REVIEWS
| Published date | 01 November 1954 |
| DOI | http://doi.org/10.1111/j.1468-2230.1954.tb00277.x |
| Date | 01 November 1954 |
REVIEWS
LEGAL
CONTROLS
OF
INTERNATIONAL
CONFLICT.
By
JULIUS
STONE.
[London: Stevens
&
Sons,
Ltd.
1954.
lv and
851
pp.
24 4s.l
THIS
massive work by the Challis Professor of International Law and Juris-
prudence in the University of Sydney is accurately described in the Preface
as “a thoroughly modern legal textbook on disputes, peace enforcement,
war
and neutrality.” The first (which really ought
to comprise the preceding Introduction) is headed Perspective and contains
a
broad statement of the author’s views on the fundamental problems of
international law. Book
I1
deals with international disputes and peace
enforcement and discusses, in particular, arbitration, judicial settlement of
disputes and the provisions
of
the United Nations Charter for peace enforce-
ment. Book
111
is the most substantial part, extending over more than half
of the whole volume.
It
includes the law of war and neutrality in all its
aspects. Throughout the work special problems of importance are discussed
in Discourses of which there are thirty-four altogether. The material used
by the author, though perhaps not exhaustive, is vast and drawn from the
practice and literature of the principal countries of the world.
This short description will make it obvious that Professor Stone has
produced
a
work which may be welcomed
as
one of the most important
studies of international law that has appeared in recent years. None of its
readers can help expressing satisfaction that the author of
The Province
and
Function
of
Law
has turned to international law and bestowed upon it the
benefit of his acute mind, of his great learning and his genuineness of purpose.
The reason which prompted one who in the past seemed primarily interested
in jurisprudence to apply himself to the most controversial branches of
international law is not far to seek.
It
lay in the author’s “deep sense of
dissatisfaction, as a student of law and society, with the ever-widening incon-
gruity between international law
as
formulated even on paper of the highest
authority and the actual conduct of inter-State relations; between, in
particular, its rules
as
formulated by publicists and its rules as applied by
States officials” (Preface, p. vii).
These words
also
serve to indicate the author’s general approach to his
task. He subscribes to the method of sociology and at the end
of
his second
Chapter exhorts linternational lawyers not to
“
postpone the urgent tasks of
sociological review of this body of law until after the methodological problems
are solved. We must rather, while conscious of the basic preliminary questions,
do what can be done even now to expose, within the mass of professed rules
of international law, the concealed contradictions, gaps, evasions, escapes, am-
biguities and illusions which are revealed when these rules are confronted
with the facts
of
contemporary international life
”
(p.
48).
This, therefore,
is
R
book which nowhere refrains from criticism, from efforts at
“
debunking,”
from attack against what the author describes
as
“
paper
”
formulae,
or
from
comparison of law with facts. Such tendencies do not come unexpectedly
from an author to whom international law (which according to an earlier,
curious sentence
(p.
xxxi) “provides for its
own
destruction by the mere
private force of its own subjects”) “in the world of today is like the thin
crust of a thermal region of the earth’s surface-it cracks easily and when
cracked exposes the seething and hissing and bubbling and bursting interior
which all land (and
all
law)
at
some depth
or
other encases” (p.
40).
Which,
one is tempted to add,
is
thus not peculiar to international law.
It
is divided into three parts.
582
Nov.
1954
REVIEWS
583
There is, of course, much to be said for
“a
treatise on the dynamics
of
Disputes- and War-Law,”
as
Professor Stone describes his work in the
subtitle.
It
adds substantially to what is
at
present
a
fashionable school.
The views expressed in it and the reasoning on which they are based are
interesting and deserve close attention. The author’s scholarship
as
well
as
his power of analysis command respect. Every recognition is due to the weight
of the contribution which the author has made and to which almost each page
of this large volume bears witness.
Yet, with great deference, the question must be asked what permanent
and constructive benefit international law can derive from
a
book which,
while it is written with an obvious sense of responsibility, discloses
a
measure
of impatience that
is
perhaps not really merited and in any event constitutes
a
source of danger. Uy nay of illustration-it is taken
at
random and may
not be the most significant one-reference may be made
to
Professor Stone’s
discussion of submarine warfare. He acknowledges the
“
very clarity of the
legal position,” but thinks that
“
when confronted with Germany’s systematic
violation” of all
its
aspects and with Allied retaliatory practice it “must
itself give pause to easy progress
”
(p.
597).
Later he speaks of
“
the illusion
.
.
.
of disposing of the present problem by
a
well-merited chastisement of
German lawless
Schrecklichkeit.”
He condemns this on moral grounds, but
doubts “the adequacy of
so
blinkered an account
as
a
basis either of
exhortation or prognostication
as
to future wars, or of the framing of new
rules.”
He
suggests the view, on the contrary, that no such basis will be
found until the whole matter is “conscientiously viewed in the context of
the full emergence of the economic arm of warfare, with the annihilation
of
enemy maritime commerce
as
a
major naval objective”
(p.
605).
In
justice to Professor Stone the point under discussion should perhaps
also
be illustrated by his treatment of another, more
“
legal
”
and less
“
dynamic
”
topic. There cannot really be any doubt that the Hague Regulations have,
to
a
large extent, proved
a
valuable and effective piece of international
legislation. They contain gaps. They leave room for uncertainty. They are
subject to, and capable of, change and adaptation,
e.g.,
in the case of central
banks,
as
the learned author clearly perceives
(p.
730).
But one should have
thought that to the lawyer this means no more than that he regards it
as
his duty and privilege to derive from the text and spirit of the Regulations
and the judicially sanctioned practice such fresh or additional rules
as
the
case
at
hand may require. Thus he will not find any insurmountable difficulty
in the provision that the occupant must respect the
laws
in force unless
“
absolutely prevented.” Professor Stone, however, thinks that, unless the
words
“
absolutely prevented
”
are taken literally, the boundaries of the
Occupant’s powers are still to be drawn, that it becomes
“
increasingly difficult
to say what is
a
fundamental institution” and that “the greater and more
rapid change in modern societies, for instance in collectivist movements, raises
questions to which the distinction provided no clear answer
”
(p.
698)
;
there
is
even
a
note of doubt of, or
at
least the absence of clear assent to, the
proposition that in
1944
the Allies were entitled to abolish the basic
Nazi
laws
(ibid.,
note
22).
When he comes to protection of private property the
author refers to German practices during two
U~S
and thinks that
“
whether
they were legal or not, they raise the question whether modern warfare on
its economic side may not have overtaken this branch of the law” (p.
708).
It
is
small wonder, then, that he speaks of the Hague Regulations’
“
somewhat
exotic survival”
(p.
727),
that in his view they “remain where and
as
they
were, but they no longer command the landscape” (p.
727),
that “many
factors have operated in the present century to destroy
[sic]
the rules based
upon
”
the distinction between Occupant and Sovereign and upon the inviola-
bility of the private economic donrain
(p.
728).
Even assuming that these
and similar strictures were well founded, is it not the lawyer’s task
to
develop rather than destroy? How would the conrmon law have fared if
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