Science of International Law

Science of International Law

New Tasks For the Science of International Law

Lassa Oppenheim, in the book entitled The Future of International Law, about New Tasks For the Science of International Law, wrote in 1921: 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.

The Science of International Law Must Become Positive

Lassa Oppenheim, in the book entitled The Future of International Law, about The Science of International Law Must Become Positive, wrote in 1921: 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 analogy, 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.

The Science of International Law Must be Impartial

Lassa Oppenheim, in the book entitled The Future of International Law, about The Science of International Law Must be Impartial, wrote in 1921: 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.

The Science of International Law Must Free Itself From the Tyranny of Phrases

Lassa Oppenheim, in the book entitled The Future of International Law, about The Science of International Law Must Free Itself From the Tyranny of Phrases, wrote in 1921: 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 illustrate this statement.

The Science of International Law Must Become International

Lassa Oppenheim, in the book entitled The Future of International Law, about The Science of International Law Must Become International, wrote in 1921: 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.


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