The League of Nations and Its Problems: Three Lectures

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.

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) décide qu'il est interdit de déclarer éteints, suspendus ou non recevables en justice, les droits et actions des nationaux de la partie adverse.'

Politis, Professor of International Law in the University of Poitiers (France), in his report to the Institute of International Law, Session of Paris (1910), concerning Effets de la Guerre sur les Obligations Internationales et les Contrats privés, page 18, says:

'Un point hors de doute, c'est, que la guerre ne peut, ni par elle-même ni par la volonté des belligérants, affecter la validité ou l'exécution des contrats antérieurs. Cette règle fait désormais partie du droit positif. L'article 23(h) du nouveau Règlement de la Haye interdit formellement aux belligérants "de déclarer éteints, suspendus ou non recevables en justice les droits et actions des nationaux de la partie adverse."

'Cette formule condamne d'anciens usages conservés encore, en partie, dans certains pays. Elle proscrit d'abord tous les moyens—annulation ou confiscation—par lesquels on chercherait à atteindre, dans leur existence, les droits nés avant la guerre. Elle exclut, en second lieu, l'ancienne pratique qui interdisait aux particuliers ennemis l'accès des tribunaux. Elle prohibe, enfin, toutes les mesures législatives ou autres tendant à entraver au cours de la guerre l'exécution ou les effets utiles des obligations privées, notamment le cours des intérêts.

'Il y a là progrès incontestable. Et l'on doit être reconnaissant à la délégation allemande à la 2e Conférence de la paix de l'avoir provoqué.

'L'accueil empressé et unanime qu'a reçu cette heureuse initiative permet d'espérer que de nouveaux progrès pourront être réalisés dans cet ordre d'idées.

'On doit souhaiter que la disposition de l'article 23(h), étrangère à l'hypothèse de l'occupation du territoire ennemi, soit distraite du règlement de 1907 (comme les articles 57 à 60 l'ont été du Règlement de 1899) pour être mieux placée dans une convention nouvelle, où d'autres textes viendraient la compléter.'

Ullmann, Völkerrecht, 2nd ed. 1908, p. 474, says:—

'Auch der Rechtsverkehr wird durch den Ausbruch des Krieges nicht unterbrochen oder gehemmt. Die nach Landesrecht frueher uebliche zeitweise Aufhebung der Klagbarkeit vom Schuldverbindlichkeiten des Staates oder eines Angehörigen gegen Angehörige des Feindes ist durch Artikel 23(h) untersagt.'

Wehberg, Das Beuterecht im Land- und Seekriege, 1909, pp. 5 and 6 says:—