Theory and Reality in Public International Law

398 Pages·2015·15.14 MB·english

by  Charles De Visscher

THEORY AND REALITY
IN PUBLIC INTERNATIONAL LAW
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THE CENTER OF INTERNATIONAL STUDIES
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THEORY AND REALITY
IN PUBLIC
INTERNATIONAL
LAW
CHARLES DE VISSCHER
TRANSLATED FROM THE FRENCH BY
P. E. CORBETT
PRINCETON, NEW JERSEY
PRINCETON UNIVERSITY PRESS
1957
Copyright © 1957, by Princeton University Press
London: Oxford University Press
All Rights Reserved
L.C. CABD 56-8378
This book is a translation of
TMories et RialiUs en Droit International Public,
first published in 1953
by Editions A. Pedone, Paris.
It incorporates most of the changes made
between the first and second French editions,
and thus is substantially the same as the second.
Charles De Vissche^s career includes service as counsel
and arbiter in international disputes, as minister in and
representative of the Belgian Government, as president of
the Institute of International Law, and as judge of the
International Court of Justice. He is now professor at the
University of Louvain. P. E. Corbett is research associate
in international studies at Princeton University.
Printed in the United States of America
by Princeton University Press, Princeton, New Jersey
FOREWORD
I
N RECENT TEARS a new and highly significant trend has become
visible in the literature of international law. The shape of this
trend is exhibited in three books written by leading authorities in
different parts of the world. These are Theories et Realites en Droit
International Public by Charles De Visscher of Belgium (1953),
Legal Controls of International Conflict by Julius Stone of Australia
(1954), and Law and Society in the Relations of States by P. E.
Corbett of the United States (1951). In order that the full signifi­
cance of this trend may be made apparent to audiences in the Eng­
lish-speaking countries, the Center of International Studies of
Princeton University decided to undertake an English edition of
Professor De Visscher's volume. The task of translating was en­
trusted to Professor Corbett, who is on the staff of the Center, and
was carried out with the aid of a grant from the Rockefeller Founda­
tion.
In this volume Professor De Visscher dissects the strengths and
weaknesses of the various theories, ancient and modern, that have
presented the law of nations as an operative and imperative system
governing a ready-made community, as well as those theories that
identify law and power. Law in his view is still a normative order,
not a mere record of practice. He believes that the international
scene is one where legal notions and structures struggle for influence
with the still dominant drives of political interests. Development
toward an effective world order can proceed only as power is co­
ordinated to the ends of human welfare, and as the need for a uni­
versal law and society finds intimate recognition in the minds of
men. The legal theory that can accelerate this necessarily slow
process must take full account of the findings of contemporary
social science, and especially of the recent advances made in the
study of international politics. His book offers a masterly appraisal
of what has been achieved in the past and a challenge to current
writing on law and politics in the international arena.
The Center of International Studies, which has sponsored this
enterprise, was established at Princeton University in 1951 for the
purpose of promoting research and training in the field of interstate
relationships. Its studies, although concerned with all aspects of
international affairs, are devoted primarily to analyzing contempo-
FOREWORD
rary problems in the foreign policy of the United States. Individual
projects are undertaken by members of the Center on their own
initiative.
FREDERICK S. DUNN
Director
Center of International Studies
Princeton University
February 1,1956
TRANSLATOR'S PREFACE
Theories et Realites en Droit International Public was first pub­
lished in Paris in 1953. Within a year English-speaking readers were
raising the question of its translation. Impressed at once by the
depth and by the breadth of the book, they felt strongly that it
ought to be made available to a wider range of students than could
and would read it in French.
The suggestion was not at once taken up. With some unintended
flattery of the international-law fraternity, the objection was raised
that the vast majority of those who should master a work of this
sort would be quite capable of doing so in the original.
The advocates of translation were not satisfied with the assump­
tion that the language of Talleyrand is still—if indeed it ever was—
so common a possession of those who concern themselves with the
legal aspects of diplomacy. Even in the century of the Enlighten­
ment, there was apparently justification for an English translation
of Vattel's Droit des gens within two years of its appearance on the
Continent. Nor is this comparison made with any sense of exaggera­
tion. The pages of this volume will show reason for believing that
Theories et Realites en Droit International Public may be no less a
contribution to the subject in our day than was the Droit des gens
in 1758.
About the vast contemporary expansion of interest in interna­
tional relations there can be no doubt; and there will be little debate
about the broadening out of participation in the making of foreign
policy. However much has been done to spread the knowledge of
foreign languages to keep pace with this development, it is clear
that a very large proportion of the new audience can be reached in
English only. The field of international relations is, par excellence,
one where familiarity with foreign thought is essential, if only as an
antidote to distortion. So, when any work marked not only by
command of all the traditional scholarship, but also by originality,
boldness, and objectivity, appears in this field, the case for transla­
tion is stronger than it ever was.
Theories et Realites is such a work. The author, professor at the
University of Louvain, has been adviser and representative of the
Belgian Government in international negotiations, president of
the Institute of International Law, judge of the International Court
of Justice, and umpire in international arbitration. This book is the
TRANSLATOR'S PREFACE
ripe fruit of learning enriched by broad practical experience and a
wisdom that grasps things whole. It is much more than a legal
treatise; indeed the juristic purist will hardly accord it that title. It
is a profound study in their living reality of relations of which law
is the formalized pattern. As a documented exposition of the limita­
tions imposed by the present distribution of political power on the
operation of legal norms in shaping the external conduct of govern­
ments, it is a pioneer work—a work which, by clearing the field of
illusions, may serve as the starting point for a more fruitful ap­
proach to the vast problem of world order.
Because he sees things whole, Professor De Visscher's belief in the
value of law and of the legal techniques never blinds him to the
disparity between the best-intentioned formulations of rules and the
actual conduct of governments. He is an interested but undeceived
witness of movements towards and away from lawlike patterns and
procedures in the relations of States. If legal science has not made
the contribution to world order that might have been expected of
it, the fault is by no means wholly in the perversity of politicians
and the nationalistic passions of their peoples. Part of it lies in the
jurist's propensity to formal generalization, and the professional
prejudice that finds law in two or three approximate repetitions of
a way of doing things. If the contribution is to be more significant
in future, the jurist must measure accurately the relative roles of
the legal and the political as determinants of public policy. He must
understand the multiplicity of psychological and social influences
that vie with a priori rules in shaping the decisions of the human
beings who are the realities behind the construct of State person­
ality. What civil lawyers call "doctrine," and common lawyers
"jurisprudence," can no longer wall itself off in its own "pure" world.
On penalty of continued barrenness in the international field, it
must welcome an invasion of modern social science.
The literature of international law has habitually trimmed off
the rough excrescences of international events in an effort to force
those events into the pre-established molds of abstract rules. The
resulting distortion far exceeds the maximum of disparity that can
separate the effective legal norm from the social facts for which it
serves as standard. It is Professor De Visscher's considered judg­
ment that law cannot be built upon a heedless sacrifice of reality.
Politics, which, though it is by no means an unmitigated search for
power, makes the preservation of the State's power a minimum
objective, is the dominant factor in international relations. But
TRANSLATOR'S PREFACE
there are points where interest may lead power into convergence
with law, and it is in the discernment of these points and elaboration
of the techniques by which the convergence may be sustained and
enlarged that the jurist can assist the politician in any conscious
move towards world order.
The aggregate of States does not exhibit that minimum of solidar­
ity which would justify regarding it as a community or its tentative
and shifting patterns of practice as a legal system. But in areas of
interest which governments do not regard as vital the elaboration
of rules and the organization of structure for their administration
show considerable and promising growth. It is by working with the
Qolitician in these areas that the jurist can do most to limit the dis-
ruptively individualistic exercise of State sovereignty. But Professor
De Visscher does not see development along these "administrative"
lines as a process which by itself will gradually conquer the reserved
domain where governments continue to demand a discretion unre­
stricted by any collective obligation. The process, if it is to reach
such heights, must be accompanied by a drastic change in men's
conceptions of the State and its power. These, pulled down from
their present eminence as the supreme goals of political organiza­
tion, must be subordinated to the ends of the human person. Here
we find the essential link between national and international social
development; and the prospect is not one to rejoice the heart of the
internationalist. For the State's unceasing invasion of all fields of
human activity, even in democratic countries, seems to point to the
consolidation and increase rather than the subordination of its
power. How can the State organization be used to maximize indi­
vidual welfare and yet be prevented from usurping the position of
end in itself? Here, in general terms, is the common problem of
contemporary law and politics in the international as in the national
sphere.
Without committing himself to any one of the contemporary fads
or schools of methodology, Professor De Visscher may perhaps have
launched a revolution in the study of international law. In attempt­
ing that, he has subjected the procedures and institutions of world
politics to an examination which in its breadth and analytical power
makes his work as valuable to the general student of international
relations as to the specialist in their legal aspects. Out of mature
scholarship, knowledge of the world, and rare receptivity to new
ideas, he has built a bridge across the chasm of misunderstanding,
even antagonism, that has separated the older and more formal