Year XXXIX, 1997, Number 2, Page 69



A recurrent theme in the work of Hans Kelsen is the need to establish an international court with binding jurisdiction over states, as a first and indispensable step for an effective reform of international relations.[1] During the Second World War in particular, impelled by the dramatic nature of events, Kelsen set himself the problem of whether war between states could be abolished, reaching the conclusion that there would have to be a Permanent League for the Maintenance of Peace, central to which would be the creation of an international court. Now that the battle for the establishment of a United Nations International Criminal Court is at an advanced stage, and there is beginning to be a strong movement mobilising support for it, it is undoubtedly worth re-examining these writings by Kelsen and discussing the contribution made by this author, who occupies a central position in the cultural panorama of our century.
The text to which we shall principally refer is Peace through Law, published in 1944,[2] in which Kelsen puts together his reflections on this argument. In the preface the author notes that “war is mass murder, the greatest disgrace of our culture, and that to secure world peace is our foremost political task, a task much more important than the decision between democracy and autocracy, or capitalism and socialism; for there is no essential social progress possible as long as no international organization is established by which war between the nations of this earth is effectively prevented” (p. viii).
The tragic experience of war had made many thinkers, many politicians and many citizens conscious of the need to abolish war, but surely this formulation of Kelsen, which recalls some points of the Ventotene Manifesto by Altiero Spinelli, is particularly advanced because it makes the problem of peace the new political priority. According to Kelsen, in an organized society peace is guaranteed by the fact that the community holds the monopoly of the use of force. The modern state is the perfect model of the social order which establishes the monopoly of force on the part of the community, because it centralizes the use of force by referring it to a central executive power. Within the state therefore, the pacification of relations between individuals, that is national peace, is carried out at the highest possible level.
It follows from this that, when one considers the problem of assuring international peace, the ideal solution is certainly that of establishing a World federal state, composed of the greatest possible number of states. Kelsen agrees with Lionel Robbins when the latter maintains that the existence of independent sovereign states is the fundamental cause of war and that therefore the only remedy consists in the limitation of their absolute sovereignty (p. 18 in footnote). The problem however is to identify a realistic strategy in this direction.
From this point of view, “only wishful thinking and ignorance of decisive facts allow us to underestimate the extraordinary difficulties we must encounter in organizing a World federal state” (p. 9-10). A democratic World federal state, in fact, would have to have a parliament in which the member states are represented on the basis of population; this would mean that India and China would have about three times as many delegates as the United States and Great Britain put together. “The government of a sovereign state is by its very nature inclined to resist any restriction upon its independence; and to become a member of a federal state means giving up completely one’s independence. The resistance against a state suicide must, of course, reach the highest degree immediately after a victorious war, which inevitably increases the nationalistic feelings of people” (p. 10). This does not mean that World federation is impossible to achieve, but only that it can be realized after a long and slow process of rapprochement, particularly cultural, between the different nations of the world. The first step to take in this direction, according to Kelsen, is: “at first only an international union of states, not a federal state” (p. 12).
The solution to the problem of peace can therefore be sought only in the context of international law: the high degree of centralization characteristic of the state, he maintains, is not indispensable to guarantee a lasting peace; the monopoly of force, which is the essential element for a juristic community which wants to assure peace between its members, is possible even when the community is not a state. “Consequently, the next step on which our efforts must be concentrated is to bring about an international treaty concluded by as many states as possible, victors as well as vanquished, establishing an international court endowed with compulsory jurisdiction. This means that all the states of the League constituted by this treaty are obliged to renounce war and reprisals as means of settling conflicts, to submit all their disputes without exception to the decision of the court, and to carry out its decision in good faith” (p. 14).
Thus Kelsen introduces the central idea of the international court. But for this to be efficacious, he adds, it is necessary that all conflicts between states can be brought back in the final instance to a legal dispute, and thus that the distinction between legal and political conflicts is abolished (a distinction based exclusively on discretional criteria of the states themselves, which invoke one or the other principle on the basis of their own interest); in this way, any dispute between states is subject to the authority of the international court. It is further necessary that, in addition to the collective responsibilities of a state, the court can also prosecute individual responsibilities of those who, having government office, commit, order, or authorize acts of war which violate international law (which derives, in substance, from the principle of bellum justum).
The most delicate point, of which Kelsen is well aware, concerns the execution of the court’s decisions regarding states. It is clear that the most efficacious method to enforce the orders and judgements of the Court would be to have a centralized executive power, i.e. an international police force independent of the armies of the states and directly at the disposal of a central administrative agency charged with executing the decisions of the court. But “an international police force is effective only if based on the obligation of the member states to disarm or radically to limit their own armament, so that solely the League is permitted to maintain an armed force of considerable strength. A police force of this kind is ‘international’ only with respect to its legal basis, the international treaty. It is, however, ‘national’ with respect to the degree of its centralization, for a League with a centralized executive power is no longer an international confederacy of states, but a state itself” (p.19). An ‘international’ police force of this type is therefore a radical limitation, if not a total destruction, of the sovereignty of the state, and in the current phase it is unthinkable. The creation of a central executive power is the most difficult problem, from the point of view of world organization, and it therefore cannot be the first step.
The solution then is to be sought by resorting to the armed forces of the states which must provide them directly to the Council charged with executing the court’s decisions. According to Kelsen this solution is in any case effective, because the very fact of establishing an International Court is a decisive step towards the creation of a World federal state: “The problem of world organization is a problem of centralization; and the whole evolution of the law from its primitive beginnings to its standard of today has been, from a technical point of view, a continuous process of centralization....The centralization of the executive power is the last step...from the decentralized pre-state community to the centralized community we call state. We have good reasons to believe that international law — that is, the law of inter-state community, completely decentralized and dominated by the principle of self-help — develops in the same way as the primitive law of the pre-state community. If it is true, we can with a certain degree of probability foresee the direction in which a relatively successful attempt may be undertaken to secure international peace, to eliminate the principle of self-help from international law by emphasizing and strengthening the given tendency toward centralization. Natural evolution tends first toward international judiciary, and not toward international government or legislation” (p. 22).
These lengthy quotations from Kelsen represent one of the most coherent and best argued reflections on the relationship between the establishment of the international court and the process towards the World federation. Two striking aspects, as already observed, are the basis on which Kelsen develops his analysis, which is to say the idea of the priority of peace over other political objectives, and the relationship which he establishes between the maintenance of peace and the creation of the state; just as it is also an absolutely valid requirement to think of a strategy and of intermediate stages necessary to reach a World federation. What appears contradictory on the other hand is precisely the formulation of the possible solution, namely the priority given to the establishment of an international court.
In this connection, two categories of problems may be highlighted: first, the contradictions which emerge from the arguments in support of the effectiveness of the international court, and secondly the fundamental theoretical contradictions in Kelsen’s general thinking, which obviously have repercussions on his theory of the primacy of the judiciary power over the executive and legislative in the construction of the World state.
First of all Kelsen considers it unthinkable that states, and victors in particular, should be prepared, once war was over, to cede their own sovereignty to a world institution. Now, what is an international court with binding jurisdiction over States if not a drastic limitation of sovereignty over the latter? A sovereign state, by definition, is a state which does not recognize any legitimate power superior to its own, and which therefore acts towards other sovereign states on the basis of relations of force (it submits to the power of stronger states, while trying to augment its own power at the expense of weaker states). This is the essence of international relations, which is a situation of anarchy exactly because no power is recognized as superior to the states, which therefore remain sovereign. From this point of view the establishment of an international court is either a pretence or it is indeed the renunciation on the part of the states of their own sovereignty. This second case would be true if a real power were to be created of substantial monopoly of armed forces at world level, a hypothesis which Kelsen rules out for the immediate future. But if this is not realized, there remains only the pretence. After all, Kelsen himself is forced to admit, quoting Robbins, that the crucial problem if one wants peace is the limitation of the sovereignty of the states. What can oblige a sovereign state to obey a court sentence which goes against its own interests? Only the reaction of the other states damaged by its behaviour can constitute a restraint, but here we are in the field of force, not of law. Is it really conceivable that states which do not have interests involved in the conflict should commit arms and men to punish those who have violated international law? From this point of view all historical experience of leagues and confederations (suffice it to recall the American experience) have shown that only states with an immediate interest contribute to the common duty, while those who are not directly involved manage to avoid making their own contribution without the other being in any position to compel them. And what then of the states which instead are favoured by the action of the transgressing state? The reality is that as long as the states in the fullness of their power are the players of international policy, each one acts, and can do no other, on the basis of its own raison d’état, before which a court without power can do nothing, except being exploited on the basis of the existing balances of power.
After all Kelsen bases his thesis on his general theory of law and of the state, which represents a contribution universally recognized as fundamental in the field of philosophy of law, but which presents profound ambiguities. For Kelsen the international court is efficacious because it is in any case a reinforcement of a legal order, the international one, which already exists, and to which the states are already subjected (so Kelsen, indeed, sets out from the presupposition that the states do not hold absolute sovereignty).
First, from the logical point of view, Kelsen considers that there is a primacy of international law over that of states: a state, to be such, must be recognized by the international community. Recognition comes about on the basis of the general norm of international law which is the principle of effectiveness: “an actually established authority is the legitimate government, the coercive order enacted by such a government is the legal order, and the community constituted by this order is a state in the sense of international law, insofar as this order is, on the whole, efficacious”[3] (p. 121). The principle of effectiveness (in other words the principle whereby the condition of the validity of a legal order is its efficacy) is therefore at the same time the fundamental norm of the legal order of a concrete state and the general positive norm of international law. This implies a primacy of international law over the law of states from the point of view of juridical legitimacy, because, in Kelsen’s hypothesis “the only true basic norm, a norm which is not created by a legal procedure but presupposed by juristic thinking, is the basic norm of international law” (p. 122). In this passage there already lies a profound ambiguity. What does the efficacy of a legal order in fact mean for Kelsen? It means that the actual behaviour of men conforms to it. The validity of a legal order, the fact that it constitutes a state community, does not derive therefore from the recognition of the international community but from the recognition given by the people of the state community in question through their own behaviour. This, in reality, is the source of the legitimacy of the state, and the international community confines itself to taking cognizance of this, as in many other cases of international law, which in fact, as Kelsen himself admits, sanctions existing situations (on the basis of the principle ex injuria jus oritur, as in the cases in which it recognizes the annexation of a territory by a state which, having settled it permanently, has replaced the old legal order with a new one, of which international law confines itself to taking cognizance).
On the other hand, Kelsen is obliged to compare international law with the primitive legal order, in which the community has the monopoly of the coercive act, but decentralizes its application to individuals, who are in fact authorized to avenge wrongs suffered. It is still a very unsatisfactory legal order, founded on the principle of self-help, and which can nevertheless already be called law, even if in statu nascendi. Like primitive law, international law is characterized by the juristic technique of self-help by the states. However, even compared to primitive law, international law presents a further problem: in a primitive community there is an organization of power, however crude, which ensures that the individual is not sovereign but is in some way subordinate to the laws of the community; this power therefore guarantees the enforcement of the rules of community life (in fact it realizes the monopoly of the coercive act, as Kelsen says). But in the international community this organization of power, however embryonic, does not exist and the states, contrary to what Kelsen believes, are in fact sovereign. In case of dispute, therefore, the application of international law is in reality once more entrusted to pure relations of force. It is difficult, from this point of view, to define a situation as law, even if in its earliest form, where in reality only relations of force are valid. The establishment of an international court, to return to the initial point, would not alter the situation: an international court intended to be binding over states without however actually limiting their sovereignty in no way alters the situation of power.
There is then a final decisive point. Kelsen recognizes that “whether or not international law can be considered as true law depends upon whether it is possible to interpret international law in the sense of the theory of bellum justum, whether, in other words, it is possible to assume that, according to general international law, war is in principle forbidden, being permitted only as a sanction, i.e., as a reaction against a delict” (p. 340). In turn this theory is based on the presupposition that there is a legal order which obliges the states to behave in a given manner and that this order is superior to the state. This theory, Kelsen then admits, is incompatible with the idea of the sovereignty of the states: “To attribute sovereignty to a state means that it is itself the highest authority, above and beyond which there can be no higher authority regulating and determining its conduct” (p. 336). Now, the choice between these two alternative hypotheses is not scientific, but political. Kelsen’s preference is justified exclusively by the fact “that only this interpretation conceives of the international order as law, although admittedly primitive law, the first step in an evolution which within the national community, the state, has led to a system of norms which is generally accepted as law... Only if such an evolution could be recognized as inevitable would it be scientifically justified to declare the bellum justum theory the only correct interpretation of international law. Such a supposition, however, reflects political wishes rather than scientific thinking” (p. 341).
Kelsen, by his own admission, therefore confines himself to expressing a need and a hope, but in fact does not indicate a solution, precisely because he does not tackle the problem of sovereignty. This does not cancel the fact that the questions he raises are fundamental: peace is still the political priority of our times and the growing interdependence of the world community has made even more urgent and certainly no less dramatic the need to find the way for the World federation. But the institution of an international court alone does not shift the balance of power from the states to the world community, especially if it is not part of a much broader strategy.
Therefore, faced with the initiatives in support of the International criminal court, it is right to take note of the current ferment in world public opinion and of the fact that there is now a demand for justice which is addressed to the international community; just as it is right to participate in this movement to seek to influence it in a federalist direction. But this does not mean one must cease to remember that the first great step towards the world federation — the only real possibility of peace and international justice — will be constituted by a more peaceful and balanced world order which sets an example of overcoming absolute national sovereignty through the creation of the European federation.
Luisa Trumellini

[1] Cf. H. Kelsen, The Legal Process and International Order, The New Commonwealth Research Bureau Relations, Series A, No. 1, London 1934; Law and Peace in International Relations, Oliver Wendell Holmes Lectures, Harvard University Press, 1941; “Essential Conditions of International Justice”, Proceedings of the 35th Annual Meeting of the American Society of International Law, 1941, pp. 70 and following; “International Peace by Court or Government”, The American Journal of Sociology, 1941, Vol. 46, pp. 571 and following; “Discussion of Post War Problems”, Proceedings of the American Academy of Arts and Sciences, 1942, Vol. 75, No. 1, pp. 11 and following; “Revision of the Covenant of the League of Nations”, World Organization, A Symposium of the Institute on World Organization, 1942, pp. 392 and following; “Compulsory Adjudication of International Disputes”, American Journal of International Law, 1943, Vol.37, pp. 397 and following; “Peace through Law”, Journal of Legal and Political Sociology, 1943, Vol.2, pp. 52 and following; “The Strategy of Peace”, The American Journal of Sociology, 1944, Vol.49, pp. 381 and following.
[2] H. Kelsen, Peace through Law, Chapel Hill, The University of North Carolina Press, 1944.
[3] H. Kelsen, General Theory of Law and State, New York, Russell & Russell, 1961. All quotations from this point on refer to this work.



Share with