The European Tradition in International Law:
Georges Scelle
The Thought of Georges Scelle
Hubert Thierry*
There are several key reasons why the thought of Georges Scelle has always provoked
and continues to provoke interest
The first of these reasons, and an obvious one, is that Georges Scelle was a great
jurist, which is evidenced by both the range and reputation of his work and the influence
which he exerted on the community of French international legal scholars. The
thought of Scelle was so influential that, for a time, the concept of sovereignty was
all but banished from the research and teaching of the international law faculties of
French universities. Knowledge of Scelle's works is still an integral part of legal
culture and while it is true that several authors have now adopted voluntarist theories
very much opposed to the thought of Scelle, their position is at least in part a reaction
to Scelle's thought, which is used as a straw man and is thus found in their
work.
A second reason for the interest in the work of Scelle is its alluring nature from
which, it seems, few readers are immune. This allure is rooted principally in the
unity of elaborated and logically ordered work, with its view of the whole field of
law, including not only international law, but also any legal phenomena. The Scellian
concept of international law is derived from this vision. A single thread runs
through all aspects of Scellian thought, linking them together. When Scelle tackled
the burning legal questions of his day - whether they dealt with governing minorities,
a subject which he addressed in 1919, or with the mandates of the League of Nations,
or with the continental shelf, to which he devoted a study in 1955l
- his
Professor at the University of Paris X-Nanterre.
1
Revue genirale du droll international public (RCDIP) (19S4) 6.
1 EJIL (1990) 193
Hubert Thierry
method was to form analyses and derive conclusions from his own body of thought,
from his own "legal truth."
But elegance also forms part of the appeal of Scelle's writings. Scelle wrote with
force, intensity and insistence; he invented formulae and concepts Q'dddoublement
fonctionner or "role splitting" is one of the most famous) in such a way that, when
reasonably familiar with his writing it is necessary, as with some pieces of music,
only to read a few lines before immediately recognizing the author.
The third reason for returning to Scelle's writings is, however, the most important,
and it merits closer examination. It lies both in the convictions which underline
his writing and in his commitment to the causes or values based on these convictions:
the primacy of the law, solidarity, federalism, and individual and collective
freedom. In fact, the inspiration behind Scelle's thought must be sought outside of
the sphere of law in the dramatic circumstances which surrounded its elaboration. His
thought is legal, but it developed out of a political philosophy.
Without doubt Scelle was a lawyer through and through, and his work was all in
the field of law. He often insisted on the scientific character of his approach and on
the autonomy of law as a scientific discipline. The expression "science juridique"
("legal science") occurs frequently in his writing. Moreover, Scelle paid considerable
attention to legal techniques, defined as being "the use of competences" {"la mise en
auvre des competences^? "Acte-rigle", "acte-condition", legal order {"ordonnancement
juridique"), objective and subjective legal conditions, law-making, jurisdictional
and enforcement functions - these are the technical concepts which he developed
significantly and which articulate his legal system.
However, it is no less true that the inspiration behind Scelle's work is political
in the widest and most noble meaning of the word. It emerged out of the confrontations
of the inter-war period and out of the role that Scelle deliberately played in
these confrontations. To be ignorant of this involvement, as are many commentators
who concentrate on the theoretical aspects of Scelle's works without connecting
them to his ideological stance, is to fail to understand the depth of his thought
Scelle was in effect close to the radicalism inspired by Alain's philosophy and
L€on Bourgeois' theories on solidarity. Individualism (the citizen against power), rationalism
(as opposed to mystical beliefs), a belief in progress based on scientific
knowledge - these were the major themes in this strand of thought At the international
level, the move towards greater harmony, the demise of the state {"depassement
de I'Etat"), and the formation of a world order generated by law, seemed to be
the normal and probable outcome of scientific and technical progress and the development
of trade relations - trends which, at the time, gave rise to greater astonishment
than today. Since then, these themes have been abused and derided, and it is
true, that they did not take account of the strength of destructive and evil forces, of
the herd instincts and fanaticisms which brought about the Second World War and
which still rage in some regions of the world. Yet these themes were certainly less
detestable than those to which they were opposed.
2
Prtcis <U droll du gens (hereinafter Precis) (Vol. I) (1932) 15.
194
The Thought of Georges Scelle
Indeed, at the time, fascism was in place in Italy, Hitler was hurrying to power in
Germany, while in France the agitation of the "ligues" which reached its height in
1932 - the year the Pricis du droit was published - threatened the institutions of the
Third Republic. These movements were not only "anti-parliamentary", as was said at
the time, they were also violently hostile, under the banner of nationalism, to everything
that the League of Nations represented.
That in this tumult Georges Scelle took part, taking sides in the legal field, is
what clearly stands out in both the Preface to the Precis du droit des gens and in
other passages of this work, passages which, it seems, have not received enough at-
tention.
Scelle stated firmly but with reserve that legal doctrines are linked to convictions.
"Every internationalist," he writes in the Preface, "is attached to a legal-philosophical
school which dominates his teaching. Faced with the threat of his sincerity towards
himself and towards his'pupils disappearing, he can only underline with force
what he believes to be scientific truth."* This "scientific truth" is completely
summed up in this sentence in the Preface: "Henceforth internationalism is the crucial
fact'"* This is a statement which reaffirms belief in the progress of the "social
solidarity" in "the interdependence of states" and, in the last analysis, in the belief in
"progress" in the broadest sense.
But it would be mistaken to think that Scelle deluded himself about the circumstances
prevailing at the start of the Thirties. He did nothing of the sort Proclaiming
himself a "realist", he observed straightaway that "what constitutes reality for some
is for others only a fiction or an ideological construct."5
And immediately after having
said "henceforth internationalism is the crucial fact", he added: "And all the same,
the attitudes of individuals and of groups have never been more hostile towards it"6
In the second volume of the Pricis. published in 1934 (and therefore shortly after
Hitler had taken power), he writes: "The whole world is suffering from a kind of medieval
anarchy made up of state tyrannies. The fiction of collective personality is
reappearing in dogmas and in mystical doctrines with a virulence which is perhaps
nothing but the death throes of political and legal structures in the process of transforming
themselves to adapt to new needs."7
Finally, it would be impossible not to cite aremarkablepassage which appears
as a note below the chapter heading in the Pricis (Volume II) on "collective and individual
freedom." Alluding directly to the persecution of the Jews and other political
minorities in Germany which in October 1933 had been brought to the attention of
the Assembly of the League of Nations, Scelle writes:
It may perhaps seem paradoxical to devote this first chapter to what the classic legal
literature calls individual rights at a time when in many countries these rights are
openly ignored or brutally violated by governments while other governments, and the
3
Precis (Vol. I). Preface, vuL
4 Id.
5 Id.
* Id.
7
Id., at 294.
195
Hubert Thierry
League of Nations itself, which, it is submitted, have a duty to intervene and safeguard
the law, do not appear willing to make the necessary effort to fulfil this legal duty.
Their excuse can perhaps be found in their impotence. Without question, the law is in
a period of regression. Is this a reason to refrain from setting forth the rules? Quite the
contrary, it is important not to weaken their expression. Nothing could be more pernicious
than to imagine that the violation of positive law can be confused with its
evolution. Already in the history of humanity there have been several periods of regression
followed by enlightened stages of progress. It is while waiting for the return
of these enlightened stages that we are continuing with the academic study of legal
phenomena.8
This passage - which establishes a sort of duty of interference ("devoir d ingirence")
- is particularly instructive about the inspiration underlying the work of Scelle and
about the idea he had of his mission.
In the same spirit, in the conclusion of the Preface to the Pricis du droit des gens
he wrote: "[P]olitical leaders do their job devising policies. Lawyers do not do theirs
by bowing to contingencies and by presenting as objective law, practices that contradict
the rule of law. Whether conscious of it or not, they become apologists for the
rule of force. And Faustrecht is the negation of Law."9
Thus Scelle was led during a period of "legal regression" to construct a system of
legal thought opposed to "the dogmas and mystical beliefs of collective personality",
to "state tyrannies", to "medieval anarchy." This system will be described in broad
outline in the first part of this article.
In this period, the "realism" of Georges Scelle was to a great extent idealism, and
it was an idealism against all odds. The events of the Second World War, of the Cold
War which followed, and other wars as well, have more than revealed this. It is easy,
and vulgar, to speak ironically when contrasting the realities of international relations
as they were in Scelle's time with his harmonist vision ("vision harmoniste"),
to use the phrase coined by Professor Ren6-Jean Dupuy. It is more interesting, however,
to examine how Scelle's thought can account for the current evolution of international
law. Here certain traits, above and beyond the reinforcement of sovereignties,
appear to bear witness to the progress of this solidarity (which Scelle called for)
through a realism, the fragility of which he knew.
I. The Scellian Legal System
The stance of Georges Scelle is not that of a positivist who assigns himself the task
of identifying the rules of positive law, of determining their content, and of explaining
them (comparing practice with rules on "formal sources", that is to say governing
the creation of law). A fortiori, Scellism is far removed from the viewpoint of
lawyers who, following in the tradition of Jean Bodin, defend the state's interests and
8
Precis (Vol. II) (1934) 15 (note below the title: "Les libertes individuelles et collectives").
9
Pricis (Vol. I). Preface, x.
196
The Thought of Georges Scelle
its "legal policy." This concept of legal policy is totally contrary to Scelle's
thought, where law stands against politics and dominates her.
Neither positivist nor pragmatic, the Scellian approach to law is dogmatic. It is a
sociological theory about law in general, one in which international law is envisaged
as one of the aspects of the "legal phenomenon."
Scelle paid attention to positive law, but only selectively. Thus he attached great
importance to Article IS, section 8 of the Covenant of the League of Nations which
dealt with the exclusive jurisdiction "left to" the states by international law. This
item was in effect in harmony with the "hierarchy of laws", an essential part of his
thought. All the same, Scelle mentions the decisions of the PCIJ, for example the
Advisory Opinion No. 4, which also touches on "exclusive jurisdiction", or Judgment
No. 7 where there is a question of "common international law." Nonetheless, it
is no exaggeration to say that Scelle referred to positive law more to confirm his vision
of law than to develop itl Indeed, Scellian theory is based on another plane that
of "objective law" ("droit objectif); law which derives from "social reality"
("fait sodaF') and which is revealed by "legal science", a branch of sociology.
Scelle distinguishes "objective law" from "natural law", a distinction which will
be discussed further below, but the relationship between these two categories is nevertheless
close. Objective law is the carrier of the virtues and reputation belonging to
the concepts of law and of science. Thus when Scelle claims that sovereignty is an
"anti-legal" ("antijuridique") concept he puts himself in the field of objective law
without ignoring the position of sovereignty in positive law but regarding the latter
as the poor relation of objective law.
This method of proceeding suggests (doubtless more in the mind of the reader
than in the thought of Scelle) a certain confusion between the lex lata and the lex
ferenda, between law as it is and law as it ought to be. But this confusion appears
more debatable or deplorable to us than it was in Scelle's time. Professors of law
then exercised a kind of moral authority which encouraged them "to lay down the
law" ("dire le droit"), the law of which they were in some sense the guardians since
they were outside governments, even when they were consulted by them. Furthermore,
the tradition of natural law meant that the law, although so thoroughly secularized,
retained some theological basis. Like morality, law appeared to be quite independent
of existence, experience, and legal practice, and the latter was supposed not
to make law, but to conform to it Scellian objective law founded on "science" was
the heir to this tradition.
An archaic vision of things, one may object! But this is not necessarily so. Natural
law does not die so easily. Today one does witness voluntarist authors - more
voluntarist than positivist - declaring that international law is in a malaise or that it
is "anti-legal" in nature when it deviates, as certain judgements of the I.CJ. may
lead one to believe, from consensualist orthodoxy. This is a paradoxical resurgence
of natural law.
But if the distinction between objective law and positive law is essential for understanding
the Scellian system, consideration of Scelle's aims is no less necessary.
Scelle intends to subjugate the state to law and, even more, to deflate or
"demythologize" the state. Thus the first axiom of his legal thought is the primacy
197
Hubert Thieny
of law as an expression of social solidarity. Since the notion of state sovereignty is
incompatible with the sovereignty of law, Scelle played an impassioned role in
putting on trial state sovereignty and the state itself. The demise of the sovereign
state permits the construction of federalism, exalted by Scelle, and which is also in
his system, both as a future and a reality, sometimes institutional and sometimes
normative such as in the concept of an "Ecumenical community of the law of people"
Q'communauti oecuminique du droit des gens").10
Lastly, the raising up of the
individual, alone capable of willing, alone responsible for his actions and the only
subject of international law.to the exclusion of legal entities, is, in the final analysis,
the yardstick of the Scellian system.
These then are the concepts to emphasize in Scelle's system - the sovereignty of
law, the trial of state sovereignty, the advent of federalism, and the promotion of the
individual. At the same time, one must also be wary of distorting Scelle's dense
works, in confining one's analysis to these principal themes.
A. The Sovereignty of Law
"Law alone", writes Georges Scelle, "is sovereign. Every subject of law who claims
to be sovereign immediately rises up against law and denies it."11
This sentence is
written in the style of the Declaration of the Rights of Man of 1789! But what, in
Scelle's system, is the basis of the sovereignty of law?
It has two roots. First, it develops from the origin of law, from its nature as an
expression of social reality identified with societal or intersocietal solidarity, which
confers on it the force of necessity. Second, it comes from the unity of law, that is,
the "law of people" which forms a whole, but is, at the same time, both hierarchically
structured and divided.
In Scellian thought, objective law (?droit objectif), far from being the product of
the will of the state, or, at the international level, the product of a confluence of
states' will, develops out of society itself. "Ubi societas, ubi ius." He saw it as expressing
the unity and the universality of law in time and space, in the international
order as well as in national legal systems. Furthermore, the same adage could be seen
as reflecting the need for a law which binds societies much in the same way as the
laws of nature bind human beings.
Indeed, Scelle claims that law is "biological" in origin. According to him, in the
same way that living beings are subject to biological constraints, which ensure their
equilibrium and their survival, societies are subject to laws which condition their cohesion
and progress. Scelle emphasized this theme in an important article dedicated
to Duguit12
(who also believed in the supremacy of law over the state, though more
1 0
We deliberately refer here to the "droit des gens" as the "law of people" (instead of the more
commonly used expression "law of Nations") for, in Scelle's view, individuals are the only
genuine subjects of international law. See on this point M. Lachs, The Teacher in International
Law (1987) 98.
1
' Pricis (Vol. I), at 13.
1 2
Archives de philosophie de droit (1932) 85.
198
The Thought of Georges Scelle
with regard to domestic legal systems than to the international level). In addition, in
the Pricis du droit des gens he cited the famous definition of law given by Montesquieu:
"Laws are necessary relationships which derive from the nature of things."
But is it scientifically sound to equate legal constraints with those of nature? Probably
not, but the comparison stems from the foundation of objective law in science
and contributes to the rule of law. The state violating legal rules is like the individual
who risks his life by violating the laws of nature.
In spite of those biological roots, law develops nevertheless from social reality,
which is identified with solidarity, "the only real reason for the existence of objective
law."13
This solidarity has two forms: one is solidarity "by similarity", and the other
is solidarity "by division of labour." (Scelle borrowed this distinction from
Durkheim). The first, solidarity by similarity, did not wholly find favour with Scelle
because, fundamentally, it is the basis of national exclusivity. Solidarity by division
of labour, on the other hand, is what makes individuals indispensable to each other.
It corresponds, said Scelle, to "a law of integration and progress."14
Here again, one
finds the idea of bringing peoples closer together by developing exchanges and economic
partnerships.
In Scelle's thought, these solidarities give birth to "objective law", whose precise
relationship to both natural law and positive law will now be explained.
The difference between objective law and natural law lies in the origin of each.
Natural law, as it was conceived in the 18th century, is a product of reason and possesses
a static, immutable character. In contrast, objective law conforms to social
necessities which change with time and place; it has therefore an evolutive character.
Despite these distinctions, however, in Scelle's thought, objective law plays the role
traditionally given to natural law. It is the source of positive law, and is the benchmark
by which positive law must be assessed, and approved or rejected.
As for "positive law", according to Scelle, it is (or ought to be) the "translation"
of objective law. This translation is secured by governments who carry out the lawmaking
function in the international legal system through what Scelle calls "role
splitting" ("didoublement fonctionnel"). Their task is not "to create" law but to
ascertain it and express it. Thus in the international legal system, custom and treaties
have "the same juridical function", and the same "intrinsic nature." "They are ways
of ascertaining and expressing pre-existing rules of objective law, which are thus
translated into normative or constructive rules of positive law."15
Scelle acknowledges
that positive law must be assumed to conform to objective law by virtue of
the theory of "bien legifire™ ("good legislation"), but this assumption may be proven
false, and thus positive law can be "anti-legal."
The role of will is therefore reduced to its most simple expression. The law-making
function, which in the international legal system is accomplished by means of a
"didoublement fonctionner, does not imply the settlement of conflicting or discordant
interests in the international community, but is the expression of solidarity re-
13
Pricis (Vol. I), at 37.
14
W..at3.
15
Id., at 298.
199
Hubert Thieny
quirements within the international society. Normative treaties ("traite's-lois"), which
are the outcome of converging wills, like laws in domestic legal systems, ensure the
expression of these international solidarity requirements, and the latter must take
precedence over national solidarities.
In the Scellian system, the sovereignty of law also stems from the unity of the
legal system. There is only a single source which determines the competence of subjects
and that is the "people." In Scellian terms, the "Law of people" ("Droit des
gens") is in no way synonymous with international law, as it once was in the "Ecole
libre des sciences politiques." In Scelle's language, old expressions take on new
meanings and the "law of people" is universal, all-embracing law. As Scelle himself
said: it is the law Q'le droit tout court"), which encompasses all branches of law.
"The law of people", he writes, "reigns without any limits to its sphere of action,
not only over domestic or constitutional legal systems, but also over interstate,
suprastate and extrastate legal systems of secondary international communities, or, as
they are also called, special communities of the law of people, communities of independent
states, whether regional or continental, federal or confederal systems, any
Church or 'International'."16
It is this extreme form of monism ("monisme integral^
which confers on the Scellian system its harmonious character. There is a legal
Weltanschauung where the statute of the most lowly association belongs to the
same body as does national law, canon law or the law of the universal community.
Since law is rooted in social reality, all societies generate their laws according to the
same fundamental process, be it at the level of the state, of the world community, or
in a given religious community; only the procedures differ. Consequently, there is an
infinite plurality, a countless number of legal systems within the same all-embracing
structure. An individual is a citizen of his state and of his town, and is a member
of his church, of his sports club, and of the universal community; he is therefore
subject to several legal orders which are interlaced and superimposed. The "law of
people" is thus hierarchically structured.
In fact, Scelle postulates that "every superior legal system necessarily conditions
lower legal systems",17
in such a way that the law of universal society - ecumenical,
in Scelle's terms - governs national laws just as national laws govern local laws
in accordance with the principle of federalism encapsulated in the saying "Bundesrecht
brichtLandesrecht."
The principle of the hierarchy of legal rules implies the superiority of international
law over national law and the automatic abrogation of national laws that are
contrary to international law. Scelle was therefore very much opposed to "dualism",
not only because dualism is linked to a voluntarist vision of international law, but
because it destroys the unity of the "law of people." Moreover, the hierarchy of legal
rules implies that universal solidarity requirements are superior to that of partial
(including national) solidarities. This is equivalent to saying that the interests of the
universal community take precedence over national interests. Scellian thought is
universalist.
1 6
Pricis (Vol. II),al 6.
17
Id.
200
The Thought of Georges Scelle
It is in this respect, that Scelle conceived of the idea of constitutional law for international
societies, writing: "Every intersocietal collectivity, including the universal
community of the "law of people" rests, like the best integrated collectivities,
and notably state collectivities, on a body of constitutive rules essential for their existence,
for their longevity, and for their progress."18
Included among the constitutional
laws Scelle envisioned for international society, were laws relating to the exercise
of essential social functions: law-making, adjudication and enforcement; in
short, those laws which correspond to what is called the organization of public
power. In addition, Scelle included laws relating to "individual and collective freedoms"
which define the limits of power and, featured in the Declaration of Rights,
have been incorporated into many constitutions. The hierarchy of legal rules does not
permit any breaks or cuts. This is why there is no place in the Scellian system for
state sovereignty.
B. The Trial of State Sovereignty
"It is a vain task", writes Georges Scelle, "to want to build law, and international
law in particular, on the notion of sovereignty. In practice, this concept only leads to
the release of governments' will from the grip of law, to destroy the notion of competence,
and with it the notion of legality."19
The denial of sovereignty ties in with the political inspiration underlying the
thought of Georges Scelle, in particular his opposition to nationalism. Recognizing
that the concept of sovereignty, and its corollary, that of domestic jurisdiction ("domaine
riserve") reinforced nationalism, Scelle pointed out that in October 1933, during
the debate about the pillaging, abuses and atrocities of Hitler's regime (these are
Scelle's words), Germany successfully made use of the argument of domestic juris-
diction.
Scelle claims that sovereignty is contrary to reality because "human power is always
limited by the resistance of the environment" and further, that sovereignty is
"anti-legal."20
In Scelle's terms, sovereignty is defined as "the competence of competence",
an expression which he borrowed from German legal theory, and more
specifically from A. Hansel's "Kompetenz-Kompetenz." For Scelle, competence is
"the socially guaranteed powers and duties of action." Such was also the meaning assigned
sovereignty by both the voluntarist view of international law, and, in principle,
positive law. Since the state itself determines which law is applicable to itself,
be it treaty law or customary law (which it can challenge, at least at the time of its
formation), it is the state, in effect, which determines its own competences.
Georges Scelle thought that this was an unacceptable consequence for objective
law which, founded in social necessity, could not be challenged. It was also unacceptable
insofar as Scelle's view of the state was concerned. He writes:
18
id., at 7.
19
Pricis (Vol. I), al 14.
2 0
Id., at 13.
201
Hubert Thierry
One might say about states what Aesop said about verbs: that they are the best and the
woTSt of things. They are the best if it is admitted mat hitherto man has found society
governed by the state to be the most satisfactory milieu for the realization of his
genius. They are the worst if one thinks of the fearsome accumulation of individual
crimes and collective blunders which have given birth by the deification of the state,
leading to government actions escaping the check of law. This is why we have
rejected the recognition of a special, privileged legal essence to the personified state
collectivity .21
Scelle uses the terms "state societies", "state collectivities", "state government" but,
in the final analysis, for Scelle, the state does not exist. In fact, at the time he was
writing, the notion of legal entity (?personnalit& morale") was a subject of doctrinal
controversy. There was much discussion as to whether such legal entities actually
existed. In this debate, Scelle adopted an extreme point of view. He utterly rejected
the concept of "personnaliti morale", claiming that as only the individual was
capable of willing something, only he could be a legal subject ("sujet de droit").
Now, if the state is not a legal person, a fortiori it cannot be a sovereign person.
Here we have reached the heart of Scelle's thought.
Scelle admits, however, as if by way of concession to positive law, that since the
state is "the social milieu where the legal phenomenon is most fully realized",22
its
autonomy must be guaranteed by law. This is the meaning that he gives to the concept
of independence. Professor Charles Rousseau, relying on this concession made
by Scelle, has developed a theory of independence. According to this eminent author
(who is in some respects Scellian, though he follows legal practice more closely
than Scelle), independence involves a plenary and exclusive control of the competences
assigned by law. Thus, independence appears to be a substitute for sovereignty.
In the international community, however, independence or autonomy place the
state in a situation which, on the legal plane, at least, is analogous to that of federated
bodies in a federal system.
C. Federalism at Work
"Sociology", writes Georges Scelle, "teaches us that federalism is a constant in the
evolution of human societies. This continual development of solidarity thus requires
the existence of a legal and institutional hierarchy culminating in world federal-
ism."23
This passage, among others, bears witness to the federalist faith of Georges
Scelle. According to him, federalism, based on the autonomy of societies, their identities
and particulars, and on societies participating in bodies guaranteeing peace and
security, was the means of going beyond the state, of ensuring the sovereignty of
law and the elimination of violence.
But in Scelle's thought, federalism is both a reality and a vision for the future.
According to Scelle, federalism is already present, at least in its legal guise, in the
21
22
23
Id.,
Id.,
Id.,
at 74.
at 73.
at 188.
202
The Thought of GeoTges Scelle
universal community. But institutional and organized federal systems, federal states,
confederations and other groupings will multiply: this is the lesson of history.
In his Pricis du droit des gens, Scelle gave much space to the constitutions of
federal states like the United States, Switzerland, and the Soviet Union which are
usually discussed in works on comparative constitutional law rather than in those on
international law. But for Scelle, the federal state is only one of the conduits of the
"federal phenomenon", which, implying autonomy and participation, lies beyond the
state and outside it, regardless of whether the federation is in constitution or in
treaty. On this score, Scelle devoted great attention to the British Commonwealth
which was, in his terminology, a remarkable example of federalism by "segregation",
resulting not from the association of independent bodies thatjoined together to
form a federal body, but from the division, or the splintering, of a unitary system,
the British Empire. In the same vein, Scelle examined colonialism from a federalist
point of view. He claimed that "metropolitan and colonial collectivities form distinct
social and legal systems",24
as was later admitted by the United Nations at the start
of decolonization. Furthermore, Scelle devoted an entire chapter of the Precis to the
right of self-determination, a right which, he said, included the freedom to secede.
However, he considered that "the aspiration for secession is really the aspiration for
sovereignty, for the illusory phantom of unlimited free will. When peoples realize
that in reality safety does not lie in the mirage of unfettered liberty, but in the rigorous
regulation of common competences, they will most likely be satisfied with an
autonomy guaranteed by law."" Finally, Scelle envisaged the League of Nations as
a federal system. One of the sections of the chapter of the Precis on the "federal phenomenon"
is entitled: "The League of Nations as a Federal Organization." In Scelle's
view these examples amply demonstrated that federalism was working with increasing
success.
But federalism does not necessarily take an institutional form. Scelle admits that
as regards the hierarchy of norms, the international community is a form of normative
federalism. It is in this context that the concept of role splitting ("dedoublement
fonctionnel") intervenes. The institutional flaws of the international community
mean that national governments are called on to provide for the international system's
legal functions. They must therefore assume law-making, adjudication and enforcement
roles. Thus the actions of national governments can produce results both
in the national legal systems and in the international legal system. Governments act
at times as national authorities and at times as international authorities - just as in
French law the Mayor of a commune, or the Prefect of a dipariement, act at times as
a local authority and at times as agent of the state.
Although Scelle did not explicitly say so, the concept of "dedoublement fonctionneF
implies that when governments act as organs of the international community
they are acting in its interest, and not only in their own national interest.
2 4
Id., at 146.
2 5
Id., at 273.
203
Hubert Thierry
D. The Individual, Sole Subject of the "Law of People"
(Droit des gens)
"The theory of individual and collective freedom", writes Georges Scelle, "is the very
basis of the 'law of people'."26
And in fact, the laws of the Scellian system are addressed
to the individual, who, freed from state tyranny, is considered as an individual
and not as a member of a group. In this respect, Scelle was an outstanding advocate
of human rights. But this truth has been somewhat obscured by Scelle's attachment
to his "objectivist" standpoint, which denied the notion of "subjective rights." For
Scelle, social reality and solidarity give rise to objective law, and, from this,
emerges positive law, which attributes competences, not rights, to the individual.
On this topic, Scelle writes: "Individuals cannot possess fundamental subjective
rights, nor can collectivities have fundamental rights, if by fundamental rights one
means legal conditions ("'situations juridiques") which precede any society, which are
superior to any social rule, and in respect of which the legislator would be legally
powerless. For the rule of law and for legislation to exist, there must first be society;
this social reality is anterior and superior to any legal right." 27
This formulation
moves away from the concept of human rights as inherent rights, derived from
the nature of man and inalienable - which, regardless of the theoretical difficulties it
raises, is the best foundation for the guarantee of these rights. However, we are faced
here, it is submitted, with a terminological dispute which should not hide the individualism
of Scelle. The place which he reserves for the individual as exclusive subject
of the "law of people" and for "individual and collective freedoms", bears witness
to this.
For Scelle, the individual is not only the immediate subject of the "law-of people",
but is the only subject, because he alone is capable of willing and of being responsible.
Legal rules are intended not for mere legal entities, but for governments,
for representatives of groups and for simple individuals. Here Scelle's concern is still
to counterbalance the mystical doctrine of the state. "When one says that the commune
or the state orders something, the action, the will, the command given by the
Mayor or by the government is concealed; one surrenders to a mystical doctrine
which attributes inherent characteristics to fictional beings, but which benefits real
people who have become irresponsible and all powerful behind the screen which
shields them."28
It was in this Scellian spirit that, at the end of the Second World
War, the Nuremburg case law dealing with crimes against peace and against humanity
was drawn up, which spelled out the personal legal responsibility of state agents,
and not only that of the state on whose behalf they were acting.
According to Scelle, the theory of freedoms includes "the rules which in all
communities of the 'law of people* guarantee for the legal subjects an individual or
collective freedom of action, which is liberally regulated and which is often largely
discretionary in the essential areas of human activity."29
2 6
Pricis (Vol. II), at 15.
2 7
Id., at 16.
2 8
Pricis (Vol. I), at 12.
2 9
Pricis (Vol. ID. at 16.
204
The Thought of Georges Scelle
The freedoms which were recognized as "necessary" by "common conscience and
common experience", and which were consecrated by objective law were, according
to Scelle, the right to live, and in a somewhat disparate fashion, the struggle against
war, international asylum and humanitarian intervention; the right to physical freedom,
to which he added the struggle against slavery (Scelle devoted to this topic a
few works which are still of great interest); therightto freely choose one's nationality,
the right to economic liberty; including the right to property; the right to religious
freedom; and freedom of language and education. In effect, Scelle paved the
way for the Universal Declaration of Human Rights.
These are, presented in a rather schematic fashion, the main lines of Georges
Scelle's thought, which, despite references to "scientific truth", is universalistic,
humanistic, and idealistic. Some of these traits suggest that Scellism belongs to the
history of legal philosophy. Other traits, however, suggest it also belongs to the reality
of today.
II. The Current Relevance of Georges Scelle's Legal
Thought
As already noted, numerous lawyers, although influenced by Scelle's thought, have
moved closer to the thought of Anzilotti than to that of the author of the Precis du
droit des gens. This reaction was directly brought about by the course of
international relations and the apparent evolution of international law after the
Second World War. But other aspects of international relations and of the law
governing them, clearly demonstrate the element of truth which Scelle's thought
contains.
A. Scelle's Thought in Question
Scelle's thought has been harshly challenged. Over the last forty years, conflicting
sides of international relations have made an impression on the minds of political
scientists, lawyers and of people much more than has the progress of solidarities.
The Cold War, arising from the division of the world into hostile and, it seemed,
irreconcilable blocks; the Middle East conflict; the wars of decolonization; the pressure
exercised by Third World states in the General Assembly of the United Nations;
and the fear, no doubt exaggerated, of the dangers threatening the interests and values
of the West have all lent credibility to a view of international relations based on the
concept of "power relations." It is this view which, in the tradition of Hobbes and
Machiavelli, has been given coherence by Hans Morgenthau in the United States and
by Raymond Aron in France. The views of these authors seem to have imposed
themselves with the force of evidence and have formed a dominant theory which has
hardly any opposition.
Most of the strands of this dominant theory are directly opposed to Scelle's concepts.
For example, "the heterogeneity of international society", which means that
nations are foreign to each other and are not brought closer by common interests
205
Hubert Thieny
based on similarity or division of work is at complete odds with Scellism. Similarly,
the "anarchic character" of international society, and the "juxtaposition of
states" contradict the place given in Scelle's writings to institutional and normative
federalism. In the same vein, commonplaces which make up the bulk of political
thought, such as states' "sacred egoism" or their being "cold monsters" hardly sit
comfortably with Scelle's ideas of the "ecumenical community" and his theory that
governments, by virtue of "role splitting" act on behalf of this community. In works
written from the "power relations" perspective, the use of armed force is given a predominant
role. In fact, according to Aron, discretionary use of force is the distinguishing
feature of international relations. This notion and other elements of the
power relations theory also conflict with the Scellian denial of the specificity of the
international legal order. Finally, all international relations theories based on the
concept of power relations tend to minimize the role of international law - a law that
Raymond Aron held in very low esteem. At best, when its legality is not challenged,
international law appears as a means, a tool of power politics. This is far from the
sovereignty of law put forward by Scelle!
The realist view of international relations has rejected Scelle's ideas as has, it appears,
the evolution of international law. The role played by sovereignty has been
the decisive factor in this process. Far from fading or withering away, the concept of
sovereignty has enjoyed the highest favour since the Second World War. Positive
law has attached great importance to it. The United Nations Organization was
founded on the sovereign equality of its members, and this is one of the fundamental
principles proclaimed by Resolution 2625 (XXV) on Friendly Relations. Sovereignty
is present in every major convention on the law of treaties, on the law of diplomatic
and consular relations, and on the law of the sea wrought out by the United
Nations, and by other organizations working under its auspices, during the last forty
years. Contrary to the hopes of Georges Scelle, colonial countries, far from integrating
themselves in federal structures with the former home country, have chosen sovereignty
which, even though illusory, symbolizes a break in the domination that, in
their eyes, colonialism entailed.
As for "legal policies" or governmental doctrines, most have been more or less
based on the concept of sovereignty, the major principle behind the system of coexistence
according to socialist countries, as well as the weapon of new states against
neocolonialism. The western powers also invoke the principle of sovereignty in
order to contain the power of the United Nations General Assembly to interpret its
Charter, or to limit the authority of resolutions. At that level, the French record is
especially noteworthy.
Thus the Scellian trial of sovereignty and, even more, the Scellian denial of the
legal personality of the state, appear at odds with the trend in the evolution of international
law. It can be argued in this respect that Scelle failed to recognize the
strength of similarity of common interests ("solidarity par similitude"), which is the
basis of national and collective exclusivity, and that he exaggerated the strength of
solidarity based on the "division of labour" (solidarite par "division du travail").
Moreover, Scelle put too much emphasis on solidarity in social reality. These
two concepts, as has been said already, are identical in Scelle's thought; social reality
("lefait sociaH) is nothing other than common interest ^solidariti"). Social reality,
206
The Thought of Georges Scelle
however, has more than one dimension; it also involves conflict and hostility. Indeed,
at certain times the predominant feature of social reality is conflict This was
the case immediately after the Second World War, when the international community
was both wider and fiercely divided. This is why it was natural, even in the Scellian
perspective where Jaw proceeds from social reality, for sovereignty to win so much
favour assuming that conflicts areregardedas a part of social reality.
Thus Scellism lost its appeal during the Cold War, when conspicuous hostility
masked therealityof solidarity and legal practice was essentially in agreement with a
voluntarist view of law. Machiavellian and voluntarist thought are, however, no less
unidimensional than Scellian universalism.
B. The Accuracy of Scelle's Vision
As Professor Rend-Jean Dupuy shows in convincing fashion, the strategist
(Machiavellian) view of international relations is no less limited than the harmonist
view. "The harmonists", he writes, "look forward to a brotherly community which
possibly will never exist The strategists, on the other hand, err in thinking that a
community generally implies an absence of conflict They are unable to see that conflict
and community are not wholly incompatible. In fact rather, they go together.
Not only is it possible for there to be community and conflict one might say that
one implies the other."30
This dialectical and reasonable view is fully supported by history. Apart from the
extreme cases of all-out war, in most situations involving conflict the antagonists
share some common interests. For example, during the Cold War, the United States
and the Soviet Union were able to agree on partial nuclear test bans and on a nonproliferation
treaty. Similarly, solidarity relations in the European Community and
the Western World could not subsist without incessant negotiations. Even if there
are spells when law regresses, as Scelle noted in 1933, there are others when law
progresses, and it might be thought that with the changes in the Soviet Union and,
it may be hoped, the end of the Cold War, we are now living in one of these.
It may therefore be argued that Scellism reflects the whole of one side of international
law, the sunny side. Hence, some branches of international law are more Scellian
than others. This is the case with the law of international development, which
cannot be conceived without a degree of solidarity between developed and developing
countries. It is also true of environmental law and of the protection of human rights,
where legal rules cannot be founded onreciprocityand there is therefore no room for
the clause "non adimpletT, as can be seen in Article 60 para. 5 of the Vienna Convention
on the Law of Treaties.
But the division between laws which translate power relations and those which
correspond to common interests in reality affects all branches of international law. In
this respect the evolution of the law of the sea is remarkable. If the extension of
sovereignty, or of sovereign rights of states bordering on large expanses of sea, sanc-
30 R.-J. Dupuy, 'Communauii Internationale et disparites de developpemem', 165 RCD1 (1979)
41.
207
Hubert Thierry
tioned in the main provisions of the 1982 Convention, bears witness to the progress
of anti-Scellian, sea-faring nationalism, other provisions, by contrast, correspond to
common interests. The measures related to the safety of navigation, to the preservation
of the sea's natural resources, and to the protection of the environment are more
significant than those which deal with the sea bed and with the implementation of
the concept of the "common heritage of mankind." Without doubt, this principle invoked
to prohibit the exercise of sovereignty over the sea bed is a Scellian concept;
but Section XI of the 1982 Convention, which governs its application, illustrates
well how a concept can be ill-used. The common heritage, in effect, serves a bureaucratic
project dedicated to inefficiency, one which may not be of any help to the interests
of developing countries, nor to those of industrial countries. Nevertheless, the
accuracy of Scelle's vision appears when exploring two areas of development First,
it is worthwhile trying to identify the role of social reality and thus of common interests
in recent developments in international law. Second, it is worthwhile identifying
the role of truly universal rules in present-day international law.
In order to discover the role social reality plays in the development of law it
should be possible, by studying history, to identify social developments which precede
and determine judicial constructs. Two fields seem ripe for study. The first is
that of European Community law. It appears that the development of common interests
between France and West Germany, pursued through commercial exchanges and
investments, preceded the major stages of progress in Community law. It may also
be suggested that the reluctance of certain governments, those anxious to preserve
sovereignty, and thus unanimous voting in the Council of Ministers, was overcome,
in the final analysis, by the dynamic of European social reality. In any event, the
European Community would not have been possible without the radical changes in
the relations between the Western European nations which came after the Second
World War. In fact, the power relationships and the hostility among European nations,
which gave rise to the two world wars, gave way to relations based on solidarity,
not only between these nations as such, but between national and state societies.
Thus the Community's positive law appears to be the "translation", in Scelle's
terms, of objective law based on social reality ("un droit objectiffondi sur lefcdt sociaF).
It also may be pointed out that the Community quite clearly displays a federalist
tendency, to which it brings a new and original development It is in effect an
economic federalism, whose future extension is liable to be increasingly political.
In the field of human rights, too, social reality's influence on the development of
law can be shown with precision. The growth of international concern for this subject
has been accompanied by a noticeable decline of non-interference in the legal
practice of states, evidenced by the measures taken by governments in response to
human rights violations in Poland, Iran, and South Africa. This development does
not spring from unforeseen changes in legal policies dictated by national interest On
the contrary, since the end of the Sixties, it has been the initiatives of NGOs (and
especially Amnesty International's campaigns calling attention to the fate of political
prisoners and the use of torture), the actions of Soviet dissidents, among whom
Solzhenitsyn has been featured prominently, and above all the role of the media, that
has created the political and psychological conditions leading to the shift in govem-
208
The Thought of Georges Scelle
merits' practices. Thus in this field, positive law is certainly the work of governments,
but it corresponds to an objective law based on social reality.
Scellism is also sustained by the fact that the concept of international community
has acquired a place in positive law. The references to this concept which, in
Scelle's time, had more to do with objective law than with positive law, do not only
feature in resolutions such as Resolution 2625 (XXV) on Friendly Relations, but
also in treaties (the Vienna Convention on the Law of Treaties) and in the case law
of the International Court of Justice, which, in the Barcelona Traction case, insisted
on the obligations of states "towards the international community." Thus, at this
point in time, any denial of the Scellian concept of international community goes
against positive law.
The role of universal rules in international law has now become considerable:
they include not only the norms of general international law, but also the rules arising
from universal or quasi-universal conventions, such as the United Nations Charter,
the Geneva Conventions of 1949, to which more than 160 states are party, or
the Vienna Convention on diplomatic relations.
Finally, if it is eventually admitted that despite the rearguard actions which they
have generated, the concepts ofjus cogens and of obligations erga omnes are pushing
their way through positive law, it is possible to see in their acceptance the recognition
of the idea of an international constitutional law advocated by Scelle. In this respect,
the concept ofjus cogens would be fully Scellian if it conferred a peremptory
(impiratif) character only on provisions protecting individual freedoms, as in the declarations
of rights incorporated in national constitutions. The adage "ubi societas,
ubi ius" is reversible: the existence of universal international law demonstrates the
actual existence of an ecumenical community, the members of which, despite their
"heterogeneity", are bound by the same legal standards.
What then are the key features of international law? Are they those which proceed
from power relations and are geared to sovereignty, or those which stem from solidarities,
and revolve around the concept of community? Let us leave the answer to
Michel Virally, who, summarizing the essence of his general course to The Hague
Academy of International Law, wrote: "The author of these lectures must recognize
without circumlocution that he adheres to the ideals of peace, justice and progress for
all, ideals from which the idea of international law is, in his view, inseparable. The
author believes in the advancement of international law along these lines, which will
inevitably stamp his way of presenting it. The elements of reconciliation are, in his
view, more important than the elements of division and disintegration and are
therefore especially worthy of being emphasized."*1
This statement echoes the
thought of Georges Scelle, who, in a period of darkness, struggled with the weapon
of law against the forces of division and disintegration.
M. Virally, 'Panorama du droil international contemporain', RCDl, 35.
209