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ever, there is no reason to fear that this will happen when the mediation offer, ensuing under the sanction herein explained, proceeds from a confederation of neutrals sufficiently numerous, powerful, determined and united. The combined power of the states interested in the preservation of peace will surely always be greater than that of one of the parties facing each other with warlike intent. No one, be he ever so strong, will want to draw upon himself, in addition to the adversary he is about to attack, so many accessory foes. Only a state intent upon a plain war of conquest would categorically refuse every pause likely to prejudice his start in preparedness. But by his refusal he would ipso facto reveal that such is indeed his object in going to war, a thing that surely everybody would want to avoid as much as possible. Everything, therefore, depends upon such a combination of neutrals to demand from the warlike parties a stay of hostilities, and possessing sufficient authority and adequate power to press its demand. The announcement that the two belligerents will be treated differently must be sufficient to cause the party which is inclined to exploit his lead in preparedness to desist. The disadvantage to him of the support held out to his opponent, must outweigh in his estimation the advantages resulting from greater preparedness.

Obviously such a federation of neutrals will not be composed of the same Powers in all cases; for it will consist of those states which are not interested in the concrete quarrel and are, therefore, resolved to attach themselves to neither of the contending parties in this case, but to remain neutral. In one case it will be these Powers, in another those. But in order that the concert may get into action promptly, which is absolutely necessary, there is need of a permanent nucleus. This is furnished by such states as are determined never to wage any war other than a defensive one; the neutralized states and those that aspire to recognition of their neutrality: Switzerland, resurrected Belgium, and the Scandinavian countries, possibly also the Netherlands. These states would have to declare themselves in advance as prepared to take such a step in future cases and without delay to summon all other Powers, which according to the peculiar circumstances of the case will presumably remain neutral, to join them.

Among these Powers there will almost always be found some great Power, in particular, the United States of America, if the Monroe Doctrine may also be conceived as a declaration of non-intervention in European affairs. In this hypothesis it is not likely that any state, no matter how eager and well prepared it may be for war, would want to run the risk of seeing its adversary reinforced by the support of such a concert, but would rather consent to a stay of hostilities for a few months and to renewed attempts at compromise. At the expiration of that term, should it be impossible to adjust the difference, he would recover full freedom of action and no longer have to fear those handicaps.

One incidental effect of such a procedure on the part of the neutrals, and one not to be underestimated, is that the value of a lead in armaments would be lessened and thus the struggle of the Powers to attain it likewise reduced. The sacrifice which individual states would thereby impose upon themselves would not be so great as might at first sight appear, illusions in this very subject, being, as experience teaches, by no means rare.

For the neutrals this proposition would have the advantage that the admissibility of deliveries of war material to the one side would be assured to their citizens, while otherwise it is perhaps to be expected that the demand for a general prohibition of such deliveries will grow more and more insistent.24 No doubt, it will be objected that the theoretical admissibility of such deliveries does not always mean a practical possibility, for it may so happen that precisely that state to which deliveries would be permissible, might not need them, or that as a matter of fact they could not reach the state that might need them. The former eventuality is very improbable; for that state which declined to continue negotiations, and to which, therefore, deliveries would not be permissible, will also be the one that does not stand in need of them; while his adversary, to whom they may be sent, will be the party in need. The second eventuality is, of course, again possible in the future. But the stronger the alliance of neutrals, the better will it be in a position to see to it that the rights of those belonging to it are really respected.

24 Cf. my “Mediationsrecht der Neutralen,” Öest. Ztschr. f. öffentliches Recht, II (1915), p. 214. To the literature there quoted should be added Laudon, Drie reglen van het tractaat von Washington, Leiden, 1890, especially p. 77 and p. 103 ff.

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To be sure, even this scheme presents no panacea. It too will in many instances fail, either because one of the two parties to the dispute refuses to enter into the proposition, or because an adjustment of the dispute by mediation does not succeed. Neither, however, is likely. At all events, the neutrals, in case their action has been in vain, can with a good conscience say to themselves that they have done everything within human power to avert war.

In order to be able to make the threat, namely, that the neutral Powers will permit their people to give every support to the party willing to negotiate, while, on the other hand, they will forbid any help being given to his adversary, it will be necessary to alter Article 7 of the conventions respecting the rights and duties of neutrals in case of war on land and in naval war, which conventions would otherwise stand in much need of supplementing and emending.

It is perhaps not too optimistic to hope that by the way here indicated the rule of right may penetrate also into the sphere of war to the extent of confining the latter to those extreme cases in which all other remedies for the settlement of differences among states have actually failed. Strangers to the dispute, who exercise with prudence and energy the right of mediation as their most important right of neutrality, will thereby not only serve their own best interests, but also prove themselves in the highest degree benefactors of mankind.



The celebrated scrap of paper incident is perhaps thought so effective a commentary on the “legal nature" of treaties that it needs no addition. “Treaties won't stand before policy and there's an end on't.” The student of history is likely to take a more cautious view. He knows that treaties have been one-sidedly abrogated before. He knows that the ambiguous phrase rebus sic stantibus has generally been an implied accompaniment of treaties, and yet he knows that treaties have continued to be concluded and in general observed.

In spite of the consolation to be found in these reflections, the recent failure of a treaty, just at the time when a Third Hague Conference was due, is of unusual significance. It marked a break in the steady progress which codification had made in international law since the Declaration of Paris of 1856. If a treaty, ratified and reaffirmed with such solemnity as the Belgian Neutralization Treaty, was worthless, were not the hopes for world organization and codified international law by means of conventions pretty thoroughly shattered? It was a severe blow to the "legal school” of international law, and while it might be regretted, yet it gave cause for grim complacency on the part of those, who, looking askance at the codification movement, have been dubbed the "diplomatic school.” 1

All branches of jurisprudence may be approached from two stand

1 Oppenheim has suggested this division of the schools of international law in his Introduction to Westlake's Collected Papers on Public International Law. It should be noted that this classification is not parallel to the traditional division of international law writers into Grotians, Naturalists, and Positivists. Adherents of both the legal and diplomatic schools may be positivists in the sense in which the term is used in international law. In general jurisprudence, however, the positive school has a different significance, referring to the followers of Austin whose attitude toward international law has been characterized by the term applied to them by Oppenheim, "deniers of international law.” Members of this school of jurisprudence may, however, belong to the legal school of international law, in a sense. They assert that international law is not yet law, but will become so when codified and enforced by an organized international authority. The attitudes of the legal and diplomatic schools of international law are thus parallel respectively to those of the positive and historical schools of general jurisprudence.


points. Law may be regarded as primarily a means to an end: its functional or teleologic aspect may be emphasized most prominently. With this view, when a utilitarian theory of morality begets a confidence in man's power to judge of ends, and means for their attainment through law, the conscious shaping of rules of law to existing conditions and the clarifying of their expression, becomes the desideratum. Legislation and codification become the interests of the jurist.

On the other hand, law may be regarded as an organic growth, which legislative interference is more likely to spoil than remedy. Adherents of this point of view are struck by the enormous complexity of human relations. They see that law has grown in the past by a subconscious process of trial and error. They doubt the ability of man to improve on this natural process by reason. Hence interest is centered on the historical growth of law and the tendencies which are discoverable by an inductive study of such development. Law is to be approached reverently as a guide to an understanding of the nature and destiny of man, rather than as a tool to be bent to his present purposes.

The nineteenth century witnessed the predominance of the teleologic school in national jurisprudence. With Benthamite utilitarianism as a criterion of ends and Austinian sovereignty of the state as a means, the growth of law become conscious and rational. Legislative reform and the codification of law were attempted in all civilized states.

It appeared that the twentieth century was to witness a similar development in the field of international law. The draft codes of Dudley Field, Bluntschli and others, the Declaration of Paris, the Geneva Conventions, the Declaration of St. Petersburg, the Hague Conventions and the Declaration of London, seemed to be paving the way for periodic congresses at The Hague to legislate for the world and to codify the law of nations by treaty.

It is true that this movement had had its critics. As Savigny in Germany and Maine in England had doubted the wisdom of an unconditional giving over of law to the legislature, so many of the ablest writers in international law had felt that the law of nations must still be content with the slow progress which would come through unconscious historical development. They felt that conventional law, drafted on the moment, and often on an incomplete induction, would, like too

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