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Opposition to a Real International Court

Lassa Oppenheim, in the book entitled The Future of International Law, about Opposition to a Real International Court, wrote in 1921: 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 analogy of the municipal 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 municipal 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.

Composition of an International Court

Lassa Oppenheim, in the book entitled The Future of International Law, about Composition of an International Court, wrote in 1921: 61. If the erection of an international court comes to pass, 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 constitutional 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 aptitude, 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 institution 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 shine upon the activity of the International Court.

What is to be Done if a State Refuses to Accept the Decision of an International Court?

Lassa Oppenheim, in the book entitled The Future of International Law, about What is to be Done if a State Refuses to Accept the Decision of an International Court?, wrote in 1921: 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–assuming 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.

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