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