Textbook Myth On International Law

DOIhttp://doi.org/10.1111/j.1468-2230.1940.tb00780.x
Publication Date01 Apr 1941
AuthorW. Friedmann
TEXTBOOK
MYTH
ON
INTERNATIONAL LAW
299
TEXTBOOK MYTH
ON
INTERNATIONAL
LAW
In June, 1940, when France capitulated, Norway and the
Low
Countries
had been overrun, Neutrality became a word of terror and awe, and the
invocation of
a
rule of International Law would provoke pity, contempt
or despair, the Whewell Professor of International
Law
completed the new
edition of the second volume (Disputes, War and Neutrality) of the leading
textbook on International Law, which a predecessor of his had written in
happier times. This is certainly an act of courage and faith. No doubt
many international lawyers will go further and praise the publication of
this new edition amidst the tempests of the present war as a demonstration
of the unshakable firmness and superiority of the rule of law in international
relations, which the assaults
of
lawless criminals, even if they comprise
a
number of powerful states, cannot destroy. Among these, probably,
will
be
the learned author of the observation recently made that the talk about
failure of International Law was much
to
be deprecated, for
if
there were
no International Law, the “Columbus,” for example, would have been
sunk by British warships inside territorial waters. Professor Lauterpacht
introduces
his
new edition with the following preface
“The present volume goes to press in June, ~gqo-at
a
time
of
an
anxious phase of a war whose outcome is bound to influence decisively the
substance and the structure of International Law in the coming generation.
In the meantime, the exposition of the existing law must disregard the
possibility or the prospects of
its
changes in the future or the facts of its
violations in the past.”
In these few words lies the key for the attitude of mind which made the
publication of such a book at such a time possible. They contain three
major assumptions, each of them presented as a fact, without even the
hint of
a
doubt-
First,
that
changes in the present international law of war, neutrality
and disputes are a matter of future possibilities or prospects.
Second, that violations in the past have been nothing more than
violations, leaving the validity of the old law quite unaffected.
Third, that there
is
an “existing” law.
By taking all these assumptions for granted, the Whewell Professor
could proceed to re-edit a book of some
720
pages, which to many must
appear as an account of recent history rather than of present law.
The whole structure and
substance
of the book the distinguished editor
has
left untouched. Out of about
500
chapters,
28
are either added or
largely rewritten. But we should at once make a distinction. The great
majority of these chapters concern technical points raised by new develop-
ments, or events of the present war such
as
the Altmark incident, and are
based
on the assumption that the principles of the law are not affected.
Such questions as “recognition of the right of enemy subjects to rebellion.”
or “defensively armed merchant vessels” or “attacks on enemy civil air-
craft,” or the Altmark case are questions of detail, highly important a; long
as the fundamental structure stands, but entirely irrelevant
if
this is no
longer the
case.
Perhaps only four of the new chapters attempt to gauge de-
velopments and changes of more fundamental importance
:
those on sanc-
tions in the theory and practice of the League
;
on modem developments in

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