The League of Nations and Its Problems: Three Lectures

'Article 46 Absatz 2 bestimmt:—"Das Privateigentum darf nicht eingezogen werden." In konsequenter Durchführung dieses Satzes bestimmt der auf deutschen Antrag 1907 hinzugefügte Article 23(h):—"Untersagt ist die Aufhebung oder zeitweilige Ausserkraftsetzung der Rechte und Forderungen von Angehoerigen der Gegenpartei oder der Ausschliessung ihrer Klagbarkeit."'

Whittuck, International Documents, London 1908, Introduction p. xxvii, says—'In Article 23(h) it is prohibited to declare abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the other belligerent which is a development of the principle that the private property of the subjects of a belligerent is not subject to confiscation. This new prohibition if accepted by this country would necessitate some changes in our municipal law.'

Holland, The Laws of War on Land, 1908, says on p. 5 that:—'Article 23(h) seems to require the Signatory Powers to the convention concerned to legislate for the abolition of an enemy's disability to sustain a persona standi in judicio.' (See also Holland, loco citato, p. 44, where he expresses his doubts concerning the interpretation of Article 23(h).)

Bordwell, The Law of War between Belligerents, Chicago 1908, recognises on page 210 the fact that according to Article 23(h) an alien enemy must now be allowed to sue in the courts of a belligerent, and Gregory, Professor in the University of Iowa, who reviews Bordwell's work in the American Journal of International Law, Volume 3 (1909), page 788, takes up the same standpoint.

The only author who interprets Article 23(h) in a different way is General Davis, who in his Elements of International Law, 3rd edition 1908, page 578, note 1, says:—

'It is more than probable that this humane and commendable purpose would fail of accomplishment if a military commander conceived it to be within his authority to suspend or nullify their operation, or to regard their application in certain cases as a matter falling within his administrative discretion. Especially is this true where a military officer refuses to receive well grounded complaints, or declines to receive demands for redress, in respect to the acts or conduct of the troops under his command, from persons subject to the jurisdiction of the enemy who find themselves, for the time being, in the territory which he holds in military occupation. To provide against such a contingency it was deemed wise to add an appropriate declaratory clause to the prohibition of Article 23.'

It is very unfortunate that the book of General Davis is not at all known on the Continent, and that therefore none of the continental authors have any knowledge of the fact that a divergent interpretation from their own of Article 23(h) is being preferred by an American author.

It is likewise very unfortunate that neither the English Bluebook on the Second Hague Peace Conference (see Parliamentary Papers, Miscellaneous No. 4, 1907, page 104) nor the official minutes of the proceedings of the Conference, edited by the Dutch Government, give any such information concerning the construction of Article 23(h) as could assist a jurist in forming an opinion regarding the correct interpretation.

It is, however, of importance to take notice of the fact that Article 23(h) is an addition to Article 23 which was made on the proposition of Germany, and that Germany prefers an interpretation of Article 23(h) which would seem to coincide with the interpretation preferred by all the continental writers. This becomes clearly apparent from the German Weissbuch ueber die Ergebnisse der im Jahre 1907 in Haag abgehaltenen Friedensconferenz, which contains on page 7 the following:—

'Der Artikel 23 hat gleichfalls auf deutschen Antrag zwei wichtige Zusätze erhalten. Durch den ersten wird der Grundsatz der Unverletzlichkeit des Privateigenthumes auch auf dem Gebiete der Forderungsrechte anerkannt. Nach der Gesetzgebung einzelner Staaten soll nämlich der Krieg die Folge haben, dass die Schuldverbindlichkeiten des Staates oder seiner Angehörigen gegen Angehörige des Feindes aufgehoben oder zeitweilig ausser Kraft gesetzt oder wenigstens von der Klagbarkeit ausgeschlossen werden. Solche Vorschriften werden nun durch den Artikel 23 Abs. 1 unter h für unzulässig erklärt.'

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 déclarer éteintes, suspendues ou non recevables les réclamations privées de ressortissants de la Partie adverse' (see procès-verbal of the 2nd meeting of the 1st sub-Committee of the 2nd Committee, 10th July, 1907).

There is nothing to show that any explanation was vouchsafed to the effect that the proposed addition to the article was intended to mean more than its wording necessarily implied, though there is a statement by one of the German delegates in the procès-verbal of the 1st meeting of the 1st sub-Committee of the 2nd Committee, on July 3rd, which in all probability must have referred to this particular amendment, though the procès-verbal does not render it at all clear; nor is the statement itself free from ambiguity. An amendment was suggested and accepted at the second meeting to add the words 'en justice' after 'non recevables,' and in this form the sub-article was considered by an examining committee, was accepted and incorporated in Article 23, and brought before and accepted by the Conference in its 4th Plenary Sitting on the 17th August, 1907.

The subsequent alteration in the wording must have been made by the Drafting Committee, but cannot have been considered to affect the substance of the provision, as in the 10th Plenary Sitting on October 17th, 1907, the reporter of the Drafting Committee, in dealing with the verbal amendments made in this Convention, merely said, 'En ce qui concerne le règlement lui-même, je n'appellerai pas votre attention sur les différentes modifications de style sans importance que nous y avons introduites.'

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.