¹ Cf. Métall, Rudolf Aladar, Hans Kelsen, Leben und Werk, 1969, Wien.Google Scholar

² Since 1885 one of the lexicographic meanings of the word is: “a member of any (non-religious) party or school who practices extreme adherence to its principles”: Oxford Shorter Dictionary.

³ This writer has long hesitated how terminologically to indicate that Positivism which is not “pure”. Finally, the choice was reduced to two: “utilitarian” and “pragmatic”. The latter was rejected because of the ambivalence which attaches to its philosophical development: Peirce, James, Dewey (&c) seem to have had each his own ideas, with relatively little ground in common; this one would be, on the positive side: realism, empiricism, priority of the anticipated effect (which makes it difficult to adapt it to normative thinking), and, on the negative side: the refusal to be guided by principles (which, on its part, appears to be basic to normative thinking). Thus, it would be adaptable to the legal reasoning which relates to a sociologically, rather than to the legally defined State, Constitutional Law, etc,—running up against a very valid objection of the Vienna School, that, resulting in a boundless mass of specific situations, it destroys any hope and any valid generalization. But if all this can be laid down in such vigour—would it not be preferable and make that small step forward and use the adjective “utilitarian”, which has the advantage of being clear, crude in the psychological impression which it conveys, including even “opportunism”?

⁴ In: What is Justice?, p. 257, Univ. of California Press, 1957.Google Scholar

⁵ Ib., p. 258.—Which, to the mind of this writer, is a kind of vicious circle: nature “wills” the operation of the “laws” of nature: the four seasons, sun and wind, even geophysical occurrences of great legal impact, such as maritime straits. Faced therewith, man obeys the commands of nature and “wills” a compulsion which he cannot prevent from operating. As any objective circumstances, the laws of nature—e.g. relations between the sexes—are liable to arouse public concern and the legislator's need to formulate and regulate them—not to postulate what exists independently of his competence.

5a It is indipensable to consult, in this connexion, one of the lists of Kelsen's publications, generally as addendum to his Reine Rechtslehre (original and translations); also in Métall, R. A., Hans Kelsen, Leben und Werk, Wien 1969, pp. 122et sq.Google Scholar

5b Item Souveränität in Strupp-Schlochauer's Wörterbuch.

⁶ This is the year of publication of Gumplowicz's first study on this subject: Rasse und Staat. He reverted thereto in 1883 with Der Rassenkampf (French translation, 1883)Google Scholar and 1902 in Soziologie und Politik.—Gumplowicz exercised a distinct influence on Eugen Ehrlich and Franz Oppenheimer. See also Salomon, G., Ausgewählte Werkt von Gumplówkz. 1928.Google Scholar

⁷ There was in Austria a particularly animated mutual influencing of Marxism and Staatsrecht, involving several contemporaries and co-nationals of Kautsky, mainly Karl Renner and Otto Bauer.

⁸ Cf. Kelsen, , The Communist Theory of Law, London 1955.Google Scholar

⁹ “Modern”— in relation to the subject treated here: Das Recht zu Leben und die Pflicht zu Sterben; this reference to this noted Austrian writer (1838–1921) appears justified because of his coeval activity, as well as because of his very independent lines of philosophy. He, too, influenced Austrian post-War utopian plans, cf. Frankl, Felix, Nährpflicht und Paneuropa, 1925. Also: WachtelGoogle Scholar, Security for All and Free Enterprice, New York 1955.Google Scholar

¹⁰ Verfassungs- und Verwaltungsgerichtsbarkeit im Dienste des Bundesstaates nach der neuen österreichischen Bundesverfassung vom 1. 10. 1920, in: Zeitschr. für Schweizerisches Recht, Neue Folge, vol. 52, 1923–1924, pp. 173–217.Google Scholar

¹¹ On a similar point—Order through Authority—as contrasted to Order through Consent, see this writer's International Group Protection, Leyden 1968.Google Scholar

¹² For a good, though propagandistic, summary see Kunz, J. L., “The Vienna School and International Law, in: XI New York Univ. Quarterly Review, 1934Google Scholar, reprinted in The Changing Law of Nations, 1968, Ohio State Univ. Press, pp. 59et sq.Google Scholar

¹³ This scheme sounds similar to Adolf Merkl's Stufentheorie, much relied upon by Kelsen; for a fuller statement of this writer's views on the “cascade” pattern see his paper “The International Corporation”, in 1 Israel Law Review, 1966, pp. 607et sq.Google Scholar

¹⁴ However, as long as this “cascade” remains inchoate, the Individual is left in isolation, unable to develop his status into a true and protected subjective right.

Since then, the demarcation line between Intern. Law and certain types of confederal arrangements became even more fluid; today, mutual control is the device envisaged to take place and function of the “cascade” device of 1919.

¹⁵ This is one of the privisions of Part XIII of the Treaty—the Constitution of ILO.

¹⁶ True, Kelsen published in 1920 an extensive study Das Problem der Souveränität und die Theorie des Volkerrechts (320 ppGoogle Scholar; No. 49 on the Métall register) but he reverted to international law but in 1925, with the article Völkerrechtliche Souveränität in Strupp's Wörterbuch and a paper “Staat und Völkerrecht”, in 4 Zeitschr. für öffentl. Recht, pp. 207Google Scholaret sq. (Nos 109 and 110). In the meantime, however, Verdross, after some early minor works, published his important Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung, 1923Google Scholar, and Die Verfassung der Völkerrechtsgememschaft, 1926Google Scholar. However, curiously, as time went on, Verdross became more and more pragmatic and eclectic. At present, his Völkerrecht is very much detached from both Kelsen and his own early writings.

¹⁷ This is confirmed by evidence dated 1964 when the Tennessee University sponsored Liber Amicorum (edited by Engel, Salo and Métall, S. A., under the heading Law State and Intern. Order)Google Scholar came out to commemorate the 30-years anniversary of Kelsen, 's book Reine Rechtslehre, Leipzig, 1934Google Scholar. We quote this publication as the 1964 Festschrift.

¹⁸ Some of these scholars are happily still alive—Kunz, Métall, Kelsen, Verdross; some died a natural death, such as Pitamic, but the majority of his Central European disiples stayed alive only because of their having in time fled overseas. Curiously enough, of the elder, Metall is the only one to have collaborated to the 1964 Festschrift, but among the younger ones one finds Eisenmann, Flechtheim, Herz, Hexner, Klinghofer, Silving—besides an equal number of “outsiders”.

¹⁹ Lauterpacht's topics are, in this framework, territorial sovereignty (including the question of mandates), treaties as contracts, State responsibility and quantum of damage, rules of evidence and procedure, methods of arbitration.

²⁰ Of the 28 contributions to the 1964 Festschrift, only eight relate ostentatiously to International Law (Hambro, Herz, Hexner, Morgenthau, Pound, Schachter, Schwarzenberger, Starke).

²¹ Silving, Helen, “In re Eichmann: A Dilemma of Law and Morality”, in 55 AJIL, 1961, pp. 307et sq.CrossRefGoogle Scholar

²² The same went on record with very specific reservations of that kind; see 1964 Festschrift, pp. 297Google Scholaret sg. (“The Lasting Value of Kelsenism”).

²³ See Starke, J. G.'s paper in the 1964 Festschrift: The Primacy of international Law” pp. 307Google Scholaret sq. Ibid.Silving, , p. 300Google Scholar, with a very pertinent objection: “When Kelsenian jurisprudence—purporting to be a ‘science of law’— postulates decision between primacy of the intern, legal order and that of a national order, it would seem to exceed the proper function of science: for it ‘legislates’ a choice as a scientifically necessary solution, when in reality such choice has not been made. Must the man of science choose be fore political decision-makers have spoken?”

²⁴ pp. 416–7.—Here is Verdross's definition, 1959: “… zeigt es sich dass das positive Völkerrecht jene Rechtsgrundsätze zur Voraussetzung hat welche den Rechtsordnungen der Kulturvölker zugrundeliegen und von ihnen auch teilweise positiviert worden sind”—“da sich die Normen des positiven Völkerrechts erst aufgrund des übereinstimmenden Rechtsbewusstseins der Völker gebildet haben” (Völkerrecht, p. 22).Google Scholar

²⁵ One will also note the integration of the Kelsen-Merkl doctrine of “cascade” norms (the s.c. Stufentheorie); however, to be fully usable, this practice calls for a system of canons of integrative interpretation—a conclusion which is here apparently not yet fully drawn.

²⁶ See on this the views of Kelsen's elder friend—cf. Métall, , l. c, p. 26Google Scholar—Heinrich Lammasch, in the 1917 publication of the Norwegian Nobel Institute: Das Völkerrechte nach dem Kruge, p. 12Google Scholar; cf. also Nippold, O.: Die Gestaltung des Völkerrechts nach dem Weltkruge, Zürich 1917.Google Scholar

²⁷ This, indeed, is another observation to Kelson's thesis that the basic norm depended on what one might legitimately read into the term “custom as a norm-creating fact”: is it, or not, limited to States as the only norm-creating subject? Could it be extended so as to include all those entities and subjects which have part in the “Law-creating Process” and the “Law-determining Agencies” (concepts propagated by Schwarzenberger, , e.g. A Manual of Int. Law, 5th ed., pp. 28 and 35Google Scholaret sq—respectively).

²⁸ 54 AJIL, 1960Google Scholar, reprint in The Changing Law of Nations, pp. 396et sq.Google Scholar

²⁹ 51 AJIL, 1957, pp. 691Google Scholaret sq; original (“Diritto Positivo e Diritto Internazionale) in 3, Communicazioni e studi, 1955, pp. 33–86.Google Scholar

³⁰ Kelsen founded for his German speaking friends the Zeitschrift für öffentl. Recht (soon to lose the editorship thereof) and in 1926, together with Léon Duguit (Bordeaux) and František Weyr (Brno) the Revue Intern, de la théorie du droit (bilingual: Zfitschr. für Theorie des Rechts), published until 1940, first by Jaromir Sedlacek and since 1934 by Métall. However, the a prioristic position was (see Kunz, , The Vienna School, (supra, fn. 12) fn. 8)Google Scholar that “philosophy of the law, insofar as the problems of justice, of a natural, absolute, just, right law, are outside its domain”. Kunz gives a long list of—as we would say—more “orthodox” disciples, but also includes certain parallel cases (such as Roguin in France and Austin in England), though without claiming them for the “School”. Kelsen himself often quoted Austin: in his General Theory, Austin comes in for eleven long dialogues, to be compared with one reference each to Anzilotti, Duguit, Gierke, Holmes, etc.)

³¹ This is the pattern elaborated by Verdross and Zemanek, 1959: States, Communities of States, the Catholic Church, Insurgents, mandates and truteeships, the Sovereign Order of Malta of, the Free Territory of Trieste, the Intern. Committee of the Red Cross, Individuals.

³² In 31 AJIL, 1937Google Scholar: “Forbidden Treaties in Int. Law”, pp. 571Google Scholaret sq; ib., vol. 60, 1966: “lus Dispositivum and lus Cogens in Int. Law”, pp. 55et sq.Google Scholar

³³ Völkerrecht, 1959, pp. 133–4Google Scholar. This doctrine is today an obstacle for States members in federations, as well as for the treaty law of inchoate entities. True, Verdross describes the concept of partielle Völkerrechtssubjekte, p. 134Google Scholar, which, however, relates only to territorial entities.

³⁴ This writer, cit. sub 11: Chapter V—The Addressees of the Law: the Agent of Protection, pp. 244–450.—This concept may obviously be extended to include Agents of Public Services, Agents of Normative Postulation (cf Schwarzenberger, 's “Law-Determining Agencies” in A Manual of International Law, 5th ed., London 1967, pp. 26Google Scholaret sq.), and Agents of Burden (i.e. agents having the task to take care of the compliance with specific international obligations).

³⁵ This writer, ib., pp. 36 et sq.

³⁶ Ib., Chapter IV: The Adressees of the Law—the Beneficiary, pp. 200–243.

³⁷ Kunz, , l.c., p. 114.Google Scholar

³⁸ Of the contributors to the 1964 Festschrift most deal with epistemological problems none directly with human rights, and only four indirectly with matters of some bearing on this branch of the law (Antoniolli, Flechtheim, Klinghoffer, Leser)—and, most characteristically, all rooted in Central Europe, all in the law of the administrative function, some in Socialism.

³⁹ In Salzburg, August 1962, when confronting Kelsen's reiterated credo on the rejection of Natural Law, with a lecture on the influence of such law on the theory and practice of int. relations, Verdross fully switched over to Natural Law. His summing up of Kelsen's lecture was: “Ich bin überzeugt dass mit seiner These, dass Naturrecht ohne Gott nicht begründet werden kann, alle einverstanden sind,” p. 117Google Scholar. See his own lecture: “Der Einfluss der Naturrechtslehre auf Theorie u. Pracis d. int. Beziehungen”, in: Schmölz, F. M. (Ed.), Das Naturrecht i.d. politischen Theorie, Wien 1963, pp. 106–116.Google Scholar

⁴⁰ Kunz himself did not much to develop his own alternative pattern, which, “as this writer [sc. Kunz] has for a long time maintained (8 0. Z.f.ö. Recht, 1957)Google Scholar has three components: norm, fact, and value”: p. 153 of his reprint in The Changing Law of Nations, 1968, p. 153.Google Scholar

⁴¹ Ib., p. 155.

⁴² Ib., 357 et sq.

⁴³ “Forbidden Treaties in International Law”, in 31 AJIL, 1937, pp. 571Google Scholaret sq. “A treaty norm is contra bonos mores if a State is prevented by an int. treaty from fulfilling the universally recognized tasks of a civilized State”—quite a case of Natural law.

⁴⁴ Kelsen, , Principles, 1951, pp. 64et sq.Google Scholar

⁴⁵ For an analysis of a parallel case see this writer's paper on “International Waterways—the Organizational Standard of the Enunciative Regime”, in 34 Revue de Droit Int. (Sottile), Genève 1956, pp. 48Google Scholaret sq. pp. 388 et sq.

⁴⁶ Mainly: Stone, Julius, Legal Controls of Int. Conflicts, 1954, New York-LondonGoogle Scholar; Greenspan, Morris, The Modern Law of Land Warfare, 1959, Univ. of California Press.Google Scholar

⁴⁷ v.d. Heydte is the IDI 's Special Rapporteur for the topic “L'existence des armes de destruction massive et la distinction entre les objectifs militaires et non-militaires en général”. Kunz is member of the commission of experts of the IDI dealing with this matter. His views are made public in form of replies to the Rapporteur's Questionnaires; the whole material is in Part II, of the IDI Annuaire, vol. 52Google Scholar; Kunz, ib. pp. 123 et sq. 235 et sq. v.d. Heydte explained his views in a paper—“Naturrecht und modernes Kriegsrecht” in: Das Naturrecht in der politischen Theorie, ed. by Schmölz, F. M., Wien 1963, pp. 91–98.Google Scholar

⁴⁸ Kunz is the only member of the Vienna School to have devoted greater attention to his problem. While this writer fully agrees with Kunz's diagnosis (quoted with the terms he used as heading of a paper) of a “Chaotic Status” (recte: state) ‘of the Laws of War’ (in 45 AJIL, 1951Google Scholar, reprinted in the Changing Law, pp. 831Google Scholaret sq—he remains hopefully to believe that a proper legal hypothesis shall be elaborated, Kunz himself being evidence that simple empiricism does not carry beyond the discovery of chaos.

⁴⁹ Ib., p. 839.

⁵⁰ Ib., p. 864.

⁵¹ Ib., p. 904 (reprint of the Laws of War, in 50 AJIL, 1956).Google Scholar

⁵² Art. 60 of the Vienna Convention 1969 requires that the breach be a “material” one; the ILC Commentary assimilates “fundamental” to “material” (Para 1 to Draft Art. 57) but admits (ib., para 2) that “State practice does not give great assistance in determining the true extent of this right or the proper conditions for its exercise” (Report, 1966).Google Scholar

⁵³ Priciples, pp. 18et sq.Google Scholar

⁵⁴ On the methodological location of “humanity as a whole” see this writer's thesis l.c., sub 11, pp. 14 et sg.

⁵⁵ Grotius, , The Law of War and Peace, Book III, chapters xix et sq.Google Scholar

⁵⁶ l. c. supra, sub 21.

⁵⁷ In the original a quotation from Schlick, , Grundzüge der Naturphilosophie, 4, 1948.Google Scholar

⁵⁸ Silving, , l.c., p. 345Google Scholar. Upon the whole, while it is “not necessary nor desirable that ‘positive law’ follow slavishly the judgement of public opinion”—“it ought to, because it must, abide by the minimum standards of community judgement, for this is implicit in the fact that law functions through the medium of human agents, who cannot permanently dissociate themselves from the communities to which they belong” (p. 350), in which case “a system of moral law may completely penetrate a ‘positive legal system’, without disrupting the latter's continuity in a formal sense, and endeed without disrupting the peacefulness of its normal procedures” l.c. p. 350.

⁵⁹ Ib., p. 353.

⁶⁰ Argentina's application to the Security Council in the Eichmann abduction affair.

⁶¹ Cf. the papers by Akzin, Antoniolli, Bétancur, Flechtheim, Hambro, Klinghofer, Leser, Marcie, Perelrnan, Schwarzenberger, Starke, Verosta.