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and it is for this reason that I would ask whether His Majesty's Government consider that the old English rule is no longer in force.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.

THE END