The League of Nations and Its Problems: Three Lectures

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.