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.
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.
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 ofthe 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 thatits 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 influenceis 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 FederalWorld 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 tobuild 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 onesui 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 developmentwhose 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 anorgan 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 theinternationalinterests of the civilised States become victorious over their particularnationalinterests 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 aimswhich 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 theorganisationof 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 Leagueis 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 excludedfrom 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 willin any case be slow, and perfect unanimity among the Powers will in any and every case only be possible where theinternationalinterests of all the Powers compel them to put aside their real or imaginary particularnationalinterests.
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 thework 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 theirdisputes to International Courts of Justice or International Councils of Conciliation.
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 thework 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 theirdisputes 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 conflictingnationalinterests 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 betweenuniversalInternational Law, that is, rules to which every civilised State agrees, andgeneralInternational 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 legislatingfor their own numberon 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 outbreakof 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 theoccupant of enemy territoryis 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 frombringing 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 Porterv.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.
[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.
CORRESPONDENCE WITH THE FOREIGN OFFICE RESPECTING THE INTERPRETATIONOF ARTICLE 23(h) OF THE HAGUE REGULATIONS CONCERNING LAND WARFARE
Whewell House, Cambridge,28th February, 1911.
Whewell House, Cambridge,
28th February, 1911.
ToThe 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 contraryto 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 GermanWeissbuchconcerning 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 anypersona 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), concerningEffets 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 apersona 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 theAmerican 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 wayis General Davis, who in hisElements 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 GermanWeissbuch 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 oderwenigstens 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.
Foreign Office,March 27, 1911.
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 froma 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 'todeclareabolished, &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 receivedon 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.