The League of Nations and its Problems Part 3

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 Munic.i.p.al Statutes are called into existence. Munic.i.p.al 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 Munic.i.p.al 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 Munic.i.p.al 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 a.s.sembled 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 partic.i.p.ating 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 Munic.i.p.al 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 Munic.i.p.al 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 Munic.i.p.al Law of belligerents from possessing a rule according to which the outbreak of war suspends or avoids contracts with alien enemies, and prohibits alien enemies from bringing an action in the Courts. It is for this reason that Germany and other continental States interpret Article 23(h) according to the intention of the German delegates.

On the other hand, in interpreting and construing a clause of a statute, British and American Courts refuse to take into consideration the intention of the draftsman, Parliamentary discussions concerning the clause, and the like. They only take into consideration the literal meaning of the clause as it stands in the statute of which it is a part.

Now Article 23(h) is a clause in the Convention concerning the Laws and Customs of War on Land. It is one of several paragraphs of Article 23 which comprises the prohibition of a number of acts by the armed forces of belligerents in warfare on land, such as the employment of poison or poisoned arms, and the like. The British and American delegates, believing that it only concerned an act on the part of belligerent forces occupying enemy territory, therefore consented to the insertion of Article 23(h), and our Court of Appeal--in the case of Porter _v._ Freundenberg (1915)--held that Article 23(h) is to be interpreted in that sense.[1]

Be that as it may, the difficulty of interpretation and construction of international treaties will exist so long as no International Statute has been agreed upon which lays down detailed rules concerning interpretation and construction, or so long as International Courts have not developed such rules in practice. But the problem of International Courts is itself a very difficult one; it will be the subject of my third lecture which will deal with Administration of Justice and Mediation within the League of Nations.

[1] By a letter of February 28, 1911, I drew the attention of the Foreign Office to the interpretation of Article 23(h) which generally prevailed on the Continent. This letter and the answer I received were privately printed, and copies were distributed amongst those members and a.s.sociates of the Inst.i.tute of International Law who attended the meeting at Madrid. Since French, German, and Italian International Law Journals published translations, but the original of the correspondence was never published in this country, I think it advisable to append it to this lecture.

APPENDIX

CORRESPONDENCE WITH THE FOREIGN OFFICE RESPECTING THE INTERPRETATION OF ARTICLE 23(h) OF THE HAGUE REGULATIONS CONCERNING LAND WARFARE

LETTER FROM THE PRESENT WRITER TO THE FOREIGN OFFICE.

WHEWELL HOUSE, CAMBRIDGE, _28th February, 1911_.

TO THE UNDER SECRETARY OF STATE FOR FOREIGN AFFAIRS.

SIR,--

I venture to bring the following matter before your consideration:--

In the course of my recent studies I have been dealing with the laws and usages of war on land, and I have had to consider the interpretation of Article 23(h) of the Regulations attached to the Convention of 1907 relating to the Laws and Customs of war on land. I find that the interpretation prevailing among all continental and some English and American authorities is contrary to the old English rule, and I would respectfully ask to be informed of the view which His Majesty's Government place upon the article in question.

To give some idea as to how an interpretation of Article 23(h) contrary to the old English rule prevails generally, I will quote a number of French, German, English, and American writers, the works of whom I have at hand in my library, and I will also quote the German _Weissbuch_ concerning the results of the second Hague Conference of 1907.

Bonfils, _Manuel de droit international public_, 5th ed. by Fauchille, 1908, discusses, on page 651, the doctrine which denies to an enemy subject any _persona standi in judicio_, but adds:--'... Article 23(h) decide qu'il est interdit de declarer eteints, suspendus ou non recevables en justice, les droits et actions des nationaux de la partie adverse.'

Politis, Professor of International Law in the University of Poitiers (France), in his report to the Inst.i.tute of International Law, Session of Paris (1910), concerning _Effets de la Guerre sur les Obligations Internationales et les Contrats prives_, page 18, says:

'Un point hors de doute, c'est, que la guerre ne peut, ni par elle-meme ni par la volonte des belligerants, affecter la validite ou l'execution des contrats anterieurs. Cette regle fait desormais partie du droit positif. L'article 23(h) du nouveau Reglement de la Haye interdit formellement aux belligerants "de declarer eteints, suspendus ou non recevables en justice les droits et actions des nationaux de la partie adverse."

'Cette formule cond.a.m.ne d'anciens usages conserves encore, en partie, dans certains pays. Elle proscrit d'abord tous les moyens--annulation ou confiscation--par lesquels on chercherait a atteindre, dans leur existence, les droits nes avant la guerre. Elle exclut, en second lieu, l'ancienne pratique qui interdisait aux particuliers ennemis l'acces des tribunaux. Elle prohibe, enfin, toutes les mesures legislatives ou autres tendant a entraver au cours de la guerre l'execution ou les effets utiles des obligations privees, notamment le cours des interets.

'Il y a la progres incontestable. Et l'on doit etre reconnaissant a la delegation allemande a la 2e Conference de la paix de l'avoir provoque.

'L'accueil empresse et unanime qu'a recu cette heureuse initiative permet d'esperer que de nouveaux progres pourront etre realises dans cet ordre d'idees.

'On doit souhaiter que la disposition de l'article 23(h), etrangere a l'hypothese de l'occupation du territoire ennemi, soit distraite du reglement de 1907 (comme les articles 57 a 60 l'ont ete du Reglement de 1899) pour etre mieux placee dans une convention nouvelle, ou d'autres textes viendraient la completer.'

Ullmann, _Volkerrecht_, 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 Angehorigen gegen Angehorige des Feindes ist durch Artikel 23(h) untersagt.'

Wehberg, _Das Beuterecht im Land- und Seekriege_, 1909, pp. 5 and 6 says:--

'Article 46 Absatz 2 bestimmt:--"Das Privateigentum darf nicht eingezogen werden." In konsequenter Durchfuhrung dieses Satzes bestimmt der auf deutschen Antrag 1907 hinzugefugte Article 23(h):--"Untersagt ist die Aufhebung oder zeitweilige Ausserkraftsetzung der Rechte und Forderungen von Angeh.o.e.rigen der Gegenpartei oder der Ausschliessung ihrer Klagbarkeit."'

Whittuck, _International Doc.u.ments_, 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 munic.i.p.al 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:--