THEORY AND REALITY IN PUBLIC INTERNATIONAL LAW OTHER BOOKS FROM THE CENTER OF INTERNATIONAL STUDIES PRINCETON UNIVERSITY Gabriel A. Almond, The Appeals of Communism William W. Kaufmann, editor, Military Policy and National Security Klaus Knorr, The War Potential of Nations Lucian W. Pye, Guerrilla Communism in Malaya 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