INTERNATIONAL LEGISLATION
[Sidenote: Quasi-legislation within the domain of international law.]
30. When we speak of legislation we have in view as a rule a state,
wherein there is a law-making power which acts without reference to the
consent of individual subjects. For even if in a constitutional state an
individual does anyhow exercise so much influence upon legislation as
comes from voting at the election of members of parliament, still he has
no direct influence, and must submit to a law that has been enacted
whether he approves of it or not. That is why it is asserted that there
cannot be any talk of legislation in the domain of international law.
And, in fact, that is so if we adhere rigorously to the meaning of the
concept 'legislation', as developed in the domain of internal state
life. The nature of the case does not, however, demand so rigid an
adherence as this; legislation is really nothing more than the conscious
creation of law in contrast to the growth of law out of custom. And it
is an admitted fact that, side by side with international law developed
in this latter way, there is an international law which the members of
the community of states have expressly created by agreement. We might
therefore quite well substitute the term _agreeing a law_ for the term
_decreeing a law_,--but why introduce a new technical term? This
international 'agreeing a law' does consciously and intentionally create
law, and it is therefore a source of law. And provided that we always
bear in mind that this source of law operates only through a
quasi-legislative activity, there is no obstacle to speaking, in a
borrowed sense, of international 'legislation'. Nevertheless, agreeable
and apt as this term is, it must not lead us to assimilate the internal
legislation of a state and international legislation save in the one
respect that in both law is made in a direct, conscious and purposive
manner, in contrast to law that originates in custom.
[Sidenote: Hague Peace Conferences as an organ for international
legislation.]
31. International law of the legislative kind existed before the law of
the Hague Peace Conferences; it issued from the conventions drawn up
from time to time at congresses and conferences. It was a great step
forward that the Congress of Vienna was able, for the first time, to
create general international law by agreement, and that thereby general
international law of the legislative kind could come into existence side
by side with the customary law of nations. But the nineteenth century
introduced international legislation only occasionally. If, as sketched
above, success attends the attempt to make the Hague Peace Conferences a
permanent institution, there would be evolved for the society of states
a legislative organ corresponding to the parliaments of individual
states. A wide field opens thus for further international legislative
activity. Even if the time be not ripe for a comprehensive codification
of the whole law of nations, there is nevertheless a series of matters
in need of international regulation; for example, extradition, the
so-called international private law and international criminal law,
acquisition and loss of nationality, and a series of other matters, not
to mention matters of international administration. Matters which are
already governed by customary law might also be brought within the
domain of enacted law, and at the same time could be put as regards
details upon a surer basis. I have in mind the law of ambassadors and
consuls, the law concerning the open sea and territorial waters, the law
about merchantmen and men-of-war in foreign territorial waters, and more
of this kind.
[Sidenote: Difficulties in the way of international legislation.]
32. The peculiar character of international legislation involves,
however, difficulties of all sorts.
[Sidenote: The language question.]
There is, to begin with, the question of language. Seeing that it is
impossible to employ all languages in the enactment of rules of
international law, an agreement must be made for adopting some one
language for these laws, in the same way that French is used at the
present time. But the difficulty thence arising is not insuperable, and
is hardly greater than that which is encountered in drafting a treaty
between peoples whose speech belongs to different families. It must,
however, be a rigid rule that in every case of doubt the text of the law
in its original language--not that of a translation into the languages
of other countries--is authoritative.
[Sidenote: The opposing interests of the several states.]
33. There is, secondly, the difficulty of contenting the opposite
interests of the members of the community of states. But this, too, is
in practice not insurmountable. Of course, where there is such a
brawling between these interests that no agreement is possible, there
can from the outset be no talk of international legislation. This,
however, is not everywhere the case. On the contrary, it is often and in
different areas the case, that the _international_ interests of states
make themselves felt so urgently and so cogently that these states are
ready to sacrifice their particular interests if only a reasonable
compromise be open to them.
[Sidenote: Contrasted methods of drafting.]
34. There is further the difficulty of finding expression in adequate
language for the intention of the legislator. Even the internal
legislation of states suffers under this difficulty in so far as the
art of legislation is still very clumsy and undeveloped. For
_international_ legislation there is in addition the further difficulty
that different groups of peoples employ very different methods in
drafting their laws. If we were to give to an Englishman, a Frenchman,
and a German the task of drafting a law upon the same topic, and if they
were provided with the point of view from which the regulation of
individual points was to proceed, so that the intention of the draftsmen
would be the same, three very different drafts would nevertheless
emerge. The English draft would deal in the most concrete manner
possible with the situations to which it meant to apply; it would adduce
as many particular cases as possible, and so would run the risk of
forgetting some series of cases altogether. The German draft would be as
abstract as is possible, and would entirely disregard individual cases,
except such as required a special treatment; and so it would expose
itself to the danger that in practice cases would be brought within the
enactment which were outside the intention of the legislator. The French
draft would attach more weight to principles than to individual points,
enunciating principles in a legislative manner and leaving it to
practice to construct out of these principles the rule for the
particular case. Now, seeing that French is the language of
international legislation, and so in the editing of drafts at the Hague
Conferences the lion's share will naturally fall to French jurists
attending the Conference, it will scarcely be possible to prevent the
French method of legislation from obtaining great influence over
international legislation. But there is no need for this mode of
legislation to become dominant. The jurist representatives of other
states must see to it that the French method is perfected by their own;
the English and the Germans must make it their business to bring the
drafts into a more concrete form, and to split up principles into more
abstract rules. In this way, it may in time be possible by means of
common international labour to make essential advance in the art of
legislation.
[Sidenote: These difficulties distinct from those due to carelessness.]
35. But the difficulties inherent in the legislative method must not be
confused with those which come from a careless employment of the method;
the latter must always be avoided, otherwise we arrive at contradictions
of interpretation, and these are insuperable.
[Sidenote: Article 23 (_h_) of the Hague Regulations of land war is an
example.]
An example of such carelessness is afforded by the incorporation--at the
second Hague Conference--of a new provision in the former Article 23 of
the 'Regulations respecting the laws of land warfare'. I am referring to
the provision added under the letter (_h_), which runs as follows: [It
is forbidden] 'to declare extinguished, suspended, or unenforceable in a
court of law, the rights and rights of action of the nationals of the
adverse party'.
[Sidenote: The German and the English interpretation of Article 23
(_h_).]
36. From the German memorandum on the second Peace Conference it is
quite clear that this additional rule, which was proposed by Germany and
adopted by the Conference, was directed to the alteration of the rule,
prevailing in several states, whereby during a war the subjects of one
belligerent lose in the country of the other belligerent their _persona
standi in judicio_, and the like. It is in this sense, then, that the
addition has been unanimously interpreted by German literature, with the
agreement of many foreign writers. The official standpoint of England,
on the contrary, is that Article 23 (_h_) has nothing whatever to do
with the municipal law of the belligerent countries. Article 23 (_h_),
so the English Foreign Office explains, forms a subdivision of Article
23, which itself comes under the second section (headed 'Hostilities')
of the Regulations, and forbids a series of acts which otherwise might
be resorted to in the exercise of hostilities by the members of the
contending armies, and by their commanding officers. That this
interpretation is the right one--so it is further explained by the
English side--is shown by the fact that Article 1 of the Convention
expressly says, with reference to the 'Regulations respecting the laws
of land warfare', that the contracting parties shall issue to their
armed land forces instructions which shall be in conformity with the
'Regulations respecting the laws of land warfare' annexed to the
Convention. It would therefore be the duty of every contracting power to
instruct the commanders of its forces in an enemy's country (among other
things) not 'to declare extinguished, suspended, or unenforceable in a
court of law, the rights and rights of action of the nationals of the
adverse party'.
[Sidenote: Davis's interpretation of Article 23 (_h_)]
37. This is also the opinion of Davis, one of the American delegates to
the second Hague Conference; he gives the following explanation with
regard to Article 23 (_h_), in the third edition of his _Elements of
International Law_ (New York, 1908), p. 578:
In this article a number of acts are described to which neither
belligerent is permitted to resort in the conduct of his
military operations. It was the well-understood purpose of the
Convention of 1899 to impose certain reasonable and wholesome
restrictions upon the authority of commanding generals and
their subordinates in the theatre of belligerent activity. 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 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 consider 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 prohibitions of Article 23. The prohibition is included in
section (_h_).
[Sidenote: Impossible to reconcile the divergent views about Article 23
(_h_).]
38. If, from the fact that Davis was an American delegate, we may
conclude that he represents the government view of the United States of
North America, we are confronted by the fact that official England and
America adopt an interpretation of Article 23 (_h_) which is entirely at
variance with that of Germany, and it is quite impossible to build a
bridge of reconciliation between the two camps. This regrettable fact
has its origin simply in the careless use of the legislative method. If
the German conception of Article 23 (_h_) be the correct one, the lines
of subsection (_h_) ought never to have found a shelter in Article 23,
for they have not the slightest connexion with hostilities between the
contending forces. If, on the other hand, the Anglo-American
interpretation be the right one, pains should have been taken to secure
a wholly different draft of the provision in question, for the present
wording is by no means transparently clear. The protocols of the
Conference (_Actes_, i, 101; iii, 14, 103) are not sufficiently explicit
on the matter. The German delegate, Goeppert, did indeed explain (cf.
_Actes_, iii, 103) at the session of the first subcommission of the
Second Commission on July 3, 1907, 'that this proposal is in the
direction of not limiting to corporeal goods the inviolability of enemy
property, and that it has in view the whole domain of obligations with
the object of forbidding all legislative measures which, in time of war,
would deprive an enemy subject of the right to take proceedings for the
performance of a contract in the courts of the adverse party'. But we
shall scarcely go wrong if we assume that the members of the Second
Commission, who were entrusted with the consideration of the
'Regulations respecting the laws of land warfare', had not sufficiently
realized the full meaning of the German proposal. It would otherwise be
quite unintelligible that the reporter upon the German proposal could
say (cf. _Actes_, i, 101): 'This addition is deemed a very happy attempt
to bring out in clear language one of the principles admitted in 1899',
for these 'principles' (concerning the immunity of the private property
of enemy subjects in land warfare) have very little indeed to do with
the question of the _persona standi in judicio_ of an enemy subject.
[Sidenote: Difficulties due to the fact that international law cannot be
made by a majority vote, or repealed save by a unanimous vote.]
39. A difficulty of a special kind besets international legislation,
owing to the fact that international rules cannot be created by a
majority vote, and that, when once in existence, they cannot be repealed
save by a unanimous resolution.
[Sidenote: A way out found in the difference between universal and general
international law.]
But when once we free ourselves from the preconception that the equality
of states makes it improper for legislative conferences to adopt any
resolutions which are not unanimously supported, there is nothing to
prevent a substantial result being arrived at even without unanimity. At
this point the difference between general and universal international
law furnishes a way out. Rules of universal international law must
certainly rest on unanimity. It is postulated in the equality of states
that no state can be bound by any law to which it has not given its
consent. But there is naught to prevent a legislative conference from
framing rules of general international law for those states which assent
to it and leaving the dissentient states out of consideration. If the
inclusion in a single convention of all the points under discussion be
avoided, and if the method, adopted at the second Peace Conference, of
dividing the topics of discussion among as many smaller conventions as
possible be followed, it will always be found possible to secure the
support of the greater number of states for the regulation of any given
matter. In no long time thereafter the dissentient states will give in
their adherence to these conventions, either in their existing or some
amended form. Attention will then be paid also to the consolidation of
several smaller laws in a single more comprehensive statute. The nature
of the case and the conditions of international life call for
concessions without which no progress would be practicable. The course
of international legislation hitherto shows unmistakably that the
trodden path is the right path. And it must be emphasized that it is
open to a state to assent to an act of international legislation
although some one or other provision thereof be unacceptable to it. In
such a case the assent of the state in question is given with a
reservation as regards the particular article of the Act, so that it is
in no wise bound by that article. Numerous instances of this could be
adduced: thus, at the Hague Conference of 1907 Germany withheld her
assent to some of the proposed rules of land war, and England to certain
articles in Conventions V and XIII.
[Sidenote: International laws which are limited in point of time.]
40. So also, the difficulty is not insuperable as regards the other
point, namely, that international enactments when once in existence
cannot be repealed or amended save by a unanimous resolution of the
participant states. Here, too, the analogy between municipal and
international legislation must not be pushed too far. Municipal
legislation can at any time be annulled or altered by the sovereign
law-maker; but international legislation, for want of a sovereign over
sovereign states, is not open to such treatment. Here there is a way
out, which was in fact adopted at the second Peace Conference, and also
at the Naval Conference of London, namely, the enactment of laws so
limited in duration to a period of years, that at the expiry of the
period every participant state can withdraw. In this way, for example,
it was agreed that the law about the International Prize Court and the
Declaration of London should only be in force for twelve years, and that
any of the powers which were parties thereto might withdraw twelve
months before the expiry of that period, and that, if and as far as no
withdrawal ensued, these laws should from time to time be continued in
force automatically for a further period of six years. This kind of
international legislation, with its time limit and the right of
denunciation, is to be recommended wherever more or less hazardous
legislative experiments are being made, or where interests are at stake
which in course of time are liable to such an alteration as obliges
states to insist on the amendment or repeal of the previously made law.
For example, the International Prize Court as a whole, and its
composition, constitution, and procedure in particular, form an
unparalleled experiment. But the fact that its institution is only to be
agreed on for a period of twelve years facilitates its general
acceptance, because of the possibility of either abrogating it
altogether, or of reforming it, should experience show this to be
necessary.
[Sidenote: International legislation no longer to be left to mere
chance.]
41. However this may be, one point must be decisively
emphasized,--international legislation can no longer be left to mere
chance. Apart from the Declaration of London and the Geneva Convention,
it has always hitherto been a more or less happy chance which has
controlled international legislation. Of conscious legislative
consideration and deliberation, based on far-reaching, thoroughgoing
preparation, there is no trace. For example, the Declaration of Paris of
1856 was but a by-product of the Peace of Paris of the same year. So
also the legislation of the first Peace Conference was simply due to the
anxiety to accomplish something positive which might conceal the fact
that the proposed aim of the Conference--general disarmament, to
wit--had in no wise been realized. At the second Peace Conference we did
indeed see individual states appear with some well-prepared projects of
legislation, but the preparation was entirely one-sided on the part of
the states in question, and not general; accordingly, the adoption,
rejection, amendment, and final shaping of these projects were also none
the less the result of chance. The second Peace Conference itself took
steps to prevent a repetition of this, calling the attention of the
powers in its Final Act to the necessity of preparing the programme of
the future third Conference a sufficient time in advance to ensure its
deliberations being conducted with the necessary authority and
expedition:
In order to attain this object the Conference considers that it
would be very desirable that, some two years before the
probable date of the meeting, a preparatory committee should be
charged by the Governments with the task of collecting the
various proposals to be submitted to the Conference, of
ascertaining what subjects are ripe for embodiment in an
international regulation, and of preparing a programme which
the Governments should decide upon in sufficient time to enable
it to be carefully examined by each country.
[Sidenote: The Declaration of London thoroughly prepared beforehand.]
42. In contrast to the rules of the Peace Conferences, a really notable
and exemplary preparation took place in connexion with the Declaration
of London, and the befitting result was a law excellent alike in matter
and in form. England, the state which summoned the Naval Conference of
London, made a collection of the topics which would arise, and
communicated it to the states attending the Conference with the request
that they would send in full statements on the subjects mentioned. After
the answers to this request had come in they were collated with regard
to each of the points on which discussion would arise, and _bases de
discussion_ were elaborated which made a thorough examination of each
point possible at the Conference. By this means it was at once made
clear when the different states were in accord and when not. The door to
compromise was opened. And apart from a few vexed questions an agreement
was in this way successfully reached with regard to a comprehensive law
resting at every point on exhaustive deliberation.
[Sidenote: The preparation of the Declaration a pattern for future
international legislation.]
43. This model method must be the method of the future. If, as indicated
in Sec.26 above, Art. 5, a permanent commission for the preparation of the
Peace Conferences be successfully inaugurated, it will be its task to
make preliminary preparations for the legislative activity of the
Conferences in the manner just sketched out, and chance will no longer
have the same part to play as heretofore. International legislation will
no longer produce anything so full of gaps as the 'Regulations
respecting the laws of land warfare', which leave essential
matters--for instance, capitulations and armistices--without any
adequate regulation.
[Sidenote: Intentionally incomplete and fragmentary laws.]
44. Of course, where the interests of different states are still
involved in some uncertainty, or are in such antagonism that a complete
agreement is impossible, even the fullest preparation and most
painstaking deliberation will not procure a more satisfactory treatment
for many matters than that the legislation which regulates them should
be (so to say) only experimental and intentionally incomplete and
fragmentary in character. Thus, for example, the Conventions about the
conversion of merchantmen into men-of-war and about the use of mines in
naval war can only be considered as legislative experiments, regulating
these matters merely temporarily and in an incomplete and unsatisfactory
manner. But even conventions which designedly are full of lacunae have
their value. They embody all the same an agreement upon some important
parts of the respective topics, and provide a regulation which in every
case is better than the chaos previously prevailing in the areas in
question. They also constitute a firm nucleus round which either custom
or future legislation can develop further regulation.
[Sidenote: Interpretation of international statutes.]
45. But even if international legislation attains the degree of success
suggested, there still remains another great difficulty which must
indirectly influence legislation itself, and that is the interpretation
of international statutes once they have been enacted. It is notorious
that no generally received rule of the law of nations exists for the
interpretation of international treaties. Grotius and his successors
applied thereto the rules of interpretation adopted in Roman law, but
these rules, despite their aptness, are not recognized as international
rules of construction. It can scarcely be said, however, that
insurmountable difficulties have arisen hitherto out of this situation,
for the majority of treaties have been between two parties, and the
interpretation thereof is the affair of the contracting parties
exclusively, and can be ultimately settled by arbitration. But in the
case of general or universal international enactments we have to deal
with conventions between a large number of states or between all states,
and the question, accordingly, now becomes acute.
[Sidenote: International differences as regards interpretation.]
46. The difficulty of solving this question is increased by the fact
that jurists of different nations are influenced by their national
idiosyncrasies in the interpretation of enactments, and are dependent on
the method of their school of law. Here are contrarieties which must
always make themselves powerfully felt. The continental turn of mind is
abstract, the turn of the English and American mind is concrete.
Germans, French, and Italians have learnt to apply the abstract rules of
codified law to concrete cases; in their abstract mode of thought they
believe in general principles of law, and they work outwards from these.
English and Americans, on the contrary, learn their law from decided
cases--'law is that which the courts recognize as a coactive rule' is an
accepted and widely current definition of law in the Anglo-American
jurisprudence; they regard abstract legal rules, which for the most part
they do not understand, with marked distrust; they work outwards from
previously decided cases and, when a new case arises, they always look
for the respects in which it is to be taken as covered by previous
cases; they turn away as far as possible from general principles of law,
and always fasten on the characteristic features of the particular case.
If continental jurists may be said to adapt their cases to the law,
English and American jurists may be said to adapt the law to their
cases. It is obvious that this difference of intellectual attitude and
of juristic training must exercise a far-reaching influence on the
interpretation and construction of international enactments.
[Sidenote: Different nations have different canons of interpretation.]
47. It is because of what has just been explained that the rules for the
interpretation of domestic legislation are different with different
nations. For example, whilst in Germany and France the judge avails
himself more or less liberally of the _Materialien_[1] of a statute in
order to arrive at its meaning, the English judge limits himself to the
strict wording of the text, and utterly refuses to listen to an argument
based on the historical origin of the statute. The English bench,
sticking more closely to the letter of the law, allows also an extensive
or restrictive interpretation thereof much more seldom than the
continental judiciary does.
[1] It seems impossible to find any single English phrase which gives
the meaning of _Materialien_ in this context. In the _Materialien_ of a
statute is comprised everything officially put on record concerning it
between the time the draftsman undertakes to draft the measure and the
time it is placed on the statute-book. For instance, the commentary
which a draftsman on the Continent always adds to his draft, giving the
reasons for the provisions of the Bill; the discussions in Parliament
about the Bill; and the like.--TRANSLATOR.
[Sidenote: Controverted interpretation of the Declaration of London an
example.]
48. A good illustration of the factors under consideration was furnished
by the movement in England against the ratification of the Declaration
of London, and the discussion evoked thereby in the press and in
Parliament. It was asserted that many rules of the Declaration were so
indefinitely framed as to lie open, castle and keep, to the arbitrary
inroads of a belligerent interpreter. And when the advocates of
ratification pointed to the official 'General Report presented to the
Naval Conference by its Drafting Committee', which gave a satisfying
solution to the issues raised, the answer came that neither a
belligerent nor the International Prize Court would be bound by the
interpretation of the Declaration contained in this General Report. It
was asserted that the ratification of the Declaration would refer only
to the text itself, and that the General Report, not being thereby
ratified, would not be binding; only by express extension of the
ratification to the General Report could the latter bind.
Continental jurisprudence, if my conception of it be correct, would
stand shaking its head at the whole of this discussion. It would ask how
there could be any talk of ratifying a report, ratification having only
to do with agreements. And as regards the question of the binding
character of the General Report, there might indeed be some objection on
the Continent to the epithet 'binding', but, on the other hand, there
would be no doubt that the interpretation of the Declaration given in
the Report must be accepted on all sides. The Report expressly says:
We now reach the explanation of the Declaration itself, on
which we shall try, by summarizing the reports already approved
by the Conference, to give an exact and uncontroversial
commentary; this, when it has become an official commentary by
receiving the approval of the Conference, would be fit to serve
as a guide to the different authorities--administrative,
military, and judicial--who may be called on to apply it.
Seeing that the Conference unanimously accepted the Report, there is
expressed in it and by it the real and true meaning of the individual
articles of the Declaration as the Conference itself understood and
intended it. Every attempt to procure an inconsistent interpretation
must come to grief on this fact, and so the Report is in this sense
'binding'. The ratification of a treaty extends, of course, not only to
the words themselves, but also to their meaning, and if the Conference
which produces an agreement itself unanimously applies a definite
meaning to the words of the agreement, there cannot remain any doubt
that this is the meaning of the verbal text. Nevertheless, the contrary
was maintained in England by a party of men of legal eminence, and the
explanation of this is only to be found in the fact that these English
lawyers were applying to the interpretation of the Declaration the rules
which govern the interpretation of English statutes. The only way to
enable the English Government to ratify the Declaration seems to be a
statement by the Powers at the time of ratification that the
interpretation of the Declaration expressed in the General Report is
accepted on all sides.
[Sidenote: Some proposals for the avoidance of difficulties in
interpretation.]
49. However this may be, the illustration adduced is sufficient proof
that the interpretation of international enactments creates a difficulty
of its own for international legislation. International legislators must
bring even greater solicitude than municipal legislators to the
expression of their real meaning in rigid terms. And this aim can only
be attained by the most assiduous preparation and consideration of the
contents of the enactment. It would be best if these contents were
published and thereby submitted to expert discussion before they were
finally accepted at the Conferences. The national jurisconsults of the
participant states would thus be enabled to criticize the proposals and
to indicate the points which especially need clearing up. It might also
be possible to consider the enactment, by convention, of an
international ordinance containing a series of rules for the
interpretation and construction of all international statutes. This
much is sure, that the interpretation of international statutes must be
freer than that of municipal statutes, and must therefore be directed
rather to the spirit of the law than to the meaning of the words used.
This is all the more requisite because French legal language is foreign
to most of the states concerned, and because it is not to be expected
that before ratification they should obtain minute information about the
meaning of every single foreign word employed.