The League of Nations and Its Problems: Three Lectures. Lassa Oppenheim
History in most cases takes no leaps, but if exceptionally History does take a leap, there is great danger of a bad slip backwards following. We must be on our guard lest the proposed League of Nations should take a leap in the dark, and the realisation of proposals be attempted which are so daring and so entirely out of keeping with the historical development of International Law and the growth of the Society of Nations, that there would be great danger of the whole scheme collapsing and the whole movement coming to naught.
The movement for a League of Nations is sound, for its purpose is to secure a more lasting peace amongst the nations of the world than has hitherto prevailed. But a number of schemes to realise this purpose have been published which in my opinion go much too far because they comprise proposals which are not realisable in our days. You know that not only an International Court of Justice and an International Council of Conciliation have been proposed, but also some kind of International Government, some kind of International Parliament, an International Executive, and even an International Army and Navy—a so-called International Police—by the help of which the International Government could guarantee the condition of permanent peace in the world.
II. You believe no doubt, because nearly everyone believes it, that the conception of a League of Nations is something quite new. Yet this is not the case, although there is something new in the present conception, something which did not exist previously. The conception of a League of Nations is very old, is indeed as old as modern International Law, namely about four hundred years. International Law could not have come into existence without at the same time calling into existence a League of Nations. Any kind of an International Law and some kind or other of a League of Nations are interdependent and correlative. This assertion possibly surprises you, and I must therefore say a few words concerning the origin of modern International Law in order to make matters clear.
III. In ancient times no International Law in the modern sense of the term existed. It is true there existed rules of religion and of law concerning international relations, and ambassadors and heralds were everywhere considered sacrosanct. But these rules were not rules of an International Law, they were either religious rules or rules which were part of the Municipal Law of the several States. For instance: the Romans had very detailed rules concerning their relations with other States in time of peace and war; but these were rules of Roman law, not rules of the law of other countries, and certainly not international rules.
Now what was the reason that antiquity did not know of any International Law?
The reason was that between the several independent States of antiquity no such intimate intercourse arose and no such common views existed as to necessitate a law between them. Only between the several city States of ancient Greece arose some kind of what we should now call 'International Law,' because these city States formed a Community fostered by the same language, the same civilisation, the same religion, the same general ideas, and by constant commercial and other intercourse. On the other hand, the Roman Empire was a world empire, it gradually absorbed all the independent nations in the West. And when the Roman Empire fell to pieces in consequence of the migration of the peoples, the old civilisation came to an end, international commerce and intercourse ceased almost entirely, and it was not till towards the end of the Middle Ages that matters began to change.
IV. During the second part of the Middle Ages more and more independent States arose on the European continent, and during the fifteenth and sixteenth centuries the necessity for a Law of Nations made itself felt. A multitude of Sovereign States had now established themselves which, although they were absolutely independent of one another, were knitted together by constant commercial and other intercourse, by a common religion, and by the same moral principles. Gradually and almost unconsciously the conviction had grown upon these independent States that, in spite of everything which separated them, they formed a Community the intercourse of which was ruled by certain legal principles. International Law grew out of custom because it was a necessity according to the well-known rule ubi societas ibi jus, where there is a community of interests there must be law. The several independent States had thus gradually and unconsciously formed themselves into a Society, the afterwards so-called Family of Nations, or, in other words, a League of Nations.
And no sooner had this League of Nations come into existence—and even some time before that date—than a number of schemes for the establishment of eternal peace made their appearance.
The first of these schemes was that of the French lawyer Pierre Dubois, who, as early as 1305, in his work 'De recuperatione terre sancte,' proposed an alliance between all Christian Powers for the purpose of the maintenance of peace and the establishment of a permanent Court of Arbitration for the settlement of differences between members of the alliance.
Another was that of Antoine Marini, the Chancellor of Podiebrad, King of Bohemia, who adopted the scheme in 1461. This scheme proposed the foundation of a Federal State to comprise all the existing Christian States and the establishment of a permanent Congress to be seated at Basle in Switzerland, this Congress to be the highest organ of the Federation.
A third scheme was that of Sully, adopted by Henri IV of France, which, in 1603, proposed the division of Europe into fifteen States and the linking together of these into a Federation with a General Council as its highest organ.
And a fourth scheme was that of Emeric Crucée, who, in 1623, proposed the establishment of a Union consisting not only of the Christian States but of all States of the world, with a General Council seated at Venice.
And since that time many other schemes of similar kind have made their appearance, the enumeration and discussion of which is outside our present purpose. So much is certain that all these schemes were Utopian. Nevertheless, a League of Nations having once come into existence, International Law grew more and more, and when in 1625 Hugo Grotius published his immortal work on 'The Law of War and Peace,' the system of International Law offered in his work conquered the world and became the basis of all following development.
V. However, although a League of Nations must be said to have been in existence for about 400 years, because no International Law would have been possible without it, this League of Nations could not, and was not intended to, prevent war between its members. I say: it could not prevent war. Why not? It could not prevent war on account of the conditions which prevailed within the international society from the Middle Ages till, say, the outbreak of the present war. These conditions are intimately connected with the growth of the several States of Europe.
Whereas the family, the tribe, and the race are natural products, the nation as well as the State are products of historical development. All nations are blends of more or less different races, and all States were originally founded on force: strong rulers subjected neighbouring tribes and peoples to their sway and thus formed coherent nations. Most of the States in Europe are the product of the activity of strong dynasties which through war and conquest, and through marriage and purchase, united under one sovereign the lands which form the States and the peoples which form the nations. Up to the time of the French Revolution, throughout the sixteenth, seventeenth, and eighteenth centuries, all wars were either wars of religion, or dynastic wars fought for the increase of the territory under the sway of the dynasties concerned, or so-called colonial wars fought for the acquisition of transoceanic colonies. It was not till the nineteenth century that wars for the purpose of national unity broke out, and dynastic wars began gradually to disappear. During the nineteenth century the nations, so to say, found themselves; some kind of constitutional government was everywhere introduced; and democracy became the ideal, although it was by no means everywhere realised.
VI. It is for this reason that the outbreak of the present war is epoch-making, because it has become apparent that, whatever may be the war aims of the belligerents, at bottom this World War is a fight between the ideal of democracy and constitutional government on the one hand, and autocratic government and militarism on the other. Everywhere the conviction has become prevalent that things cannot remain as they were before the outbreak of the present war, and therefore the demand for a League of Nations, or—I had better say—for a new League of Nations to take the place of that which has been in existence for about 400 years, has arisen.
Now what is new in the desired new League of Nations?
Firstly, this new League would be founded