International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition — John Shaqi
International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second EditionOppenheim, L. (Lassa)
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International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition
Oppenheim, L. (Lassa)
International law
§ 2. It is often maintained that the Law of Nations is concerned with
legal differences only, political differences being a matter not of law
but of politics. Now it is certainly true that only legal differences
can be settled by a juristic decision of the underlying juristic
question, whatever may be the way in which such decision is arrived at.
But although political differences cannot be the objects of juristic
decision, they can be settled short of war by amicable or compulsive
means. And legal differences, although within the scope of juristic
decision, can be of such kinds as to prevent the parties from submitting
them to such decision, without being of a nature that they cannot be
settled peaceably at all. Moreover, although the distinction between
legal and political differences is certainly correct in theory and of
importance in practice, nevertheless, in practice, a sharp line
frequently cannot be drawn, as has just been pointed out. Therefore the
Law of Nations is not exclusively concerned with legal differences, for
in fact all amicable means of settling legal differences are likewise
means of settling political differences, and so are two of the
compulsive means of settling differences--namely, pacific blockade and
intervention.
[Sidenote: Amicable in contradistinction to compulsive settlement of
Differences.]
§ 3. Political and legal differences can be settled either by amicable
or by compulsive means. There are four kinds of amicable means--namely,
negotiation between the parties, good offices of third parties,
mediation, and arbitration.[2] And there are also four kinds of
compulsive means--namely, retorsion, reprisals (including embargo),
blockade, and intervention of third States. No State is allowed to make
use of compulsive means before negotiation has been tried, but there is
no necessity for the good offices or mediation of third States, and
eventually arbitration,[3] to be tried beforehand also. Frequently,
however, States nowadays make use of the so-called Compromise Clause[4]
in their treaties, stipulating thereby that any differences arising
between the contracting parties with regard to matters regulated by, or
to the interpretation of, the respective treaties shall be settled
through the amicable means of arbitration to the exclusion of all
compulsive means. And there are even a few examples of States which have
concluded treaties stipulating that all differences, without exception,
that might arise between them should be amicably settled by
arbitration.[5] These exceptions, however, only confirm the rule that no
international legal duty exists for States to settle their differences
amicably through arbitration, or even to try to settle them in this way,
before they make use of compulsive means.
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