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Title: The League of Nations and its Problems - Three Lectures
Author: Oppenheim, L. (Lassa), 1858-1919
Language: English
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CONTRIBUTIONS TO INTERNATIONAL LAW
AND DIPLOMACY
Edited by L. OPPENHEIM, M.A., LL.D.
Membre de l'Institut de Droit International,
Whewell Professor of International Law in the University of Cambridge,
Honorary Member of the Royal Academy of Jurisprudence at Madrid,
Corresponding Member of the American Institute of International Law.
THE LEAGUE OF NATIONS
AND ITS PROBLEMS
CONTRIBUTIONS TO INTERNATIONAL
LAW AND DIPLOMACY.
Edited by L. OPPENHEIM, M.A., LL.D., Whewell Professor of International
Law in the University of Cambridge.
A GUIDE TO DIPLOMATIC PRACTICE. By the Right Hon. Sir ERNEST SATOW,
G.C.M.G., LL.D., D.C.L., formerly Envoy Extraordinary and Minister
Plenipotentiary. 2 Volumes. 8vo. 30_s._ net.
INTERNATIONAL CONVENTIONS AND THIRD STATES. A Monograph. By RONALD F.
ROXBURGH, of the Middle Temple, Barrister-at-Law; formerly Whewell
International Law Scholar in the University of Cambridge; formerly
Scholar of Trinity College, Cambridge. 8vo. 7_s._ 6_d._ net.
LONGMANS, GREEN AND CO.,
London, New York, Bombay, Calcutta, and Madras.
THE
LEAGUE OF NATIONS
AND ITS PROBLEMS
THREE LECTURES
BY
L. OPPENHEIM, M.A., LL.D.
WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE UNIVERSITY OF CAMBRIDGE
MEMBRE DE L'INSTITUT DE DROIT INTERNATIONAL. HONORARY MEMBER OF
THE ROYAL ACADEMY OF JURISPRUDENCE AT MADRID, CORRESPONDING
MEMBER OF THE AMERICAN INSTITUTE OF
INTERNATIONAL LAW
_Festina lente_
LONGMANS, GREEN AND CO.
39 PATERNOSTER ROW, LONDON
FOURTH AVENUE & 30TH STREET, NEW YORK,
BOMBAY, CALCUTTA, AND MADRAS.
1919
PREFACE
The three lectures collected in this volume were prepared without any
intention of publication. They were delivered for the purpose of drawing
attention to the links which connect the proposal for a League of
Nations with the past, to the difficulties which stand in the way of the
realisation of the proposal, and to some schemes by which these
difficulties might be overcome. When it was suggested that the lectures
should be brought before the public at large by being issued in book
form I hesitated, because I was doubtful whether the academic method
natural to a University lecture would be suitable to a wider public.
After consideration, however, I came to the conclusion that their
publication might be useful, because the lectures attempt to show how
the development initiated by the two Hague Peace Conferences could be
continued by turning the movement for a League of Nations into the road
of progress that these Conferences opened.
Professional International lawyers do not share the belief that the
outbreak of the World War and its, in many ways, lawless and atrocious
conduct have proved the futility of the work of the Hague Conferences.
Throughout these anxious years we have upheld the opinion that the
progress initiated at the Hague has by no means been swept away by the
attitude of lawlessness deliberately--'because necessity knows no
law'--taken up by Germany, provided only that she should be utterly
defeated, and should be compelled to atone and make ample reparation for
the many cruel wrongs which cry to Heaven. While I am writing these
lines, there is happily no longer any doubt that this condition will be
fulfilled. We therefore believe that, after the map of Europe has been
redrawn by the coming Peace Congress, the third Conference ought to
assemble at the Hague for the purpose of establishing the demanded
League of Nations and supplying it with the rudiments of an
organisation.
How this could be accomplished in a very simple way the following three
lectures attempt to show. They likewise offer some very slight outlines
of a scheme for setting up International Councils of Conciliation as
well as an International Court of Justice comprising a number of
Benches. I would ask the reader kindly to take these very lightly
outlined schemes for what they are worth. Whatever may be their defects
they indicate a way out of some of the great difficulties which beset
the realisation of the universal demand for International Councils of
Conciliation and an International Court of Justice.
It is well known that several of the allied Governments have appointed
Committees to study the problem of a League of Nations and to prepare a
scheme which could be put before the coming Peace Congress. But unless
all, or at any rate all the more important, neutral States are
represented, it will be impossible for an all-embracing League of
Nations to be created by that Congress; although a scheme could well be
adopted which would keep the door open for all civilised States.
However, until all these States have actually been received within the
charmed circle, the League will not be complete nor its aims fully
realised. Whatever the coming Peace Congress may be able to achieve with
regard to a scheme for the establishment of the League of Nations,
another--the third--Hague Peace Conference will be needed to set it
going.
L. OPPENHEIM.
P.S.--While this Preface and volume were going through the Press,
Austria-Hungary and Germany surrendered, and unprecedented
revolutions broke out which swept the Hapsburg, the Hohenzollern,
and all the other German dynasties away. No one can foresee what
will be the ultimate fate and condition of those two once mighty
empires. It is obvious that, had the first and second lectures been
delivered after these stirring events took place, some of the views
to be found therein expressed would have been modified or
differently expressed. I may ask the reader kindly to keep this in
mind while reading the following pages. However, the general bearing
of the arguments, and the proposals for the organisation of the
League of Nations and the establishment of an International Court of
Justice and International Councils of Conciliation, are in no way
influenced by these later events.
CONTENTS
PAGE
FIRST LECTURE: THE AIMS OF THE LEAGUE OF NATIONS 1
I. The purpose of the three Lectures is to draw attention to
the links which connect the proposed League of Nations with
the past, to the difficulties involved in the proposal, and to
the way in which they can be overcome 4
II. The conception of a League of Nations is not new, but is
as old as International Law, because any kind of International
Law and some kind of a League of Nations are interdependent and
correlative 6
III. During antiquity no International Law in the modern
sense of the term was possible, because the common interests
which could force a number of independent States into a
Community of States were lacking 6
IV. But during the second part of the Middle Ages matters
began to change. During the fifteenth, sixteenth and
seventeenth centuries an International Law, and with it a kind
of League of Nations, became a necessity and therefore grew by
custom. At the same time arose the first schemes for a League
of Nations guaranteeing permanent peace, namely those of Pierre
Dubois (1305), Antoine Marini (1461), Sully (1603), and Emeric
Crucée (1623). Hugo Grotius' immortal work on 'The Law of War
and Peace' (1625) 7
V. The League of Nations thus evolved by custom could not
undertake to prevent war; the conditions prevailing up to the
outbreak of the French Revolution made it impossible; it was
only during the nineteenth century that the principle of
nationality made growth 9
VI. The outbreak of the present World War is epoch-making
because it is at bottom a fight between the principle of
democratic and constitutional government and the principle of
militarism and autocratic government. The three new points in
the present demand for a League of Nations 11
VII. How and why the peremptory demand for a new League of
Nations arose, and its connection with so-called
Internationalism 11
VIII. The League of Nations now aimed at is not really a
League of Nations but of States. The ideal of the national
State 13
IX. The two reasons why the establishment of a new League of
Nations is conditioned by the utter defeat of the Central
Powers 15
X. Why--in a sense--the new League of Nations may be said to
have already started its career 16
XI. The impossibility of the demand that the new League of
Nations should create a Federal World State 18
XII. The demand for an International Army and Navy 20
XIII. The new League of Nations cannot give itself a
constitution of a state-like character, but only one _sui
generis_ on very simple lines 22
XIV. The three aims of the new League of Nations, and the
four problems to be faced and solved in order to make possible
the realisation of these aims 23
SECOND LECTURE: ORGANISATION AND LEGISLATION
OF THE LEAGUE OF NATIONS 25
I. The Community of civilised States, the at present
existing League of Nations, is a community without any
organisation, although there are plenty of legal rules for the
intercourse of the several States one with another 28
II. The position of the Great Powers within the Community of
States is a mere political fact not based on Law 29
III. The pacifistic demand or a Federal World State in order
to make the abolition of war a possibility 31
IV. Every attempt at organising the desired new League of
Nations must start from, and keep intact, the independence and
equality of the several States, with the consequence that the
establishment of a central political authority above the
sovereign States is an impossibility 32
V. The development of an organisation of the Community of
States began before the outbreak of the World War and is to be
found in the establishment of the Permanent Court of
Arbitration at the Hague by the First Hague Peace Conference of
1899. But more steps will be necessary to turn the hitherto
unorganised Community of States into an organised League of
Nations 34
VI. The organisation of the desired new League of Nations
should start from the beginning made by the Hague Peace
Conferences, and the League should therefore include all the
independent civilised States 35
VII. The objection to the reception of the Central Powers,
and of Germany especially, into the League 36
VIII. The objection to the reception of the minor
transoceanic States into the League 38
IX. The seven principles which ought to be accepted with
regard to the organisation of the new League of Nations 39
X. The organisation of the League of Nations is not an end in
itself but only a means of attaining three objects, the first
of which is International Legislation. The meaning of the term
'International Legislation' in contradistinction to Municipal
Legislation. International Legislation in the past and in the
future 41
XI. The difficulty in the way of International Legislation on
account of the language question 43
XII. The difficulty created by the conflicting national
interests of the several States 44
XIII. The difficulty caused by the fact that International
Statutes cannot be created by a majority vote of the States.
The difference between universal and general International Law
offers a way out 44
XIV. The difficulty created by the fact that there are as yet
no universally recognised rules concerning interpretation and
construction of International Statutes and ordinary
Conventions. The notorious Article 23(h) of the Hague
Regulations concerning Land Warfare 45
_Appendix_: Correspondence with the Foreign Office respecting
the Interpretation of Article 23(h) of the Hague Regulations
concerning Land Warfare 48
THIRD LECTURE: ADMINISTRATION OF JUSTICE AND
MEDIATION WITHIN THE LEAGUE OF NATIONS 57
I. Administration of Justice within the League is a question
of International Courts, but it is incorrect to assert that
International Legislation necessitates the existence of
International Courts 60
II. The Permanent Court of Arbitration created by the First
Hague Peace Conference 61
III. The difficulties connected with International
Administration of Justice by International Courts 62
IV. The necessity for a Court of Appeal above the
International Court of First Instance 63
V. The difficulties connected with the setting up and manning
of International Courts of Justice 64
VI. Details of a scheme which recommends itself because it
distinguishes between the Court as a whole and the several
Benches which would be called upon to decide the cases 65
VII. The advantages of the recommended scheme 67
VIII. A necessary provision for so-called complex cases of
dispute 68
IX. A necessary provision with regard to the notorious clause
_rebus sic stantibus_ 69
X. The two starting points for a satisfactory proposal
concerning International Mediation by International Councils of
Conciliation. Article 8 of the Hague Convention concerning
Pacific Settlement of International Disputes. The Permanent
International Commissions of the Bryan Peace Treaties 70
XI. Details of a scheme which recommends itself for the
establishment of International Councils of Conciliation 72
XII. The question of disarmament 74
XIII. The assertion that States renounce their sovereignty by
entering into the League 75
XIV. Conclusion: Can it be expected that, in case of a great
conflict of interests, all the members of the League will
faithfully carry out their engagements? 78
ALPHABETICAL INDEX 81
FIRST LECTURE
THE AIMS OF THE LEAGUE OF NATIONS
SYNOPSIS
I. The purpose of the three Lectures is to draw attention to the
links which connect the proposed League of Nations with the past, to
the difficulties involved in the proposal, and to the way in which
they can be overcome.
II. The conception of a League of Nations is not new, but is as old
as International Law, because any kind of International Law and some
kind of a League of Nations are interdependent and correlative.
III. During antiquity no International Law in the modern sense of
the term was possible, because the common interests which could
force a number of independent States into a community of States were
lacking.
IV. But during the second part of the Middle Ages matters began to
change. During the fifteenth, sixteenth, and seventeenth centuries
an International Law, and with it a kind of League of Nations,
became a necessity and therefore grew by custom. At the same time
arose the first schemes for a League of Nations guaranteeing
permanent peace, namely those of Pierre Dubois (1305), Antoine
Marini (1461), Sully (1603), and Emeric Crucée (1623). Hugo Grotius'
immortal work on 'The Law of War and Peace' (1625).
V. The League of Nations thus evolved by custom could not undertake
to prevent wars; the conditions prevailing up to the outbreak of the
French Revolution made it impossible; it was only during the
nineteenth century that the principle of nationality made growth.
VI. The outbreak of the present World War is epoch-making because it
is at bottom a fight between the principle of democratic and
constitutional government and the principle of militarism and
autocratic government. The three new points in the present demand
for a League of Nations.
VII. How and why the peremptory demand for a new League of Nations
arose, and its connection with so-called Internationalism.
VIII. The League of Nations now aimed at is not really a League of
Nations but of States. The ideal of the National State.
IX. The two reasons why the establishment of a new League of Nations
is conditioned by the utter defeat of the Central Powers.
X. Why--in a sense--the new League of Nations may be said to have
already started its career.
XI. The impossibility of the demand that the new League of Nations
should create a Federal World State.
XII. The demand for an International Army and Navy.
XIII. The new League of Nations cannot give itself a constitution of
a state-like character, but only one _sui generis_ on very simple
lines.
XIV. The three aims of the new League of Nations, and the four
problems to be faced and solved in order to make possible the
realisation of these aims.
THE LECTURE
I. Dr. Whewell, the founder of the Chair of International Law which I
have the honour to occupy in this University, laid the injunction upon
every holder of the Chair that he should 'make it his aim,' in all parts
of his treatment of the subject, 'to lay down such rules and suggest
such measures as may tend to diminish the evils of war and finally to
extinguish war between nations.' It is to comply with the spirit, if not
with the letter, of this injunction that I have announced the series of
three lectures on a League of Nations. The present is the first, and in
it I propose to treat of the Aims of the League. But, before I enter
into a discussion of these aims, I should like to point out that I have
no intention of dealing with the question whether or no a League of
Nations should be founded at all. To my mind, and probably to the minds
of most of you here, this question has been satisfactorily answered by
the leading politicians of all parties and all countries since
ex-President Taft put it soon after the outbreak of the World War; it
suffices to mention Earl Grey in Great Britain and President Wilson in
America. In giving these lectures I propose to draw your attention, on
the one hand, to the links which connect the proposal for a League of
Nations with the past, and, on the other hand, to the difficulties with
which the realisation of the proposal must necessarily be attended; and
also to the ways in which, in my opinion, these difficulties can be
overcome.
There is an old adage which says _Natura non facit saltus_, Nature takes
no leaps. Everything in Nature develops gradually, step by step, and
organically. It is, at any rate as a rule, the same with History.
History in most cases takes no leaps, but if exceptionally History does
take a leap, there is great danger of a bad slip backwards following. We
must be on our guard lest the proposed League of Nations should take a
leap in the dark, and the realisation of proposals be attempted which
are so daring and so entirely out of keeping with the historical
development of International Law and the growth of the Society of
Nations, that there would be great danger of the whole scheme collapsing
and the whole movement coming to naught.
The movement for a League of Nations is sound, for its purpose is to
secure a more lasting peace amongst the nations of the world than has
hitherto prevailed. But a number of schemes to realise this purpose
have been published which in my opinion go much too far because they
comprise proposals which are not realisable in our days. You know that
not only an International Court of Justice and an International Council
of Conciliation have been proposed, but also some kind of International
Government, some kind of International Parliament, an International
Executive, and even an International Army and Navy--a so-called
International Police--by the help of which the International Government
could guarantee the condition of permanent peace in the world.
II. You believe no doubt, because nearly everyone believes it, that the
conception of a League of Nations is something quite new. Yet this is
not the case, although there is something new in the present conception,
something which did not exist previously. The conception of a League of
Nations is very old, is indeed as old as modern International Law,
namely about four hundred years. International Law could not have come
into existence without at the same time calling into existence a League
of Nations. _Any kind of an International Law and some kind or other of
a League of Nations are interdependent and correlative._ This assertion
possibly surprises you, and I must therefore say a few words concerning
the origin of modern International Law in order to make matters clear.
III. In ancient times no International Law in the modern sense of the
term existed. It is true there existed rules of religion and of law
concerning international relations, and ambassadors and heralds were
everywhere considered sacrosanct. But these rules were not rules of an
_International_ Law, they were either religious rules or rules which
were part of the Municipal Law of the several States. For instance: the
Romans had very detailed rules concerning their relations with other
States in time of peace and war; but these were rules of Roman law, not
rules of the law of other countries, and certainly not _international_
rules.
Now what was the reason that antiquity did not know of any International
Law?
The reason was that between the several independent States of antiquity
no such intimate intercourse arose and no such common views existed as
to necessitate a law between them. Only between the several city States
of ancient Greece arose some kind of what we should now call
'International Law,' because these city States formed a Community
fostered by the same language, the same civilisation, the same religion,
the same general ideas, and by constant commercial and other
intercourse. On the other hand, the Roman Empire was a world empire, it
gradually absorbed all the independent nations in the West. And when the
Roman Empire fell to pieces in consequence of the migration of the
peoples, the old civilisation came to an end, international commerce and
intercourse ceased almost entirely, and it was not till towards the end
of the Middle Ages that matters began to change.
IV. During the second part of the Middle Ages more and more independent
States arose on the European continent, and during the fifteenth and
sixteenth centuries the necessity for a Law of Nations made itself felt.
A multitude of Sovereign States had now established themselves which,
although they were absolutely independent of one another, were knitted
together by constant commercial and other intercourse, by a common
religion, and by the same moral principles. Gradually and almost
unconsciously the conviction had grown upon these independent States
that, in spite of everything which separated them, they formed a
Community the intercourse of which was ruled by certain legal
principles. International Law grew out of custom because it was a
necessity according to the well-known rule _ubi societas ibi jus_, where
there is a community of interests there must be law. The several
independent States had thus gradually and unconsciously formed
themselves into a Society, the afterwards so-called Family of Nations,
or, in other words, a League of Nations.
And no sooner had this League of Nations come into existence--and even
some time before that date--than a number of schemes for the
establishment of eternal peace made their appearance.
The first of these schemes was that of the French lawyer _Pierre
Dubois_, who, as early as 1305, in his work 'De recuperatione terre
sancte,' proposed an alliance between all Christian Powers for the
purpose of the maintenance of peace and the establishment of a permanent
Court of Arbitration for the settlement of differences between members
of the alliance.
Another was that of _Antoine Marini_, the Chancellor of Podiebrad, King
of Bohemia, who adopted the scheme in 1461. This scheme proposed the
foundation of a Federal State to comprise all the existing Christian
States and the establishment of a permanent Congress to be seated at
Basle in Switzerland, this Congress to be the highest organ of the
Federation.
A third scheme was that of _Sully_, adopted by Henri IV of France,
which, in 1603, proposed the division of Europe into fifteen States and
the linking together of these into a Federation with a General Council
as its highest organ.
And a fourth scheme was that of _Emeric Crucée_, who, in 1623, proposed
the establishment of a Union consisting not only of the Christian States
but of all States of the world, with a General Council seated at Venice.
And since that time many other schemes of similar kind have made their
appearance, the enumeration and discussion of which is outside our
present purpose. So much is certain that all these schemes were Utopian.
Nevertheless, a League of Nations having once come into existence,
International Law grew more and more, and when in 1625 Hugo Grotius
published his immortal work on 'The Law of War and Peace,' the system of
International Law offered in his work conquered the world and became the
basis of all following development.
V. However, although a League of Nations must be said to have been in
existence for about 400 years, because no International Law would have
been possible without it, this League of Nations could not, and was not
intended to, prevent war between its members. I say: it could not
prevent war. Why not? It could not prevent war on account of the
conditions which prevailed within the international society from the
Middle Ages till, say, the outbreak of the present war. These conditions
are intimately connected with the growth of the several States of
Europe.
Whereas the family, the tribe, and the race are natural products, the
nation as well as the State are products of historical development. All
nations are blends of more or less different races, and all States were
originally founded on force: strong rulers subjected neighbouring tribes
and peoples to their sway and thus formed coherent nations. Most of the
States in Europe are the product of the activity of strong dynasties
which through war and conquest, and through marriage and purchase,
united under one sovereign the lands which form the States and the
peoples which form the nations. Up to the time of the French Revolution,
throughout the sixteenth, seventeenth, and eighteenth centuries, all
wars were either wars of religion, or dynastic wars fought for the
increase of the territory under the sway of the dynasties concerned, or
so-called colonial wars fought for the acquisition of transoceanic
colonies. It was not till the nineteenth century that wars for the
purpose of national unity broke out, and dynastic wars began gradually
to disappear. During the nineteenth century the nations, so to say,
found themselves; some kind of constitutional government was everywhere
introduced; and democracy became the ideal, although it was by no means
everywhere realised.
VI. It is for this reason that the outbreak of the present war is
epoch-making, because it has become apparent that, whatever may be the
war aims of the belligerents, at bottom this World War is a fight
between the ideal of democracy and constitutional government on the one
hand, and autocratic government and militarism on the other. Everywhere
the conviction has become prevalent that things cannot remain as they
were before the outbreak of the present war, and therefore the demand
for a League of Nations, or--I had better say--for a new League of
Nations to take the place of that which has been in existence for about
400 years, has arisen.
Now what is new in the desired new League of Nations?
Firstly, this new League would be founded upon a solemn treaty, whereas
the League of Nations hitherto was only based upon custom.
Secondly, for the purpose of making war rarer or of abolishing it
altogether, this new League of Nations would enact the rule that no
State is allowed to resort to arms without previously having submitted
the dispute to an International Court or a Council of Conciliation.
Thirdly, this new League of Nations would be compelled to create some
kind of organisation for itself, because otherwise it could not realise
its purpose to make war rarer or abolish it altogether.
VII. The demand for a new League of Nations is universal, for it is
made, not only everywhere in the allied countries, but in the countries
of the Central Powers, and it will surely be realised when the war is
over, at any rate to a certain extent. It is for this reason that the
present World War has not only not destroyed so-called Internationalism,
but has done more for it than many years of peace could have done.
What is Internationalism?
Internationalism is the conviction that all the civilised States form
one Community throughout the world in spite of the various factors which
separate the nations from one another; the conviction that the interests
of all the nations and States are indissolubly interknitted, and that,
therefore, the Family of Nations must establish international
institutions for the purpose of guaranteeing a more general and a more
lasting peace than existed in former times. Internationalism had made
great strides during the second part of the nineteenth century on
account of the enormous development of international commerce and
international communication favoured by railways, the steamship, the
telegraph, and a great many scientific discoveries and technical
inventions. But what a disturbing and destroying factor war really is,
had not become fully apparent till the present war, because this is a
_world_ war which interferes almost as much with the welfare of neutrals
as with the welfare of belligerents. It has become apparent during the
present war that the discoveries and developments of science and
technology, which had done so much during the second half of the
nineteenth century for the material welfare of the human race during
peace, were likewise at the disposal of belligerents for an enormous,
and hitherto unthought-of, destruction of life and wealth. It is for
this reason that in the camp of friend and foe, among neutrals as well
as among belligerents, the conviction has become universal that the
conditions of international life prevailing before the outbreak of the
World War must be altered; that international institutions must be
established which will make the outbreak of war, if not impossible, at
any rate only an exceptional possibility. The demand for a new League of
Nations has thus arisen and peremptorily requires fulfilment.
VIII. However, in considering the demand for a new League of Nations, it
is necessary to avoid confusing nations with States. It should always be
remembered that, when we speak of a League of Nations, we do not really
mean a League of Nations but a League of States. It is true that there
are many States in existence which in the main are made up of one
nation, although fractions of other nations may be comprised in them.
But it is equally true that there are some States in existence which
include members of several nations. Take as an example Switzerland
which, although only a very small State, nevertheless comprises three
national elements, namely German, French, and Italian. Another example
is the British Empire, which is a world empire and comprises a number of
different nations.
That leads me to the question: What is a nation?
A nation must not be confounded with a race. A nation is a product of
historical development, whereas a race is a product of natural growth.
One speaks of a nation when a complex body of human beings is united by
living in the same land, by the same language, the same literature, the
same historical traditions, and the same general views of life. All
nations are a mixture of several diverse racial elements which in the
course of historical development have to a certain extent been united by
force of circumstances. The Swiss as a people are politically a nation,
although the component parts of the population of Switzerland are of
different national characters and even speak different languages.
Historical development in general, and in many cases force in
particular, have played a great part in the blending of diverse racial
elements into nations; just as they have played a great part in the
building up of States. The demand that every nation should have a
separate State of its own--the ideal of the so-called national
State--appears very late in history; it is a product of the last two
centuries, and it was not till the second half of the nineteenth century
that the so-called principle of nationality made its appearance and
gained great influence. It may well be doubted whether each nation, be
it ever so small, will succeed in establishing a separate State of its
own, although where national consciousness becomes overwhelmingly
strong, it will probably in every case succeed in time either in
establishing a State of its own, or at any rate in gaining autonomy. Be
that as it may, it is a question for the future; so much is certain,
what is intended now to be realised, is not a League of Nations, but a
League of States, although it is called a League of Nations.
IX. However, no League of Nations is possible unless the Central Powers,
and Germany in especial, are utterly defeated during the World War, and
that for two reasons.
One reason is that a great alteration of the map of Europe is an
absolutely necessary condition for the satisfactory working of a League
of Nations. Unless an independent Poland be established; unless the
problem of Alsace-Lorraine be solved; unless the Trentino be handed over
to Italy; unless the Yugo-Slavs be united with Servia; unless the
Czecho-Slovaks be freed from the Austrian yoke; and unless the problem
of Turkey and the Turkish Straits be solved, no lasting peace can be
expected in Europe, even if a League of Nations be established.
The other reason is that, unless Germany be utterly defeated, the spirit
of militarism, which is not compatible with a League of Nations, will
remain a menace to the world.
What is militarism? It is that conception of the State which bases the
power of the State, its influence, its progress, and its development
exclusively on military force. The consequence is that war becomes part
of the settled policy of a militarist State; the acquisition of further
territory and population by conquest is continually before the eyes of
such a Government; and the condition of peace is only a shorter or
longer interval between periods of war. A military State submits to
International Law only so long as it serves its interests, but violates
International Law, and particularly International Law concerning war,
wherever and whenever this law stands in the way of its military aims.
The whole history of Prussia exemplifies this. Now in a League of
Nations peace must be the normal condition. If war occurs at all within
such a League, it can only be an exceptional phase and must be only for
the purpose of re-establishing peace. It is true a League of Nations
will not be able entirely to dispense with military force, yet such
force appears only in the background as an _ultima ratio_ to be applied
against such Power as refuses to submit its disagreements with other
members of the League either to an International Court of Justice or an
International Council of Conciliation.
X. Be that as it may, in a sense the League of Nations has already
started its career, because twenty-five States are united on the one
side and are fighting this war in vindication of International Law.
These States are--I enumerate them chronologically as they entered into
the war:--Russia (the Bolsheviks have made peace, but in fact one may
still enumerate Russia as a belligerent), France, Belgium, Great
Britain, Servia, Montenegro, Japan, San Marino, Portugal, Italy,
Roumania, the United States, Cuba, Panama, Greece, Siam, Liberia, China,
Brazil, Ecuador, Guatemala, Nicaragua, Costa Rica, Haiti, Honduras.
Besides these twenty-five States which are at war with the Central
Powers, the following four States, without having declared war, have
broken off diplomatic relations with Germany, namely: Bolivia, San
Domingo, Peru, Uruguay.
Now there may be said to be about fifty civilised States in existence.
Of these, as I have just pointed out, twenty-five are fighting against
the Central Powers, four have broken off relations with Germany, the
Central Powers themselves are four in number, with the consequence that
thirty-three of the fifty States are implicated in the war. Only the
seventeen remaining States are neutral, namely: Sweden, Norway, Denmark,
Holland, Luxemburg, Switzerland, Spain, Lichtenstein, and Monaco in
Europe; Mexico, Salvador, Colombia, Venezuela, Chile, Argentina, and
Paraguay in America; and Persia in Asia.
It may be taken for granted that all the neutral States, and all the
States fighting on the side of the Allies, and also the four States
which, although they are not fighting on the side of the Allies, have
broken off relations with Germany, are prepared to enter into a League
of Nations.
But what about the Central Powers, and Germany in especial? I shall
discuss in my next lecture the question whether the Central Powers are
to become members of the League. To-day it must suffice to say that,
when once utterly defeated, they will be only too glad to be received as
members. On the other hand, if they were excluded, the world would again
be divided into two rival camps, just as before the war the Triple
Alliance was faced by the Entente. No disarmament would be possible, and
with regard to every other matter progress would be equally impossible.
Therefore the Central Powers must become members of a League of Nations
for such a League to be of any great use, which postulates as a _sine
qua non_ that Germany must be utterly defeated in the present war. If
she were victorious, or if peace were concluded with an undefeated
Germany, the world would not be ripe for a League of Nations because
militarism would not have been exterminated.
XI. I have hitherto discussed the League of Nations only in a general
way, without mentioning that there is no unanimity concerning its aims
or concerning the details of its organisation. Many people think that it
would be possible to do away with war for ever, and they therefore
demand a World State, a Federal State comprising all the single States
of the world on the pattern of the United States of America. And for
this reason the demand is raised not only for an International Court and
for an International Council of Conciliation, but also for an
International Government, an International Parliament, and an
International Army and Navy,--a so-called International Police.
I believe that these demands go much too far and are impossible of
realisation. A Federal State comprising all the single States of the
whole civilised world is a Utopia, and an International Army and Navy
would be a danger to the peace of the world.
Why is a World State not possible, at any rate not in our time?
No one has ever thought that a World State in the form of one single
State with one single Government would be possible. Those who plead for
a World State plead for it in the form of a Federal State comprising all
the single States of the world on the pattern of the United States of
America. But even this modified ideal is not, in my opinion, realisable
at present. Why not? To realise this ideal there would be required a
Federal Government, and a Federal Parliament; and the Federal Government
would have to possess strong powers to enforce its demands. A powerless
Federal Government would be worse than no government at all. But how is
it possible to establish at present a powerful Federal Government over
the whole world? How is it possible to establish a Federal World
Parliament?
Constitutional Government within the several States has to grapple with
many difficulties, and these difficulties would be more numerous,
greater, and much more complicated within a Federal World State. We need
democracy and constitutional Government in every single State, and this
can only be realised by party Government and elections of Parliament at
short intervals. The waves of party strife rise high within the several
States; no sooner is one party in, than the other party looks out for an
opening into which a wedge can be pushed to turn the Government out. In
normal times this works on the whole quite well within the borders of
the several States, because the interests concerned are not so widely
opposed to one another that the several parties cannot alternatively
govern. But when it comes to applying the same system of Government to a
Federal World State, the interests at stake are too divergent. The East
and the West, the South and the North, the interests of maritime States
and land-locked States, the ideals and interests of industrial and
agricultural States, and many other contrasts, are too great for it to
be possible to govern a Federal World State by the same institutions as
a State of ordinary size and composition.
The British World Empire may be taken as an example to show that it is
impossible for one single central Government to govern a number of
States with somewhat divergent interests. We all know that the British
Empire comprising the United Kingdom and the so-called independent
dominions, namely Canada, Newfoundland, Australia, New Zealand, and
South Africa, is kept together not really by the powers of the British
Government but by the good will of the component parts. The Government
of the United Kingdom could not keep the Empire together by force, could
not compel by force one of the independent dominions to submit to a
demand, in case it refused to comply. The interests of the several
component parts of the British Empire are so divergent that no central
Government could keep them together against their will. Now what applies
to the British Empire, which is to a great extent bound together by the
same language, the same literature, and the same Law, would apply much
more to a Federal State comprising the whole of the world: such a
Federal State, so far as we can see, is impossible.
XII. But what about an International Army and Navy?
It is hardly worth while to say much about them. Those who propose the
establishment of an International Army and Navy presuppose that the
national armies and navies would be abolished so that the world
Government would have the power, with the help of the International Army
and Navy, at any moment to crush any attempt of a recalcitrant member of
the Federal World State to avoid its duties. This International Army and
Navy would be the most powerful instrument of force which the world has
ever seen, because every attempt to resist it would be futile. And the
Commander of the International Army and the Commander of the
International Navy would be men holding in their hands the greatest
power that can be imagined.
The old question therefore arises: _Quis custodiet ipsos custodes?_
which I should like here to translate freely by: Who will keep in order
those who are to keep the world in order? A League of Nations which can
only be kept together by a powerful International Army and Navy, is a
contradiction in itself; for the independence and equality of the member
States of the League would soon disappear. It is a fact--I make this
statement although I am sure it will be violently contradicted--that,
just as hitherto, so within a League of Nations some kind of Balance of
Power only can guarantee the independence and equality of the smaller
States. For the Community of Power, on which the League of Nations must
rest, would at once disappear if one or two members of the League became
so powerful that they could disregard the combined power of the other
members. Every scheme of this movement must therefore see to it that no
member of the League is more armed than is necessary considering the
extent of its territory and other factors concerned. But be that as it
may, an International Army and Navy is practically impossible, just as a
Federal World State is impossible.
XIII. Yet while a Federal World State is impossible, a League of Nations
is not, provided such league gives itself a constitution, not of a
state-like character, but one _sui generis_. What can be done is this:
the hitherto unorganised Family of Nations can organise itself on simple
lines so as to secure, on the one hand, the absolute independence of
every State, and, on the other hand, the peaceful co-existence of all
the States.
It is possible, in my opinion, to establish an International Court of
Justice before which the several States engage to appear in case a
conflict arises between two or more of them which can be judicially
settled, that is, can be settled by a rule of law. There is as little
reason why two or more States should go to war on account of a conflict
which can be settled upon the basis of law, as there is for two private
individuals to resort to arms in case of a dispute between them which
can be decided by a Court of Law.
Again, although there will frequently arise between States conflicts of
a political character which cannot be settled on the basis of a rule of
law, there is no reason why, when the States in conflict cannot settle
them by diplomatic negotiation, they should resort to arms, before
bringing the conflict before some Council of Conciliation and giving the
latter an opportunity of investigating the matter and proposing a fair
compromise.
Under modern conditions of civilisation the whole world suffers in case
war breaks out between even only two States, and for this reason it is
advisable that the rest of the world should unite and oppose such State
as would resort to arms without having submitted its case to an
International Court of Justice or an International Council of
Conciliation.
XIV. In my opinion the aims of a League of Nations should therefore be
three:
The first aim should be to prevent the outbreak of war altogether on
account of so-called judicial disputes, that is disputes which can be
settled on the basis of a rule of law. For this reason the League should
stipulate that every State must submit all judicial disputes without
exception to an International Court of Justice and must abide by the
judgment of such Court.
The second aim should be to prevent the sudden outbreak of war on
account of a political dispute and to insist on an opportunity for
mediation. For this reason the League should stipulate that every State,
previous to resorting to arms over a political dispute, must submit it
to an International Council of Conciliation and must at any rate listen
to the advice of such Council.
The third aim should be to provide a sanction for the enforcement of the
two rules just mentioned. For this reason the League should stipulate
that all the member States of the League must unite their economic,
military, and naval forces against such member or members as would
resort to arms either on account of a judicial dispute which ought to
have been settled by an International Court of Justice, or on account of
a political dispute without previously having submitted it to an
International Council of Conciliation and listened to the latter's
advice.
These should be, in my opinion, the three aims of a League of Nations
and the three rules necessary for the realisation of these aims.
However, it is not so easy to realise them, and it is therefore
necessary to face and solve four problems: There is, firstly, the
problem of the Organisation of the League; secondly, the problem of
Legislation within the League; thirdly, the problem of Administration of
Justice within the League; and fourthly, the problem of Mediation within
the League--four problems which I shall discuss in the two following
lectures.
I have only named three aims and four problems because I have in my mind
those aims which are the nearest and those problems which are the most
pressing and the most urgent. The range of vision of the League of
Nations, when once established, will no doubt gradually become wider and
wider; new aims will arise and new problems will demand solution, but
all such possible future aims and future problems are outside the scope
of these lectures.
SECOND LECTURE
ORGANISATION AND LEGISLATION OF THE LEAGUE OF NATIONS
SYNOPSIS
I. The Community of civilised States, the at present existing League
of Nations, is a community without any organisation, although there
are plenty of legal rules for the intercourse of the several States
one with another.
II. The position of the Great Powers within the Community of States
is a mere political fact not based on Law.
III. The pacifistic demand for a Federal World State in order to
make the abolition of war a possibility.
IV. Every attempt at organising the desired new League of Nations
must start from, and keep intact, the independence and equality of
the several States, with the consequence that the establishment of a
central political authority above the sovereign States is an
impossibility.
V. The development of an organisation of the Community of States
began before the outbreak of the World War and is to be found in the
establishment of the Permanent Court of Arbitration at the Hague by
the First Hague Peace Conference of 1899. But more steps will be
necessary to turn the hitherto unorganised Community of States into
an organised League of Nations.
VI. The organisation of the desired new League of Nations should
start from the beginning made by the Hague Peace Conferences, and
the League should therefore include all the independent civilised
States.
VII. The objection to the reception of the Central Powers, and of
Germany especially, into the League.
VIII. The objection to the reception of the minor transoceanic
States into the League.
IX. The seven principles which ought to be accepted with regard to
the organisation of the new League of Nations.
X. The organisation of the League of Nations is not an end in itself
but only a means of attaining three objects, the first of which is
International Legislation. The meaning of the term 'International
Legislation' in contradistinction to Municipal Legislation.
International Legislation in the past and in the future.
XI. The difficulty in the way of International Legislation on
account of the language question.
XII. The difficulty created by the conflicting national interests of
the several States.
XIII. The difficulty caused by the fact that International Statutes
cannot be created by a majority vote of the States. The difference
between universal and general International Law offers a way out.
XIV. The difficulty created by the fact that there are as yet no
universally recognised rules concerning interpretation and
construction of International Statutes and ordinary conventions. The
notorious Article 23(h) of the Hague Regulations concerning Land
Warfare.
THE LECTURE
I. In my first lecture on the League of Nations I recommended the
following three rules to be laid down by a League of Nations:
Firstly, every State must submit all judicial disputes to an
International Court of Justice and must abide by the judgment of such
Court.
Secondly, every State previous to resorting to arms, must submit every
political and non-judicial dispute to an International Council of
Conciliation and must at any rate listen to the advice of such Council.
Thirdly, the member States must unite their forces against such State or
States as should resort to arms without previously having submitted the
matter in dispute to an International Court of Justice or to an
International Council of Conciliation.
And I added that these three rules cannot create a satisfactory
condition of affairs unless four problems are faced and solved, namely:
The Organisation of the League, Legislation by the League,
Administration of Justice and Mediation within the League. My lecture
to-day will deal with two of these problems, namely the Organisation and
the Legislation of the League.
Let us first consider the Organisation of the League. Hitherto the body
of civilised States which form the Family of Nations and which, as I
pointed out in my first lecture, is really a League of Nations evolved
by custom, has been an unorganised Community. This means that, although
there are plenty of legal rules for the intercourse of the several
States one with another, the Community of civilised States does not
possess any permanently established organs or agents for the conduct of
its common affairs. At present these affairs, if they are peaceably
settled, are either settled by ordinary diplomatic negotiation or, if
the matter is pressing and of the greatest importance, by temporarily
convened International Conferences or Congresses.
II. It is true there are the so-called Great Powers which are the
leaders of the Family of Nations, and it is therefore asserted by some
authorities that the Community of States has acquired a certain amount
of organisation because the Great Powers are the legally recognised
superiors of the minor States.
But is this assertion correct? The Great Powers, are they really the
legally recognised superiors of the minor States?
I deny it. A Great Power is any large-sized State possessing a large
population which gains such economic, military, and naval strength that
its political influence must be reckoned with by all the other Powers.
At the time of the outbreak of the World War eight States had to be
considered as Great Powers, namely Great Britain, Austria-Hungary,
France, Germany, Italy, Russia, the United States of America, and Japan.
But it is very probable that the end of the World War will see the
number of Great Powers reduced to six. The collapse and break up of
Russia has surely for the present eliminated her from the number of
Great Powers. And it is quite certain that Austria-Hungary will not
emerge from the struggle as a Great Power, if she emerges from it as a
whole at all. History teaches that the number of the Great Powers is by
no means stable, and changes occasionally take place. Look at the
condition of affairs during the nineteenth century. Whereas at the time
of the Vienna Congress in 1815 eight States, namely Great Britain,
Austria, France, Portugal, Prussia, Spain, Sweden, and Russia were still
considered Great Powers, their number soon decreased to five, because
Portugal, Spain, and Sweden ceased to be Great Powers. On the other
hand, Italy joined the number of the Great Powers after her unification
in 1860; the United States of America joined the Great Powers after the
American Civil War in 1865; and Japan emerged as a Great Power from her
war with China in 1895.
Be that as it may, so much is certain, a State is a Great Power not by
law but only by its political influence. The Great Powers are the
leaders of the Family of Nations because their political influence is
so great. Their political and economic influence is in the long run
irresistible; therefore all arrangements made by the Great Powers
naturally in most cases gain, either at once or in time, the consent of
the minor States. It may be said that the Great Powers exercise a kind
of political hegemony within the Family of Nations. Yet this hegemony is
not based on law, it is simply a political fact, and it is certainly not
a consequence of an organisation of the Family of Nations.
III. The demand for a proper organisation of the Community of States
had, up to the outbreak of the World War, been raised exclusively on the
part of the so-called Pacifists in order to make the abolition of war a
possibility. It is a common assertion on the part of the Pacifists that
War cannot die out so long as there is no Central Political Authority in
existence above the several States which could compel them to bring
their disputes before an International Court and also compel them to
carry out the judgments of such a Court. For this reason many Pacifists
aim at such an organisation of the Community of States as would bring
all the civilised States of the world within the bonds of a federation.
They demand a World Federation of all the civilised States, or at any
rate a federation of the States of Europe, on the model of the United
States of America.
If such a Federal World State were practically possible, there would be
no objection to it, although International Law as such would cease to
exist and be replaced by the Constitutional Law of this Federal World
State. But in my first lecture I pointed out that such a Federal World
State is practically impossible. And it is not even desirable.
The development of mankind would seem in the main to be indissolubly
connected with the national development of the peoples. Most peoples
possessing a strong national consciousness desire an independent State
in which they can live according to their own ideals. They want to be
their own masters, and not to be part and parcel of a Federal World
State to which they would have to surrender a great part of their
independence. Moreover--as I likewise pointed out in my first lecture
(pp. 18-20)--it would be impossible to establish a strong Government and
a strong Parliament in a Federal World State.
However this may be, it is not at all certain that war would altogether
disappear in a Federal World State. The history of Federal States
teaches that wars do occasionally break out between their member States.
Think of the war between the Roman Catholic and the Protestant member
States of the Swiss Confederation in 1847, of the war in 1863 between
the Northern and the Southern member States within the Federation which
is called the United States of America, and of the war between Prussia
and Austria within the German Confederation in 1866.
IV. But what kind of organisation of the League of Nations is possible
if we reject the idea of a Federal State?
Neither I, nor anyone else who does not like to build castles in the
air, can answer this question directly by making a detailed proposal. It
is at present quite impossible to work out a practical scheme according
to which a more detailed organisation of the League of Nations could be
realised. But so much is certain that every attempt at organising this
League must start from, and must keep intact, the independence and the
equality of all civilised States. It is for this reason that a Central
Political Authority above the sovereign States can never be thought of.
Every attempt to organise a League of Nations on the model of a Federal
State is futile. If a detailed organisation of the League should ever
come, it will be one _sui generis_, one absolutely of its own kind; such
as has never been seen before. And it is at present quite impossible to
map out a detailed plan of such an organisation although, as I shall
have to show you later, the first step towards an organisation has
already been made, and further steps towards the ideal can be taken. The
reason that it is at present impossible is that the growth and the final
shape of the organisation of the League of Nations will, and must, go
hand in hand with the progress of International Law. But the progress of
International Law is conditioned by the growth, the strengthening, and
the deepening of international economic and other interests, and of
international morality. It is a matter of course that this progress can
only be realised very slowly, for there is concerned a process of
development through many generations and perhaps through centuries, a
development whose end no one can foresee. It is sufficient for us to
state that the development had already begun before the World War, and
to try to foster it, as far as is in our power, after the conclusion of
peace.
V. I said that this development has begun. Where is this beginning of
the development to be found?
It is to be found in the establishment of the Permanent Court of
Arbitration at the Hague and the Office therewith connected. The
Permanent Court of Arbitration is not an institution of the several
States, but an institution of the Community of States in
contradistinction to its several members. Had the International Prize
Court agreed upon by the Second Hague Peace Conference of 1907 been
established, there would have come into existence another institution of
the Community of States.
But the establishment of International Courts would not justify the
assertion that thereby the Community of States has turned from an
unorganised community into an organised community. To reach this goal
another step is required, namely an agreement amongst the Powers,
according to which the Hague Peace Conferences would be made a permanent
institution which periodically, within fixed intervals, assemble without
being convened by one Power or another. If this were done, we could say
that the hitherto unorganised Community of States had turned into an
organised League of Nations, for by such periodically assembling Hague
Peace Conferences there would be established an organ for the conduct
of all such international matters as require international legislation
or other international action.
However that may be, the organisation created by the fact that the Hague
Peace Conferences periodically assembled, would only be an immature one;
more steps would be necessary in order that the organisation of the
Community of States might become more perfect and more efficient. Yet
progress would be slow, for every attempt at a progressive step meets
with opposition, and it would be only when the _international_ interests
of the civilised States become victorious over their particular
_national_ interests that the Community of States would gradually
receive a more perfect organisation.
VI. There is no doubt that the experiences of mankind during the World
War have been quickening development more than could have been expected
in normal times. The universal demand for a new League of Nations
accepting the principles that every judicial dispute amongst nations
must be settled by International Courts and that every political dispute
must, before the parties resort to arms, be brought before a Council of
Conciliation, demonstrates clearly that the Community of States must now
deliberately give itself some kind of organisation, because without it
the principles just mentioned cannot be realised.
Now a number of schemes for the organisation of a new League of Nations
have been made public. They all agree upon the three aims of the League
and the three rules for the realisation of these aims which I mentioned
in my first lecture, namely compulsory settlement of all judicial
disputes by International Courts of Justice, compulsory mediation in
cases of political disputes by an International Council of Conciliation,
and the duty of the members of the League to turn against any one member
which should resort to arms in violation of the principles laid down by
the League. However, these schemes differ very much with regard to the
_organisation_ of the League. I cannot now discuss the various schemes
in detail. It must suffice to say that some of them embody proposals for
a more or less state-like organisation and are therefore not acceptable
to those who share my opinion that any state-like organisation of the
League is practically impossible. But though some of the schemes, as for
instance that of Lord Bryce and that of Sir Willoughby Dickinson, avoid
this mistake, none of them take as their starting point that which I
consider to be the right one, namely the beginning made at the two Hague
Peace Conferences. _In my opinion the organisation of a new League of
Nations should start from the beginning made by the two Hague Peace
Conferences._
VII. However, there is much objection to this, because it would
necessitate the admission into the new League of all those States which
took part in the Second Hague Peace Conference, including, of course,
the Central Powers. The objections to such a wide range of the League
are two-fold.
In the first instance, the admission of the Central Powers, and
especially of Germany, into the League is deprecated. By her attack on
Belgium at the outbreak of the war, and by her general conduct of the
war, Germany has deliberately taken up an attitude which proves that,
when her military interests are concerned, she does not consider herself
bound by any treaty, by any rule of law, or by any principle of
humanity. How can we expect that she will carry out the engagements into
which she might enter by becoming a member of the League of Nations?
My answer is that, provided she be utterly defeated and no peace of
compromise be made with her, militarism in Germany will be doomed, the
reparation to be exacted from her for the many cruel wrongs must lead to
a change of Constitution and Government, and this change of Constitution
and Government will make Germany a more acceptable member of a new
League of Nations. The utter defeat of Germany is a necessary
preliminary condition to the possibility of her entrance into a League
of Nations. Those who speak of the foundation of a League of Nations as
a means of ending the World War by a peace of compromise with Germany
are mistaken. The necessary presuppositions of such a League are
entirely incompatible with an unbroken Prussian militarism.
But while her utter defeat is the necessary preliminary condition to her
entrance into a League of Nations, the inclusion of Germany in the
League, after her utter defeat, is likewise a necessity. The reason is
that, as I pointed out in my first lecture (p. 17), in case the Central
Powers were excluded from the League, they would enter into a League of
their own, and the world would then be divided into two rival camps, in
the same way as before the war the Triple Alliance was faced by the
Entente. _The world would be proved not ripe for a new League of Nations
if peace were concluded with an undefeated Germany; and the League would
miss its purpose if to a defeated and repenting Germany entrance into it
were refused._
VIII. In the second instance, the entrance of the great number of minor
transoceanic States into the League is deprecated because these States
would claim an equal vote with the European Powers and thereby obstruct
progress within the League.
It is asserted that some of the minor transatlantic States made the
discussions at the Hague Conferences futile by their claim to an equal
vote. Now it is true that some of these States have to a certain extent
impeded the work of the Hague Conferences, but some of the minor States
of Europe, and even some of the Great Powers, have done likewise. The
Community of States consisting of sovereign States does not possess any
means of compelling a minority of States to fall in with the views of
the majority, but I shall show you very soon, when I approach the
problem of International Legislation, that International Legislation of
a kind is possible in spite of this fact. And so much is certain that
the minimum of organisation of the new League which is now necessary,
cannot be considered to be endangered by the admittance of the minor
transoceanic States into the League. Progress will in any case be slow,
and perfect unanimity among the Powers will in any and every case only
be possible where the _international_ interests of all the Powers compel
them to put aside their real or imaginary particular _national_
interests.
IX. For these reasons I take it for granted that the organisation of a
new League of Nations should start from the beginning made by the Hague
Peace Conferences. Therefore the following seven principles ought to be
accepted:
First principle: The League of Nations is composed of all civilised
States which recognise one another's external and internal
independence and absolute equality before International Law.
Second principle: The chief organ of the League is the Peace
Conference at the Hague. The Peace Conferences meet
periodically--say every two or three years--without being convened
by any special Power. Their task is the gradual codification of
International Law and the agreement upon such International
Conventions as are from time to time necessitated by new
circumstances and conditions.
Third principle: A permanent Council of the Conference is to be
created, the members of which are to be resident at the Hague and
are to conduct all the current business of the League of Nations.
This current business comprises: The preparation of the meetings of
the Peace Conference; the conduct of communications with the several
members of the League with regard to the preparation of the work of
the Peace Conferences; and all other matters of international
interest which the Conference from time to time hands over to the
Council.
Fourth principle: Every recognised sovereign State has a right to
take part in the Peace Conferences.
Fifth principle: Resolutions of the Conference can come into force
only in so far as they become ratified by the several States
concerned. On the other hand, every State agrees once for all
faithfully to carry out those resolutions which have been ratified
by it.
Sixth principle: Every State that takes part in the Peace
Conferences is bound only by such resolutions of the Conferences as
it expressly agrees to and ratifies. Resolutions of a majority only
bind the majority. On the other hand, no State has a right to demand
that only such resolutions as it agrees to shall be adopted.
Seventh principle: All members of the League of Nations agree once
for all to submit all judicial disputes to International Courts
which are to be set up, and to abide by their judgments. They
likewise agree to submit, previous to resorting to arms, all
non-judicial disputes to International Councils of Conciliation
which are to be set up. And they all agree to unite their economic,
military, and naval forces against any one or more States which
resort to arms without submitting their disputes to International
Courts of Justice or International Councils of Conciliation.
You will have noticed that my proposals do not comprise the creation of
an International Government, an International Executive, an
International Parliament, and an International Army and Navy which would
serve as an International Police Force. No one can look into the future
and say what it will bring, but it is certain that for the present, and
for some generations to come, all attempts at creating an International
Government are not only futile but dangerous; because it is almost
certain that a League of Nations comprising an International Executive,
an International Parliament, and an International Army and Navy would
soon collapse.
X. However this may be, and whatever may be the details of the
organisation of the League, such necessary organisation is not an end in
itself but a means of attaining three objects, namely: International
Legislation, International Administration of Justice, and International
Mediation. I shall discuss International Administration of Justice and
International Mediation in my next lecture, to-day I will only draw your
attention to International Legislation.
In using the term 'International Legislation,' it must be understood
that 'legislation' is here to be understood in a figurative sense only.
When we speak of legislation in everyday language, we mean that process
of parliamentary activity by which Municipal Statutes are called into
existence. Municipal Legislation presupposes a sovereign power, which
prescribes rules of conduct to its subjects. It is obvious that within
the Community of States no such kind of legislation can take place.
Rules of conduct for the members of the League of Nations can only be
created by an agreement amongst those members. Whereas Municipal
Statutes contain the rules of conduct set by an authority sovereign over
its subjects, International Statutes--if I may be allowed to use that
term--contain rules of conduct which the members of the Community of
States have agreed to set for themselves. International Statutes are
created by the so-called Law-making Treaties of the Powers. But in one
point Municipal Legislation and the Law-making Treaties of the Powers
resemble one another very closely:--both intend to create law, and for
this reason it is permissible to use the term 'International
Legislation' figuratively for the conclusion of such international
treaties as contain rules of International Law.
Now it would be very misleading to believe that no International
Legislation has taken place in the past. The fact is that, from the
Vienna Congress of 1815 onwards, agreements have been arrived at upon a
number of rules of International Law. However, such agreements have only
occurred occasionally, because the Community of civilised States has not
hitherto possessed a permanently established organ for legislating. Much
of the legislation which has taken place in the past was only a
by-product of Congresses or Conferences which had assembled for other
purposes. On the other hand, when legislation on a certain subject was
considered pressing, a Congress or Conference was convened for that
very purpose. It will be only when the Hague Peace Conferences have
become permanently established that an organ of the League of Nations
for legislating internationally will be at hand. And a wide field is
open for such legislation. The bulk of International Law in its present
state is--if I may say so--a book law, it is customary law which is only
to be found in text-books of International Law; it is, as regards many
points, controversial; it has many gaps; and it is in many ways
uncertain. International Legislation will be able gradually to create
international statutes which will turn this book law into firm, clear,
and authoritative statutory law.
XI. But you must not imagine that International Legislation is an easy
matter. It is in fact full of difficulties of all kinds. I will only
mention four:
There is, firstly, the language question. Since it is impossible to
draft International Statutes in all languages, it is absolutely
necessary to agree upon one language, and this language at present is,
as you all know, French. Yet, difficult as the language question is, it
is not insurmountable. It is hardly greater than the difficulty which
arises when two States, which speak different languages, have to agree
upon an ordinary convention. One point, however, must be specially
observed, and that is: when any question of the interpretation of an
International Statute occurs, it is the French text of the statute which
is authoritative, and not the text of the translation into other
languages.
XII. Another difficulty with regard to International Legislation is the
conflicting _national_ interests of the different States. As
International Statutes are only possible when the several States come to
an agreement, it will often not be possible to legislate internationally
on a given matter, because the interests of the different States will be
so conflicting that an agreement cannot be arrived at. On the other
hand, as time goes on the international interests of the several States
frequently become so powerful that these Governments are quite ready to
brush aside their particular interests, and to agree upon a compromise
which makes International Legislation concerning the matter in question
possible.
XIII. A third difficulty with regard to International Legislation is of
quite a particular kind. It arises from the fact that International
Statutes cannot be created by a vote of the majority of States, but only
by a unanimous vote of all the members of the Community of civilised
States.
This difficulty, however, can be overcome by dropping the contention
that no legislation of any kind can be proceeded with unless every
member of the League of Nations agrees to it. It is a well-known fact
that a distinction has to be made between _universal_ International Law,
that is, rules to which every civilised State agrees, and _general_
International Law, that is, rules to which only the greater number of
States agree. Now it is quite certain that no universal International
Law can be created by legislation to which not every member of the
League of Nations has agreed. Nothing, however, ought to prevent those
States which are ready to agree to certain new rules of International
Law, from legislating _for their own number_ on a certain matter. If
such legislation is really of value, the time will come when the
dissenting States will gradually accede. The Second Hague Peace
Conference acted on this principle, for a good many of its Conventions
were only agreed upon by the greater number, and not by all, of the
participating States.
XIV. A fourth difficulty with regard to International Legislation is the
difficulty of the interpretation of, and the construction to be put
upon, International Statutes as well as ordinary international
conventions. We do not as yet possess universally recognised rules of
International Law concerning such interpretation and construction. Each
nation applies to International Statutes those rules of interpretation
and construction which are valid for the interpretation and construction
of their Municipal Statutes.
Many international disputes have been due in the past to this difficulty
of interpretation and construction. A notorious example is that of the
interpretation of Article 23(h) of the Hague Regulations of 1907
concerning Land Warfare, which lays down the rule that it is forbidden
'to declare abolished, suspended, or inadmissible in a Court of Law the
rights and actions of the nationals of the hostile party.'
Germany and other continental States interpret this article to mean that
the Municipal Law of a State is not allowed to declare that the
outbreak of war suspends or avoids contracts with alien enemies, or
that war prevents alien enemies from bringing an action in the Courts.
On the other hand, England and the United States of America interpret
this article to mean merely that the _occupant of enemy territory_ is
prohibited from declaring abolished, suspended, or inadmissible in a
Court of Law the rights and actions of the nationals of the hostile
party.
What is the cause of this divergent interpretation of an article, the
literal meaning of which seems to be quite clear? The divergence is due
to the different mode of interpretation of statutes resorted to by
continental Courts, on the one hand, and, on the other hand, by British
and American Courts.
Continental Courts take into consideration not only the literal meaning
of a clause of a statute, but also the intention of the legislator as
evidenced by--what I should like to call--the history of the clause.
They look for the intention of the draftsman, they search the
Parliamentary proceedings concerning the clause, and they interpret and
construe the clause with regard to the intention of the draftsman as
well as to the proceedings in Parliament.
Now Article 23(h) of the Hague Regulations was inserted on the motion of
the German delegates to the Second Hague Peace Conference, and there is
no doubt that the German delegates intended by its insertion to prevent
the Municipal Law of belligerents from possessing a rule according to
which the outbreak of war suspends or avoids contracts with alien
enemies, and prohibits alien enemies from bringing an action in the
Courts. It is for this reason that Germany and other continental States
interpret Article 23(h) according to the intention of the German
delegates.
On the other hand, in interpreting and construing a clause of a statute,
British and American Courts refuse to take into consideration the
intention of the draftsman, Parliamentary discussions concerning the
clause, and the like. They only take into consideration the literal
meaning of the clause as it stands in the statute of which it is a part.
Now Article 23(h) is a clause in the Convention concerning the Laws and
Customs of War on Land. It is one of several paragraphs of Article 23
which comprises the prohibition of a number of acts by the armed forces
of belligerents in warfare on land, such as the employment of poison or
poisoned arms, and the like. The British and American delegates,
believing that it only concerned an act on the part of belligerent
forces occupying enemy territory, therefore consented to the insertion
of Article 23(h), and our Court of Appeal--in the case of Porter _v._
Freundenberg (1915)--held that Article 23(h) is to be interpreted in
that sense.[1]
Be that as it may, the difficulty of interpretation and construction of
international treaties will exist so long as no International Statute
has been agreed upon which lays down detailed rules concerning
interpretation and construction, or so long as International Courts have
not developed such rules in practice. But the problem of International
Courts is itself a very difficult one; it will be the subject of my
third lecture which will deal with Administration of Justice and
Mediation within the League of Nations.
[1] By a letter of February 28, 1911, I drew the attention of the
Foreign Office to the interpretation of Article 23(h) which generally
prevailed on the Continent. This letter and the answer I received were
privately printed, and copies were distributed amongst those members and
associates of the Institute of International Law who attended the
meeting at Madrid. Since French, German, and Italian International Law
Journals published translations, but the original of the correspondence
was never published in this country, I think it advisable to append it
to this lecture.
APPENDIX
CORRESPONDENCE WITH THE FOREIGN OFFICE RESPECTING THE INTERPRETATION OF
ARTICLE 23(h) OF THE HAGUE REGULATIONS CONCERNING LAND WARFARE
LETTER FROM THE PRESENT WRITER TO THE FOREIGN OFFICE.
WHEWELL HOUSE, CAMBRIDGE,
_28th February, 1911_.
TO
THE UNDER SECRETARY OF STATE
FOR FOREIGN AFFAIRS.
SIR,--
I venture to bring the following matter before your consideration:--
In the course of my recent studies I have been dealing with the laws and
usages of war on land, and I have had to consider the interpretation of
Article 23(h) of the Regulations attached to the Convention of 1907
relating to the Laws and Customs of war on land. I find that the
interpretation prevailing among all continental and some English and
American authorities is contrary to the old English rule, and I would
respectfully ask to be informed of the view which His Majesty's
Government place upon the article in question.
To give some idea as to how an interpretation of Article 23(h) contrary
to the old English rule prevails generally, I will quote a number of
French, German, English, and American writers, the works of whom I have
at hand in my library, and I will also quote the German _Weissbuch_
concerning the results of the second Hague Conference of 1907.
Bonfils, _Manuel de droit international public_, 5th ed. by Fauchille,
1908, discusses, on page 651, the doctrine which denies to an enemy
subject any _persona standi in judicio_, but adds:--'... Article 23(h)
décide qu'il est interdit de déclarer éteints, suspendus ou non
recevables en justice, les droits et actions des nationaux de la partie
adverse.'
Politis, Professor of International Law in the University of Poitiers
(France), in his report to the Institute of International Law, Session
of Paris (1910), concerning _Effets de la Guerre sur les Obligations
Internationales et les Contrats privés_, page 18, says:
'Un point hors de doute, c'est, que la guerre ne peut, ni par elle-même
ni par la volonté des belligérants, affecter la validité ou l'exécution
des contrats antérieurs. Cette règle fait désormais partie du droit
positif. L'article 23(h) du nouveau Règlement de la Haye interdit
formellement aux belligérants "de déclarer éteints, suspendus ou non
recevables en justice les droits et actions des nationaux de la partie
adverse."
'Cette formule condamne d'anciens usages conservés encore, en partie,
dans certains pays. Elle proscrit d'abord tous les moyens--annulation ou
confiscation--par lesquels on chercherait à atteindre, dans leur
existence, les droits nés avant la guerre. Elle exclut, en second lieu,
l'ancienne pratique qui interdisait aux particuliers ennemis l'accès des
tribunaux. Elle prohibe, enfin, toutes les mesures législatives ou
autres tendant à entraver au cours de la guerre l'exécution ou les
effets utiles des obligations privées, notamment le cours des intérêts.
'Il y a là progrès incontestable. Et l'on doit être reconnaissant à la
délégation allemande à la 2e Conférence de la paix de l'avoir provoqué.
'L'accueil empressé et unanime qu'a reçu cette heureuse initiative
permet d'espérer que de nouveaux progrès pourront être réalisés dans cet
ordre d'idées.
'On doit souhaiter que la disposition de l'article 23(h), étrangère à
l'hypothèse de l'occupation du territoire ennemi, soit distraite du
règlement de 1907 (comme les articles 57 à 60 l'ont été du Règlement de
1899) pour être mieux placée dans une convention nouvelle, où d'autres
textes viendraient la compléter.'
Ullmann, _Völkerrecht_, 2nd ed. 1908, p. 474, says:--
'Auch der Rechtsverkehr wird durch den Ausbruch des Krieges nicht
unterbrochen oder gehemmt. Die nach Landesrecht frueher uebliche
zeitweise Aufhebung der Klagbarkeit vom Schuldverbindlichkeiten des
Staates oder eines Angehörigen gegen Angehörige des Feindes ist durch
Artikel 23(h) untersagt.'
Wehberg, _Das Beuterecht im Land- und Seekriege_, 1909, pp. 5 and 6
says:--
'Article 46 Absatz 2 bestimmt:--"Das Privateigentum darf nicht
eingezogen werden." In konsequenter Durchführung dieses Satzes bestimmt
der auf deutschen Antrag 1907 hinzugefügte Article 23(h):--"Untersagt
ist die Aufhebung oder zeitweilige Ausserkraftsetzung der Rechte und
Forderungen von Angehoerigen der Gegenpartei oder der Ausschliessung
ihrer Klagbarkeit."'
Whittuck, _International Documents_, London 1908, Introduction p. xxvii,
says--'In Article 23(h) it is prohibited to declare abolished, suspended
or inadmissible in a court of law the rights and actions of the
nationals of the other belligerent which is a development of the
principle that the private property of the subjects of a belligerent is
not subject to confiscation. This new prohibition if accepted by this
country would necessitate some changes in our municipal law.'
Holland, _The Laws of War on Land_, 1908, says on p. 5 that:--'Article
23(h) seems to require the Signatory Powers to the convention concerned
to legislate for the abolition of an enemy's disability to sustain a
_persona standi in judicio_.' (See also Holland, _loco citato_, p. 44,
where he expresses his doubts concerning the interpretation of Article
23(h).)
Bordwell, _The Law of War between Belligerents_, Chicago 1908,
recognises on page 210 the fact that according to Article 23(h) an alien
enemy must now be allowed to sue in the courts of a belligerent, and
Gregory, Professor in the University of Iowa, who reviews Bordwell's
work in the _American Journal of International Law_, Volume 3 (1909),
page 788, takes up the same standpoint.
The only author who interprets Article 23(h) in a different way is
General Davis, who in his _Elements of International Law_, 3rd edition
1908, page 578, note 1, says:--
'It is more than probable that this humane and commendable purpose would
fail of accomplishment if a military commander conceived it to be within
his authority to suspend or nullify their operation, or to regard their
application in certain cases as a matter falling within his
administrative discretion. Especially is this true where a military
officer refuses to receive well grounded complaints, or declines to
receive demands for redress, in respect to the acts or conduct of the
troops under his command, from persons subject to the jurisdiction of
the enemy who find themselves, for the time being, in the territory
which he holds in military occupation. To provide against such a
contingency it was deemed wise to add an appropriate declaratory clause
to the prohibition of Article 23.'
It is very unfortunate that the book of General Davis is not at all
known on the Continent, and that therefore none of the continental
authors have any knowledge of the fact that a divergent interpretation
from their own of Article 23(h) is being preferred by an American
author.
It is likewise very unfortunate that neither the English Bluebook on the
Second Hague Peace Conference (see Parliamentary Papers, Miscellaneous
No. 4, 1907, page 104) nor the official minutes of the proceedings of
the Conference, edited by the Dutch Government, give any such
information concerning the construction of Article 23(h) as could assist
a jurist in forming an opinion regarding the correct interpretation.
It is, however, of importance to take notice of the fact that Article
23(h) is an addition to Article 23 which was made on the proposition of
Germany, and that Germany prefers an interpretation of Article 23(h)
which would seem to coincide with the interpretation preferred by all
the continental writers. This becomes clearly apparent from the German
_Weissbuch ueber die Ergebnisse der im Jahre 1907 in Haag abgehaltenen
Friedensconferenz_, which contains on page 7 the following:--
'Der Artikel 23 hat gleichfalls auf deutschen Antrag zwei wichtige
Zusätze erhalten. Durch den ersten wird der Grundsatz der
Unverletzlichkeit des Privateigenthumes auch auf dem Gebiete der
Forderungsrechte anerkannt. Nach der Gesetzgebung einzelner Staaten soll
nämlich der Krieg die Folge haben, dass die Schuldverbindlichkeiten des
Staates oder seiner Angehörigen gegen Angehörige des Feindes aufgehoben
oder zeitweilig ausser Kraft gesetzt oder wenigstens von der
Klagbarkeit ausgeschlossen werden. Solche Vorschriften werden nun durch
den Artikel 23 Abs. 1 unter h für unzulässig erklärt.'
However this may be, the details given above show sufficiently that a
divergent interpretation of Article 23(h) from the old English rule is
prevalent on the Continent, and is to some extent also accepted by
English and American Authorities, and it is for this reason that I would
ask whether His Majesty's Government consider that the old English rule
is no longer in force.
I have, &c.,
(Signed) L. OPPENHEIM.
LETTER FROM THE FOREIGN OFFICE TO THE PRESENT WRITER.
FOREIGN OFFICE,
_March 27, 1911_.
SIR,--
I am directed by Secretary Sir E. Grey to thank you for your letter of
February 28th, and for drawing his attention to the misconceptions which
appear to prevail so largely among the continental writers on
international law with regard to the purport and effect of Article 23(h)
of the Convention of October 18th, 1907, respecting the laws and customs
of war on land.
It seems very strange that jurists of the standing of those from whose
writings you quote could have attributed to the article in question the
meaning and effect they have given it if they had studied the general
scheme of the instrument in which it finds a place.
The provision is inserted at the end of an article dealing with the
prohibited modes of warfare. It forms part of Chapter I. of Section II.
of the Regulations annexed to the Convention. The title of Chapter I. is
'Means of injuring the enemy, sieges and bombardment': and if the
article itself is examined it will be seen to deal with such matters as
employing poison or poisoned weapons, refusing quarter, use of treachery
and the unnecessary destruction of private property. Similarly the
following articles (24 to 28) all deal with the restrictions which the
nations felt it incumbent upon them from a sense of humanity to place
upon the conduct of their armed forces in the actual prosecution of
military operations.
The Regulation in which these articles figure is itself merely an annex
to the Convention which alone forms the contractual obligation between
the parties, and the engagement which the parties to the Convention have
undertaken is (Article 1) to 'issue instructions to their armed land
forces in conformity with the Regulations respecting the Law and Customs
of war on land.'
This makes it abundantly clear that the purpose and scope of the
Regulations is limited to the proceedings of the armies in the field;
those armies are under the orders of the commanders, and the Governments
are bound to issue instructions to those commanders to act in accordance
with the Regulations. That is all. There is nothing in the Convention or
in the Regulations dealing with the rights or the status of the
non-combatant individuals, whether of enemy nationality or domiciled in
enemy territory. They are, of course, if inhabitants of the theatre of
war, affected by the provisions of the Regulations because they are
individuals who are affected by the military operations, and in a sense
a regulation which forbids a military commander from poisoning a well
gives a non-combatant inhabitant a right or a quasi-right not to have
his well poisoned, but his rights against his neighbours, his relations
with private individuals, whether of his own or of enemy nationality,
remain untouched by this series of rules for the conduct of warfare on
land.
Turning now to the actual wording of Article 23(h) it will be seen that
it begins with the wording 'to declare.' It is particularly forbidden
'to _declare_ abolished, &c.' This wording necessarily contemplates the
issue of some proclamation or notification purporting to abrogate or to
change rights previously existing and which would otherwise have
continued to exist, and in view of Article I of the Convention this
hypothetical proclamation must have been one which it was assumed the
commander of the army would issue; consequently, stated broadly, the
effect of Article 23(h) is that a commander in the field is forbidden to
attempt to terrorise the inhabitants of the theatre of war by depriving
them of existing opportunities of obtaining relief to which they are
entitled in respect of private claims.
Sir E. Grey is much obliged to you for calling his attention to the
extract which you quote from the German White Book. This extract may be
translated as follows:--'Article 23 has also received on German
proposal two weighty additions. By the first the fundamental principle
of the inviolability of private property in the domain of legal claims
is recognised. According to the legislation of individual states, war
has the result of extinguishing or temporarily suspending, or at least
of suppressing the liability of the state or its nationals to be sued by
nationals of the enemy. These prescriptions have now been declared
inadmissible by Article 23(h).'
The original form of the addition to Article 23 which the German
delegates proposed was as follows: 'de déclarer éteintes, suspendues ou
non recevables les réclamations privées de ressortissants de la Partie
adverse' (see procès-verbal of the 2nd meeting of the 1st sub-Committee
of the 2nd Committee, 10th July, 1907).
There is nothing to show that any explanation was vouchsafed to the
effect that the proposed addition to the article was intended to mean
more than its wording necessarily implied, though there is a statement
by one of the German delegates in the procès-verbal of the 1st meeting
of the 1st sub-Committee of the 2nd Committee, on July 3rd, which in all
probability must have referred to this particular amendment, though the
procès-verbal does not render it at all clear; nor is the statement
itself free from ambiguity. An amendment was suggested and accepted at
the second meeting to add the words 'en justice' after 'non recevables,'
and in this form the sub-article was considered by an examining
committee, was accepted and incorporated in Article 23, and brought
before and accepted by the Conference in its 4th Plenary Sitting on the
17th August, 1907.
The subsequent alteration in the wording must have been made by the
Drafting Committee, but cannot have been considered to affect the
substance of the provision, as in the 10th Plenary Sitting on October
17th, 1907, the reporter of the Drafting Committee, in dealing with the
verbal amendments made in this Convention, merely said, 'En ce qui
concerne le règlement lui-même, je n'appellerai pas votre attention sur
les différentes modifications de style sans importance que nous y avons
introduites.'
Nor is there anything to indicate any such far-reaching interpretation
as the German White Book suggests in the report which accompanied the
draft text of the Convention when it was brought before the Plenary
Sitting of the Conference (Annex A. to 4th Plenary Sitting). It merely
states that the addition is regarded as embodying in very happy terms a
consequence of the principles accepted in 1899.
The result appears to Sir E. Grey to be that neither the wording nor the
context nor the circumstances attending the introduction of the
provision which now figures as Article 23(h) support the interpretation
which the writers you quote place upon it and which the German White
Book endorses.
Sir E. Grey notices that, in the extract you quote, Monsieur Politis,
after placing his own interpretation upon the article, remarks that it
is quite foreign to the hypothesis of the occupation of territory and
ought to be removed from the Regulations and turned into a Convention by
itself. If this interpretation were correct, this remark of Monsieur
Politis is certainly true: but the fact that the provision appears where
it does should have suggested to Monsieur Politis that it does not bear
the interpretation he puts upon it.
Nor does it appear to Sir E. Grey that the provision conflicts with the
principle of the English common law that an enemy subject is not
entitled to bring an action in the courts to sustain a contract,
commerce with enemy subjects being illegal.
That principle operates automatically on the outbreak of war, it
requires no declaration by the Government, still less by a commander in
the field, to bring it into operation. It is a principle which applies
equally whether the war is being waged on land or sea, and which is
applied in all the courts and not merely in those within the field of
the operations of the military commanders.
The whole question of the effect of war upon the commerce of private
persons may require reconsideration in the future; the old rules may be
scarcely consistent with the requirements or the conditions of modern
commerce; but a modification of those rules is not one to which His
Majesty's Government could be a party except after careful enquiry and
consideration, and, when made at all, it must be done by a convention
that applies to war both on land and sea.
They certainly have not become parties to any such modification by
agreeing to a convention which relates only to the instructions they are
to give the commanders of their armed forces, and which is limited to
war on land.
I am, &c.,
(Signed) F. A. CAMPBELL.
THIRD LECTURE
ADMINISTRATION OF JUSTICE AND MEDIATION WITHIN THE LEAGUE OF NATIONS
SYNOPSIS
I. Administration of Justice within the League is a question of
International Courts, but it is incorrect to assert that
International Legislation necessitates the existence of
International Courts.
II. The Permanent Court of Arbitration created by the First Hague
Peace Conference.
III. The difficulties connected with International Administration of
Justice by International Courts.
IV. The necessity for a Court of Appeal above the International
Court of First Instance.
V. The difficulties connected with the setting up of International
Courts of Justice.
VI. Details of a scheme which recommends itself because it
distinguishes between the Court as a whole and the several Benches
which would be called upon to decide the cases.
VII. The advantages of the recommended scheme.
VIII. A necessary provision for so-called complex cases of dispute.
IX. A necessary provision with regard to the notorious clause _rebus
sic stantibus_.
X. The two starting points for a satisfactory proposal concerning
International Mediation by International Councils of Conciliation.
Article 8 of the Hague Convention concerning Pacific Settlement of
International disputes. The Permanent International Commissions of
the Bryan Peace Treaties.
XI. Details of a scheme which recommends itself for the
establishment of International Councils of Conciliation.
XII. The question of disarmament.
XIII. The assertion that States renounce their sovereignty by
entering into the League.
XIV. Conclusion: Can it be expected that, in case of a great
conflict of interests, all the members of the League will faithfully
carry out their engagements?
THE LECTURE
I. My last lecture dealt with the organisation of a League of Nations
and International Legislation by the League. To-day I want to draw your
attention to International Administration of Justice and International
Mediation within the League.
I begin with International Administration of Justice which, of course,
is a question of International Courts of Justice. Hitherto, although
International Legislation has been to some extent in existence, no
International Courts have been established before which States in
dispute have been compelled to appear. Now there is no doubt that
International Legislation loses in value if there are no arrangements
for International Administration of Justice by independent and permanent
International Courts. Yet it is incorrect to assert, although it is
frequently done, that one may not speak of legislation and a law created
by legislation without the existence of Courts to administer such law.
Why is this assertion incorrect? Because the function of Courts is to
decide _controversial_ questions of law or of fact in case the
respective parties cannot agree concerning them. However, in most cases
the law is not in jeopardy, and its commands are carried out by those
concerned without any necessity for a Court to declare the law. Modern
International Law has been in existence for several hundred years, and
its commands have in most cases been complied with in the absence of
International Courts. On the other hand, there is no doubt that, if
controversies arise about a question of law or a question of fact, the
authority of the law can be successfully vindicated only by the verdict
of a Court. And it is for this reason that no highly developed Community
can exist for long without Courts of Justice.
II. The Community of civilised States did not, until the end of the
nineteenth century, possess any permanent institution which made the
administration of international justice possible. When States were in
conflict and, instead of having recourse to arms, resolved to have the
dispute peaceably settled by an award, in every case they agreed upon
so-called arbitration, and they nominated one or more arbitrators, whom
they asked to give a verdict. For this reason, it was an epoch-making
step forward when the First Peace Conference of 1899 agreed upon the
institution of a Permanent Court of Arbitration, and a code of rules for
the procedure before this Court. Although the term 'Permanent Court of
Arbitration,' as applied to the institution established by the First
Hague Peace Conference, is only a euphemism, since actually the Court
concerned is not a permanent one and the members of the Court have in
every case to be nominated by the parties, there is in existence,
firstly, a permanent panel of persons from which the arbitrators may be
selected; secondly, a permanent office at the Hague; and, thirdly, a
code of procedure before the Court. Thereby an institution has been
established which is always at hand in case the parties in conflict
want to make use of it; whereas in former times parties in conflict had
to negotiate a long time in order to set up the machinery for
arbitration. And the short time of twenty years has fully justified the
expectations aroused by the institution of the Permanent Court of
Arbitration, for a good number of cases have been brought before it and
settled to the satisfaction of the parties concerned.
And the Second Hague Peace Conference of 1907 contemplated further steps
by agreeing upon a treaty concerning the establishment of an
International Court of Appeal in Prize Cases, and upon a draft treaty
concerning a really Permanent International Court of Justice side by
side with the existing Court of Arbitration. Although neither of these
contemplated International Courts has been established, there is no
doubt that, if after the present war a League of Nations becomes a
reality, one or more International Courts of Justice will surely be
established, although the existing Permanent Court of Arbitration may
remain in being.
III. But just as regards International Legislation, I must warn you not
to imagine that International Administration of Justice by International
Courts is an easy matter. It is in fact full of difficulties of many
kinds.
The peculiar character of International Law; the rivalry between the
different schools of international jurists, namely the Naturalists,
Positivists, and Grotians; the question of language; the peculiarities
of the systems of law of the different States, of their constitutions,
and many other difficulties, entail the danger that International Courts
may become the arena of national jealousies, of empty talk, and of
political intrigues, instead of being pillars of international justice.
Everything depends upon what principles will guide the States in their
selection of the individuals whom they appoint as members of
International Courts. Not diplomatists, not politicians, but only men
ought to be appointed who have had a training in law in general, and in
International Law in particular; men who are linguists, knowing, at any
rate, the French language besides their own; men who possess
independence of character and are free from national prejudices of every
kind. There is no doubt that, under present conditions and circumstances
of international life, the institution of International Courts
represents an unheard of experiment. There is, however, likewise no
doubt that _now_ is the time for the experiment to be made, and I
believe that the experiment will be successful, provided the several
States are careful in the appointment of the judges.
IV. And it must be emphasised that an International Court of Appeal
above the one or several International Courts is a necessity. Just as
Municipal Courts of Justice, so International Courts of Justice are not
infallible. If the States are to be compelled to have their judicial
disputes settled by International Administration of Justice, there must
be a possibility of bringing an appeal from lower International Courts
to a Higher Court. It is only in this way that in time a body of
International Case Law can grow up, which will be equivalent in its
influence upon the practice of the States to the municipal case law of
the different States.
V. I have hitherto considered in a general way only the difficulties of
International Administration of Justice; I have not touched upon the
particular difficulties connected with the setting up and manning of
International Courts. If the several States could easily agree upon,
say, five qualified men as judges of a Court of First Instance, and
upon, say, seven qualified men as judges of a Court of Appeal, there
would be no difficulty whatever in setting up these two Courts. And
perhaps some generations hence the time may come when such an agreement
will be possible. In our time it cannot be expected, and here therefore
lies the great difficulty in the way of setting up and manning
International Courts of Justice; because there is no doubt that each
State will claim the right to appoint at least one man of its own choice
to sit as judge in the International Court or Courts. And since there
are about fifty or more civilised independent States in existence, the
International Court would comprise fifty or more members.
Now why would the several States claim a right to appoint at least one
man of their own choice as judge? They would do this because they desire
to have a representative of their own general legal views in the Court.
It is a well-known fact that not only the legal systems which prevail in
the several States differ, but also that there are differences
concerning the fundamental conceptions of justice, law, procedure, and
evidence. Each State fears that an International Court will create a
practice fundamentally divergent from its general legal views, unless
there is at least one representative of its own general legal views
sitting in the Court.
I think that in spite of everything the difficulty is not insurmountable
provided a scheme for an International Court which follows closely the
model of Municipal Courts is not insisted upon. Just as the organisation
of a League of Nations cannot follow the model of the organisation of a
State, so the attempt to set up an International Court must not aim at
following closely the model of Municipal Courts. What is required is an
institution which secures the settlement of judicial international
disputes by giving judgments on the basis of law. I think this demand
can be satisfied by a scheme which would meet both the claim of each
State to nominate one judge and the necessity not to overcrowd the Bench
which decides each dispute.
VI. The scheme which I should like to recommend is one which
distinguishes between the Court as a whole and the several Benches which
would be called upon to decide the several cases. It is as follows:
The Court as a whole to consist of as many judges as there are members
of the League, each member to appoint one judge and one deputy judge who
would take the place of the judge in case of illness or death or other
cause of absence. The President, the Vice-President, and, say, twelve or
fourteen members to constitute the Permanent Bench of the Court and
therefore to be resident the whole year round at the Hague. Half of the
members of this Permanent Bench of the Court to be appointed by the
Great Powers--each Great Power to appoint one--and the other half of the
members to be appointed by the minor Powers. Perhaps the Scandinavian
Powers might agree upon the nomination of one member; Holland and Spain
and Portugal upon another; Belgium, Switzerland, and Luxemburg upon a
third; the Balkan States upon a fourth; Argentina, Brazil, and Chile
upon a fifth; and so on. Anyhow, some arrangement would have to be made
according to which the minor Powers unite upon the appointment of half
the number of the Permanent Bench.
If a judicial dispute arises between two States, the case to go in the
first instance before a Bench comprising the two judges appointed by the
two States in dispute and a President who, as each case arises, is to be
selected by the Permanent Bench of the Court from the members of this
Bench. This Court of First Instance having given its judgment, each
party to have a right of appeal. The appeal to go before the Permanent
Bench at the Hague, which is to give judgment with a quorum of six
judges with the addition of those judges who served as the Bench of
First Instance. The right of appeal to exist only on questions of law
and not on questions of fact.
Decisions of the Appeal Court to be binding precedents for itself and
for any Courts of First Instance. But should the Appeal Court desire to
go back on a former decision of law, this to be possible only at a
meeting of the Court comprising at least twelve members of the Permanent
Bench.
VII. The proposal which I have just sketched, and which will need to be
worked out in detail if it is to be realised, offers the following
advantages:
Every case would in the first instance be decided by a small Bench which
would enjoy the confidence of both parties because they would have their
own judge in the Court. This point is of particular importance with
regard to the mode of taking evidence and making clear the facts; but is
likewise of importance on account of the divergence of fundamental legal
views and the like.
Since the Court of Appeal would only decide points of law, the facts as
elucidated by the Bench of First Instance would remain settled. But the
existence of the Court of Appeal would enable the parties to re-argue
questions of law with all details. The fact that six of the Bench which
serves as a Court of Appeal are members of the Permanent Bench would
guarantee a thorough reconsideration of the points of law concerned, and
likewise the maintenance and sequence of tradition in International
Administration of Justice.
Again, the fact that the Court of Appeal is to comprise, besides six
members of the Permanent Bench, those three judges who sat as the Bench
of First Instance would guarantee that the judges appointed by the
States in dispute could again bring into play any particular views of
law they may hold.
VIII. This is the outline of my scheme for the establishment and manning
of the International Court of Justice. But before I leave the subject, I
must say a few words concerning two important points which almost all
other schemes for the establishment of an International Court overlook.
Firstly, the necessity to make provision for what I should like to call
complex cases of dispute; namely, cases which are justiciable but in
which, besides the question of law, there is at the same time involved a
vital political principle or claim. Take the case of a South American
State entering into an agreement with a non-American State to lease to
it a coaling station: this case is justiciable, but besides the question
of law there is a political claim involved in it, namely, the Monroe
doctrine of the United States. Unless provision be made for the
settlement of such complex cases, the League of Nations will not be a
success, for it might well happen that a case touches vital political
interests in such a way as not to permit a State to have it settled by a
mere juristic decision.
Now my proposal to meet such complex cases is that when a party objects
to a settlement of a case on mere juristic principles, although the
other party maintains that it is a justiciable case, the Bench which is
to serve as Bench of First Instance shall investigate the matter with
regard to the question whether the case is more political than legal in
nature. If the Court decides the question in the negative, then the same
Court shall give judgment on the dispute; but, if the Court decides the
question in the affirmative, then the case shall be referred by the
Court to the International Council of Conciliation. Whatever the
decision of the Bench of First Instance may be, each party shall have
the right of appeal to the Permanent Bench which serves as the Court of
Appeal.
IX. The other point which I desire to mention before I leave the subject
of International Administration of Justice concerns the notorious
principle _conventio omnis intelligitur rebus sic stantibus_. You know
that almost all publicists and also almost all Governments assert the
existence of a customary rule according to which a vital change of
circumstances after ratification of a treaty may be of such a kind as to
justify a party in demanding to be released either from the whole treaty
or from certain obligations stipulated in it. But the meaning of the
term 'vital change of circumstances' is elastic, and there is therefore
great danger that the principle _conventio omnis intelligitur rebus sic
stantibus_ will be abused for the purpose of hiding the violation of
treaties behind the shield of law. This danger will remain so long as
there is no International Court in existence which, on the motion of one
of the contracting parties, could set aside the treaty obligation whose
fulfilment has become so oppressive that in justice the obliged party
might ask to be released. Now, as the League of Nations is to set up an
International Court of Justice, my proposal is that the Court should be
declared competent to give judgment on the claim of a party to a treaty
to be released from its obligations on account of vital change of
circumstances. Of course the case would go before that Bench of the
Court which is to serve as the Court of First Instance, and an appeal
would lie to the Permanent Bench which serves as the Court of Appeal.
X. Having given you the outlines of a scheme concerning International
Administration of Justice, I now turn to International Mediation by
International Councils of Conciliation.
For a satisfactory proposal concerning International Councils of
Conciliation two starting points offer themselves. One starting point is
the special form of mediation recommended by Article 8 of the Hague
Convention concerning the pacific settlement of international disputes.
The following is the text of this Article 8:
'The Signatory Powers are agreed in recommending the application,
when circumstances allow, of special mediation in the following
form:--
'In case of a serious difference endangering peace, the contending
States choose respectively a Power, to which they intrust the
mission of entering into direct communication with the Power chosen
on the other side, with the object of preventing the rupture of
pacific relations.
'For the period of this mandate, the term of which, in default of
agreement to the contrary, cannot exceed thirty days, the States at
variance cease from all direct communication on the subject of the
dispute, which is regarded as referred exclusively to the mediating
Powers. These Powers shall use their best efforts to settle the
dispute.
'In case of a definite rupture of pacific relations, these Powers
remain jointly charged with the task of taking advantage of any
opportunity to restore peace.'
The second starting point is supplied by the Permanent International
Commissions of the so-called Bryan Peace Treaties concluded in 1913-14
by the United States of America with a number of other States. These
peace treaties are not in every point identical, but of interest to us
here are the clauses according to which Permanent International
Commissions are set up to serve as Councils of Conciliation. The
following is the text of the three articles concerned of the treaty
between the United States and Great Britain of September 15, 1914:
Art. I. 'The High Contracting Parties agree that all disputes
between them, of every nature whatsoever, other than disputes the
settlement of which is provided for and in fact achieved under
existing agreements between the High Contracting Parties, shall,
when diplomatic methods of adjustment have failed, be referred for
investigation and report to a permanent International Commission, to
be constituted in the manner prescribed in the next succeeding
article; and they agree not to declare war or begin hostilities
during such investigation and before the report is submitted.'
Art. II. 'The International Commission shall be composed of five
members, to be appointed as follows: One member shall be chosen from
each country, by the Government thereof; one member shall be chosen
by each Government from some third country; the fifth member shall
be chosen by common agreement between the two Governments, it being
understood that he shall not be a citizen of either country. The
expenses of the Commission shall be paid by the two Governments in
equal proportions.'
'The International Commission shall be appointed within six months
after the exchange of the ratifications of this treaty; and
vacancies shall be filled according to the manner of the original
appointment.'
Art. III. 'In case the High Contracting Parties shall have failed to
adjust a dispute by diplomatic methods, they shall at once refer it
to the International Commission for investigation and report. The
International Commission may, however, spontaneously by unanimous
agreement offer its services to that effect, and in such case it
shall notify both Governments and request their co-operation in the
investigation.'
Keeping in view the special form of mediation recommended by Article 8
of the Hague Convention concerning the Pacific Settlement of
International Disputes and the stipulations of the Bryan Peace Treaties
concerning Permanent International Commissions, we can reach a
satisfactory solution of the problem of International Mediation if we
take into consideration the two reasons why a League of Nations must
stipulate the compulsion of its members to bring non-justiciable
disputes before a Council of Conciliation previous to resorting to
hostilities. These reasons are, firstly, that war in future shall not be
declared without a previous attempt to have the dispute peaceably
settled, and, secondly, that war in future shall not break out like a
bolt from the blue.
XI. My proposal concerning International Councils of Conciliation is the
following:
Every member of the League shall appoint for a term of years--say five
or ten--two conciliators and two deputy conciliators from among their
own subjects, and one conciliator and one deputy conciliator from among
the subjects of some other State. Now when a non-justiciable dispute
arises between two States which has not been settled by diplomatic
means, the three conciliators of each party in dispute shall meet to
investigate the matter, to report thereon, and to propose, if possible,
a settlement.
According to this proposal there would be in existence a number of
Councils of Conciliation equal to half the number of the members of the
League. Whenever a dispute arises, the Permanent Council of
Conciliation--with which I shall deal presently--shall appoint a
Chairman from amongst its own members. The Council thus constituted
shall investigate the case, report on it, send a copy to each party in
dispute and to the Permanent Council of Conciliation.
The _Permanent_ Council of Conciliation should be a _small_ Council to
be established by each of the Great Powers appointing one conciliator
and one deputy conciliator for a period of--say--five or ten years. The
reason why only the Great Powers should be represented in the Permanent
Council of Conciliation at the Hague is that naturally, in case coercion
is to be resorted to against a State which begins war without having
previously submitted the dispute to a Council of Conciliation, the Great
Powers will be chiefly concerned. This Permanent Council of Conciliation
would have to watch the political life of the members of the League and
communicate with all the Governments of the members in case the peace of
the world were endangered by the attitude of one of the members; for
instance by one or more of the members arming excessively. The Council
would likewise be competent to draw the attention of States involved in
a dispute to the fact that they ought to bring it before either the
International Court of Justice or their special Council of Conciliation.
This proposal of mine concerning mediation within the League of Nations
is, of course, sketchy and would need working out in detail if one were
thinking of preparing a full plan for its realisation. However that may
be, my proposal concerning a number of Councils of Conciliation has the
advantage that non-justiciable disputes would in each case be
investigated and reported on by conciliators who have once for all been
appointed by the States in dispute and who therefore possess their
confidence. On the other hand, the proposed Permanent Council of
Conciliation would guarantee to the Great Powers that important
influence which is due to them on account of the fact that they would be
chiefly concerned in case economic, military, or naval measures had to
be resorted to against a recalcitrant member of the League.
XII. Having discussed International Mediation by International Councils
of Conciliation, I must now turn to two questions which I have hitherto
purposely omitted, although in the eyes of many people they stand in the
forefront of interest, namely, firstly, _disarmament_ as a consequence
of the peaceable settlement of disputes by an International Court of
Justice and International Councils of Conciliation, and, secondly, the
question of the _surrender of sovereignty_ which it is asserted is
involved by the entrance of any State into the proposed League of
Nations.
Now as regards disarmament, I have deliberately abstained from
mentioning it hitherto, although it is certainly a question of the
greatest importance. The reason for my abstention is a very simple one.
I have always maintained that disarmament can neither diminish the
number of wars nor abolish war altogether, but that, if the number of
wars diminishes or if war be abolished altogether, disarmament will
follow. There is no doubt that when once the new League of Nations is in
being, war will occur much more rarely than hitherto. For this reason
disarmament will _ipso facto_ follow the establishment of a League of
Nations, and the details of such disarmament are matters which will soon
be solved when once the new League has become a reality. Yet I must
emphasise the fact that disarmament is not identical with the total
abolition of armies and navies. The possibility must always be kept in
view that one or more members of the League will be recalcitrant, and
that then the other members must unite their forces against them. And
there must likewise be kept in view the possibility of a war between two
members of the League on account of a political dispute in which
mediation by the International Councils of Conciliation was
unsuccessful. Be that as it may, it is certain that in time disarmament
can take place to a very great extent, and it is quite probable that
large standing armies based on conscription might everywhere be
abolished and be replaced by militia.
XIII. Let me now turn to the question of sovereignty. Is the assertion
really true that States renounce their sovereignty by entering into the
League? The answer depends entirely upon the conception of sovereignty
with which one starts. If sovereignty were absolutely unfettered liberty
of action, a loss of sovereignty would certainly be involved by
membership of the League, because every member submits to the
obligation never to resort to arms on account of a judicial dispute, and
in case of a political dispute to resort to arms only after having given
an opportunity of mediation to an International Council of Conciliation.
But in fact sovereignty does not mean absolutely boundless liberty of
action; and moreover sovereignty has at no time been a conception upon
the contents of which there has been general agreement.
The term 'sovereignty' was introduced into political science by Bodin in
his celebrated work 'De la République,' which appeared in 1577. Before
that time, the word _souverain_ was used in France for any political or
other authority which was not subordinate to any higher authority; for
instance, the highest Courts were called _cours souveraines_. Now Bodin
gave quite a new meaning to the old term. Being under the influence and
in favour of the policy of centralisation initiated by Louis XI of
France (1461-1483), the founder of French absolutism, Bodin defines
sovereignty as the 'absolute and perpetual power within a State.'
However, even Bodin was far from considering sovereignty to give
absolutely unfettered freedom of action, for he conceded that
sovereignty was restricted by the commandments of God and by the rules
of the Law of Nature. Be that as it may, this conception of sovereignty
once introduced was universally accepted; but at the same time the
meaning of the term became immediately a bone of contention between the
schools of publicists. And it is to be taken into consideration that the
science of politics has learnt to distinguish between sovereignty of
the State and sovereignty of the agents who exercise the sovereign
powers of the State. According to the modern view sovereignty is a
natural attribute of every independent State as a State; and neither the
monarch, nor Parliament, nor the people can possess any sovereignty of
their own. The sovereignty of a monarch, or of a Parliament, or of the
whole people is not an original attribute of their own, but derives from
the sovereignty of the State which is governed by them. It is outside
the scope of this lecture to give you a history of the conception of
sovereignty, it suffices to state the undeniable fact that from the time
when the term was first introduced into political science until the
present day there has never been unanimity with regard to its meaning,
except that it is a synonym for independence of all earthly authority.
Now, do you believe that the independence of a State is really infringed
because it agrees never to make war on account of a judicial dispute,
and in case of a political dispute not to resort to arms before having
given opportunity of mediation to International Councils of
Conciliation? Independence is not boundless liberty of a State to do
what it likes, without any restriction whatever. The mere fact that
there is an International Law in existence restricts the unbounded
liberty of action of every civilised State, because every State is
prohibited from interfering with the affairs of every other State. The
fact is that the independence of every State finds its limitation in the
independence of every other State. And it is generally admitted that a
State can through conventions--such as a treaty of alliance or of
neutrality or others--enter into many obligations which more or less
restrict its liberty of action. Independence is a question of degree,
and, therefore, it is also a question of degree whether or no the
independence of a State is vitally encroached upon by a certain
restriction. In my opinion the independence of a State is as little
infringed by an agreement to submit all its judicial disputes to the
judgment of a Court and not to resort to arms for a settlement, as the
liberty of a citizen is infringed because in a modern State he can no
longer resort to arms on account of a dispute with a fellow citizen but
must submit it to the judgment of the Court.
And even if it were otherwise, if the entrance of a State into the new
League of Nations did involve an infringement of its sovereignty and
independence, humanity need not grieve over it. The Prussian conception
of the State as an end in itself and of the authority of the State as
something above everything else and divine--a conception which found
support in the philosophy of Hegel and his followers--is adverse to the
ideal of democracy and constitutional government. Just as Henri IV of
France said 'La France vaut bien une messe,' we may well say 'La paix du
monde vaut bien la perte de l'indépendance de l'état.'
XIV. I have come to the end of this course of lectures, but before we
part I should like, in conclusion, to touch upon a question which has
frequently been put with regard to the proposal of a new League of
Nations:--Can it really be expected that, in case of a great conflict of
interests, all the members of the League will faithfully carry out their
engagements? Will the new League stand the strain of such conflicts as
shake the very existence of States and Nations? Will the League really
stand the test of History?
History teaches that many a State has entered into engagements with the
intention of faithfully carrying them out, but, when a grave conflict
arose, matters assumed a different aspect, with the consequence that the
engagements remained unfulfilled. Will it be different in the future?
Can the Powers which enter into the League of Nations trust to the
security which it promises? Can they be prepared to disarm, although
there is no guarantee that, when grave conflicts of vital interests
arise, all the members of the League will faithfully stand by their
engagements?
These are questions which it is difficult to answer because no one can
look into the future. We can only say that, if really constitutional and
democratic government all the world over makes international politics
honest and reliable and excludes secret treaties, all the chances are
that the members of the League will see that their true interests and
their lasting welfare are intimately connected with the necessity of
fulfilling the obligations to which they have submitted by their
entrance into the League. The upheaval created by the present World War,
the many millions of lives sacrificed, and the enormous economic losses
suffered during these years of war, not only by the belligerents but
also by all neutrals, will be remembered for many generations to come.
It would therefore seem to be certain that, while the memory of these
losses in lives and wealth lasts, all the members of the League will
faithfully carry out the obligations connected with the membership of
the League into which they enter for the purpose of avoiding such a
disaster as, like a bolt from the blue, fell upon mankind by the
outbreak of the present war. On the other hand, I will not deny that no
one can guarantee the future; that conflicts may arise which will shake
the foundations of the League of Nations; that the League may fall to
pieces; and that a disaster like the present may again visit mankind.
Our generation can only do its best for the future, and it must be left
to succeeding generations to perpetuate the work initiated by us.
INDEX
Administration of Justice by International Courts, difficulties of, 62;
maintenance of tradition of, 67;
permanent institution for the, 61.
Aims of the League of Nations defined, 23, 28, 35-36.
Article 8 of the Hague Convention concerning the Pacific Settlement of
International Disputes, 70.
Article 23(h) of the Hague Regulations concerning Land Warfare, 45-55;
controversy respecting interpretation of, 45;
correspondence respecting, with Foreign Office, 48-55.
Autocratic Government, 11.
Belgium, 37, 66.
Bodin, 76.
Bonfils on Article 23(h) of the Hague Regulations concerning Land
Warfare, 49.
Bordwell on Article 23(h) of the Hague Regulations concerning Land
Warfare, 50.
British Empire, 13, 20.
Bryan Peace Treaties, 71.
Bryce, Lord, scheme of, 36.
Central Powers, the, are they to become members of the League of
Nations? 17, 36;
necessity for utter defeat of, 15, 37.
Colonies, wars for the acquisition of, 10.
Complex cases of dispute, how to settle, 68.
Congress of Vienna, 30, 42.
Constitutional Government, 10, 11;
necessity for, 19.
Court of Appeal, International, 66, 67, 69;
manning of, 64.
Court of Arbitration, establishment of International, 61.
Court of First Instance, International, 64;
manning of, 66.
Crucée, Emeric, 9.
Davis, General, on Article 23(h) of the Hague Regulations concerning
Land Warfare, 51.
Democracy, 10, 11.
Dickinson, scheme of Sir Willoughby, 36.
Disarmament, 21, 74.
Dubois, Pierre, 8.
Dynastic wars, 10.
Engagements of the members of the League of Nations, security for
fulfilment of, 79.
Equality, of States, 33, 39;
of the votes at Hague Peace Conferences, 38.
Family, the, a product of natural development, 10.
Family of Nations, political hegemony of the Great Powers within the, 31.
Federal World State, A, 18-20;
demanded by Pacifists, 31;
why not possible, 19.
Foreign Office, letter of, to Professor Oppenheim concerning Article
23(h), 52-55.
German Confederation, civil war within the, 32.
German Weissbuch on Article 23(h) of the Hague Regulations concerning
Land Warfare, 51, 54, 55.
Germany, is she to become a member of the League of Nations? 17, 36;
necessity for the utter defeat of, 15, 37.
Great Powers, 30, 66;
power and influence of the, 29-31.
Greece, city States of ancient, 7.
Gregory on Article 23(h) of the Hague Regulations concerning Land
Warfare, 50.
Grey, Earl, 5, 52, 53, 55.
Grotians, the School of, 62.
Grotius, Hugo, 9.
Hague Convention concerning the Pacific Settlement of International
Disputes, Article 8 of, 70.
Hague Peace Conferences, 34;
method of legislating by, 45;
the work of, obstructed by some States, 38;
standing council of, proposed, 39;
starting point of organisation of League of Nations by, 36, 39;
votes of States of equal value at, 38.
Hague Regulations concerning Land Warfare, controversy respecting
interpretation of Article 23(h) of, 45.
Henry IV of France, 9, 78.
Holland, Professor, on Article 23(h) of the Hague Regulations concerning
Land Warfare, 50.
Independence of States, what it is, 33, 77.
International Army and Navy, why impossible, 6, 18, 20-22, 41.
International Case Law, 64.
International Council of Conciliation, 28, 40, 69;
scheme for the establishment of, 72-74;
starting points for, 70.
International Court of Appeal, 66, 67;
a necessity, 63;
manning of, 64.
International Court of First Instance, 64;
manning of proposed bench to serve as, 64.
International Court of Justice, 18, 28, 65-68;
manning of, 65;
proposed permanent bench of, 65, 66;
proposed special benches of, for different cases, 66.
International Courts, claims of all States in manning of, 64;
difficulties of manning of, 65;
precedents of, 64.
International Executive, why impossible, 19, 41.
International Government, why impossible, 19.
International Law, a book law at present, 43;
and League of Nations interdependent, 6, 33;
complied with often without Courts, 60;
grew by custom during Middle Ages, 8;
not in being in antiquity, 6;
progress of, 33, 35, 38;
universal and general, difference between, 44.
International Legislation, 38, 41-48;
a by-product only in the past, 42;
difficulties of, created by conflicting interests of States, 44;
difficulties of, created by different methods of interpretation and
construction, 45;
difficulties of, created by the fact that a majority vote cannot
create a statute, 44;
difficulties of, created by the language question, 43;
meaning of the term, 41;
possible even without International Courts, 42, 60;
possible only by agreement of all the States, 42;
wide field open for, 43.
International Statutes, cannot be created by majority vote, 44;
interpretation and construction of, 45;
what are? 42.
Internationalism, growth of, 12.
Law-making treaties, what are? 42.
'La France vaut bien une messe,' 78.
League of Nations, 3, 8;
aims defined, 23, 28, 35-36;
and International Law interdependent, 6;
career in a sense started already, 8, 16;
conception of, very old, 6;
demand for, universal, 11;
impossibility of state-like organisation of, 36;
no unanimity concerning its aims or organisation, 18;
organisation of, demanded, 31;
problems connected with, 24, 28;
seven principles of, which ought to be adopted, 39-41;
so-called, but League of States is meant, 13;
starting point of organisation of, 33, 36, 39;
constitution _sui generis_ of, a necessity, 22, 33;
what is new in the now desired, 11;
when it would be an organised community, 11, 34.
Marini, Antoine, 8.
Mediation, International. _See_ International Council of Conciliation.
Militarism, conception of, 15;
Prussian, 16.
Nation, the, a product of historical development, 10, 14;
conception of, 13, 14;
not to be confounded with race, 13-14.
Nations, not to be confounded with States, 13, 14.
Nationality, principle of, 14, 32.
'Natura non facit saltus,' 5.
Naturalists, the School of, 62.
Oppenheim, letter of Foreign Office concerning Article 23(h) of the
Hague Regulations to Professor, 52-55.
Pacifists, 31.
Parliament, International, why impossible, 18, 19.
Permanent Court of Arbitration, International, 34;
establishment of, by the First Peace Conference, 61.
Permanent International Commissions of the Bryan Peace Treaties, 71.
Podiebrad, 8.
Police, International, 6, 41.
Politis on Article 23(h) of the Hague Regulations concerning Land
Warfare, 49, 55.
Porter _v._ Freundenberg, case of, 47.
Positivists, the School of, 62.
Precedents of International Courts, 66.
Principle of Nationality, 14, 32.
Prize Court, International, proposed by Second Peace Conference, 34.
Quis custodiet ipsos custodes? 21.
Race, a product of natural development, 10;
not to be confounded with Nation, 13, 14.
Rebus sic stantibus, proposal for dealing with the clause, 69.
Religion, wars of, 10.
Sovereignty, conception of, 75;
not surrendered by entrance into the League of Nations, 74, 75, 78.
State, ideal of the national, 14.
States of the World, the 25 Allied belligerent and the 17 neutral, 16-17.
Statutes, difference between International and Municipal, 42.
Sully, 9.
Swiss Confederation, civil war within the, 32.
Switzerland, 13.
Taft, Ex-President, 5.
Transoceanic States, entrance into League of Nations of, 38.
Tribe, the, a product of natural development, 10.
Ubi societas ibi jus, 8.
Ullmann, on Article 23(h) of the Hague Regulations concerning Land
Warfare, 50.
United States, civil war in the, 32.
Vienna Congress, the, 30, 42.
Votes, equality of, at Hague Peace Conferences, 38.
Wars for national unity, 10.
Wehberg on Article 23(h) of the Hague Regulations concerning Land
Warfare, 50.
Whewell, Dr., 4.
Whittuck on Article 23(h) of the Hague Regulations concerning Land
Warfare, 50.
Wilson, President, 5.
World Federation, a demand of Pacifists, 31.
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Transcriber's Note:
Minor typographical errors have been corrected without note. Variant
spellings have been retained. Hyphenation has been standardised.
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