The Future of International LawOppenheim, L. (Lassa)
History
The Future of International Law
Oppenheim, L. (Lassa)
International law
56. It is imagined that a trump card is played when it is asserted that
Article 7 of the Convention, entered into at the second Peace
Conference, respecting the Prize Court, curtails state-sovereignty when
it provides that, in default of definite agreement and of generally
recognized rules of the law of nations, the Prize Court is to give its
decisions in accordance with the principles of justice and equity, and
that therefore (so the assertion continues) on certain points the Prize
Court can make international law by itself. Whilst up to the present
time custom and convention have been the two sources of the law of
nations, the Prize Court--so it is said--is now to be added as a third,
and the law made by it is to become international law without requiring
the assent of the several states. All this argument rests on a false
assumption. The article in question endues the Prize Court in certain
points with a law-making power which is simply a _delegated_ power. The
states which are concerned with the Prize Court desire, in the interests
of legal security, that the tribunal should not declare itself
incompetent by reason of want of existing rules on any given matter.
They accordingly delegate to this tribunal the power which lies in them
collectively of making rules of international law, and they
prospectively declare themselves at one with regard to the rules which
the tribunal shall declare to be binding in the name of justice and
equity. Now the Prize Court is not hereby made a special and independent
source of international law by the side of convention, but the law which
it declares is law resting on an agreement between states. Even in the
inner life of states we meet with delegation of legislative power to a
limited degree, and yet this does not mean that the authorities in
question are raised into special and independent sources of law side by
side with the government of the state. And just as in the inner life of
a state a delegation of legislative power does not involve an
infringement of sovereignty, so also the delegation of legislative power
to the Prize Court involves no infringement of the sovereignty of the
members of the international community of states.
[Sidenote: Difference between international courts of arbitration and
real international courts of justice.]
Public-domain text, read in full here on John Shaqi.
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