The pacificist ideal of an organization of the family of nations.
17.Hitherto, the demand for an organization of the international society has always issued from the pacificist party, in order to render the suppression of war possible. In the struggle round the pacificist ideal the chief objection has always been the absence of any judicial authority over states, and of any supreme executive power, able to compel, in a dispute between states, the execution of a judicial decree. Accordingly it has been the aim of the pacificists to obtain an organization of the international society, such as would compress the whole world, or at least whole parts of the world, such as Europe and America, into the form of a federal state or a system of confederated states. The belief is that only in this way can war be got rid of as a mode of settling disputes between states, and thereby the ever-increasing demands of naval and military budgets be avoided.
The world-state is not desirable.
18.Whatever else can be urged against a universal federal state and the like, it is at the present day no longer a physical impossibility. Distance has been so conquered by the telegraph, the railway, and the steamboat, that in fact the annual assembly of a world-parliament would be no impossibility, and in any case a world-government, wherever its seat might be, would be able to secure almost immediate obedience to its behests in the uttermost parts of the earth. There is, indeed, only a quantitative and not a qualitative difference between a command issued by the British government in London to the remotest part of India or Africa, and such a command as, in a federal state comprising the whole world, would issue to the remotest part of the earth from the central government. Moreover, the ever-increasing international intercourse and its results—the expression 'internationalism', to denote this, is found to-day in all languages—has brought the populations of the various states so near to one another, and has so closely interwoven their interests, that on this ground also the theoretical possibility of erecting and maintaining a world-state of the federal type cannot be denied. But its theoretical and physical possibilityprove absolutely nothing as regards its utility and desirability. In spite of all my sympathy with the efforts of my idealistic pacificist friends, it is my firm conviction that the world-state is in no form practically useful or desirable, for it would bring death instead of life. So far as we can foresee, the development of mankind is inseparably bound up with the national development of the different peoples and states. In these conditions variety brings life, but unity brings death. Just as the freedom and competition of individuals is needed for the healthy progress of mankind, so also is the independence and rivalry of the various nations. A people that is split up into different states may attain its national development better in a federal state than in a unitary state, and smaller nations and fragments of nations may (let us admit) develop better when combined into one state which has grown up historically out of several nationalities, than each would do in a state of its own, but the rule nevertheless remains, that strong nations can develop successfully only in an entirely independent and self-supported state of their own.
The world-state would not exclude war.
19.Further, it is by no means sure that war would necessarily disappear from a world-state. The example of the duel is instructive here. Although forbidden in all civilized states and threatened with penalties, it—certain states excepted—continues to flourish. Enactments being impotent where the public sentiment of the dominant class refuses them any moral recognition, the duel will not disappear so long as the moral attitude of the circles concerned demands it as a protection for personal honour. And theSonderbundwar of 1847 in Switzerland, the American war of secession from 1861 to 1865, and the Austro-Prussian war of 1866 within the GermanBund, showthat organization into a confederation of states or into a federal state does not necessarily banish war.
War may gradually disappear without a world-state.
20.On the other hand, the gradual disappearance of war, which certainly is a correct ideal, is to be hoped for and expected quite apart from any development of a world-state, even if neither to-day nor to-morrow can be contemplated for the complete realization of this ideal. Many states have already entered into numerous agreements with other individual states to refer to arbitration disputed questions of law and questions about the interpretation of treaties, so far as these disputed questions do not touch the vital interests, independence, or honour of the parties. It is here that further development must begin. The man who is not a victim to prejudice asks the reasonable question, why should vital interests and the independence and honour of states necessarily be withdrawn from the domain of judicial decision? If individuals in a state submit themselves to the judge's sentence, even when their vital interests, their honour, their economic independence, aye, and their physical existence are in issue, why should it be impossible for states to do the same? If only we succeeded in the clear enunciation of legal rules for all international relations; if only we could succeed in finding independent and unbiased men to whose judgment a state could confidently submit its cause; if only we could succeed in bringing such men together in an independent international court—there would then be no reason why the great majority of states should not follow the example of the very small minority which has already agreed to settle all possible disputes by means of arbitration. The objection that a state could not submit its honour, for example, to the sentence of a judge is as little entitled torecognition as is the claim, made by those dominant classes which in many states glorify the duel, that men of honour could not settle an affair of their honour by means of a judge's decree. As long as public sentiment concerning international relations remains rooted in its present position, it must be confessed that there can be no talk of any progress, just as the duel also will not disappear as long as there is no success in bringing about a change of moral attitude on the part of the classes concerned. But by degrees obsolete moral positions are undermined by all kinds of influences, then they are abandoned and higher positions are adopted in their stead.
Importance of pacificism.
21.It is here that the importance and value of the modern pacificist movement emerge with clearness. Wide circles are caught by this movement, even the governments of all countries are no longer able to hold aloof from its influence, and its opponents too can no longer fight it with nothing but scorn and ridicule. Whoever is a believer in the unlimited progress of civilization will also believe that a time must come when all states will freely bind themselves to submit all disputes to judicial or arbitral decision. General disarmament will not hasten the dawn of this day, for it can only arrive through the deepening of the public sentiment with reference to international relations. General disarmament will not make wars to cease, but the ceasing of war will bring about general disarmament! As already said, not to-day nor to-morrow will this time come; we stand now only at the very beginning of the developments that make for the realization of this ideal. It cannot come to pass unless and until international society develops an organization of a kind ever tending to perfect itself.
Impossible for the family of nations to organize itself on the model of the state.
22.How then must and will this organization take shape? The proposals which hitherto have been made for the organization of the world are freaks of fancy. Of notable value as indications of idealistic speculation in the midst of an adverse world, they crumble into dust immediately they are soberly scrutinized. All proposals which aim at the organization of international society after the pattern of the organization of the state—whether a unitary state or a federal state, or a system of confederated states—are either impracticable or do not meet the needs of the case. Every organization of the community of states must take as its starting-point the full sovereignty and the absolute equality of states, and must preserve these characters intact. There can, therefore, be no talk of a political central authority standing above individual states; and so the organization in question must besui generisand cannot frame itself on the model of state organization.
Impossible to draft a plan for the complete organization of the family of nations.
23.It is, however, impossible to draft at the present time the plan of such a complete organization in its details or even in mere outline. The growth and final shaping of the international organization will go hand in hand with the progress of the law of nations. Now the progress of the law of nations is conditioned by the growth of the international community in mental strength, and this growth in mental strength in its turn is conditioned by the growth in strength and in bulk, the broadening and the deepening, of private and public international interests, and of private and public morale. In the nature of the case this progress can mature only very slowly. We have here to do with a process of development lasting over many generations and probably throughout centuries, the end of which no man can foresee. It is enough for us to have the beginning of the development before our eyes and, so far as our strength and insight extend, to have the opportunity of trying to give it its appropriate aim and direction. More we cannot do. Much, if not all, depends on whether theinternationalinterests of individual states become stronger than theirnationalinterests, for no state puts its hand to the task of international organization save when, and so far as, its international interests urge it more or less irresistibly so to do.
The Permanent Court of Arbitration the nucleus of the future organization of the family of nations.
24.I said, we have the beginning of the development before our eyes. It consists in the erection of the Permanent Court of Arbitration at The Hague, and in the permanent Bureau attached thereto. Here we have an institution belonging not to the individual contracting states but to the international society of states in contrast to the individual members, and it is open to the use of all the individual members. If the Declaration of London be ratified, and if (which scarcely admits of doubt) it be adopted by all the states which were not represented at the Conference of London, then the International Prize Court, which was decided on at the second Hague Conference, will become a fact. This Court will also become an organ of the international community. Mention must also be made of the so-called international bureaux of the so-called international unions, which have come into existence in the period beginning with 1874; for some at least of them will develop into organs of international society, although they so far are only organs of the respective special international unions.
The Hague Peace Conferences as organs of the family of nations.
25.Reference must in conclusion be made to the Hague Peace Conferences themselves, for it is to be expected that such Conferences will assemble periodically in the future. If success attends the effort to bring allmembers of the international community to an agreement, in virtue of which a Hague Peace Conference assembles at periodic intervals without being called together by this or that power, then an organ of international society will have arisen, the value of which none can decry. It will then be possible to say that the international community has become an actually organized society, and it will then be no longer open to doubt that the organization of this society will gradually become more and more developed. Before everything else this at least will then be attained, that an organ of the international society of states, comparable to the parliaments of individual states, will have come into existence, which can attend to international legislation as the needs of the time require, and can cause a continuous growth in the range of matters submitted to international tribunals. All the same, I yield myself to no hot-blooded hope of a speedy realization of Utopian schemes. Even when this organization is already there, progress will be but slight and gradual, and will encounter unceasing opposition. Progress in this department has always to reckon on a conflict with adverse interests and efforts, and it must be expected that in the continuous struggle betweeninternationalandnationalinterests the latter will only slowly prepare themselves to yield.
Outlines of a constitution of the family of nations.
26.It is not, however, enough that agreement should make periodic Peace Conferences a permanent institution. The international community must provide itself with a constitution, the ground-plan of which would be something like the following:
1. The society of states is composed of all sovereign states which mutually recognize each other's internal and external independence.2. Every recognized sovereign state has the right to take part in the Peace Conferences.3. No state taking part in the Conferences is bound by the resolutions of the Conferences without its assent. Majority resolutions only bind the members of that majority. On the other hand, no state is entitled to require that only such resolutions be adopted as it assents to.4. Every participant state has the right to be heard at the Conferences, to bring forward proposals, to make motions, and to speak on the proposals and motions of other participants.5. A standing international commission shall be appointed whose duty it shall be to summon all the members of the international community to the Conferences, to make previous inquiries as to the proposals and motions which are to be brought before the Conference and to inform all participants of them, and to prepare and carry out all other business which the Conferences may from time to time entrust to it.6. Rules of procedure for the Conferences shall be elaborated, which shall govern the conduct of the proceedings of the Conferences, so that the proceedings can follow a defined course without degenerating into a time-wasting discussion.7. The question of the presidency of the Conferences shall be settled once for all, so that no room be left for quarrels and jealousies about precedence. It might perhaps be found expedient before every Conference to decide on the presidency by lot.8. All resolutions come into force only when and so far as they are ratified by the respective states. On the other hand, every state binds itself, once and for all, to carry out in good faith the resolutions which it has ratified.9. All states bind themselves to submit to the decisions of the international tribunals to which they have appealed, so far as these decisions are within the competence of the respective tribunals.
1. The society of states is composed of all sovereign states which mutually recognize each other's internal and external independence.
2. Every recognized sovereign state has the right to take part in the Peace Conferences.
3. No state taking part in the Conferences is bound by the resolutions of the Conferences without its assent. Majority resolutions only bind the members of that majority. On the other hand, no state is entitled to require that only such resolutions be adopted as it assents to.
4. Every participant state has the right to be heard at the Conferences, to bring forward proposals, to make motions, and to speak on the proposals and motions of other participants.
5. A standing international commission shall be appointed whose duty it shall be to summon all the members of the international community to the Conferences, to make previous inquiries as to the proposals and motions which are to be brought before the Conference and to inform all participants of them, and to prepare and carry out all other business which the Conferences may from time to time entrust to it.
6. Rules of procedure for the Conferences shall be elaborated, which shall govern the conduct of the proceedings of the Conferences, so that the proceedings can follow a defined course without degenerating into a time-wasting discussion.
7. The question of the presidency of the Conferences shall be settled once for all, so that no room be left for quarrels and jealousies about precedence. It might perhaps be found expedient before every Conference to decide on the presidency by lot.
8. All resolutions come into force only when and so far as they are ratified by the respective states. On the other hand, every state binds itself, once and for all, to carry out in good faith the resolutions which it has ratified.
9. All states bind themselves to submit to the decisions of the international tribunals to which they have appealed, so far as these decisions are within the competence of the respective tribunals.
Something like this would be the ground-plan of a constitution of the international community. Rules 5-7 are demanded by the nature of the case; rules 1-4 and 8-9 contain nothing new, but merely express what observation would show to be the legal position at present.
The proposed constitution leaves state-sovereignty intact.
27.It must be particularly remarked that such a constitution can in no way infringe on the full sovereignty of individual states. Apart from the fact that the idea of sovereignty indicates an absolute independence of any higher earthly power, that idea has never acquired a rigid and uniformly recognized content. Times and circumstances have influenced and shaped it in different states and in the mouths of different authorities. This development of the idea, an idea which has won a place for itself and the retention of which seems desirable despite all opposition, may go further still in the future.
The equality of states.
28.The proposed constitution, further, makes no inroad at all on the equality of states. This equality is the indispensable foundation of international society. The idea of equality merely expresses the fact that in all resolutions of the international society every state, whatever may be its size and political importance, obtains one voice and no more than one, that every state can be bound by a resolution only with its consent, and that no state can exercise jurisdiction over another state. It does not and cannot express more. In no circumstances is it to be asserted that unanimity is a condition for all resolutions of the Conferences, and that all resolutions are void to which one or more states refuse their consent. Of course, such resolutions bind those only who assent to them, and of course unanimous resolutions alone can be considered to be universally binding. But nothing should hinder the Conferences—and so it happened in the two first Conferences—from passing majority resolutions. It must never be lost sight of that such majority resolutions do not go to form auniversalbut only agenerallaw of nations. Only he who repudiates the necessary distinction between a particular and a general and a universal law of nations can demand unanimity. Now the development which up to the present has taken place in the law of nations has shown the necessity of this distinction. It would be extremely difficult to enumerate any large number of universally accepted rules of the law of nations—apart from those which have obtained recognition as customary law. We have only to think of the Declaration of Paris, to which some states still refuse assent. History also teaches us that the general law of nations has a tendency gradually to become the universal law of nations. It is therefore permissible, when a forward step which fails to gain unanimous approval has become a practical matter, for that majority of states which is ready for it to take the step by themselves; the dissenting states will give in their adhesion in course of time. And if and when this should turn out not to be the case, such a majority resolution would anyhow represent, in a narrower circle of international society, a step forward from which there is no obligation to forbear merely because others are unwilling to join in taking it.
Absence of any executive power.
29.This constitution, finally, makes no provision for any kind of executive power, and so it avoids the proposal to set up in international society an organization resembling that of a state. All proposals for an international executive authority run counter not only to the idea of sovereignty, but also to the ideal of international peace and of international law. The aim of this development is not thecoercion of recalcitrant states, but a condition of things in which there are no recalcitrant states because every state has freely submitted to the obligation to refer disputes to the international tribunals and to abide by their decision. It is just in this respect that the international community of states differs for all time from the community of individuals who are united into a state, the latter requiring asultima ratioexecutive compulsion on the part of a central power, while the former consistently with its nature and definition can never possess such a central power. It will, we must confess, call for a long development before such a condition of things is realized, and, until this realization is effected, war will not disappear but will remain an historic necessity.
Quasi-legislation within the domain of international law.
30.When we speak of legislation we have in view as a rule a state, wherein there is a law-making power which acts without reference to the consent of individual subjects. For even if in a constitutional state an individual does anyhow exercise so much influence upon legislation as comes from voting at the election of members of parliament, still he has no direct influence, and must submit to a law that has been enacted whether he approves of it or not. That is why it is asserted that there cannot be any talk of legislation in the domain of international law. And, in fact, that is so if we adhere rigorously to the meaning of the concept 'legislation', as developed in the domain of internal state life. The nature of the case does not, however, demand so rigid an adherence as this; legislation is really nothing more than the conscious creation of law in contrast to the growth of law out of custom. And it is an admitted fact that, side by side with international law developed in this latter way, there is an international law which the members of the community of states have expressly created by agreement. We might therefore quite well substitute the termagreeing a lawfor the termdecreeing a law,—but why introduce a new technical term? This international 'agreeing a law' does consciously and intentionally create law, and it is therefore a source of law. And provided that we always bear in mind that this source of law operates only through a quasi-legislativeactivity, there is no obstacle to speaking, in a borrowed sense, of international 'legislation'. Nevertheless, agreeable and apt as this term is, it must not lead us to assimilate the internal legislation of a state and international legislation save in the one respect that in both law is made in a direct, conscious and purposive manner, in contrast to law that originates in custom.
Hague Peace Conferences as an organ for international legislation.
31.International law of the legislative kind existed before the law of the Hague Peace Conferences; it issued from the conventions drawn up from time to time at congresses and conferences. It was a great step forward that the Congress of Vienna was able, for the first time, to create general international law by agreement, and that thereby general international law of the legislative kind could come into existence side by side with the customary law of nations. But the nineteenth century introduced international legislation only occasionally. If, as sketched above, success attends the attempt to make the Hague Peace Conferences a permanent institution, there would be evolved for the society of states a legislative organ corresponding to the parliaments of individual states. A wide field opens thus for further international legislative activity. Even if the time be not ripe for a comprehensive codification of the whole law of nations, there is nevertheless a series of matters in need of international regulation; for example, extradition, the so-called international private law and international criminal law, acquisition and loss of nationality, and a series of other matters, not to mention matters of international administration. Matters which are already governed by customary law might also be brought within the domain of enacted law, and at the same time could be put as regards details upon a surer basis. I have in mind thelaw of ambassadors and consuls, the law concerning the open sea and territorial waters, the law about merchantmen and men-of-war in foreign territorial waters, and more of this kind.
Difficulties in the way of international legislation.
32.The peculiar character of international legislation involves, however, difficulties of all sorts.
The language question.
There is, to begin with, the question of language. Seeing that it is impossible to employ all languages in the enactment of rules of international law, an agreement must be made for adopting some one language for these laws, in the same way that French is used at the present time. But the difficulty thence arising is not insuperable, and is hardly greater than that which is encountered in drafting a treaty between peoples whose speech belongs to different families. It must, however, be a rigid rule that in every case of doubt the text of the law in its original language—not that of a translation into the languages of other countries—is authoritative.
The opposing interests of the several states.
33.There is, secondly, the difficulty of contenting the opposite interests of the members of the community of states. But this, too, is in practice not insurmountable. Of course, where there is such a brawling between these interests that no agreement is possible, there can from the outset be no talk of international legislation. This, however, is not everywhere the case. On the contrary, it is often and in different areas the case, that theinternationalinterests of states make themselves felt so urgently and so cogently that these states are ready to sacrifice their particular interests if only a reasonable compromise be open to them.
Contrasted methods of drafting.
34.There is further the difficulty of finding expression in adequate language for the intention of the legislator. Even the internal legislation of states suffers under thisdifficulty in so far as the art of legislation is still very clumsy and undeveloped. Forinternationallegislation there is in addition the further difficulty that different groups of peoples employ very different methods in drafting their laws. If we were to give to an Englishman, a Frenchman, and a German the task of drafting a law upon the same topic, and if they were provided with the point of view from which the regulation of individual points was to proceed, so that the intention of the draftsmen would be the same, three very different drafts would nevertheless emerge. The English draft would deal in the most concrete manner possible with the situations to which it meant to apply; it would adduce as many particular cases as possible, and so would run the risk of forgetting some series of cases altogether. The German draft would be as abstract as is possible, and would entirely disregard individual cases, except such as required a special treatment; and so it would expose itself to the danger that in practice cases would be brought within the enactment which were outside the intention of the legislator. The French draft would attach more weight to principles than to individual points, enunciating principles in a legislative manner and leaving it to practice to construct out of these principles the rule for the particular case. Now, seeing that French is the language of international legislation, and so in the editing of drafts at the Hague Conferences the lion's share will naturally fall to French jurists attending the Conference, it will scarcely be possible to prevent the French method of legislation from obtaining great influence over international legislation. But there is no need for this mode of legislation to become dominant. The jurist representatives of other states must see to it that the French method is perfectedby their own; the English and the Germans must make it their business to bring the drafts into a more concrete form, and to split up principles into more abstract rules. In this way, it may in time be possible by means of common international labour to make essential advance in the art of legislation.
These difficulties distinct from those due to carelessness.
35.But the difficulties inherent in the legislative method must not be confused with those which come from a careless employment of the method; the latter must always be avoided, otherwise we arrive at contradictions of interpretation, and these are insuperable.
Article 23 (h) of the Hague Regulations of land war is an example.
An example of such carelessness is afforded by the incorporation—at the second Hague Conference—of a new provision in the former Article 23 of the 'Regulations respecting the laws of land warfare'. I am referring to the provision added under the letter (h), which runs as follows: [It is forbidden] 'to declare extinguished, suspended, or unenforceable in a court of law, the rights and rights of action of the nationals of the adverse party'.
The German and the English interpretation of Article 23 (h).
36.From the German memorandum on the second Peace Conference it is quite clear that this additional rule, which was proposed by Germany and adopted by the Conference, was directed to the alteration of the rule, prevailing in several states, whereby during a war the subjects of one belligerent lose in the country of the other belligerent theirpersona standi in judicio, and the like. It is in this sense, then, that the addition has been unanimously interpreted by German literature, with the agreement of many foreign writers. The official standpoint of England, on the contrary, is that Article 23 (h) has nothing whatever to do with the municipal law of the belligerent countries. Article 23 (h), so the English Foreign Office explains, forms a subdivision of Article 23, whichitself comes under the second section (headed 'Hostilities') of the Regulations, and forbids a series of acts which otherwise might be resorted to in the exercise of hostilities by the members of the contending armies, and by their commanding officers. That this interpretation is the right one—so it is further explained by the English side—is shown by the fact that Article 1 of the Convention expressly says, with reference to the 'Regulations respecting the laws of land warfare', that the contracting parties shall issue to their armed land forces instructions which shall be in conformity with the 'Regulations respecting the laws of land warfare' annexed to the Convention. It would therefore be the duty of every contracting power to instruct the commanders of its forces in an enemy's country (among other things) not 'to declare extinguished, suspended, or unenforceable in a court of law, the rights and rights of action of the nationals of the adverse party'.
Davis's interpretation of Article 23 (h)
37.This is also the opinion of Davis, one of the American delegates to the second Hague Conference; he gives the following explanation with regard to Article 23 (h), in the third edition of hisElements of International Law(New York, 1908), p. 578:
In this article a number of acts are described to which neither belligerent is permitted to resort in the conduct of his military operations. It was the well-understood purpose of the Convention of 1899 to impose certain reasonable and wholesome restrictions upon the authority of commanding generals and their subordinates in the theatre of belligerent activity. 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 as a matter falling within hisadministrative discretion. Especially is this true where a military officer refuses to receive well-grounded complaints, or declines to consider 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 prohibitions of Article 23. The prohibition is included in section (h).
In this article a number of acts are described to which neither belligerent is permitted to resort in the conduct of his military operations. It was the well-understood purpose of the Convention of 1899 to impose certain reasonable and wholesome restrictions upon the authority of commanding generals and their subordinates in the theatre of belligerent activity. 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 as a matter falling within hisadministrative discretion. Especially is this true where a military officer refuses to receive well-grounded complaints, or declines to consider 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 prohibitions of Article 23. The prohibition is included in section (h).
Impossible to reconcile the divergent views about Article 23 (h).
38.If, from the fact that Davis was an American delegate, we may conclude that he represents the government view of the United States of North America, we are confronted by the fact that official England and America adopt an interpretation of Article 23 (h) which is entirely at variance with that of Germany, and it is quite impossible to build a bridge of reconciliation between the two camps. This regrettable fact has its origin simply in the careless use of the legislative method. If the German conception of Article 23 (h) be the correct one, the lines of subsection (h) ought never to have found a shelter in Article 23, for they have not the slightest connexion with hostilities between the contending forces. If, on the other hand, the Anglo-American interpretation be the right one, pains should have been taken to secure a wholly different draft of the provision in question, for the present wording is by no means transparently clear. The protocols of the Conference (Actes, i, 101; iii, 14, 103) are not sufficiently explicit on the matter. The German delegate,Göppert, did indeed explain (cf.Actes, iii, 103) at the session of the first subcommission of the Second Commission on July 3, 1907, 'that this proposal is in the direction of not limiting to corporeal goods the inviolability of enemy property,and that it has in view the whole domain of obligations with the object of forbidding all legislative measures which, in time of war, would deprive an enemy subject of the right to take proceedings for the performance of a contract in the courts of the adverse party'. But we shall scarcely go wrong if we assume that the members of the Second Commission, who were entrusted with the consideration of the 'Regulations respecting the laws of land warfare', had not sufficiently realized the full meaning of the German proposal. It would otherwise be quite unintelligible that the reporter upon the German proposal could say (cf.Actes, i, 101): 'This addition is deemed a very happy attempt to bring out in clear language one of the principles admitted in 1899', for these 'principles' (concerning the immunity of the private property of enemy subjects in land warfare) have very little indeed to do with the question of thepersona standi in judicioof an enemy subject.
Difficulties due to the fact that international law cannot be made by a majority vote, or repealed save by a unanimous vote.
39.A difficulty of a special kind besets international legislation, owing to the fact that international rules cannot be created by a majority vote, and that, when once in existence, they cannot be repealed save by a unanimous resolution.
A way out found in the difference between universal and general international law.
But when once we free ourselves from the preconception that the equality of states makes it improper for legislative conferences to adopt any resolutions which are not unanimously supported, there is nothing to prevent a substantial result being arrived at even without unanimity. At this point the difference between general and universal international law furnishes a way out. Rules of universal international law must certainly rest on unanimity. It is postulated in the equality of states that no state can be bound by any law to which it hasnot given its consent. But there is naught to prevent a legislative conference from framing rules of general international law for those states which assent to it and leaving the dissentient states out of consideration. If the inclusion in a single convention of all the points under discussion be avoided, and if the method, adopted at the second Peace Conference, of dividing the topics of discussion among as many smaller conventions as possible be followed, it will always be found possible to secure the support of the greater number of states for the regulation of any given matter. In no long time thereafter the dissentient states will give in their adherence to these conventions, either in their existing or some amended form. Attention will then be paid also to the consolidation of several smaller laws in a single more comprehensive statute. The nature of the case and the conditions of international life call for concessions without which no progress would be practicable. The course of international legislation hitherto shows unmistakably that the trodden path is the right path. And it must be emphasized that it is open to a state to assent to an act of international legislation although some one or other provision thereof be unacceptable to it. In such a case the assent of the state in question is given with a reservation as regards the particular article of the Act, so that it is in no wise bound by that article. Numerous instances of this could be adduced: thus, at the Hague Conference of 1907 Germany withheld her assent to some of the proposed rules of land war, and England to certain articles in Conventions V and XIII.
International laws which are limited in point of time.
40.So also, the difficulty is not insuperable as regards the other point, namely, that international enactments when once in existence cannot be repealed or amendedsave by a unanimous resolution of the participant states. Here, too, the analogy between municipal and international legislation must not be pushed too far. Municipal legislation can at any time be annulled or altered by the sovereign law-maker; but international legislation, for want of a sovereign over sovereign states, is not open to such treatment. Here there is a way out, which was in fact adopted at the second Peace Conference, and also at the Naval Conference of London, namely, the enactment of laws so limited in duration to a period of years, that at the expiry of the period every participant state can withdraw. In this way, for example, it was agreed that the law about the International Prize Court and the Declaration of London should only be in force for twelve years, and that any of the powers which were parties thereto might withdraw twelve months before the expiry of that period, and that, if and as far as no withdrawal ensued, these laws should from time to time be continued in force automatically for a further period of six years. This kind of international legislation, with its time limit and the right of denunciation, is to be recommended wherever more or less hazardous legislative experiments are being made, or where interests are at stake which in course of time are liable to such an alteration as obliges states to insist on the amendment or repeal of the previously made law. For example, the International Prize Court as a whole, and its composition, constitution, and procedure in particular, form an unparalleled experiment. But the fact that its institution is only to be agreed on for a period of twelve years facilitates its general acceptance, because of the possibility of either abrogating it altogether, or of reforming it, should experience show this to be necessary.
International legislation no longer to be left to mere chance.
41.However this may be, one point must be decisively emphasized,—international legislation can no longer be left to mere chance. Apart from the Declaration of London and the Geneva Convention, it has always hitherto been a more or less happy chance which has controlled international legislation. Of conscious legislative consideration and deliberation, based on far-reaching, thoroughgoing preparation, there is no trace. For example, the Declaration of Paris of 1856 was but a by-product of the Peace of Paris of the same year. So also the legislation of the first Peace Conference was simply due to the anxiety to accomplish something positive which might conceal the fact that the proposed aim of the Conference—general disarmament, to wit—had in no wise been realized. At the second Peace Conference we did indeed see individual states appear with some well-prepared projects of legislation, but the preparation was entirely one-sided on the part of the states in question, and not general; accordingly, the adoption, rejection, amendment, and final shaping of these projects were also none the less the result of chance. The second Peace Conference itself took steps to prevent a repetition of this, calling the attention of the powers in its Final Act to the necessity of preparing the programme of the future third Conference a sufficient time in advance to ensure its deliberations being conducted with the necessary authority and expedition:
In order to attain this object the Conference considers that it would be very desirable that, some two years before the probable date of the meeting, a preparatory committee should be charged by the Governments with the task of collecting the various proposals to be submitted to the Conference, of ascertaining what subjects are ripe for embodiment in an international regulation, and of preparing a programmewhich the Governments should decide upon in sufficient time to enable it to be carefully examined by each country.
In order to attain this object the Conference considers that it would be very desirable that, some two years before the probable date of the meeting, a preparatory committee should be charged by the Governments with the task of collecting the various proposals to be submitted to the Conference, of ascertaining what subjects are ripe for embodiment in an international regulation, and of preparing a programmewhich the Governments should decide upon in sufficient time to enable it to be carefully examined by each country.
The Declaration of London thoroughly prepared beforehand.
42.In contrast to the rules of the Peace Conferences, a really notable and exemplary preparation took place in connexion with the Declaration of London, and the befitting result was a law excellent alike in matter and in form. England, the state which summoned the Naval Conference of London, made a collection of the topics which would arise, and communicated it to the states attending the Conference with the request that they would send in full statements on the subjects mentioned. After the answers to this request had come in they were collated with regard to each of the points on which discussion would arise, andbases de discussionwere elaborated which made a thorough examination of each point possible at the Conference. By this means it was at once made clear when the different states were in accord and when not. The door to compromise was opened. And apart from a few vexed questions an agreement was in this way successfully reached with regard to a comprehensive law resting at every point on exhaustive deliberation.
The preparation of the Declaration a pattern for future international legislation.
43.This model method must be the method of the future. If, as indicated in §26 above, Art. 5, a permanent commission for the preparation of the Peace Conferences be successfully inaugurated, it will be its task to make preliminary preparations for the legislative activity of the Conferences in the manner just sketched out, and chance will no longer have the same part to play as heretofore. International legislation will no longer produce anything so full of gaps as the 'Regulations respecting the laws of land warfare', which leave essential matters—for instance, capitulations and armistices—without any adequate regulation.
Intentionally incomplete and fragmentary laws.
44.Of course, where the interests of different states are still involved in some uncertainty, or are in such antagonism that a complete agreement is impossible, even the fullest preparation and most painstaking deliberation will not procure a more satisfactory treatment for many matters than that the legislation which regulates them should be (so to say) only experimental and intentionally incomplete and fragmentary in character. Thus, for example, the Conventions about the conversion of merchantmen into men-of-war and about the use of mines in naval war can only be considered as legislative experiments, regulating these matters merely temporarily and in an incomplete and unsatisfactory manner. But even conventions which designedly are full of lacunae have their value. They embody all the same an agreement upon some important parts of the respective topics, and provide a regulation which in every case is better than the chaos previously prevailing in the areas in question. They also constitute a firm nucleus round which either custom or future legislation can develop further regulation.