims defended are not Utopian.]

76. We have reached the end. I have conducted the reader over wide areas, and have put before him aims which cannot be immediately attained. But these aims are not on that account nebulous and Utopian.

We are already on the way which leads to them, even though a long time will still be required before we draw quite near. This hope may be with certainty indulged in, because the forces at work for the organic development of the community of states are ever gathering strength. The governments of states may continue an obstinate opposition to these forces, but in the end they must give way. Economic interests primarily, but many others also, prevent individual states from allowing the international community of states to remain unorganized any longer.

Slowly indeed, and only by degrees, and to a large extent unwillingly and of compulsion, but nevertheless step by step, states will be impelled onwards towards a goal still in part unknown. It is amusing to observe the parts which individual states play in this process of development. At one time it is one power, and at another time another power, that is led by its interests to seize on the leading role, and make progressive proposals. At one time a progressive proposal is joyfully welcomed, at another it is declined, at another time it meets with partial a.s.sent and partial dissent. In the matter before us the United States of North America play a very prominent part; they have the merit of having taken a most conspicuous share in the development of the law of nations, especially of the law of neutrality. It was America that moved for the erection of a permanent international court, and in any event she will not give up the idea even if she cannot secure its speedy realization.

[Sidenote: Obstacles to progress.]

77. Favourable as the auspices are for continuous progress, there are not wanting, on the other hand, influences and circ.u.mstances opposed to progress.

In the first place, there is national chauvinism, to which the existence of a law of nations is hateful, and which represents unlimited national self-seeking. Where it obtains the upper hand, international conflicts are unavoidable, and cannot be composed by a judicial sentence. In the second place, there is the fact that the political equilibrium, on which the whole law of nations rests, presents itself as a system liable to gradual as well as to sudden alteration. Were the earth's surface permanently divided between equally great and equally powerful states, the political equilibrium would be stable, but it is rooted in the nature of things that this equilibrium can only be unstable. The reason is that individual states are subject to a perpetual process of evolution, and thereby to perpetual change. This evolution is for one state upwards, for another downwards. No state is permanently a.s.sured against break-up, and it is the break-up of existing states and the rise of new states that threaten the permanent organization of the international community of states with danger. There is also another factor demanding attention, and that is the opposition between West and East, although the glorious example of j.a.pan shows that the nations of the East are indeed capable of putting themselves on the plane of Western civilization, and of taking a place in the sun in the international community of states.

However this may be, we must move onward, putting our trust in the power of goodness, which in the course of history leads mankind under its propitious guidance to ever higher degrees of perfection.