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You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +Title: The League of Nations and its Problems + Three Lectures + +Author: Lassa Oppenheim + +Release Date: July 10, 2008 [EBook #26023] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK LEAGUE OF NATIONS, ITS PROBLEMS *** + + + + +Produced by Stephen Blundell and the Online Distributed +Proofreading Team at https://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive/Canadian Libraries) + + + + + + +</pre> + + +<p class="center"><big>CONTRIBUTIONS TO INTERNATIONAL LAW +AND DIPLOMACY</big></p> + +<p class="center">Edited by <span class="smcap">L. Oppenheim</span>, M.A., LL.D.</p> + +<p class="p1"><small>Membre de l'Institut de Droit International,<br /> +Whewell Professor of International Law in the University of Cambridge,<br /> +Honorary Member of the Royal Academy of Jurisprudence at Madrid,<br /> +Corresponding Member of the American Institute of International Law.</small></p> + +<h1><small>THE LEAGUE OF NATIONS<br /> +AND ITS PROBLEMS</small></h1> + +<hr /> +<div class="bk1"><p class="center"><b>CONTRIBUTIONS TO INTERNATIONAL<br /> +LAW AND DIPLOMACY.</b></p> + +<p class="p2">Edited by <span class="smcap">L. Oppenheim</span>, M.A., LL.D., +Whewell Professor of International Law in +the University of Cambridge.</p> + +<p class="p2">A GUIDE TO DIPLOMATIC PRACTICE. +By the Right Hon. Sir <span class="smcap">Ernest Satow</span>, +G.C.M.G., LL.D., D.C.L., formerly +Envoy Extraordinary and Minister Plenipotentiary. +2 Volumes. 8vo. 30<i>s.</i> net.</p> + +<p class="p2">INTERNATIONAL CONVENTIONS AND +THIRD STATES. A Monograph. By +<span class="smcap">Ronald F. Roxburgh</span>, of the Middle +Temple, Barrister-at-Law; formerly Whewell +International Law Scholar in the +University of Cambridge; formerly Scholar +of Trinity College, Cambridge. 8vo. 7<i>s.</i> 6<i>d.</i> +net.</p> + +<p class="center">LONGMANS, GREEN AND CO.,<br /> +London, New York, Bombay, Calcutta, and Madras.</p></div> + +<hr /> + +<h1>THE<br /> +<big>LEAGUE OF NATIONS</big><br /> +AND ITS PROBLEMS</h1> + +<p class="p3">THREE LECTURES</p> + +<h2><span class="fsm">BY</span><br /> +L. OPPENHEIM, M.A., LL.D.</h2> + +<p class="p1"><small>WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE UNIVERSITY OF CAMBRIDGE<br /> +MEMBRE DE L'INSTITUT DE DROIT INTERNATIONAL. HONORARY MEMBER OF<br /> +THE ROYAL ACADEMY OF JURISPRUDENCE AT MADRID, CORRESPONDING<br /> +MEMBER OF THE AMERICAN INSTITUTE OF<br /> +INTERNATIONAL LAW</small></p> + +<p class="p1"><i><span class="sp1">Festina lente</span></i></p> + +<p class="center">LONGMANS, GREEN AND CO.<br /> +<small>39 PATERNOSTER ROW, LONDON</small><br /> +<span class="fsxs">FOURTH AVENUE & 30<span class="smcap">TH</span> STREET, NEW YORK,<br /> +BOMBAY, CALCUTTA, AND MADRAS.</span><br /> +<small>1919</small><br /></p> + +<hr /><p><span class='pagenum'><a name="Page_v" id="Page_v">[v]</a></span></p> +<h2>PREFACE</h2> + +<p><span class="smcap">The</span> three lectures collected in this volume were +prepared without any intention of publication. +They were delivered for the purpose of drawing +attention to the links which connect the proposal +for a League of Nations with the past, to the difficulties +which stand in the way of the realisation +of the proposal, and to some schemes by which +these difficulties might be overcome. When it +was suggested that the lectures should be brought +before the public at large by being issued in book +form I hesitated, because I was doubtful whether +the academic method natural to a University lecture +would be suitable to a wider public. After consideration, +however, I came to the conclusion that +their publication might be useful, because the +lectures attempt to show how the development +initiated by the two Hague Peace Conferences could +be continued by turning the movement for a League +of Nations into the road of progress that these +Conferences opened.</p> + +<p>Professional International lawyers do not share +the belief that the outbreak of the World War and +its, in many ways, lawless and atrocious conduct +have proved the futility of the work of the Hague +Conferences. Throughout these anxious years we +have upheld the opinion that the progress initiated<span class='pagenum'><a name="Page_vi" id="Page_vi">[vi]</a></span> +at the Hague has by no means been swept away +by the attitude of lawlessness deliberately—'because +necessity knows no law'—taken up by Germany, +provided only that she should be utterly defeated, +and should be compelled to atone and make ample +reparation for the many cruel wrongs which cry +to Heaven. While I am writing these lines, there +is happily no longer any doubt that this condition +will be fulfilled. We therefore believe that, after +the map of Europe has been redrawn by the +coming Peace Congress, the third Conference ought +to assemble at the Hague for the purpose of +establishing the demanded League of Nations and +supplying it with the rudiments of an organisation.</p> + +<p>How this could be accomplished in a very simple +way the following three lectures attempt to show. +They likewise offer some very slight outlines of a +scheme for setting up International Councils of +Conciliation as well as an International Court of +Justice comprising a number of Benches. I would +ask the reader kindly to take these very lightly +outlined schemes for what they are worth. Whatever +may be their defects they indicate a way out +of some of the great difficulties which beset the +realisation of the universal demand for International +Councils of Conciliation and an International Court +of Justice.</p> + +<p>It is well known that several of the allied Governments +have appointed Committees to study the +problem of a League of Nations and to prepare a +scheme which could be put before the coming Peace +Congress. But unless all, or at any rate all the<span class='pagenum'><a name="Page_vii" id="Page_vii">[vii]</a></span> +more important, neutral States are represented, +it will be impossible for an all-embracing League +of Nations to be created by that Congress; although +a scheme could well be adopted which would keep +the door open for all civilised States. However, +until all these States have actually been received +within the charmed circle, the League will not be +complete nor its aims fully realised. Whatever +the coming Peace Congress may be able to achieve +with regard to a scheme for the establishment of +the League of Nations, another—the third—Hague +Peace Conference will be needed to set it going.</p> + +<p class="author">L. OPPENHEIM.</p> + +<p><small>P.S.—While this Preface and volume were going through +the Press, Austria-Hungary and Germany surrendered, and +unprecedented revolutions broke out which swept the +Hapsburg, the Hohenzollern, and all the other German +dynasties away. No one can foresee what will be the +ultimate fate and condition of those two once mighty +empires. It is obvious that, had the first and second +lectures been delivered after these stirring events took place, +some of the views to be found therein expressed would +have been modified or differently expressed. I may ask +the reader kindly to keep this in mind while reading the +following pages. However, the general bearing of the arguments, +and the proposals for the organisation of the League +of Nations and the establishment of an International Court +of Justice and International Councils of Conciliation, are +in no way influenced by these later events.</small></p> + +<hr /><p><span class='pagenum'><a name="Page_viii" id="Page_viii">[viii]</a></span></p> +<h2>CONTENTS</h2> + +<div class='center'> +<table border="0" cellpadding="0" cellspacing="0" summary=""> + +<tr class="tr1"><td class="td1"><big>FIRST LECTURE: THE AIMS OF THE LEAGUE OF NATIONS</big></td><td class="td2"><small>PAGE</small><br /><a href="#Page_1">1</a></td></tr> + +<tr class="tr2"><td class="td1">I. The purpose of the three Lectures is to draw attention to +the links which connect the proposed League of Nations with +the past, to the difficulties involved in the proposal, and to the +way in which they can be overcome</td><td class="td2"><a href="#Page_4">4</a></td></tr> + +<tr class="tr2"><td class="td1">II. The conception of a League of Nations is not new, but is +as old as International Law, because any kind of International +Law and some kind of a League of Nations are interdependent +and correlative</td><td class="td2"><a href="#Page_6">6</a></td></tr> + +<tr class="tr2"><td class="td1">III. During antiquity no International Law in the modern +sense of the term was possible, because the common interests +which could force a number of independent States into a Community +of States were lacking</td><td class="td2"><a href="#Page_6">6</a></td></tr> + +<tr class="tr2"><td class="td1">IV. But during the second part of the Middle Ages matters +began to change. During the fifteenth, sixteenth and +seventeenth centuries an International Law, and with it a +kind of League of Nations, became a necessity and therefore +grew by custom. At the same time arose the first schemes for +a League of Nations guaranteeing permanent peace, namely +those of Pierre Dubois (1305), Antoine Marini (1461), Sully +(1603), and Emeric Crucée (1623). Hugo Grotius' immortal +work on 'The Law of War and Peace' (1625)</td><td class="td2"><a href="#Page_7">7</a></td></tr> + +<tr class="tr2"><td class="td1">V. The League of Nations thus evolved by custom could not +undertake to prevent war; the conditions prevailing up to the +outbreak of the French Revolution made it impossible; it +was only during the nineteenth century that the principle +of nationality made growth</td><td class="td2"><a href="#Page_9">9</a></td></tr> + +<tr class="tr2"><td class="td1"><span class='pagenum'><a name="Page_ix" id="Page_ix">[ix]</a></span>VI. The outbreak of the present World War is epoch-making +because it is at bottom a fight between the principle of democratic +and constitutional government and the principle of +militarism and autocratic government. The three new points +in the present demand for a League of Nations</td><td class="td2"><a href="#Page_11">11</a></td></tr> + +<tr class="tr2"><td class="td1">VII. How and why the peremptory demand for a new +League of Nations arose, and its connection with so-called +Internationalism</td><td class="td2"><a href="#Page_11">11</a></td></tr> + +<tr class="tr2"><td class="td1">VIII. The League of Nations now aimed at is not really a +League of Nations but of States. The ideal of the national +State</td><td class="td2"><a href="#Page_13">13</a></td></tr> + +<tr class="tr2"><td class="td1">IX. The two reasons why the establishment of a new League +of Nations is conditioned by the utter defeat of the Central +Powers</td><td class="td2"><a href="#Page_15">15</a></td></tr> + +<tr class="tr2"><td class="td1">X. Why—in a sense—the new League of Nations may be +said to have already started its career</td><td class="td2"><a href="#Page_16">16</a></td></tr> + +<tr class="tr2"><td class="td1">XI. The impossibility of the demand that the new League +of Nations should create a Federal World State</td><td class="td2"><a href="#Page_18">18</a></td></tr> + +<tr class="tr2"><td class="td1">XII. The demand for an International Army and Navy</td><td class="td2"><a href="#Page_20">20</a></td></tr> + +<tr class="tr2"><td class="td1">XIII. The new League of Nations cannot give itself a constitution +of a state-like character, but only one <i>sui generis</i> +on very simple lines</td><td class="td2"><a href="#Page_22">22</a></td></tr> + +<tr class="tr2"><td class="td1">XIV. The three aims of the new League of Nations, and the +four problems to be faced and solved in order to make possible +the realisation of these aims</td><td class="td2"><a href="#Page_23">23</a></td></tr> + +<tr class="tr1"><td class="td1"><big>SECOND LECTURE: ORGANISATION AND LEGISLATION OF THE LEAGUE OF NATIONS</big></td><td class="td2"><a href="#Page_25">25</a></td></tr> + +<tr class="tr2"><td class="td1">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</td><td class="td2"><a href="#Page_28">28</a></td></tr> + +<tr class="tr2"><td class="td1">II. The position of the Great Powers within the Community +of States is a mere political fact not based on Law</td><td class="td2"><a href="#Page_29">29</a></td></tr> + +<tr class="tr2"><td class="td1"><span class='pagenum'><a name="Page_x" id="Page_x">[x]</a></span>III. The pacifistic demand or a Federal World State in +order to make the abolition of war a possibility</td><td class="td2"><a href="#Page_31">31</a></td></tr> + +<tr class="tr2"><td class="td1">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</td><td class="td2"><a href="#Page_32">32</a></td></tr> + +<tr class="tr2"><td class="td1">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</td><td class="td2"><a href="#Page_34">34</a></td></tr> + +<tr class="tr2"><td class="td1">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</td><td class="td2"><a href="#Page_35">35</a></td></tr> + +<tr class="tr2"><td class="td1">VII. The objection to the reception of the Central Powers, +and of Germany especially, into the League</td><td class="td2"><a href="#Page_36">36</a></td></tr> + +<tr class="tr2"><td class="td1">VIII. The objection to the reception of the minor transoceanic +States into the League</td><td class="td2"><a href="#Page_38">38</a></td></tr> + +<tr class="tr2"><td class="td1">IX. The seven principles which ought to be accepted with +regard to the organisation of the new League of Nations</td><td class="td2"><a href="#Page_39">39</a></td></tr> + +<tr class="tr2"><td class="td1">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</td><td class="td2"><a href="#Page_41">41</a></td></tr> + +<tr class="tr2"><td class="td1">XI. The difficulty in the way of International Legislation +on account of the language question</td><td class="td2"><a href="#Page_43">43</a></td></tr> + +<tr class="tr2"><td class="td1">XII. The difficulty created by the conflicting national +interests of the several States</td><td class="td2"><a href="#Page_44">44</a></td></tr> + +<tr class="tr2"><td class="td1"><span class='pagenum'><a name="Page_xi" id="Page_xi">[xi]</a></span>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</td><td class="td2"><a href="#Page_44">44</a></td></tr> + +<tr class="tr2"><td class="td1">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</td><td class="td2"><a href="#Page_45">45</a></td></tr> + +<tr class="tr2"><td class="td1"><i>Appendix</i>: Correspondence with the Foreign Office respecting +the Interpretation of Article 23(h) of the Hague +Regulations concerning Land Warfare</td><td class="td2"><a href="#Page_48">48</a></td></tr> + +<tr class="tr1"><td class="td1"><big>THIRD LECTURE: ADMINISTRATION OF JUSTICE AND MEDIATION WITHIN THE LEAGUE OF NATIONS</big></td><td class="td2"><a href="#Page_57">57</a></td></tr> + +<tr class="tr2"><td class="td1">I. Administration of Justice within the League is a question +of International Courts, but it is incorrect to assert that International +Legislation necessitates the existence of International +Courts</td><td class="td2"><a href="#Page_60">60</a></td></tr> + +<tr class="tr2"><td class="td1">II. The Permanent Court of Arbitration created by the +First Hague Peace Conference</td><td class="td2"><a href="#Page_61">61</a></td></tr> + +<tr class="tr2"><td class="td1">III. The difficulties connected with International Administration +of Justice by International Courts</td><td class="td2"><a href="#Page_62">62</a></td></tr> + +<tr class="tr2"><td class="td1">IV. The necessity for a Court of Appeal above the International +Court of First Instance</td><td class="td2"><a href="#Page_63">63</a></td></tr> + +<tr class="tr2"><td class="td1">V. The difficulties connected with the setting up and +manning of International Courts of Justice</td><td class="td2"><a href="#Page_64">64</a></td></tr> + +<tr class="tr2"><td class="td1">VI. Details of a scheme which recommends itself because +it distinguishes between the Court as a whole and the several +Benches which would be called upon to decide the cases</td><td class="td2"><a href="#Page_65">65</a></td></tr> + +<tr class="tr2"><td class="td1">VII. The advantages of the recommended scheme</td><td class="td2"><a href="#Page_67">67</a></td></tr> + +<tr class="tr2"><td class="td1">VIII. A necessary provision for so-called complex cases of +dispute</td><td class="td2"><a href="#Page_68">68</a></td></tr> + +<tr class="tr2"><td class="td1">IX. A necessary provision with regard to the notorious +clause <i>rebus sic stantibus</i></td><td class="td2"><a href="#Page_69">69</a><span class='pagenum'><a name="Page_xii" id="Page_xii">[xii]</a></span></td></tr> + +<tr class="tr2"><td class="td1">X. The two starting points for a satisfactory proposal +concerning International Mediation by International Councils +of Conciliation. Article 8 of the Hague Convention concerning +Pacific Settlement of International Disputes. The +Permanent International Commissions of the Bryan Peace +Treaties</td><td class="td2"><a href="#Page_70">70</a></td></tr> + +<tr class="tr2"><td class="td1">XI. Details of a scheme which recommends itself for the +establishment of International Councils of Conciliation</td><td class="td2"><a href="#Page_72">72</a></td></tr> + +<tr class="tr2"><td class="td1">XII. The question of disarmament</td><td class="td2"><a href="#Page_74">74</a></td></tr> + +<tr class="tr2"><td class="td1">XIII. The assertion that States renounce their sovereignty +by entering into the League</td><td class="td2"><a href="#Page_75">75</a></td></tr> + +<tr class="tr2"><td class="td1">XIV. Conclusion: Can it be expected that, in case of a +great conflict of interests, all the members of the League will +faithfully carry out their engagements?</td><td class="td2"><a href="#Page_78">78</a></td></tr> + +<tr class="tr1"><td class="td1"><span class="smcap">Alphabetical Index</span></td><td class="td2"><a href="#Page_81">81</a></td></tr> +</table></div> + +<hr /><p><span class='pagenum'><a name="Page_1" id="Page_1">[1]</a></span></p> +<h2><span class="smcap">First Lecture</span><br /> +THE AIMS OF THE LEAGUE OF NATIONS</h2> + +<p><span class='pagenum'><a name="Page_3" id="Page_3">[3]</a></span></p> +<h3>SYNOPSIS</h3> + +<div class="fss"><p>I. The purpose of the three Lectures is to draw attention to the +links which connect the proposed League of Nations with the past, +to the difficulties involved in the proposal, and to the way in which +they can be overcome.</p> + +<p>II. The conception of a League of Nations is not new, but is +as old as International Law, because any kind of International +Law and some kind of a League of Nations are interdependent +and correlative.</p> + +<p>III. During antiquity no International Law in the modern sense +of the term was possible, because the common interests which could +force a number of independent States into a community of States +were lacking.</p> + +<p>IV. But during the second part of the Middle Ages matters +began to change. During the fifteenth, sixteenth, and seventeenth +centuries an International Law, and with it a kind of League +of Nations, became a necessity and therefore grew by custom. At +the same time arose the first schemes for a League of Nations +guaranteeing permanent peace, namely those of Pierre Dubois +(1305), Antoine Marini (1461), Sully (1603), and Emeric Crucée +(1623). Hugo Grotius' immortal work on 'The Law of War and +Peace' (1625).</p> + +<p>V. The League of Nations thus evolved by custom could not +undertake to prevent wars; the conditions prevailing up to the outbreak +of the French Revolution made it impossible; it was only +during the nineteenth century that the principle of nationality +made growth.</p> + +<p>VI. The outbreak of the present World War is epoch-making +because it is at bottom a fight between the principle of democratic +and constitutional government and the principle of militarism and +autocratic government. The three new points in the present demand +for a League of Nations.</p> + +<p>VII. How and why the peremptory demand for a new League +of Nations arose, and its connection with so-called Internationalism.<span class='pagenum'><a name="Page_4" id="Page_4">[4]</a></span></p> + +<p>VIII. The League of Nations now aimed at is not really a League +of Nations but of States. The ideal of the National State.</p> + +<p>IX. The two reasons why the establishment of a new League +of Nations is conditioned by the utter defeat of the Central Powers.</p> + +<p>X. Why—in a sense—the new League of Nations may be said +to have already started its career.</p> + +<p>XI. The impossibility of the demand that the new League of +Nations should create a Federal World State.</p> + +<p>XII. The demand for an International Army and Navy.</p> + +<p>XIII. The new League of Nations cannot give itself a constitution +of a state-like character, but only one <i>sui generis</i> on very simple +lines.</p> + +<p>XIV. The three aims of the new League of Nations, and the +four problems to be faced and solved in order to make possible the +realisation of these aims.</p></div> + +<h3>THE LECTURE</h3> + +<p>I. Dr. Whewell, the founder of the Chair of International +Law which I have the honour to occupy +in this University, laid the injunction upon every +holder of the Chair that he should 'make it his +aim,' in all parts of his treatment of the subject, +'to lay down such rules and suggest such measures +as may tend to diminish the evils of war and finally +to extinguish war between nations.' It is to comply +with the spirit, if not with the letter, of this injunction +that I have announced the series of three +lectures on a League of Nations. The present is +the first, and in it I propose to treat of the Aims +of the League. But, before I enter into a discussion +of these aims, I should like to point out that I have +no intention of dealing with the question whether +or no a League of Nations should be founded at +all. To my mind, and probably to the minds of<span class='pagenum'><a name="Page_5" id="Page_5">[5]</a></span> +most of you here, this question has been satisfactorily +answered by the leading politicians of all +parties and all countries since ex-President Taft +put it soon after the outbreak of the World War; +it suffices to mention Earl Grey in Great Britain +and President Wilson in America. In giving these +lectures I propose to draw your attention, on the +one hand, to the links which connect the proposal +for a League of Nations with the past, and, on the +other hand, to the difficulties with which the realisation +of the proposal must necessarily be attended; +and also to the ways in which, in my opinion, these +difficulties can be overcome.</p> + +<p>There is an old adage which says <i>Natura non +facit saltus</i>, Nature takes no leaps. Everything in +Nature develops gradually, step by step, and +organically. It is, at any rate as a rule, the same +with History. History in most cases takes no leaps, +but if exceptionally History does take a leap, there +is great danger of a bad slip backwards following. +We must be on our guard lest the proposed League +of Nations should take a leap in the dark, and +the realisation of proposals be attempted which +are so daring and so entirely out of keeping with +the historical development of International Law +and the growth of the Society of Nations, that there +would be great danger of the whole scheme collapsing +and the whole movement coming to naught.</p> + +<p>The movement for a League of Nations is sound, +for its purpose is to secure a more lasting peace +amongst the nations of the world than has hitherto +prevailed. But a number of schemes to realise this<span class='pagenum'><a name="Page_6" id="Page_6">[6]</a></span> +purpose have been published which in my opinion +go much too far because they comprise proposals +which are not realisable in our days. You know +that not only an International Court of Justice +and an International Council of Conciliation have +been proposed, but also some kind of International +Government, some kind of International Parliament, +an International Executive, and even an +International Army and Navy—a so-called International +Police—by the help of which the International +Government could guarantee the condition +of permanent peace in the world.</p> + +<p>II. You believe no doubt, because nearly everyone +believes it, that the conception of a League of +Nations is something quite new. Yet this is not +the case, although there is something new in the +present conception, something which did not exist +previously. The conception of a League of Nations +is very old, is indeed as old as modern International +Law, namely about four hundred years. International +Law could not have come into existence +without at the same time calling into existence a +League of Nations. <i>Any kind of an International +Law and some kind or other of a League of Nations +are interdependent and correlative.</i> This assertion +possibly surprises you, and I must therefore say a +few words concerning the origin of modern International +Law in order to make matters clear.</p> + +<p>III. In ancient times no International Law in +the modern sense of the term existed. It is true +there existed rules of religion and of law concerning +international relations, and ambassadors and heralds<span class='pagenum'><a name="Page_7" id="Page_7">[7]</a></span> +were everywhere considered sacrosanct. But these +rules were not rules of an <i>International</i> Law, they +were either religious rules or rules which were part +of the Municipal Law of the several States. For +instance: the Romans had very detailed rules +concerning their relations with other States in time +of peace and war; but these were rules of Roman +law, not rules of the law of other countries, and +certainly not <i>international</i> rules.</p> + +<p>Now what was the reason that antiquity did not +know of any International Law?</p> + +<p>The reason was that between the several independent +States of antiquity no such intimate intercourse +arose and no such common views existed as +to necessitate a law between them. Only between +the several city States of ancient Greece arose some +kind of what we should now call 'International +Law,' because these city States formed a Community +fostered by the same language, the same civilisation, +the same religion, the same general ideas, and by +constant commercial and other intercourse. On +the other hand, the Roman Empire was a world +empire, it gradually absorbed all the independent +nations in the West. And when the Roman Empire +fell to pieces in consequence of the migration of the +peoples, the old civilisation came to an end, international +commerce and intercourse ceased almost +entirely, and it was not till towards the end of the +Middle Ages that matters began to change.</p> + +<p>IV. During the second part of the Middle Ages +more and more independent States arose on the +European continent, and during the fifteenth and<span class='pagenum'><a name="Page_8" id="Page_8">[8]</a></span> +sixteenth centuries the necessity for a Law of Nations +made itself felt. A multitude of Sovereign States +had now established themselves which, although +they were absolutely independent of one another, +were knitted together by constant commercial and +other intercourse, by a common religion, and by +the same moral principles. Gradually and almost +unconsciously the conviction had grown upon these +independent States that, in spite of everything +which separated them, they formed a Community +the intercourse of which was ruled by certain legal +principles. International Law grew out of custom +because it was a necessity according to the well-known +rule <i>ubi societas ibi jus</i>, where there is a +community of interests there must be law. The +several independent States had thus gradually and +unconsciously formed themselves into a Society, +the afterwards so-called Family of Nations, or, in +other words, a League of Nations.</p> + +<p>And no sooner had this League of Nations come +into existence—and even some time before that +date—than a number of schemes for the establishment +of eternal peace made their appearance.</p> + +<p>The first of these schemes was that of the French +lawyer <i>Pierre Dubois</i>, who, as early as 1305, in his +work 'De recuperatione terre sancte,' proposed an +alliance between all Christian Powers for the purpose +of the maintenance of peace and the establishment +of a permanent Court of Arbitration for the settlement +of differences between members of the alliance.</p> + +<p>Another was that of <i>Antoine Marini</i>, the Chancellor +of Podiebrad, King of Bohemia, who adopted the<span class='pagenum'><a name="Page_9" id="Page_9">[9]</a></span> +scheme in 1461. This scheme proposed the foundation +of a Federal State to comprise all the existing +Christian States and the establishment of a permanent +Congress to be seated at Basle in Switzerland, this +Congress to be the highest organ of the Federation.</p> + +<p>A third scheme was that of <i>Sully</i>, adopted by +Henri IV of France, which, in 1603, proposed the +division of Europe into fifteen States and the linking +together of these into a Federation with a General +Council as its highest organ.</p> + +<p>And a fourth scheme was that of <i>Emeric Crucée</i>, +who, in 1623, proposed the establishment of a Union +consisting not only of the Christian States but of +all States of the world, with a General Council seated +at Venice.</p> + +<p>And since that time many other schemes of similar +kind have made their appearance, the enumeration +and discussion of which is outside our present purpose. +So much is certain that all these schemes +were Utopian. Nevertheless, a League of Nations +having once come into existence, International Law +grew more and more, and when in 1625 Hugo Grotius +published his immortal work on 'The Law of War +and Peace,' the system of International Law offered +in his work conquered the world and became the +basis of all following development.</p> + +<p>V. However, although a League of Nations must +be said to have been in existence for about 400 +years, because no International Law would have +been possible without it, this League of Nations +could not, and was not intended to, prevent war +between its members. I say: it could not prevent<span class='pagenum'><a name="Page_10" id="Page_10">[10]</a></span> +war. Why not? It could not prevent war on +account of the conditions which prevailed within +the international society from the Middle Ages till, +say, the outbreak of the present war. These conditions +are intimately connected with the growth +of the several States of Europe.</p> + +<p>Whereas the family, the tribe, and the race are +natural products, the nation as well as the State are +products of historical development. All nations are +blends of more or less different races, and all States +were originally founded on force: strong rulers +subjected neighbouring tribes and peoples to their +sway and thus formed coherent nations. Most +of the States in Europe are the product of the +activity of strong dynasties which through war +and conquest, and through marriage and purchase, +united under one sovereign the lands which form +the States and the peoples which form the nations. +Up to the time of the French Revolution, throughout +the sixteenth, seventeenth, and eighteenth +centuries, all wars were either wars of religion, or +dynastic wars fought for the increase of the territory +under the sway of the dynasties concerned, or so-called +colonial wars fought for the acquisition of +transoceanic colonies. It was not till the nineteenth +century that wars for the purpose of national +unity broke out, and dynastic wars began gradually +to disappear. During the nineteenth century the +nations, so to say, found themselves; some kind of +constitutional government was everywhere introduced; +and democracy became the ideal, although +it was by no means everywhere realised.<span class='pagenum'><a name="Page_11" id="Page_11">[11]</a></span></p> + +<p>VI. It is for this reason that the outbreak of the +present war is epoch-making, because it has become +apparent that, whatever may be the war aims of +the belligerents, at bottom this World War is a +fight between the ideal of democracy and constitutional +government on the one hand, and autocratic +government and militarism on the other. +Everywhere the conviction has become prevalent +that things cannot remain as they were before the +outbreak of the present war, and therefore the +demand for a League of Nations, or—I had better +say—for a new League of Nations to take the place +of that which has been in existence for about 400 +years, has arisen.</p> + +<p>Now what is new in the desired new League of +Nations?</p> + +<p>Firstly, this new League would be founded upon +a solemn treaty, whereas the League of Nations +hitherto was only based upon custom.</p> + +<p>Secondly, for the purpose of making war rarer +or of abolishing it altogether, this new League +of Nations would enact the rule that no State is +allowed to resort to arms without previously having +submitted the dispute to an International Court or +a Council of Conciliation.</p> + +<p>Thirdly, this new League of Nations would be +compelled to create some kind of organisation for +itself, because otherwise it could not realise its +purpose to make war rarer or abolish it altogether.</p> + +<p>VII. The demand for a new League of Nations +is universal, for it is made, not only everywhere +in the allied countries, but in the countries of the<span class='pagenum'><a name="Page_12" id="Page_12">[12]</a></span> +Central Powers, and it will surely be realised when +the war is over, at any rate to a certain extent. It +is for this reason that the present World War has +not only not destroyed so-called Internationalism, +but has done more for it than many years of peace +could have done.</p> + +<p>What is Internationalism?</p> + +<p>Internationalism is the conviction that all the +civilised States form one Community throughout +the world in spite of the various factors which +separate the nations from one another; the conviction +that the interests of all the nations and States +are indissolubly interknitted, and that, therefore, +the Family of Nations must establish international +institutions for the purpose of guaranteeing a more +general and a more lasting peace than existed in +former times. Internationalism had made great +strides during the second part of the nineteenth +century on account of the enormous development +of international commerce and international communication +favoured by railways, the steamship, +the telegraph, and a great many scientific discoveries +and technical inventions. But what a disturbing +and destroying factor war really is, had not become +fully apparent till the present war, because this is a +<i>world</i> war which interferes almost as much with the +welfare of neutrals as with the welfare of belligerents. +It has become apparent during the present war that +the discoveries and developments of science and +technology, which had done so much during the +second half of the nineteenth century for the material +welfare of the human race during peace, were likewise<span class='pagenum'><a name="Page_13" id="Page_13">[13]</a></span> +at the disposal of belligerents for an enormous, +and hitherto unthought-of, destruction of life and +wealth. It is for this reason that in the camp of +friend and foe, among neutrals as well as among +belligerents, the conviction has become universal +that the conditions of international life prevailing +before the outbreak of the World War must be +altered; that international institutions must be +established which will make the outbreak of war, +if not impossible, at any rate only an exceptional +possibility. The demand for a new League of +Nations has thus arisen and peremptorily requires +fulfilment.</p> + +<p>VIII. However, in considering the demand for +a new League of Nations, it is necessary to avoid +confusing nations with States. It should always +be remembered that, when we speak of a League of +Nations, we do not really mean a League of Nations +but a League of States. It is true that there are +many States in existence which in the main are +made up of one nation, although fractions of other +nations may be comprised in them. But it is equally +true that there are some States in existence which +include members of several nations. Take as an +example Switzerland which, although only a very +small State, nevertheless comprises three national +elements, namely German, French, and Italian. +Another example is the British Empire, which is a +world empire and comprises a number of different +nations.</p> + +<p>That leads me to the question: What is a nation?</p> + +<p>A nation must not be confounded with a race.<span class='pagenum'><a name="Page_14" id="Page_14">[14]</a></span> +A nation is a product of historical development, +whereas a race is a product of natural growth. One +speaks of a nation when a complex body of human +beings is united by living in the same land, by +the same language, the same literature, the same +historical traditions, and the same general views of +life. All nations are a mixture of several diverse +racial elements which in the course of historical +development have to a certain extent been united +by force of circumstances. The Swiss as a people +are politically a nation, although the component +parts of the population of Switzerland are of different +national characters and even speak different +languages. Historical development in general, and +in many cases force in particular, have played a +great part in the blending of diverse racial elements +into nations; just as they have played a great part +in the building up of States. The demand that +every nation should have a separate State of its +own—the ideal of the so-called national State—appears +very late in history; it is a product of the +last two centuries, and it was not till the second half +of the nineteenth century that the so-called principle +of nationality made its appearance and gained great +influence. It may well be doubted whether each +nation, be it ever so small, will succeed in establishing +a separate State of its own, although where +national consciousness becomes overwhelmingly +strong, it will probably in every case succeed in +time either in establishing a State of its own, or at +any rate in gaining autonomy. Be that as it may, +it is a question for the future; so much is certain,<span class='pagenum'><a name="Page_15" id="Page_15">[15]</a></span> +what is intended now to be realised, is not a League +of Nations, but a League of States, although it is +called a League of Nations.</p> + +<p>IX. However, no League of Nations is possible +unless the Central Powers, and Germany in especial, +are utterly defeated during the World War, and +that for two reasons.</p> + +<p>One reason is that a great alteration of the map +of Europe is an absolutely necessary condition for +the satisfactory working of a League of Nations. +Unless an independent Poland be established; unless +the problem of Alsace-Lorraine be solved; unless +the Trentino be handed over to Italy; unless the +Yugo-Slavs be united with Servia; unless the +Czecho-Slovaks be freed from the Austrian yoke; +and unless the problem of Turkey and the Turkish +Straits be solved, no lasting peace can be expected +in Europe, even if a League of Nations be established.</p> + +<p>The other reason is that, unless Germany be +utterly defeated, the spirit of militarism, which is +not compatible with a League of Nations, will remain +a menace to the world.</p> + +<p>What is militarism? It is that conception of the +State which bases the power of the State, its influence, +its progress, and its development exclusively on +military force. The consequence is that war becomes +part of the settled policy of a militarist State; the +acquisition of further territory and population by +conquest is continually before the eyes of such a +Government; and the condition of peace is only a +shorter or longer interval between periods of war.<span class='pagenum'><a name="Page_16" id="Page_16">[16]</a></span> +A military State submits to International Law only +so long as it serves its interests, but violates International +Law, and particularly International Law +concerning war, wherever and whenever this law +stands in the way of its military aims. The whole +history of Prussia exemplifies this. Now in a League +of Nations peace must be the normal condition. +If war occurs at all within such a League, it can +only be an exceptional phase and must be only for +the purpose of re-establishing peace. It is true a +League of Nations will not be able entirely to dispense +with military force, yet such force appears +only in the background as an <i>ultima ratio</i> to be applied +against such Power as refuses to submit its +disagreements with other members of the League +either to an International Court of Justice or an +International Council of Conciliation.</p> + +<p>X. Be that as it may, in a sense the League of +Nations has already started its career, because +twenty-five States are united on the one side and +are fighting this war in vindication of International +Law. These States are—I enumerate them chronologically +as they entered into the war:—Russia +(the Bolsheviks have made peace, but in fact one +may still enumerate Russia as a belligerent), France, +Belgium, Great Britain, Servia, Montenegro, Japan, +San Marino, Portugal, Italy, Roumania, the United +States, Cuba, Panama, Greece, Siam, Liberia, China, +Brazil, Ecuador, Guatemala, Nicaragua, Costa Rica, +Haiti, Honduras. Besides these twenty-five States +which are at war with the Central Powers, the following +four States, without having declared war, have<span class='pagenum'><a name="Page_17" id="Page_17">[17]</a></span> +broken off diplomatic relations with Germany, +namely: Bolivia, San Domingo, Peru, Uruguay.</p> + +<p>Now there may be said to be about fifty civilised +States in existence. Of these, as I have just pointed +out, twenty-five are fighting against the Central +Powers, four have broken off relations with Germany, +the Central Powers themselves are four in number, +with the consequence that thirty-three of the fifty +States are implicated in the war. Only the seventeen +remaining States are neutral, namely: Sweden, +Norway, Denmark, Holland, Luxemburg, Switzerland, +Spain, Lichtenstein, and Monaco in Europe; +Mexico, Salvador, Colombia, Venezuela, Chile, +Argentina, and Paraguay in America; and Persia +in Asia.</p> + +<p>It may be taken for granted that all the neutral +States, and all the States fighting on the side of +the Allies, and also the four States which, although +they are not fighting on the side of the Allies, have +broken off relations with Germany, are prepared +to enter into a League of Nations.</p> + +<p>But what about the Central Powers, and Germany +in especial? I shall discuss in my next lecture the +question whether the Central Powers are to become +members of the League. To-day it must suffice to +say that, when once utterly defeated, they will be +only too glad to be received as members. On the +other hand, if they were excluded, the world would +again be divided into two rival camps, just as before +the war the Triple Alliance was faced by the Entente. +No disarmament would be possible, and with regard +to every other matter progress would be equally<span class='pagenum'><a name="Page_18" id="Page_18">[18]</a></span> +impossible. Therefore the Central Powers must +become members of a League of Nations for such +a League to be of any great use, which postulates +as a <i>sine qua non</i> that Germany must be utterly +defeated in the present war. If she were victorious, +or if peace were concluded with an undefeated +Germany, the world would not be ripe for a League +of Nations because militarism would not have been +exterminated.</p> + +<p>XI. I have hitherto discussed the League of +Nations only in a general way, without mentioning +that there is no unanimity concerning its aims or +concerning the details of its organisation. Many +people think that it would be possible to do away +with war for ever, and they therefore demand a +World State, a Federal State comprising all the +single States of the world on the pattern of the +United States of America. And for this reason the +demand is raised not only for an International Court +and for an International Council of Conciliation, +but also for an International Government, an International +Parliament, and an International Army +and Navy,—a so-called International Police.</p> + +<p>I believe that these demands go much too far +and are impossible of realisation. A Federal State +comprising all the single States of the whole civilised +world is a Utopia, and an International Army and +Navy would be a danger to the peace of the world.</p> + +<p>Why is a World State not possible, at any rate +not in our time?</p> + +<p>No one has ever thought that a World State in +the form of one single State with one single Government<span class='pagenum'><a name="Page_19" id="Page_19">[19]</a></span> +would be possible. Those who plead for a +World State plead for it in the form of a Federal +State comprising all the single States of the world +on the pattern of the United States of America. +But even this modified ideal is not, in my opinion, +realisable at present. Why not? To realise this +ideal there would be required a Federal Government, +and a Federal Parliament; and the Federal Government +would have to possess strong powers to enforce +its demands. A powerless Federal Government +would be worse than no government at all. But +how is it possible to establish at present a powerful +Federal Government over the whole world? How is +it possible to establish a Federal World Parliament?</p> + +<p>Constitutional Government within the several +States has to grapple with many difficulties, and +these difficulties would be more numerous, greater, +and much more complicated within a Federal World +State. We need democracy and constitutional +Government in every single State, and this can only +be realised by party Government and elections of +Parliament at short intervals. The waves of party +strife rise high within the several States; no sooner +is one party in, than the other party looks out for +an opening into which a wedge can be pushed to +turn the Government out. In normal times this +works on the whole quite well within the borders +of the several States, because the interests concerned +are not so widely opposed to one another +that the several parties cannot alternatively govern. +But when it comes to applying the same system of +Government to a Federal World State, the interests<span class='pagenum'><a name="Page_20" id="Page_20">[20]</a></span> +at stake are too divergent. The East and the West, +the South and the North, the interests of maritime +States and land-locked States, the ideals and interests +of industrial and agricultural States, and many other +contrasts, are too great for it to be possible to govern +a Federal World State by the same institutions as a +State of ordinary size and composition.</p> + +<p>The British World Empire may be taken as an +example to show that it is impossible for one single +central Government to govern a number of States +with somewhat divergent interests. We all know +that the British Empire comprising the United +Kingdom and the so-called independent dominions, +namely Canada, Newfoundland, Australia, New +Zealand, and South Africa, is kept together not +really by the powers of the British Government +but by the good will of the component parts. The +Government of the United Kingdom could not +keep the Empire together by force, could not compel +by force one of the independent dominions to submit +to a demand, in case it refused to comply. The +interests of the several component parts of the +British Empire are so divergent that no central +Government could keep them together against their +will. Now what applies to the British Empire, which +is to a great extent bound together by the same +language, the same literature, and the same Law, +would apply much more to a Federal State comprising +the whole of the world: such a Federal State, so +far as we can see, is impossible.</p> + +<p>XII. But what about an International Army and +Navy?<span class='pagenum'><a name="Page_21" id="Page_21">[21]</a></span></p> + +<p>It is hardly worth while to say much about them. +Those who propose the establishment of an International +Army and Navy presuppose that the +national armies and navies would be abolished so +that the world Government would have the power, +with the help of the International Army and Navy, +at any moment to crush any attempt of a recalcitrant +member of the Federal World State to avoid its +duties. This International Army and Navy would +be the most powerful instrument of force which the +world has ever seen, because every attempt to resist +it would be futile. And the Commander of the +International Army and the Commander of the +International Navy would be men holding in their +hands the greatest power that can be imagined.</p> + +<p>The old question therefore arises: <i>Quis custodiet +ipsos custodes?</i> which I should like here to translate +freely by: Who will keep in order those who are +to keep the world in order? A League of Nations +which can only be kept together by a powerful +International Army and Navy, is a contradiction +in itself; for the independence and equality of the +member States of the League would soon disappear. +It is a fact—I make this statement although I am +sure it will be violently contradicted—that, just as +hitherto, so within a League of Nations some kind +of Balance of Power only can guarantee the independence +and equality of the smaller States. For +the Community of Power, on which the League of +Nations must rest, would at once disappear if one +or two members of the League became so powerful +that they could disregard the combined power of<span class='pagenum'><a name="Page_22" id="Page_22">[22]</a></span> +the other members. Every scheme of this movement +must therefore see to it that no member of the +League is more armed than is necessary considering +the extent of its territory and other factors concerned. +But be that as it may, an International Army and +Navy is practically impossible, just as a Federal +World State is impossible.</p> + +<p>XIII. Yet while a Federal World State is impossible, +a League of Nations is not, provided such league +gives itself a constitution, not of a state-like character, +but one <i>sui generis</i>. What can be done is this: the +hitherto unorganised Family of Nations can organise +itself on simple lines so as to secure, on the one +hand, the absolute independence of every State, +and, on the other hand, the peaceful co-existence +of all the States.</p> + +<p>It is possible, in my opinion, to establish an International +Court of Justice before which the several +States engage to appear in case a conflict arises +between two or more of them which can be judicially +settled, that is, can be settled by a rule of law. There +is as little reason why two or more States should +go to war on account of a conflict which can be +settled upon the basis of law, as there is for two +private individuals to resort to arms in case of a +dispute between them which can be decided by a +Court of Law.</p> + +<p>Again, although there will frequently arise between +States conflicts of a political character which cannot +be settled on the basis of a rule of law, there is no +reason why, when the States in conflict cannot settle +them by diplomatic negotiation, they should resort<span class='pagenum'><a name="Page_23" id="Page_23">[23]</a></span> +to arms, before bringing the conflict before some +Council of Conciliation and giving the latter an +opportunity of investigating the matter and proposing +a fair compromise.</p> + +<p>Under modern conditions of civilisation the whole +world suffers in case war breaks out between even +only two States, and for this reason it is advisable +that the rest of the world should unite and oppose +such State as would resort to arms without having +submitted its case to an International Court of +Justice or an International Council of Conciliation.</p> + +<p>XIV. In my opinion the aims of a League of +Nations should therefore be three:</p> + +<p>The first aim should be to prevent the outbreak +of war altogether on account of so-called judicial +disputes, that is disputes which can be settled on +the basis of a rule of law. For this reason the League +should stipulate that every State must submit all +judicial disputes without exception to an International +Court of Justice and must abide by the +judgment of such Court.</p> + +<p>The second aim should be to prevent the sudden +outbreak of war on account of a political dispute and +to insist on an opportunity for mediation. For this +reason the League should stipulate that every State, +previous to resorting to arms over a political dispute, +must submit it to an International Council of Conciliation +and must at any rate listen to the advice +of such Council.</p> + +<p>The third aim should be to provide a sanction +for the enforcement of the two rules just mentioned. +For this reason the League should stipulate that all<span class='pagenum'><a name="Page_24" id="Page_24">[24]</a></span> +the member States of the League must unite their +economic, military, and naval forces against such +member or members as would resort to arms either +on account of a judicial dispute which ought to have +been settled by an International Court of Justice, +or on account of a political dispute without previously +having submitted it to an International Council of +Conciliation and listened to the latter's advice.</p> + +<p>These should be, in my opinion, the three aims of +a League of Nations and the three rules necessary +for the realisation of these aims. However, it is not +so easy to realise them, and it is therefore necessary +to face and solve four problems: There is, firstly, +the problem of the Organisation of the League; +secondly, the problem of Legislation within the +League; thirdly, the problem of Administration of +Justice within the League; and fourthly, the problem +of Mediation within the League—four problems which +I shall discuss in the two following lectures.</p> + +<p>I have only named three aims and four problems +because I have in my mind those aims which are the +nearest and those problems which are the most +pressing and the most urgent. The range of vision +of the League of Nations, when once established, +will no doubt gradually become wider and wider; +new aims will arise and new problems will demand +solution, but all such possible future aims and future +problems are outside the scope of these lectures.</p> + +<hr /><p><span class='pagenum'><a name="Page_25" id="Page_25">[25]</a></span></p> +<h2><span class="smcap">Second Lecture</span><br /> +ORGANISATION AND LEGISLATION OF +THE LEAGUE OF NATIONS</h2> + +<p><span class='pagenum'><a name="Page_27" id="Page_27">[27]</a></span></p> +<h3>SYNOPSIS</h3> + +<div class="fss"><p>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.</p> + +<p>II. The position of the Great Powers within the Community of +States is a mere political fact not based on Law.</p> + +<p>III. The pacifistic demand for a Federal World State in order +to make the abolition of war a possibility.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>VII. The objection to the reception of the Central Powers, and +of Germany especially, into the League.</p> + +<p>VIII. The objection to the reception of the minor transoceanic +States into the League.</p> + +<p>IX. The seven principles which ought to be accepted with regard +to the organisation of the new League of Nations.</p> + +<p>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.<span class='pagenum'><a name="Page_28" id="Page_28">[28]</a></span></p> + +<p>XI. The difficulty in the way of International Legislation on +account of the language question.</p> + +<p>XII. The difficulty created by the conflicting national interests +of the several States.</p> + +<p>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.</p> + +<p>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.</p></div> + +<h3>THE LECTURE</h3> + +<p>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:</p> + +<p>Firstly, every State must submit all judicial +disputes to an International Court of Justice and +must abide by the judgment of such Court.</p> + +<p>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.</p> + +<p>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.</p> + +<p>And I added that these three rules cannot create +a satisfactory condition of affairs unless four problems +are faced and solved, namely: The Organisation of<span class='pagenum'><a name="Page_29" id="Page_29">[29]</a></span> +the League, Legislation by the League, Administration +of Justice and Mediation within the League. My lecture +to-day will deal with two of these problems, namely +the Organisation and the Legislation of the League.</p> + +<p>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.</p> + +<p>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.</p> + +<p>But is this assertion correct? The Great Powers, +are they really the legally recognised superiors of +the minor States?</p> + +<p>I deny it. A Great Power is any large-sized +State possessing a large population which gains +such economic, military, and naval strength that<span class='pagenum'><a name="Page_30" id="Page_30">[30]</a></span> +its political influence must be reckoned with by +all the other Powers. At the time of the outbreak +of the World War eight States had to be considered +as Great Powers, namely Great Britain, Austria-Hungary, +France, Germany, Italy, Russia, the +United States of America, and Japan. But it is +very probable that the end of the World War will +see the number of Great Powers reduced to six. +The collapse and break up of Russia has surely for +the present eliminated her from the number of Great +Powers. And it is quite certain that Austria-Hungary +will not emerge from the struggle as a +Great Power, if she emerges from it as a whole at +all. History teaches that the number of the Great +Powers is by no means stable, and changes occasionally +take place. Look at the condition of affairs +during the nineteenth century. Whereas at the +time of the Vienna Congress in 1815 eight States, +namely Great Britain, Austria, France, Portugal, +Prussia, Spain, Sweden, and Russia were still considered +Great Powers, their number soon decreased +to five, because Portugal, Spain, and Sweden ceased +to be Great Powers. On the other hand, Italy +joined the number of the Great Powers after her +unification in 1860; the United States of America +joined the Great Powers after the American Civil +War in 1865; and Japan emerged as a Great Power +from her war with China in 1895.</p> + +<p>Be that as it may, so much is certain, a State +is a Great Power not by law but only by its political +influence. The Great Powers are the leaders of the +Family of Nations because their political influence<span class='pagenum'><a name="Page_31" id="Page_31">[31]</a></span> +is so great. Their political and economic influence +is in the long run irresistible; therefore all arrangements +made by the Great Powers naturally in most +cases gain, either at once or in time, the consent +of the minor States. It may be said that the +Great Powers exercise a kind of political hegemony +within the Family of Nations. Yet this hegemony +is not based on law, it is simply a political fact, and +it is certainly not a consequence of an organisation +of the Family of Nations.</p> + +<p>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.</p> + +<p>If such a Federal World State were practically +possible, there would be no objection to it, although +International Law as such would cease to exist and +be replaced by the Constitutional Law of this Federal<span class='pagenum'><a name="Page_32" id="Page_32">[32]</a></span> +World State. But in my first lecture I pointed +out that such a Federal World State is practically +impossible. And it is not even desirable.</p> + +<p>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. <a href="#Page_18">18-20</a>)—it +would be impossible to establish a strong +Government and a strong Parliament in a Federal +World State.</p> + +<p>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.</p> + +<p>IV. But what kind of organisation of the League +of Nations is possible if we reject the idea of a Federal +State?</p> + +<p>Neither I, nor anyone else who does not like to<span class='pagenum'><a name="Page_33" id="Page_33">[33]</a></span> +build castles in the air, can answer this question +directly by making a detailed proposal. It is at +present quite impossible to work out a practical +scheme according to which a more detailed organisation +of the League of Nations could be realised. +But so much is certain that every attempt at +organising this League must start from, and must +keep intact, the independence and the equality of +all civilised States. It is for this reason that a +Central Political Authority above the sovereign +States can never be thought of. Every attempt +to organise a League of Nations on the model of a +Federal State is futile. If a detailed organisation +of the League should ever come, it will be one <i>sui +generis</i>, one absolutely of its own kind; such as +has never been seen before. And it is at present +quite impossible to map out a detailed plan of such +an organisation although, as I shall have to show +you later, the first step towards an organisation +has already been made, and further steps towards +the ideal can be taken. The reason that it is at +present impossible is that the growth and the final +shape of the organisation of the League of Nations +will, and must, go hand in hand with the progress +of International Law. But the progress of International +Law is conditioned by the growth, the +strengthening, and the deepening of international +economic and other interests, and of international +morality. It is a matter of course that this progress +can only be realised very slowly, for there is concerned +a process of development through many +generations and perhaps through centuries, a development<span class='pagenum'><a name="Page_34" id="Page_34">[34]</a></span> +whose end no one can foresee. It is sufficient +for us to state that the development had already +begun before the World War, and to try to foster +it, as far as is in our power, after the conclusion +of peace.</p> + +<p>V. I said that this development has begun. +Where is this beginning of the development to be +found?</p> + +<p>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.</p> + +<p>But the establishment of International Courts +would not justify the assertion that thereby the +Community of States has turned from an unorganised +community into an organised community. To +reach this goal another step is required, namely an +agreement amongst the Powers, according to which +the Hague Peace Conferences would be made a +permanent institution which periodically, within +fixed intervals, assemble without being convened +by one Power or another. If this were done, we +could say that the hitherto unorganised Community +of States had turned into an organised League of +Nations, for by such periodically assembling Hague +Peace Conferences there would be established an<span class='pagenum'><a name="Page_35" id="Page_35">[35]</a></span> +organ for the conduct of all such international +matters as require international legislation or other +international action.</p> + +<p>However that may be, the organisation created +by the fact that the Hague Peace Conferences +periodically assembled, would only be an immature +one; more steps would be necessary in order that +the organisation of the Community of States might +become more perfect and more efficient. Yet progress +would be slow, for every attempt at a progressive +step meets with opposition, and it would be only +when the <i>international</i> interests of the civilised States +become victorious over their particular <i>national</i> +interests that the Community of States would +gradually receive a more perfect organisation.</p> + +<p>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.</p> + +<p>Now a number of schemes for the organisation of +a new League of Nations have been made public. +They all agree upon the three aims of the League +and the three rules for the realisation of these aims<span class='pagenum'><a name="Page_36" id="Page_36">[36]</a></span> +which I mentioned in my first lecture, namely compulsory +settlement of all judicial disputes by International +Courts of Justice, compulsory mediation +in cases of political disputes by an International +Council of Conciliation, and the duty of the members +of the League to turn against any one member +which should resort to arms in violation of the +principles laid down by the League. However, +these schemes differ very much with regard to the +<i>organisation</i> of the League. I cannot now discuss +the various schemes in detail. It must suffice to +say that some of them embody proposals for a more +or less state-like organisation and are therefore not +acceptable to those who share my opinion that any +state-like organisation of the League is practically +impossible. But though some of the schemes, as +for instance that of Lord Bryce and that of Sir +Willoughby Dickinson, avoid this mistake, none of +them take as their starting point that which I +consider to be the right one, namely the beginning +made at the two Hague Peace Conferences. <i>In my +opinion the organisation of a new League of Nations +should start from the beginning made by the two Hague +Peace Conferences.</i></p> + +<p>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.</p> + +<p>In the first instance, the admission of the Central +Powers, and especially of Germany, into the League<span class='pagenum'><a name="Page_37" id="Page_37">[37]</a></span> +is deprecated. By her attack on Belgium at the +outbreak of the war, and by her general conduct +of the war, Germany has deliberately taken up an +attitude which proves that, when her military +interests are concerned, she does not consider herself +bound by any treaty, by any rule of law, or by +any principle of humanity. How can we expect +that she will carry out the engagements into which +she might enter by becoming a member of the League +of Nations?</p> + +<p>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.</p> + +<p>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. <a href="#Page_17">17</a>), in case the Central Powers were excluded<span class='pagenum'><a name="Page_38" id="Page_38">[38]</a></span> +from the League, they would enter into a League +of their own, and the world would then be divided +into two rival camps, in the same way as before the +war the Triple Alliance was faced by the Entente. +<i>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.</i></p> + +<p>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.</p> + +<p>It is asserted that some of the minor transatlantic +States made the discussions at the Hague Conferences +futile by their claim to an equal vote. Now +it is true that some of these States have to a certain +extent impeded the work of the Hague Conferences, +but some of the minor States of Europe, and even +some of the Great Powers, have done likewise. +The Community of States consisting of sovereign +States does not possess any means of compelling a +minority of States to fall in with the views of the +majority, but I shall show you very soon, when I +approach the problem of International Legislation, +that International Legislation of a kind is possible +in spite of this fact. And so much is certain that +the minimum of organisation of the new League +which is now necessary, cannot be considered to +be endangered by the admittance of the minor +transoceanic States into the League. Progress will<span class='pagenum'><a name="Page_39" id="Page_39">[39]</a></span> +in any case be slow, and perfect unanimity among +the Powers will in any and every case only be possible +where the <i>international</i> interests of all the Powers +compel them to put aside their real or imaginary +particular <i>national</i> interests.</p> + +<p>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:</p> + +<div class="blockquot"><p>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.</p> + +<p>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.</p> + +<p>Third principle: A permanent Council of +the Conference is to be created, the members +of which are to be resident at the Hague and +are to conduct all the current business of the +League of Nations. This current business +comprises: The preparation of the meetings +of the Peace Conference; the conduct of communications +with the several members of the +League with regard to the preparation of the<span class='pagenum'><a name="Page_40" id="Page_40">[40]</a></span> +work of the Peace Conferences; and all other +matters of international interest which the +Conference from time to time hands over to +the Council.</p> + +<p>Fourth principle: Every recognised sovereign +State has a right to take part in the Peace +Conferences.</p> + +<p>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.</p> + +<p>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.</p> + +<p>Seventh principle: All members of the +League of Nations agree once for all to submit +all judicial disputes to International Courts +which are to be set up, and to abide by their +judgments. They likewise agree to submit, +previous to resorting to arms, all non-judicial +disputes to International Councils of Conciliation +which are to be set up. And they all +agree to unite their economic, military, and +naval forces against any one or more States +which resort to arms without submitting their<span class='pagenum'><a name="Page_41" id="Page_41">[41]</a></span> +disputes to International Courts of Justice or +International Councils of Conciliation.</p></div> + +<p>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.</p> + +<p>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.</p> + +<p>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,<span class='pagenum'><a name="Page_42" id="Page_42">[42]</a></span> +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.</p> + +<p>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,<span class='pagenum'><a name="Page_43" id="Page_43">[43]</a></span> +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.</p> + +<p>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:</p> + +<p>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.<span class='pagenum'><a name="Page_44" id="Page_44">[44]</a></span></p> + +<p>XII. Another difficulty with regard to International +Legislation is the conflicting <i>national</i> interests +of the different States. As International Statutes +are only possible when the several States come to +an agreement, it will often not be possible to legislate +internationally on a given matter, because the +interests of the different States will be so conflicting +that an agreement cannot be arrived at. On the +other hand, as time goes on the international interests +of the several States frequently become so powerful +that these Governments are quite ready to brush +aside their particular interests, and to agree upon a +compromise which makes International Legislation +concerning the matter in question possible.</p> + +<p>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.</p> + +<p>This difficulty, however, can be overcome by +dropping the contention that no legislation of any +kind can be proceeded with unless every member +of the League of Nations agrees to it. It is a well-known +fact that a distinction has to be made between +<i>universal</i> International Law, that is, rules to which +every civilised State agrees, and <i>general</i> International +Law, that is, rules to which only the greater +number of States agree. Now it is quite certain +that no universal International Law can be created +by legislation to which not every member of the +League of Nations has agreed. Nothing, however,<span class='pagenum'><a name="Page_45" id="Page_45">[45]</a></span> +ought to prevent those States which are ready to +agree to certain new rules of International Law, from +legislating <i>for their own number</i> on a certain matter. +If such legislation is really of value, the time will +come when the dissenting States will gradually +accede. The Second Hague Peace Conference acted +on this principle, for a good many of its Conventions +were only agreed upon by the greater number, and +not by all, of the participating States.</p> + +<p>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.</p> + +<p>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.'</p> + +<p>Germany and other continental States interpret +this article to mean that the Municipal Law of a +State is not allowed to declare that the outbreak<span class='pagenum'><a name="Page_46" id="Page_46">[46]</a></span> +of war suspends or avoids contracts with alien +enemies, or that war prevents alien enemies from +bringing an action in the Courts.</p> + +<p>On the other hand, England and the United +States of America interpret this article to mean +merely that the <i>occupant of enemy territory</i> is prohibited +from declaring abolished, suspended, or inadmissible +in a Court of Law the rights and actions +of the nationals of the hostile party.</p> + +<p>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.</p> + +<p>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.</p> + +<p>Now Article 23(h) of the Hague Regulations was +inserted on the motion of the German delegates to +the Second Hague Peace Conference, and there is +no doubt that the German delegates intended by +its insertion to prevent the Municipal Law of belligerents +from possessing a rule according to which +the outbreak of war suspends or avoids contracts +with alien enemies, and prohibits alien enemies from<span class='pagenum'><a name="Page_47" id="Page_47">[47]</a></span> +bringing an action in the Courts. It is for this +reason that Germany and other continental States +interpret Article 23(h) according to the intention +of the German delegates.</p> + +<p>On the other hand, in interpreting and construing +a clause of a statute, British and American Courts +refuse to take into consideration the intention of +the draftsman, Parliamentary discussions concerning +the clause, and the like. They only take into +consideration the literal meaning of the clause as it +stands in the statute of which it is a part. Now +Article 23(h) is a clause in the Convention concerning +the Laws and Customs of War on Land. It is one +of several paragraphs of Article 23 which comprises +the prohibition of a number of acts by the armed +forces of belligerents in warfare on land, such as +the employment of poison or poisoned arms, and +the like. The British and American delegates, +believing that it only concerned an act on the part +of belligerent forces occupying enemy territory, +therefore consented to the insertion of Article 23(h), +and our Court of Appeal—in the case of Porter <i>v.</i> +Freundenberg (1915)—held that Article 23(h) is to +be interpreted in that sense.<a name="FNanchor_1_1" id="FNanchor_1_1"></a><a href="#Footnote_1_1" class="fnanchor">[1]</a></p> +<p><span class='pagenum'><a name="Page_48" id="Page_48">[48]</a></span></p> +<p>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.</p> + +<div class="footnote"><p><a name="Footnote_1_1" id="Footnote_1_1"></a><a href="#FNanchor_1_1"><span class="label">[1]</span></a> 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.</p></div> + +<h3>APPENDIX</h3> + +<p class="center">CORRESPONDENCE WITH THE FOREIGN +OFFICE RESPECTING THE INTERPRETATION<br /> +OF ARTICLE 23(h) OF THE +HAGUE REGULATIONS CONCERNING +LAND WARFARE</p> + +<h4>LETTER FROM THE PRESENT WRITER TO THE +FOREIGN OFFICE.</h4> + +<div class="bk2"><p class="p5"><span class="smcap">Whewell House, Cambridge</span>,</p> +<p class="td2"><i>28th February, 1911</i>.</p></div> + +<p class="p2"><span class="smcap">To<br /> +The Under Secretary of State for Foreign Affairs.</span></p> + +<p><span class="smcap">Sir</span>,—</p> + +<p>I venture to bring the following matter before your +consideration:—</p> + +<p>In the course of my recent studies I have been dealing with the +laws and usages of war on land, and I have had to consider the +interpretation of Article 23(h) of the Regulations attached to the +Convention of 1907 relating to the Laws and Customs of war on +land. I find that the interpretation prevailing among all continental +and some English and American authorities is contrary<span class='pagenum'><a name="Page_49" id="Page_49">[49]</a></span> +to the old English rule, and I would respectfully ask to be informed +of the view which His Majesty's Government place upon the article +in question.</p> + +<p>To give some idea as to how an interpretation of Article 23(h) +contrary to the old English rule prevails generally, I will quote +a number of French, German, English, and American writers, the +works of whom I have at hand in my library, and I will also quote +the German <i>Weissbuch</i> concerning the results of the second Hague +Conference of 1907.</p> + +<p>Bonfils, <i>Manuel de droit international public</i>, 5th ed. by Fauchille, +1908, discusses, on page 651, the doctrine which denies to an enemy +subject any <i>persona standi in judicio</i>, 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.'</p> + +<p>Politis, Professor of International Law in the University of Poitiers +(France), in his report to the Institute of International Law, Session +of Paris (1910), concerning <i>Effets de la Guerre sur les Obligations +Internationales et les Contrats privés</i>, page 18, says:</p> + +<p>'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."</p> + +<p>'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.</p> + +<p>'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.</p> + +<p>'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.<span class='pagenum'><a name="Page_50" id="Page_50">[50]</a></span></p> + +<p>'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.'</p> + +<p>Ullmann, <i>Völkerrecht</i>, 2nd ed. 1908, p. 474, says:—</p> + +<p>'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.'</p> + +<p>Wehberg, <i>Das Beuterecht im Land- und Seekriege</i>, 1909, pp. 5 +and 6 says:—</p> + +<p>'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."'</p> + +<p>Whittuck, <i>International Documents</i>, 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.'</p> + +<p>Holland, <i>The Laws of War on Land</i>, 1908, says on p. 5 that:—'Article +23(h) seems to require the Signatory Powers to the convention +concerned to legislate for the abolition of an enemy's disability +to sustain a <i>persona standi in judicio</i>.' (See also Holland, +<i>loco citato</i>, p. 44, where he expresses his doubts concerning the +interpretation of Article 23(h).)</p> + +<p>Bordwell, <i>The Law of War between Belligerents</i>, 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</p> + +<p>Gregory, Professor in the University of Iowa, who reviews Bordwell's +work in the <i>American Journal of International Law</i>, Volume 3 +(1909), page 788, takes up the same standpoint.</p> + +<p>The only author who interprets Article 23(h) in a different way<span class='pagenum'><a name="Page_51" id="Page_51">[51]</a></span> +is General Davis, who in his <i>Elements of International Law</i>, 3rd +edition 1908, page 578, note 1, says:—</p> + +<p>'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.'</p> + +<p>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.</p> + +<p>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.</p> + +<p>It is, however, of importance to take notice of the fact that Article +23(h) is an addition to Article 23 which was made on the proposition +of Germany, and that Germany prefers an interpretation of Article +23(h) which would seem to coincide with the interpretation preferred +by all the continental writers. This becomes clearly apparent +from the German <i>Weissbuch ueber die Ergebnisse der im Jahre 1907 +in Haag abgehaltenen Friedensconferenz</i>, which contains on page 7 +the following:—</p> + +<p>'Der Artikel 23 hat gleichfalls auf deutschen Antrag zwei wichtige +Zusätze erhalten. Durch den ersten wird der Grundsatz der Unverletzlichkeit +des Privateigenthumes auch auf dem Gebiete der Forderungsrechte +anerkannt. Nach der Gesetzgebung einzelner Staaten +soll nämlich der Krieg die Folge haben, dass die Schuldverbindlichkeiten +des Staates oder seiner Angehörigen gegen Angehörige +des Feindes aufgehoben oder zeitweilig ausser Kraft gesetzt oder<span class='pagenum'><a name="Page_52" id="Page_52">[52]</a></span> +wenigstens von der Klagbarkeit ausgeschlossen werden. Solche +Vorschriften werden nun durch den Artikel 23 Abs. 1 unter h für +unzulässig erklärt.'</p> + +<p>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.</p> + +<p class="signing">I have, &c.,<br /> +(Signed) L. OPPENHEIM.</p> + +<h4>LETTER FROM THE FOREIGN OFFICE TO THE +PRESENT WRITER.</h4> + +<div class="bk2"><p class="p5"><span class="smcap">Foreign Office</span>,</p> +<p class="td2"><i>March 27, 1911</i>.</p></div> + +<p><span class="smcap">Sir</span>,—</p> + +<p>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.</p> + +<p>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.</p> + +<p>The provision is inserted at the end of an article dealing with the +prohibited modes of warfare. It forms part of Chapter I. of Section +II. of the Regulations annexed to the Convention. The title of +Chapter I. is 'Means of injuring the enemy, sieges and bombardment': +and if the article itself is examined it will be seen to deal +with such matters as employing poison or poisoned weapons, refusing +quarter, use of treachery and the unnecessary destruction of private +property. Similarly the following articles (24 to 28) all deal with +the restrictions which the nations felt it incumbent upon them from<span class='pagenum'><a name="Page_53" id="Page_53">[53]</a></span> +a sense of humanity to place upon the conduct of their armed forces +in the actual prosecution of military operations.</p> + +<p>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.'</p> + +<p>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.</p> + +<p>Turning now to the actual wording of Article 23(h) it will be +seen that it begins with the wording 'to declare.' It is particularly +forbidden 'to <i>declare</i> abolished, &c.' This wording necessarily +contemplates the issue of some proclamation or notification purporting +to abrogate or to change rights previously existing and +which would otherwise have continued to exist, and in view of +Article I of the Convention this hypothetical proclamation must have +been one which it was assumed the commander of the army would +issue; consequently, stated broadly, the effect of Article 23(h) is +that a commander in the field is forbidden to attempt to terrorise +the inhabitants of the theatre of war by depriving them of existing +opportunities of obtaining relief to which they are entitled in respect +of private claims.</p> + +<p>Sir E. Grey is much obliged to you for calling his attention to +the extract which you quote from the German White Book. This +extract may be translated as follows:—'Article 23 has also received<span class='pagenum'><a name="Page_54" id="Page_54">[54]</a></span> +on German proposal two weighty additions. By the first the fundamental +principle of the inviolability of private property in the +domain of legal claims is recognised. According to the legislation +of individual states, war has the result of extinguishing or temporarily +suspending, or at least of suppressing the liability of the state or its +nationals to be sued by nationals of the enemy. These prescriptions +have now been declared inadmissible by Article 23(h).'</p> + +<p>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).</p> + +<p>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.</p> + +<p>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.'</p> + +<p>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.<span class='pagenum'><a name="Page_55" id="Page_55">[55]</a></span></p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p class="signing">I am, &c.,<br /> +(Signed) F. A. CAMPBELL.</p> + +<hr /><p><span class='pagenum'><a name="Page_57" id="Page_57">[57]</a></span></p> +<h2><span class="smcap">Third Lecture</span><br /> +ADMINISTRATION OF JUSTICE AND MEDIATION +WITHIN THE LEAGUE OF NATIONS</h2> + +<p><span class='pagenum'><a name="Page_59" id="Page_59">[59]</a></span></p> +<h3>SYNOPSIS</h3> + +<div class="fss"><p>I. Administration of Justice within the League is a question of +International Courts, but it is incorrect to assert that International +Legislation necessitates the existence of International Courts.</p> + +<p>II. The Permanent Court of Arbitration created by the First +Hague Peace Conference.</p> + +<p>III. The difficulties connected with International Administration +of Justice by International Courts.</p> + +<p>IV. The necessity for a Court of Appeal above the International +Court of First Instance.</p> + +<p>V. The difficulties connected with the setting up of International +Courts of Justice.</p> + +<p>VI. Details of a scheme which recommends itself because it +distinguishes between the Court as a whole and the several Benches +which would be called upon to decide the cases.</p> + +<p>VII. The advantages of the recommended scheme.</p> + +<p>VIII. A necessary provision for so-called complex cases of dispute.</p> + +<p>IX. A necessary provision with regard to the notorious clause +<i>rebus sic stantibus</i>.</p> + +<p>X. The two starting points for a satisfactory proposal concerning +International Mediation by International Councils of Conciliation. +Article 8 of the Hague Convention concerning Pacific Settlement +of International disputes. The Permanent International Commissions +of the Bryan Peace Treaties.</p> + +<p>XI. Details of a scheme which recommends itself for the establishment +of International Councils of Conciliation.</p> + +<p>XII. The question of disarmament.</p> + +<p>XIII. The assertion that States renounce their sovereignty by +entering into the League.</p> + +<p>XIV. Conclusion: Can it be expected that, in case of a great +conflict of interests, all the members of the League will faithfully +carry out their engagements?</p></div><p><span class='pagenum'><a name="Page_60" id="Page_60">[60]</a></span></p> + +<h3>THE LECTURE</h3> + +<p>I. My last lecture dealt with the organisation of +a League of Nations and International Legislation +by the League. To-day I want to draw your attention +to International Administration of Justice and +International Mediation within the League.</p> + +<p>I begin with International Administration of +Justice which, of course, is a question of International +Courts of Justice. Hitherto, although +International Legislation has been to some extent +in existence, no International Courts have been +established before which States in dispute have +been compelled to appear. Now there is no doubt +that International Legislation loses in value if there +are no arrangements for International Administration +of Justice by independent and permanent +International Courts. Yet it is incorrect to assert, +although it is frequently done, that one may not +speak of legislation and a law created by legislation +without the existence of Courts to administer such +law.</p> + +<p>Why is this assertion incorrect? Because the +function of Courts is to decide <i>controversial</i> questions +of law or of fact in case the respective parties cannot +agree concerning them. However, in most cases +the law is not in jeopardy, and its commands are +carried out by those concerned without any necessity +for a Court to declare the law. Modern International +Law has been in existence for several hundred +years, and its commands have in most cases been<span class='pagenum'><a name="Page_61" id="Page_61">[61]</a></span> +complied with in the absence of International Courts. +On the other hand, there is no doubt that, if controversies +arise about a question of law or a question +of fact, the authority of the law can be successfully +vindicated only by the verdict of a Court. And +it is for this reason that no highly developed Community +can exist for long without Courts of Justice.</p> + +<p>II. The Community of civilised States did not, +until the end of the nineteenth century, possess any +permanent institution which made the administration +of international justice possible. When States +were in conflict and, instead of having recourse to +arms, resolved to have the dispute peaceably settled +by an award, in every case they agreed upon so-called +arbitration, and they nominated one or more +arbitrators, whom they asked to give a verdict. +For this reason, it was an epoch-making step forward +when the First Peace Conference of 1899 agreed +upon the institution of a Permanent Court of Arbitration, +and a code of rules for the procedure before +this Court. Although the term 'Permanent Court +of Arbitration,' as applied to the institution +established by the First Hague Peace Conference, +is only a euphemism, since actually the Court concerned +is not a permanent one and the members of +the Court have in every case to be nominated by +the parties, there is in existence, firstly, a permanent +panel of persons from which the arbitrators may be +selected; secondly, a permanent office at the Hague; +and, thirdly, a code of procedure before the Court. +Thereby an institution has been established which +is always at hand in case the parties in conflict want<span class='pagenum'><a name="Page_62" id="Page_62">[62]</a></span> +to make use of it; whereas in former times parties +in conflict had to negotiate a long time in order +to set up the machinery for arbitration. And the +short time of twenty years has fully justified +the expectations aroused by the institution of the +Permanent Court of Arbitration, for a good number +of cases have been brought before it and settled to +the satisfaction of the parties concerned.</p> + +<p>And the Second Hague Peace Conference of 1907 +contemplated further steps by agreeing upon a +treaty concerning the establishment of an International +Court of Appeal in Prize Cases, and upon +a draft treaty concerning a really Permanent +International Court of Justice side by side with +the existing Court of Arbitration. Although neither +of these contemplated International Courts has +been established, there is no doubt that, if after +the present war a League of Nations becomes a +reality, one or more International Courts of Justice +will surely be established, although the existing +Permanent Court of Arbitration may remain in +being.</p> + +<p>III. But just as regards International Legislation, +I must warn you not to imagine that International +Administration of Justice by International +Courts is an easy matter. It is in fact full of +difficulties of many kinds.</p> + +<p>The peculiar character of International Law; +the rivalry between the different schools of international +jurists, namely the Naturalists, Positivists, +and Grotians; the question of language; the +peculiarities of the systems of law of the different<span class='pagenum'><a name="Page_63" id="Page_63">[63]</a></span> +States, of their constitutions, and many other difficulties, +entail the danger that International Courts +may become the arena of national jealousies, of +empty talk, and of political intrigues, instead +of being pillars of international justice.</p> + +<p>Everything depends upon what principles will +guide the States in their selection of the individuals +whom they appoint as members of International +Courts. Not diplomatists, not politicians, but only +men ought to be appointed who have had a training +in law in general, and in International Law in particular; +men who are linguists, knowing, at any +rate, the French language besides their own; men +who possess independence of character and are free +from national prejudices of every kind. There is +no doubt that, under present conditions and circumstances +of international life, the institution of International +Courts represents an unheard of experiment. +There is, however, likewise no doubt that <i>now</i> is +the time for the experiment to be made, and I believe +that the experiment will be successful, provided +the several States are careful in the appointment of +the judges.</p> + +<p>IV. And it must be emphasised that an International +Court of Appeal above the one or several +International Courts is a necessity. Just as Municipal +Courts of Justice, so International Courts of +Justice are not infallible. If the States are to be +compelled to have their judicial disputes settled +by International Administration of Justice, there +must be a possibility of bringing an appeal from +lower International Courts to a Higher Court. It is<span class='pagenum'><a name="Page_64" id="Page_64">[64]</a></span> +only in this way that in time a body of International +Case Law can grow up, which will be equivalent +in its influence upon the practice of the States to +the municipal case law of the different States.</p> + +<p>V. I have hitherto considered in a general way +only the difficulties of International Administration +of Justice; I have not touched upon the particular +difficulties connected with the setting up and manning +of International Courts. If the several States could +easily agree upon, say, five qualified men as judges +of a Court of First Instance, and upon, say, seven +qualified men as judges of a Court of Appeal, there +would be no difficulty whatever in setting up these +two Courts. And perhaps some generations hence +the time may come when such an agreement will +be possible. In our time it cannot be expected, +and here therefore lies the great difficulty in the +way of setting up and manning International Courts +of Justice; because there is no doubt that each State +will claim the right to appoint at least one man of +its own choice to sit as judge in the International +Court or Courts. And since there are about fifty +or more civilised independent States in existence, +the International Court would comprise fifty or +more members.</p> + +<p>Now why would the several States claim a right +to appoint at least one man of their own choice as +judge? They would do this because they desire +to have a representative of their own general legal +views in the Court. It is a well-known fact that +not only the legal systems which prevail in the +several States differ, but also that there are differences<span class='pagenum'><a name="Page_65" id="Page_65">[65]</a></span> +concerning the fundamental conceptions of justice, +law, procedure, and evidence. Each State fears +that an International Court will create a practice +fundamentally divergent from its general legal +views, unless there is at least one representative of +its own general legal views sitting in the Court.</p> + +<p>I think that in spite of everything the difficulty +is not insurmountable provided a scheme for an +International Court which follows closely the model +of Municipal Courts is not insisted upon. Just as +the organisation of a League of Nations cannot follow +the model of the organisation of a State, so the +attempt to set up an International Court must not +aim at following closely the model of Municipal +Courts. What is required is an institution which +secures the settlement of judicial international +disputes by giving judgments on the basis of law. +I think this demand can be satisfied by a scheme +which would meet both the claim of each State +to nominate one judge and the necessity not to +overcrowd the Bench which decides each dispute.</p> + +<p>VI. The scheme which I should like to recommend +is one which distinguishes between the Court as a +whole and the several Benches which would be +called upon to decide the several cases. It is as +follows:</p> + +<p>The Court as a whole to consist of as many judges +as there are members of the League, each member +to appoint one judge and one deputy judge who +would take the place of the judge in case of illness +or death or other cause of absence. The President, +the Vice-President, and, say, twelve or fourteen<span class='pagenum'><a name="Page_66" id="Page_66">[66]</a></span> +members to constitute the Permanent Bench of the +Court and therefore to be resident the whole year +round at the Hague. Half of the members of this +Permanent Bench of the Court to be appointed by the +Great Powers—each Great Power to appoint one—and +the other half of the members to be appointed +by the minor Powers. Perhaps the Scandinavian +Powers might agree upon the nomination of one +member; Holland and Spain and Portugal upon +another; Belgium, Switzerland, and Luxemburg +upon a third; the Balkan States upon a fourth; +Argentina, Brazil, and Chile upon a fifth; and so on. +Anyhow, some arrangement would have to be made +according to which the minor Powers unite upon the +appointment of half the number of the Permanent +Bench.</p> + +<p>If a judicial dispute arises between two States, +the case to go in the first instance before a Bench +comprising the two judges appointed by the two +States in dispute and a President who, as each case +arises, is to be selected by the Permanent Bench +of the Court from the members of this Bench. This +Court of First Instance having given its judgment, +each party to have a right of appeal. The appeal +to go before the Permanent Bench at the Hague, +which is to give judgment with a quorum of six +judges with the addition of those judges who served +as the Bench of First Instance. The right of appeal +to exist only on questions of law and not on questions +of fact.</p> + +<p>Decisions of the Appeal Court to be binding precedents +for itself and for any Courts of First Instance.<span class='pagenum'><a name="Page_67" id="Page_67">[67]</a></span> +But should the Appeal Court desire to go back on a +former decision of law, this to be possible only at +a meeting of the Court comprising at least twelve +members of the Permanent Bench.</p> + +<p>VII. The proposal which I have just sketched, +and which will need to be worked out in detail if +it is to be realised, offers the following advantages:</p> + +<p>Every case would in the first instance be decided +by a small Bench which would enjoy the confidence +of both parties because they would have their own +judge in the Court. This point is of particular importance +with regard to the mode of taking evidence +and making clear the facts; but is likewise of importance +on account of the divergence of fundamental +legal views and the like.</p> + +<p>Since the Court of Appeal would only decide points +of law, the facts as elucidated by the Bench of First +Instance would remain settled. But the existence of +the Court of Appeal would enable the parties to re-argue +questions of law with all details. The fact that +six of the Bench which serves as a Court of Appeal +are members of the Permanent Bench would guarantee +a thorough reconsideration of the points of +law concerned, and likewise the maintenance and +sequence of tradition in International Administration +of Justice.</p> + +<p>Again, the fact that the Court of Appeal is to +comprise, besides six members of the Permanent +Bench, those three judges who sat as the Bench +of First Instance would guarantee that the judges +appointed by the States in dispute could again bring +into play any particular views of law they may hold.<span class='pagenum'><a name="Page_68" id="Page_68">[68]</a></span></p> + +<p>VIII. This is the outline of my scheme for the +establishment and manning of the International +Court of Justice. But before I leave the subject, +I must say a few words concerning two important +points which almost all other schemes for the establishment +of an International Court overlook. Firstly, +the necessity to make provision for what I should +like to call complex cases of dispute; namely, cases +which are justiciable but in which, besides the +question of law, there is at the same time involved +a vital political principle or claim. Take the case +of a South American State entering into an agreement +with a non-American State to lease to it a +coaling station: this case is justiciable, but besides +the question of law there is a political claim involved +in it, namely, the Monroe doctrine of the United +States. Unless provision be made for the settlement +of such complex cases, the League of Nations +will not be a success, for it might well happen that +a case touches vital political interests in such a way +as not to permit a State to have it settled by a mere +juristic decision.</p> + +<p>Now my proposal to meet such complex cases is +that when a party objects to a settlement of a case +on mere juristic principles, although the other party +maintains that it is a justiciable case, the Bench +which is to serve as Bench of First Instance shall +investigate the matter with regard to the question +whether the case is more political than legal in +nature. If the Court decides the question in the +negative, then the same Court shall give judgment +on the dispute; but, if the Court decides the question<span class='pagenum'><a name="Page_69" id="Page_69">[69]</a></span> +in the affirmative, then the case shall be referred by +the Court to the International Council of Conciliation. +Whatever the decision of the Bench of First +Instance may be, each party shall have the right of +appeal to the Permanent Bench which serves as the +Court of Appeal.</p> + +<p>IX. The other point which I desire to mention +before I leave the subject of International Administration +of Justice concerns the notorious principle +<i>conventio omnis intelligitur rebus sic stantibus</i>. You +know that almost all publicists and also almost +all Governments assert the existence of a customary +rule according to which a vital change of circumstances +after ratification of a treaty may be of such +a kind as to justify a party in demanding to be +released either from the whole treaty or from certain +obligations stipulated in it. But the meaning of +the term 'vital change of circumstances' is elastic, +and there is therefore great danger that the principle +<i>conventio omnis intelligitur rebus sic stantibus</i> will +be abused for the purpose of hiding the violation +of treaties behind the shield of law. This danger +will remain so long as there is no International +Court in existence which, on the motion of one of +the contracting parties, could set aside the treaty +obligation whose fulfilment has become so oppressive +that in justice the obliged party might ask to be +released. Now, as the League of Nations is to set +up an International Court of Justice, my proposal +is that the Court should be declared competent to +give judgment on the claim of a party to a treaty +to be released from its obligations on account of<span class='pagenum'><a name="Page_70" id="Page_70">[70]</a></span> +vital change of circumstances. Of course the case +would go before that Bench of the Court which is to +serve as the Court of First Instance, and an appeal +would lie to the Permanent Bench which serves +as the Court of Appeal.</p> + +<p>X. Having given you the outlines of a scheme +concerning International Administration of Justice, +I now turn to International Mediation by International +Councils of Conciliation.</p> + +<p>For a satisfactory proposal concerning International +Councils of Conciliation two starting points +offer themselves. One starting point is the special +form of mediation recommended by Article 8 of +the Hague Convention concerning the pacific settlement +of international disputes. The following is +the text of this Article 8:</p> + +<div class="blockquot"><p>'The Signatory Powers are agreed in recommending the application, +when circumstances allow, of special mediation in the following +form:—</p> + +<p>'In case of a serious difference endangering peace, the contending +States choose respectively a Power, to which they intrust the mission +of entering into direct communication with the Power chosen on +the other side, with the object of preventing the rupture of pacific +relations.</p> + +<p>'For the period of this mandate, the term of which, in default +of agreement to the contrary, cannot exceed thirty days, the States +at variance cease from all direct communication on the subject of +the dispute, which is regarded as referred exclusively to the mediating +Powers. These Powers shall use their best efforts to settle the +dispute.</p> + +<p>'In case of a definite rupture of pacific relations, these Powers +remain jointly charged with the task of taking advantage of any +opportunity to restore peace.'</p></div> + +<p>The second starting point is supplied by the Permanent +International Commissions of the so-called<span class='pagenum'><a name="Page_71" id="Page_71">[71]</a></span> +Bryan Peace Treaties concluded in 1913-14 by the +United States of America with a number of other +States. These peace treaties are not in every point +identical, but of interest to us here are the clauses +according to which Permanent International Commissions +are set up to serve as Councils of Conciliation. +The following is the text of the three articles +concerned of the treaty between the United States +and Great Britain of September 15, 1914:</p> + +<div class="blockquot"><p>Art. I. 'The High Contracting Parties agree that all disputes +between them, of every nature whatsoever, other than disputes the +settlement of which is provided for and in fact achieved under +existing agreements between the High Contracting Parties, shall, +when diplomatic methods of adjustment have failed, be referred for +investigation and report to a permanent International Commission, +to be constituted in the manner prescribed in the next succeeding +article; and they agree not to declare war or begin hostilities during +such investigation and before the report is submitted.'</p> + +<p>Art. II. 'The International Commission shall be composed of +five members, to be appointed as follows: One member shall be +chosen from each country, by the Government thereof; one member +shall be chosen by each Government from some third country; the +fifth member shall be chosen by common agreement between the +two Governments, it being understood that he shall not be a citizen +of either country. The expenses of the Commission shall be paid +by the two Governments in equal proportions.'</p> + +<p>'The International Commission shall be appointed within six +months after the exchange of the ratifications of this treaty; and +vacancies shall be filled according to the manner of the original +appointment.'</p> + +<p>Art. III. 'In case the High Contracting Parties shall have failed +to adjust a dispute by diplomatic methods, they shall at once refer +it to the International Commission for investigation and report. +The International Commission may, however, spontaneously by +unanimous agreement offer its services to that effect, and in such +case it shall notify both Governments and request their co-operation +in the investigation.'</p></div><p><span class='pagenum'><a name="Page_72" id="Page_72">[72]</a></span></p> + +<p>Keeping in view the special form of mediation +recommended by Article 8 of the Hague Convention +concerning the Pacific Settlement of International +Disputes and the stipulations of the Bryan Peace +Treaties concerning Permanent International Commissions, +we can reach a satisfactory solution of +the problem of International Mediation if we take +into consideration the two reasons why a League of +Nations must stipulate the compulsion of its members +to bring non-justiciable disputes before a Council +of Conciliation previous to resorting to hostilities. +These reasons are, firstly, that war in future shall +not be declared without a previous attempt to have +the dispute peaceably settled, and, secondly, that +war in future shall not break out like a bolt from +the blue.</p> + +<p>XI. My proposal concerning International Councils +of Conciliation is the following:</p> + +<p>Every member of the League shall appoint for a +term of years—say five or ten—two conciliators +and two deputy conciliators from among their own +subjects, and one conciliator and one deputy conciliator +from among the subjects of some other +State. Now when a non-justiciable dispute arises +between two States which has not been settled by +diplomatic means, the three conciliators of each +party in dispute shall meet to investigate the matter, +to report thereon, and to propose, if possible, a +settlement.</p> + +<p>According to this proposal there would be in +existence a number of Councils of Conciliation equal +to half the number of the members of the League.<span class='pagenum'><a name="Page_73" id="Page_73">[73]</a></span> +Whenever a dispute arises, the Permanent Council +of Conciliation—with which I shall deal presently—shall +appoint a Chairman from amongst its own +members. The Council thus constituted shall investigate +the case, report on it, send a copy to +each party in dispute and to the Permanent Council +of Conciliation.</p> + +<p>The <i>Permanent</i> Council of Conciliation should be +a <i>small</i> Council to be established by each of the +Great Powers appointing one conciliator and one +deputy conciliator for a period of—say—five or ten +years. The reason why only the Great Powers +should be represented in the Permanent Council of +Conciliation at the Hague is that naturally, in case +coercion is to be resorted to against a State which +begins war without having previously submitted the +dispute to a Council of Conciliation, the Great Powers +will be chiefly concerned. This Permanent Council +of Conciliation would have to watch the political +life of the members of the League and communicate +with all the Governments of the members in case +the peace of the world were endangered by the +attitude of one of the members; for instance by one +or more of the members arming excessively. The +Council would likewise be competent to draw the +attention of States involved in a dispute to the +fact that they ought to bring it before either the +International Court of Justice or their special Council +of Conciliation.</p> + +<p>This proposal of mine concerning mediation within +the League of Nations is, of course, sketchy and +would need working out in detail if one were thinking<span class='pagenum'><a name="Page_74" id="Page_74">[74]</a></span> +of preparing a full plan for its realisation. However +that may be, my proposal concerning a number +of Councils of Conciliation has the advantage that +non-justiciable disputes would in each case be +investigated and reported on by conciliators who +have once for all been appointed by the States in +dispute and who therefore possess their confidence. +On the other hand, the proposed Permanent Council +of Conciliation would guarantee to the Great Powers +that important influence which is due to them on +account of the fact that they would be chiefly concerned +in case economic, military, or naval measures +had to be resorted to against a recalcitrant member +of the League.</p> + +<p>XII. Having discussed International Mediation +by International Councils of Conciliation, I must +now turn to two questions which I have hitherto +purposely omitted, although in the eyes of many +people they stand in the forefront of interest, +namely, firstly, <i>disarmament</i> as a consequence of +the peaceable settlement of disputes by an International +Court of Justice and International Councils +of Conciliation, and, secondly, the question of the +<i>surrender of sovereignty</i> which it is asserted is involved +by the entrance of any State into the proposed +League of Nations.</p> + +<p>Now as regards disarmament, I have deliberately +abstained from mentioning it hitherto, although it +is certainly a question of the greatest importance. +The reason for my abstention is a very simple one. +I have always maintained that disarmament can +neither diminish the number of wars nor abolish<span class='pagenum'><a name="Page_75" id="Page_75">[75]</a></span> +war altogether, but that, if the number of wars +diminishes or if war be abolished altogether, disarmament +will follow. There is no doubt that when +once the new League of Nations is in being, war will +occur much more rarely than hitherto. For this +reason disarmament will <i>ipso facto</i> follow the establishment +of a League of Nations, and the details +of such disarmament are matters which will soon +be solved when once the new League has become +a reality. Yet I must emphasise the fact that +disarmament is not identical with the total abolition +of armies and navies. The possibility must always +be kept in view that one or more members of the +League will be recalcitrant, and that then the other +members must unite their forces against them. +And there must likewise be kept in view the possibility +of a war between two members of the League +on account of a political dispute in which mediation +by the International Councils of Conciliation was +unsuccessful. Be that as it may, it is certain that +in time disarmament can take place to a very great +extent, and it is quite probable that large standing +armies based on conscription might everywhere be +abolished and be replaced by militia.</p> + +<p>XIII. Let me now turn to the question of +sovereignty. Is the assertion really true that States +renounce their sovereignty by entering into the +League? The answer depends entirely upon the +conception of sovereignty with which one starts. +If sovereignty were absolutely unfettered liberty of +action, a loss of sovereignty would certainly be +involved by membership of the League, because<span class='pagenum'><a name="Page_76" id="Page_76">[76]</a></span> +every member submits to the obligation never to +resort to arms on account of a judicial dispute, and +in case of a political dispute to resort to arms only +after having given an opportunity of mediation to +an International Council of Conciliation. But in +fact sovereignty does not mean absolutely boundless +liberty of action; and moreover sovereignty +has at no time been a conception upon the contents +of which there has been general agreement.</p> + +<p>The term 'sovereignty' was introduced into political +science by Bodin in his celebrated work 'De +la République,' which appeared in 1577. Before +that time, the word <i>souverain</i> was used in France +for any political or other authority which was not +subordinate to any higher authority; for instance, +the highest Courts were called <i>cours souveraines</i>. +Now Bodin gave quite a new meaning to the old +term. Being under the influence and in favour of +the policy of centralisation initiated by Louis XI +of France (1461-1483), the founder of French absolutism, +Bodin defines sovereignty as the 'absolute +and perpetual power within a State.' However, +even Bodin was far from considering sovereignty to +give absolutely unfettered freedom of action, for +he conceded that sovereignty was restricted by the +commandments of God and by the rules of the +Law of Nature. Be that as it may, this conception +of sovereignty once introduced was universally +accepted; but at the same time the meaning of +the term became immediately a bone of contention +between the schools of publicists. And it is to be +taken into consideration that the science of politics<span class='pagenum'><a name="Page_77" id="Page_77">[77]</a></span> +has learnt to distinguish between sovereignty of the +State and sovereignty of the agents who exercise +the sovereign powers of the State. According to +the modern view sovereignty is a natural attribute +of every independent State as a State; and +neither the monarch, nor Parliament, nor the people +can possess any sovereignty of their own. The +sovereignty of a monarch, or of a Parliament, or of +the whole people is not an original attribute of their +own, but derives from the sovereignty of the State +which is governed by them. It is outside the scope +of this lecture to give you a history of the conception +of sovereignty, it suffices to state the undeniable +fact that from the time when the term was first +introduced into political science until the present +day there has never been unanimity with regard +to its meaning, except that it is a synonym for +independence of all earthly authority.</p> + +<p>Now, do you believe that the independence of a +State is really infringed because it agrees never to +make war on account of a judicial dispute, and in +case of a political dispute not to resort to arms before +having given opportunity of mediation to International +Councils of Conciliation? Independence +is not boundless liberty of a State to do what it +likes, without any restriction whatever. The mere +fact that there is an International Law in existence +restricts the unbounded liberty of action of every +civilised State, because every State is prohibited +from interfering with the affairs of every other State. +The fact is that the independence of every State +finds its limitation in the independence of every<span class='pagenum'><a name="Page_78" id="Page_78">[78]</a></span> +other State. And it is generally admitted that a +State can through conventions—such as a treaty +of alliance or of neutrality or others—enter into +many obligations which more or less restrict its +liberty of action. Independence is a question of +degree, and, therefore, it is also a question of degree +whether or no the independence of a State is vitally +encroached upon by a certain restriction. In my +opinion the independence of a State is as little +infringed by an agreement to submit all its judicial +disputes to the judgment of a Court and not to +resort to arms for a settlement, as the liberty of a +citizen is infringed because in a modern State he +can no longer resort to arms on account of a dispute +with a fellow citizen but must submit it to the +judgment of the Court.</p> + +<p>And even if it were otherwise, if the entrance of +a State into the new League of Nations did involve +an infringement of its sovereignty and independence, +humanity need not grieve over it. The Prussian +conception of the State as an end in itself and of +the authority of the State as something above +everything else and divine—a conception which +found support in the philosophy of Hegel and his +followers—is adverse to the ideal of democracy +and constitutional government. Just as Henri IV +of France said 'La France vaut bien une messe,' +we may well say 'La paix du monde vaut bien la +perte de l'indépendance de l'état.'</p> + +<p>XIV. I have come to the end of this course of +lectures, but before we part I should like, in conclusion, +to touch upon a question which has<span class='pagenum'><a name="Page_79" id="Page_79">[79]</a></span> +frequently been put with regard to the proposal of +a new League of Nations:—Can it really be expected +that, in case of a great conflict of interests, all the +members of the League will faithfully carry out +their engagements? Will the new League stand the +strain of such conflicts as shake the very existence +of States and Nations? Will the League really +stand the test of History?</p> + +<p>History teaches that many a State has entered +into engagements with the intention of faithfully +carrying them out, but, when a grave conflict arose, +matters assumed a different aspect, with the consequence +that the engagements remained unfulfilled. +Will it be different in the future? Can the Powers +which enter into the League of Nations trust to the +security which it promises? Can they be prepared +to disarm, although there is no guarantee that, +when grave conflicts of vital interests arise, all +the members of the League will faithfully stand by +their engagements?</p> + +<p>These are questions which it is difficult to +answer because no one can look into the future. +We can only say that, if really constitutional and +democratic government all the world over makes +international politics honest and reliable and excludes +secret treaties, all the chances are that the members +of the League will see that their true interests and +their lasting welfare are intimately connected with +the necessity of fulfilling the obligations to which +they have submitted by their entrance into the +League. The upheaval created by the present World +War, the many millions of lives sacrificed, and the<span class='pagenum'><a name="Page_80" id="Page_80">[80]</a></span> +enormous economic losses suffered during these years +of war, not only by the belligerents but also by all +neutrals, will be remembered for many generations +to come. It would therefore seem to be certain +that, while the memory of these losses in lives and +wealth lasts, all the members of the League will +faithfully carry out the obligations connected with +the membership of the League into which they enter +for the purpose of avoiding such a disaster as, like +a bolt from the blue, fell upon mankind by the +outbreak of the present war. On the other hand, I +will not deny that no one can guarantee the future; +that conflicts may arise which will shake the foundations +of the League of Nations; that the League may +fall to pieces; and that a disaster like the present +may again visit mankind. Our generation can only +do its best for the future, and it must be left to +succeeding generations to perpetuate the work +initiated by us.</p> + +<hr /><p><span class='pagenum'><a name="Page_81" id="Page_81">[81]</a></span></p> +<h2>INDEX</h2> + +<ul><li><span class="smcap">Administration</span> of Justice by International Courts, difficulties of, <a href="#Page_62">62</a>;<ul> +<li>maintenance of tradition of, <a href="#Page_67">67</a>;</li> +<li>permanent institution for the, <a href="#Page_61">61</a>.</li></ul></li> + +<li>Aims of the League of Nations defined, <a href="#Page_23">23</a>, <a href="#Page_28">28</a>, <a href="#Page_35">35-36</a>.</li> + +<li>Article 8 of the Hague Convention concerning the Pacific Settlement of International Disputes, <a href="#Page_70">70</a>.</li> + +<li>Article 23(h) of the Hague Regulations concerning Land Warfare, <a href="#Page_45">45-55</a>;<ul> +<li>controversy respecting interpretation of, <a href="#Page_45">45</a>;</li> +<li>correspondence respecting, with Foreign Office, <a href="#Page_48">48-55</a>.</li></ul></li> + +<li>Autocratic Government, <a href="#Page_11">11</a>.</li> +</ul> + +<ul><li><span class="smcap">Belgium</span>, <a href="#Page_37">37</a>, <a href="#Page_66">66</a>.</li> + +<li>Bodin, <a href="#Page_76">76</a>.</li> + +<li>Bonfils on Article 23(h) of the Hague Regulations concerning Land Warfare, <a href="#Page_49">49</a>.</li> + +<li>Bordwell on Article 23(h) of the Hague Regulations concerning Land Warfare, <a href="#Page_50">50</a>.</li> + +<li>British Empire, <a href="#Page_13">13</a>, <a href="#Page_20">20</a>.</li> + +<li>Bryan Peace Treaties, <a href="#Page_71">71</a>.</li> + +<li>Bryce, Lord, scheme of, <a href="#Page_36">36</a>.</li> +</ul> + +<ul><li><span class="smcap">Central Powers</span>, the, are they to become members of the League of Nations? <a href="#Page_17">17</a>, <a href="#Page_36">36</a>;<ul> +<li>necessity for utter defeat of, <a href="#Page_15">15</a>, <a href="#Page_37">37</a>.</li></ul></li> + +<li>Colonies, wars for the acquisition of, <a href="#Page_10">10</a>.</li> + +<li>Complex cases of dispute, how to settle, <a href="#Page_68">68</a>.</li> + +<li>Congress of Vienna, <a href="#Page_30">30</a>, <a href="#Page_42">42</a>.</li> + +<li>Constitutional Government, <a href="#Page_10">10</a>, <a href="#Page_11">11</a>;<ul> +<li>necessity for, <a href="#Page_19">19</a>.</li></ul></li> + +<li>Court of Appeal, International, <a href="#Page_66">66</a>, <a href="#Page_67">67</a>, <a href="#Page_69">69</a>;<ul> +<li>manning of, <a href="#Page_64">64</a>.</li></ul></li> + +<li>Court of Arbitration, establishment of International, <a href="#Page_61">61</a>.</li> + +<li>Court of First Instance, International, <a href="#Page_64">64</a>;<ul> +<li>manning of, <a href="#Page_66">66</a>.</li></ul></li> + +<li>Crucée, Emeric, <a href="#Page_9">9</a>.</li> +</ul> + +<ul><li><span class="smcap">Davis</span>, General, on Article 23(h) of the Hague Regulations concerning Land Warfare, <a href="#Page_51">51</a>.</li> + +<li>Democracy, <a href="#Page_10">10</a>, <a href="#Page_11">11</a>.</li> + +<li>Dickinson, scheme of Sir Willoughby, <a href="#Page_36">36</a>.</li> + +<li>Disarmament, <a href="#Page_21">21</a>, <a href="#Page_74">74</a>.</li> + +<li>Dubois, Pierre, <a href="#Page_8">8</a>.</li> + +<li>Dynastic wars, <a href="#Page_10">10</a>.</li> +</ul> + +<ul><li><span class="smcap">Engagements</span> of the members of the League of Nations, security for fulfilment of, <a href="#Page_79">79</a>.</li> + +<li>Equality, of States, <a href="#Page_33">33</a>, <a href="#Page_39">39</a>;<ul> +<li>of the votes at Hague Peace Conferences, <a href="#Page_38">38</a>.</li></ul></li> +</ul> + +<ul><li><span class="smcap">Family</span>, the, a product of natural development, <a href="#Page_10">10</a>.</li> + +<li>Family of Nations, political hegemony of the Great Powers within the, <a href="#Page_31">31</a>.</li> + +<li>Federal World State, A, <a href="#Page_18">18-20</a>;<span class='pagenum'><a name="Page_82" id="Page_82">[82]</a></span><ul> +<li>demanded by Pacifists, <a href="#Page_31">31</a>;</li> +<li>why not possible, <a href="#Page_19">19</a>.</li></ul></li> + +<li>Foreign Office, letter of, to Professor Oppenheim concerning Article 23(h), <a href="#Page_52">52-55</a>.</li> +</ul> + +<ul><li><span class="smcap">German</span> Confederation, civil war within the, <a href="#Page_32">32</a>.</li> + +<li>German Weissbuch on Article 23(h) of the Hague Regulations concerning Land Warfare, <a href="#Page_51">51</a>, <a href="#Page_54">54</a>, <a href="#Page_55">55</a>.</li> + +<li>Germany, is she to become a member of the League of Nations? <a href="#Page_17">17</a>, <a href="#Page_36">36</a>;<ul> +<li>necessity for the utter defeat of, <a href="#Page_15">15</a>, <a href="#Page_37">37</a>.</li></ul></li> + +<li>Great Powers, <a href="#Page_30">30</a>, <a href="#Page_66">66</a>;<ul> +<li>power and influence of the, <a href="#Page_29">29-31</a>.</li></ul></li> + +<li>Greece, city States of ancient, <a href="#Page_7">7</a>.</li> + +<li>Gregory on Article 23(h) of the Hague Regulations concerning Land Warfare, <a href="#Page_50">50</a>.</li> + +<li>Grey, Earl, <a href="#Page_5">5</a>, <a href="#Page_52">52</a>, <a href="#Page_53">53</a>, <a href="#Page_55">55</a>.</li> + +<li>Grotians, the School of, <a href="#Page_62">62</a>.</li> + +<li>Grotius, Hugo, <a href="#Page_9">9</a>.</li> +</ul> + +<ul><li><span class="smcap">Hague</span> Convention concerning the Pacific Settlement of International Disputes, Article 8 of, <a href="#Page_70">70</a>.</li> + +<li>Hague Peace Conferences, <a href="#Page_34">34</a>;<ul> +<li>method of legislating by, <a href="#Page_45">45</a>;</li> +<li>the work of, obstructed by some States, <a href="#Page_38">38</a>;</li> +<li>standing council of, proposed, <a href="#Page_39">39</a>;</li> +<li>starting point of organisation of League of Nations by, <a href="#Page_36">36</a>, <a href="#Page_39">39</a>;</li> +<li>votes of States of equal value at, <a href="#Page_38">38</a>.</li></ul></li> + +<li>Hague Regulations concerning Land Warfare, controversy respecting interpretation of Article 23(h) of, <a href="#Page_45">45</a>.</li> + +<li>Henry IV of France, <a href="#Page_9">9</a>, <a href="#Page_78">78</a>.</li> + +<li>Holland, Professor, on Article 23(h) of the Hague Regulations concerning Land Warfare, <a href="#Page_50">50</a>.</li> +</ul> + +<ul><li><span class="smcap">Independence</span> of States, what it is, <a href="#Page_33">33</a>, <a href="#Page_77">77</a>.</li> + +<li>International Army and Navy, why impossible, <a href="#Page_6">6</a>, <a href="#Page_18">18</a>, <a href="#Page_20">20-22</a>, <a href="#Page_41">41</a>.</li> + +<li>International Case Law, <a href="#Page_64">64</a>.</li> + +<li><a name="International_Council_of_Conciliation" id="International_Council_of_Conciliation"></a>International Council of Conciliation, <a href="#Page_28">28</a>, <a href="#Page_40">40</a>, <a href="#Page_69">69</a>;<ul> +<li>scheme for the establishment of, <a href="#Page_72">72-74</a>;</li> +<li>starting points for, <a href="#Page_70">70</a>.</li></ul></li> + +<li>International Court of Appeal, <a href="#Page_66">66</a>, <a href="#Page_67">67</a>;<ul> +<li>a necessity, <a href="#Page_63">63</a>;</li> +<li>manning of, <a href="#Page_64">64</a>.</li></ul></li> + +<li>International Court of First Instance, <a href="#Page_64">64</a>;<ul> +<li>manning of proposed bench to serve as, <a href="#Page_64">64</a>.</li></ul></li> + +<li>International Court of Justice, <a href="#Page_18">18</a>, <a href="#Page_28">28</a>, <a href="#Page_65">65-68</a>;<ul> +<li>manning of, <a href="#Page_65">65</a>;</li> +<li>proposed permanent bench of, <a href="#Page_65">65</a>, <a href="#Page_66">66</a>;</li> +<li>proposed special benches of, for different cases, <a href="#Page_66">66</a>.</li></ul></li> + +<li>International Courts, claims of all States in manning of, <a href="#Page_64">64</a>;<ul> +<li>difficulties of manning of, <a href="#Page_65">65</a>;</li> +<li>precedents of, <a href="#Page_64">64</a>.</li></ul></li> + +<li>International Executive, why impossible, <a href="#Page_19">19</a>, <a href="#Page_41">41</a>.</li> + +<li>International Government, why impossible, <a href="#Page_19">19</a>.</li> + +<li>International Law, a book law at present, <a href="#Page_43">43</a>;<ul> +<li>and League of Nations interdependent, <a href="#Page_6">6</a>, <a href="#Page_33">33</a>;</li> +<li>complied with often without Courts, <a href="#Page_60">60</a>;</li> +<li>grew by custom during Middle Ages, <a href="#Page_8">8</a>;</li> +<li>not in being in antiquity, <a href="#Page_6">6</a>;</li> +<li>progress of, <a href="#Page_33">33</a>, <a href="#Page_35">35</a>, <a href="#Page_38">38</a>;</li> +<li>universal and general, difference between, <a href="#Page_44">44</a>.</li></ul></li> + +<li>International Legislation, <a href="#Page_38">38</a>, <a href="#Page_41">41-48</a>;<ul> +<li>a by-product only in the past, <a href="#Page_42">42</a>;</li> +<li>difficulties of, created by conflicting interests of States, <a href="#Page_44">44</a>;</li> +<li>difficulties of, created by different methods of interpretation and construction, <a href="#Page_45">45</a>;</li> +<li>difficulties of, created by the fact that a majority vote cannot create a statute, <a href="#Page_44">44</a>;</li> +<li>difficulties of, created by the language question, <a href="#Page_43">43</a>;</li> +<li>meaning of the term, <a href="#Page_41">41</a>;<span class='pagenum'><a name="Page_83" id="Page_83">[83]</a></span></li> +<li>possible even without International Courts, <a href="#Page_42">42</a>, <a href="#Page_60">60</a>;</li> +<li>possible only by agreement of all the States, <a href="#Page_42">42</a>;</li> +<li>wide field open for, <a href="#Page_43">43</a>.</li></ul></li> + +<li>International Statutes, cannot be created by majority vote, <a href="#Page_44">44</a>;<ul> +<li>interpretation and construction of, <a href="#Page_45">45</a>;</li> +<li>what are? <a href="#Page_42">42</a>.</li></ul></li> + +<li>Internationalism, growth of, <a href="#Page_12">12</a>.</li> +</ul> + +<ul><li><span class="smcap">Law-making</span> treaties, what are? <a href="#Page_42">42</a>.</li> + +<li>'La France vaut bien une messe,' <a href="#Page_78">78</a>.</li> + +<li>League of Nations, <a href="#Page_3">3</a>, <a href="#Page_8">8</a>;<ul> +<li>aims defined, <a href="#Page_23">23</a>, <a href="#Page_28">28</a>, <a href="#Page_35">35-36</a>;</li> +<li>and International Law interdependent, <a href="#Page_6">6</a>;</li> +<li>career in a sense started already, <a href="#Page_8">8</a>, <a href="#Page_16">16</a>;</li> +<li>conception of, very old, <a href="#Page_6">6</a>;</li> +<li>demand for, universal, <a href="#Page_11">11</a>;</li> +<li>impossibility of state-like organisation of, <a href="#Page_36">36</a>;</li> +<li>no unanimity concerning its aims or organisation, <a href="#Page_18">18</a>;</li> +<li>organisation of, demanded, <a href="#Page_31">31</a>;</li> +<li>problems connected with, <a href="#Page_24">24</a>, <a href="#Page_28">28</a>;</li> +<li>seven principles of, which ought to be adopted, <a href="#Page_39">39-41</a>;</li> +<li>so-called, but League of States is meant, <a href="#Page_13">13</a>;</li> +<li>starting point of organisation of, <a href="#Page_33">33</a>, <a href="#Page_36">36</a>, <a href="#Page_39">39</a>;</li> +<li>constitution <i>sui generis</i> of, a necessity, <a href="#Page_22">22</a>, <a href="#Page_33">33</a>;</li> +<li>what is new in the now desired, <a href="#Page_11">11</a>;</li> +<li>when it would be an organised community, <a href="#Page_11">11</a>, <a href="#Page_34">34</a>.</li></ul></li> +</ul> + +<ul><li><span class="smcap">Marini</span>, Antoine, <a href="#Page_8">8</a>.</li> + +<li>Mediation, International. <i>See</i> <a href="#International_Council_of_Conciliation">International Council of Conciliation</a>.</li> + +<li>Militarism, conception of, <a href="#Page_15">15</a>;<ul> +<li>Prussian, <a href="#Page_16">16</a>.</li></ul></li> +</ul> + +<ul><li><span class="smcap">Nation</span>, the, a product of historical development, <a href="#Page_10">10</a>, <a href="#Page_14">14</a>;<ul> +<li>conception of, <a href="#Page_13">13</a>, <a href="#Page_14">14</a>;</li> +<li>not to be confounded with race, <a href="#Page_13">13-14</a>.</li></ul></li> + +<li>Nations, not to be confounded with States, <a href="#Page_13">13</a>, <a href="#Page_14">14</a>.</li> + +<li>Nationality, principle of, <a href="#Page_14">14</a>, <a href="#Page_32">32</a>.</li> + +<li>'Natura non facit saltus,' <a href="#Page_5">5</a>.</li> + +<li>Naturalists, the School of, <a href="#Page_62">62</a>.</li> +</ul> + +<ul><li><span class="smcap">Oppenheim</span>, letter of Foreign Office concerning Article 23(h) of the Hague Regulations to Professor, <a href="#Page_52">52-55</a>.</li> +</ul> + +<ul><li><span class="smcap">Pacifists</span>, <a href="#Page_31">31</a>.</li> + +<li>Parliament, International, why impossible, <a href="#Page_18">18</a>, <a href="#Page_19">19</a>.</li> + +<li>Permanent Court of Arbitration, International, <a href="#Page_34">34</a>;<ul> +<li>establishment of, by the First Peace Conference, <a href="#Page_61">61</a>.</li></ul></li> + +<li>Permanent International Commissions of the Bryan Peace Treaties, <a href="#Page_71">71</a>.</li> + +<li>Podiebrad, <a href="#Page_8">8</a>.</li> + +<li>Police, International, <a href="#Page_6">6</a>, <a href="#Page_41">41</a>.</li> + +<li>Politis on Article 23(h) of the Hague Regulations concerning Land Warfare, <a href="#Page_49">49</a>, <a href="#Page_55">55</a>.</li> + +<li>Porter <i>v.</i> Freundenberg, case of, <a href="#Page_47">47</a>.</li> + +<li>Positivists, the School of, <a href="#Page_62">62</a>.</li> + +<li>Precedents of International Courts, <a href="#Page_66">66</a>.</li> + +<li>Principle of Nationality, <a href="#Page_14">14</a>, <a href="#Page_32">32</a>.</li> + +<li>Prize Court, International, proposed by Second Peace Conference, <a href="#Page_34">34</a>.</li> +</ul> + +<ul><li><span class="smcap">Quis</span> custodiet ipsos custodes? <a href="#Page_21">21</a>.</li> +</ul> + +<ul><li><span class="smcap">Race</span>, a product of natural development, <a href="#Page_10">10</a>;<ul> +<li>not to be confounded with Nation, <a href="#Page_13">13</a>, <a href="#Page_14">14</a>.</li></ul></li> + +<li>Rebus sic stantibus, proposal for dealing with the clause, <a href="#Page_69">69</a>.</li> + +<li>Religion, wars of, <a href="#Page_10">10</a>.</li> +</ul> + +<ul><li><span class="smcap">Sovereignty</span>, conception of, <a href="#Page_75">75</a>;<span class='pagenum'><a name="Page_84" id="Page_84">[84]</a></span><ul> +<li>not surrendered by entrance into the League of Nations, <a href="#Page_74">74</a>, <a href="#Page_75">75</a>, <a href="#Page_78">78</a>.</li></ul></li> + +<li>State, ideal of the national, <a href="#Page_14">14</a>.</li> + +<li>States of the World, the 25 Allied belligerent and the 17 neutral, <a href="#Page_16">16-17</a>.</li> + +<li>Statutes, difference between International and Municipal, <a href="#Page_42">42</a>.</li> + +<li>Sully, <a href="#Page_9">9</a>.</li> + +<li>Swiss Confederation, civil war within the, <a href="#Page_32">32</a>.</li> + +<li>Switzerland, <a href="#Page_13">13</a>.</li> +</ul> + +<ul><li><span class="smcap">Taft</span>, Ex-President, <a href="#Page_5">5</a>.</li> + +<li>Transoceanic States, entrance into League of Nations of, <a href="#Page_38">38</a>.</li> + +<li>Tribe, the, a product of natural development, <a href="#Page_10">10</a>.</li> +</ul> + +<ul><li><span class="smcap">Ubi</span> societas ibi jus, <a href="#Page_8">8</a>.</li> + +<li>Ullmann, on Article 23(h) of the Hague Regulations concerning Land Warfare, <a href="#Page_50">50</a>.</li> + +<li>United States, civil war in the, <a href="#Page_32">32</a>.</li> +</ul> + +<ul><li><span class="smcap">Vienna</span> Congress, the, <a href="#Page_30">30</a>, <a href="#Page_42">42</a>.</li> + +<li>Votes, equality of, at Hague Peace Conferences, <a href="#Page_38">38</a>.</li> +</ul> + +<ul><li><span class="smcap">Wars</span> for national unity, <a href="#Page_10">10</a>.</li> + +<li>Wehberg on Article 23(h) of the Hague Regulations concerning Land Warfare, <a href="#Page_50">50</a>.</li> + +<li>Whewell, Dr., <a href="#Page_4">4</a>.</li> + +<li>Whittuck on Article 23(h) of the Hague Regulations concerning Land Warfare, <a href="#Page_50">50</a>.</li> + +<li>Wilson, President, <a href="#Page_5">5</a>.</li> + +<li>World Federation, a demand of Pacifists, <a href="#Page_31">31</a>.</li> +</ul> + +<p class="p4"><b><span class="fsxs">AT THE BALLANTYNE PRESS<br /> +PRINTED BY SPOTTISWOODE, BALLANTYNE AND CO. LTD.<br /> +COLCHESTER, LONDON AND ETON, ENGLAND</span></b></p> + +<div class="trn"><b>Transcriber's Note:</b> +Minor typographical errors have been corrected without note. +Variant spellings have been retained. Hyphenation has been standardised.</div> + + + + + + + + +<pre> + + + + + +End of the Project Gutenberg EBook of The League of Nations and its Problems, by +Lassa Oppenheim + +*** END OF THIS PROJECT GUTENBERG EBOOK LEAGUE OF NATIONS, ITS PROBLEMS *** + +***** This file should be named 26023-h.htm or 26023-h.zip ***** +This and all associated files of various formats will be found in: + https://www.gutenberg.org/2/6/0/2/26023/ + +Produced by Stephen Blundell and the Online Distributed +Proofreading Team at https://www.pgdp.net (This file was +produced from images generously made available by The +Internet Archive/Canadian Libraries) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. 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