THE SCIENCE OF INTERNATIONAL LAW:

ITS TASK AND METHOD

INTRODUCTION

The first volume of this American Journal of International Law has shown urbi et orbi that America possesses a number of prominent international jurists who are of equal rank to those of Europe as regards learning, idealism, constructive power, and literary skill. Undoubtedly, this Journal has at once with its appearance taken up the position of a leading magazine of the science of international law. By inviting only American jurists to contribute to the first volume of this Journal the learned editor has shown to the world that America is able to foster the science of international law without being dependent upon the assistance of foreign contributors. It is my firm conviction, based upon the study of American works, that, just as the body of rules which is called "international law" shows everywhere the traces of American influence, so the science of international law will likewise soon receive new stimuli from America. I have therefore thought it fitting, although I am not an American, to draw the task and the method of this our science into discussion in this Journal. In setting to work I desire it, however, to be understood that in endeavoring to deal with this difficult and controverted subject nothing is remoter from my intention than to set up as a high priest of our science, to lay down the law of its method, and to exhaust this wide and tempting subject. I rather hope that others will likewise take up the subject and treat it in the pages of this Journal. I shall, of course, be outspoken, shall mark my standpoint, and shall try to offer clear-cut views; yet I am well aware that my standpoint and my views will have to undergo the fire of criticism: dixi et salvavi animam meam!

But the following pages were not exclusively written for the purpose of drawing the matter into further discussion. They are likewise intended to serve as a guide to those younger students who are

desirous of working up some problem of international law. My experience with a number of such students is that they are at first frequently quite helpless for want of method. They mostly plunge into their work without a proper knowledge of the task of our science, without knowing how to make use of the assertions of authorities, and without the proper views for the valuation and appreciation of the material at hand.

I. THE SCIENCE OF INTERNATIONAL LAW NOT AN END IN ITSELF

The science of international law is just as little as any other science an end in itself; it is merely a means to certain ends outside itself. And these ends are the same as those for which international law has grown up and is still growing primarily, peace among the nations and the governance of their intercourse by what makes for order and is right and just; secondarily, the peaceable settlement of international disputes; lastly, the establishment of legal rules for the conduct of war and for the relations between belligerents and neutrals.

Just as international law, so its science has to keep these ends always in view, and the task of the science stands in the service of these ends. But now-a-days it is impossible to say that there is only one single task to be fulfilled. There are rather a number of tasks to which our science must devote itself, if it intends to work successfully for those ends which I have defined, and these tasks are the following seven: Exposition of the existing rules of law, historical research, criticism of the existing law, preparation of codification, distinction between the old customary and the new conventional law. fostering of arbitration, and popularization of international law. I shall discuss these tasks seriatim, although most of them are to a certain extent connected with one another.

II.

EXPOSITION OF THE EXISTING RULES OF LAW

Now, the first and chief task is the exposition of the existing recognized rules of international law. Whatever we think of the value of a recognized rule-whether we approve or condemn it,

whether we want to retain, abolish, or replace it—we must first of all know whether it is really a recognized rule of law at all, and what are its commands. This task is often difficult to fulfill. The rules of the present international law are to a great extent not written rules, but based on custom. Apart from the International Prize Court agreed upon by the Second Hague Peace Conference but not yet established, there are no international courts in existence which can define these customary rules and apply them authoritatively to cases which themselves become precedents binding upon inferior courts.1 The writers on international law, and in especial the authors of treatises, have in a sense to take the place of the judges and have to pronounce whether there is an established custom or not, whether there is a usage only in contradistinction to a custom, whether a recognized usage has now ripened into a custom, and the like. And with regard to the written rules- namely, such rules of international law as are the outcome of universal or general law-making treaties the writers have again to take the place of the judges and have to ascertain the precise meaning of those rules with the help of interpretation. It is for this reason that text-books of international law have so much more importance for the application of the law than text-books of other branches of the law. Whereas the latter are only a means of preliminarily ascertaining the law, it being the judge who ultimately will lay it down, the former are as yet and for some time to come the only means of ultimately ascertaining what the law is. That at present many a rule is so controverted, and that the present treatises are not up to the ideal mark and frequently offer confusion instead of illumination, I do not deny. But that is just the reason why an inquiry into the task and the method of the science of international law is necessary.

However this may be, the exposition of the existing recognized rules of international law is often to a certain extent impossible

1 Unless it be created by the Central American Peace Conference, 1907.EDITOR.

without a knowledge of the history of the rules concerned.

There is therefore an historical task for our science. Yet in spite of the vast importance of this task it has as yet hardly been undertaken; the history of international law is certainly the most neglected province of it. Apart from a few points which are dealt with in monographs, the history of international law is virgin land which awaits its cultivators. Whatever may be the merits of the histories and the historical sketches which we possess, they are in the main mere compilations. The master-historian of international law has still to come. What is particularly wanted is what the Germans call a "Dogmengeschichte." We require to know of each rule of international law how it originated and developed, who first established it, and how it gradually became recognized in practice. Bearing in mind that the growth and development of international law since the seventeenth century rallied around Grotius' immortal work De jure belli ac pacis, the starting point of the investigation ought, of course, to be this "father" of international law. The questions to be answered are: Does Grotius know of the rule concerned? How does he justify it? Was it known before Grotius? If it was neither known before Grotius nor by Grotius himself, who was it who first formulated and established it? Has it always retained the scope which it possessed in the hands of its first professor, or had it been altered, extended, restricted? What are the causes of such alteration, extension, or restriction, if any? What are the chief events which show that it really has been authoritatively applied in practice? Has its authority always remained unshaken, or has its authority ever been assailed in theory or in practice or in both? Is it a rule which Grotius, or whoever first professed it, has abstracted from the actual practice of the states, or is it a rule which was at first asserted as the outcome of the law of nature and afterwards adopted by the practice of the states on account of its intrinsic merits for the adequate conduct of international affairs? Has it at once when it was professed become universally recognized, or had it to fight its way and thus only become recognized slowly and gradually? Was it always considered a rule of law, or does it originate from comity and has only become law lately? Is it a rule first asserted

by bookwriters, or has it made its appearance during the exchange of diplomatic notes connected with the occurrence of certain events?

Of course, such a history of dogmatics can merely supply the building material which the expected master-builder will use for the purpose of a history of international law. For such history is only a branch of the history of Western civilization. All important events in the development of the state system of Europe from the last part of the Middle Ages downward to the French Revolution have had their bearing upon the development, the shaping, and the ultimate victory of international law over international anarchy, and so have all important events in the development of the state system of Europe and America since the French Revolution. And the master-historian, to whose appearance we look forward, will in especial have to bring to light the part certain states have played in the victorious development of certain rules and what were the economic, political, humanitarian, religious, and other interests which have helped to establish the present rules of international law. Thereby the factors will be laid bare which have driven the different states into the community called the "family of nations" that will in time comprise the whole of humanity. Just as out of tribal communities which were in no way connected with each other arose the state, so the family of nations arose out of the different states which were in no way connected with each other. But whereas the state is a settled institution, firmly established, and completely organized, the family of nations is still in the beginning of its development. A settled institution and firmly established it certainly is, but it entirely lacks at present any organization whatever. Such organization is, however, gradually growing into existence before our eyes. The International Prize Court created by the Second Hague Peace Conference is the first small trace of a future organization. The next step forward will be that The Hague peace conferences will meet automatically within certain periods of time, without being summoned by one of the powers. A second step forward will be the agreement on the part of the powers upon fixed rules of procedure for the future Hague peace conferences. As soon as these two steps forward are really made, the nucleus of an organi