“In truth these ‘cut-and-dried’ schemes are of no value at all,
unless as monuments of the mingled simplicity and ingenuity of
their authors.”--LAWRENCE.
The view has been very generally entertained that all efforts to
promote the cause of peace and order in the world by cut-and-dried
schemes are bound to fail, and it must be admitted that few truer words
have been written than those which stand at the head of this article.
But this truth, like some others, may be abused. Evidences are not
wanting to show that the incredulity which preceded the convening of
the Peace Conference, the skepticism which marked its first sessions,
and a certain want of faith which has since been manifested in various
quarters in the practical value of the measures adopted, are all mainly
due to a misapplication of this truth.
The measures formulated at The Hague do not constitute a “cut-and-dried
scheme,” but, on the contrary, they form an additional step in a
natural, healthy, and orderly evolution of the forces of peace
which have so effectively asserted themselves in the improvement of
international relations during the latter half of this century.[H]
[H] For an excellent statement of the work of the Conference
from the German point of view, see Die völkerrechtlichen
Ergebnisse der Haager Conferenz, by Professor Zorn, of
Königsberg, one of the German delegates, published in the
Deutsche Rundschau, January _et seq._
THE GENEVA RED CROSS RULES.--The first matter to which attention will
be invited is the extension of the Red Cross rules to naval warfare.
The Geneva Convention of 1864, which marks the beginning of the
organization known as the Red Cross Society, inaugurated a vast and
beneficent improvement in the then existing usage of nations as
regarded the care of the sick and wounded in war. Its two salient
features are the neutralization of the officers and forces of
the society and the disabled soldiers under their care, and the
establishment of a _system_ to govern the conduct of its humane work.
At the dawn of modern international law during the first quarter of
the seventeenth century not only the sick and wounded of a vanquished
foe, but every prisoner, and even women and children, suffered to the
fullest the indignities and cruelties incident to the rough warfare of
the age; but the growth of mercy has softened the asperities of war,
and among the milestones that mark this advance toward a more humane
usage the Red Cross Society holds an honored place. Under its rules the
sick and wounded were no longer left to the irregular and capricious
care of private benevolence, but were made the subject of organized and
systematic treatment by a staff of skilled physicians and experienced
nurses provided with hospital and ambulance facilities, and, thus
equipped and assured the protection of both combatants, they were able
to work effectively in their ministrations to the sick and dying.
Vast as was this progress from the days when at the siege of Acre the
first real attention since the dark ages was given to the wounded by
the Order of Teutonic Knights, there was still one serious imperfection
that limited its sphere of usefulness--it did not apply to warfare
on the seas. An effort had indeed been made in 1868 to extend the
Red Cross rules to naval warfare, but it failed, and the wounded in
conflicts on the sea continued to be left to the old provisions, which
were necessarily inadequate and could not be exercised under the joint
protection of the combatants. The virtue of the good Samaritan is a
potent force, but to be fully effective on the field of battle it must
be exercised under a common system established and maintained by the
mutual consent of nations. It would, however, be a mistake to suppose
that because the effort made in 1868 to extend these rules to sea
warfare failed on account of their non-ratification, they were not
sustained by public opinion. Many difficulties, especially those of
a technical character, stood in the way; but public opinion was ever
growing in their favor, and it eventually came to be regarded as an
anomaly that while the care of the sick and wounded in land warfare
had been regulated upon a common basis of international agreement, no
similar provision existed for the care of the victims of naval combat.
Without some such extension of the rules no adequate expression could
be given to the growing humanity of the age.
For these reasons it will be obvious that the next step necessary
in the further development of the Red Cross work consisted of its
extension to naval warfare. The Peace Conference subjected the
Convention of 1864 and the additional rules of 1868 to a careful
examination, considered at length the difficulties in the way, and
finally adopted a new series of rules providing for an organized
staff of physicians and nurses, with hospital ships and life-saving
appliances, which shall, without interfering with operations, be
henceforth employed in naval engagements and enjoy the protection of
both combatants.
The newly formulated rules, in conjunction with the previous ones
relating to land warfare, are the practical embodiment of the growing
feelings of humanity and mercy in the conduct of warfare which,
commencing with the Peace of Westphalia, has been ever more and more
effective in securing the evolution of a better usage.
THE BRUSSELS RULES.--So, too, with reference to the rules governing the
conduct of armies in the field the work of the conference represents a
sound and healthy evolution.
It may be remarked, by way of preface, that the old idea of war
regarded hostilities as working the absolute interruption of all
relations between belligerents, save those arising from force; it also
regarded the enemy as a proper object of violence and depredation.
Even in the time of Grotius the universal usage permitted the putting
to death of all persons found in the enemy’s territory, and in the
terrible struggles of the Thirty Years’ War in Germany and the Eighty
Years’ War in the Netherlands the story of the fate of men, women, and
children at the hands of a conquering soldiery forms one of the darkest
chapters in human history.
But while Grotius declared this to be the usage, he also took care
to point out that considerations of justice and mercy dictate a
better course, and he made a distinction between certain classes,
declaring that justice requires the belligerent to spare those who
have done no wrong to him, especially old men, priests, husbandmen,
merchants, prisoners, women, and children. This merciful distinction
was eagerly seized upon by his successors, who gradually developed
out of it different rules for the treatment of the “combatant” and
“non-combatant” portion of the enemy inhabitants. After the Peace of
Westphalia in 1648, which marked the close of the great struggles that
had so long convulsed Europe, the older and more brutal customs fell
into disuse, and the theory that only so much stress should be put upon
an enemy, and primarily upon the combatant portion, as was sufficient
to destroy his power of resistance was substituted for it. Along with
this new usage grew the ever-increasing rights of neutrals, among them
being that of trade and commerce with the non-combatant portion of
belligerent states, which has done so much to lighten the hardships
of war suffered by those devoted to peaceful pursuits in the enemy’s
territory.
The next important step in this evolution belongs to the present
century, and is due to the enlightened initiative of the United States.
This step consisted in the preparation of a manual containing a code of
rules for the conduct of land warfare. Keenly alive to the inevitable
sufferings incident to the great civil conflict then being waged,
Abraham Lincoln commissioned Francis Lieber to prepare a series of
rules for the conduct of the armies of the republic in the field which
should set bounds to the passions of the soldiery.[I] In pursuance of
this commission, a code of rules was prepared and adopted which has
since been known as Lieber’s Manual; it was published in 1863, and
proved a blessing to soldier and civilian alike. So obvious, indeed,
were its good results that other nations rapidly followed the lead of
the United States, and similar manuals were issued by Great Britain,
France, Germany, Russia, and other powers.
[I] See Pierantoni, Die Fortschritte des Völkerrechts im
neunzehnten Jahrhundert.
But while Lieber’s Manual was thus taken as the model by various
nations, there were inevitably developed serious divergencies in the
rules and details. Recognizing the desirability of a common code, which
should be binding upon all nations, Alexander II of Russia attempted
to secure the united action of the leading states, and, pursuant to
his initiative, the Conference of Brussels was called in 1874. In the
sessions of this conference the rules already developed were carefully
examined, and ultimately a series of articles, well calculated to
form the basis for an excellent international code, was adopted. As
the delegates, however, had not been given plenary powers by their
respective governments, their action was necessarily ineffective
without subsequent ratification. Upon this rock the conference was
wrecked, and the rules which it had formulated acquired no binding
authority.
But indirectly they had a most happy effect, for they worked as a
unifying influence in the preparation of subsequent manuals and the
amendment of existing ones. The increasing interest in the subject
thus stimulated led the Institute of International Law to give the
matter still further thought, with the result that that eminent body
of jurists in 1880 adopted a very full and excellent code, which gave
evidence of much advance in the knowledge of the subject.
But neither the Brussels rules nor the code of the Institute of
International Law possessed any binding authority, save in so far as
they embodied generally accepted usage; their influence, however,
increased the tendency in the direction of a common manual such as
that which Alexander II had hoped to secure--a hope which has now been
realized, and in a manner worthy of the subject. This logical step, too
long delayed, is due to the Peace Conference. It devoted most careful
consideration to the various codes, and has enriched, extended, and
unified the rules and improved the whole by many valuable provisions
suggested by the intervening experience. Altogether, the result is a
splendid example of a natural evolution which, commencing with the
distinction between “combatant” and “non-combatant” founded on the
considerations of mercy and justice pleaded by Grotius, subsequently
recognized in the Peace of Westphalia, increasingly practiced since
then, and at the instance of Lincoln embodied in a manual, has now
led to the adoption of a common international code for the conduct of
future armies in the field--a result which marks the triumph in our day
of the conception of civilized warfare tempered with mercy over the old
idea of indiscriminate and inhuman slaughter.
THE SPHERE OF ARBITRATION.--A matter that has given rise to much
speculation is the _jurisdiction_ of arbitral tribunals. It has come to
be recognized that a distinction must be made between different classes
of international disputes. What may be called “business disputes”
between states, such as boundary lines, tariffs, damages, fishery
claims, questions of citizenship, and various treaty arrangements--like
the most-favored nation clause--are all fit subjects for
arbitration.[J] But the graver questions involving the consideration of
national policy and aspirations, vital interests and honor, race and
religious prejudices and passions, and last of all self-preservation,
are, at least for the present, far beyond the competence of an
arbitration tribunal.[K]
[J] See Essai sur l’Organisation de l’Arbitrage International,
by M. Descamps, p. 24.
[K] The Transvaal War pertinently illustrates the prevailing
want of knowledge regarding the true sphere of arbitration.
Ever since the outbreak of war the Continental press and
some American papers have been asking why the provisions of
the Peace Conference are not put in operation. Much of this
is due to anglophobia; much to a genuine ignorance of the
matter. The treatment of the subject usually takes the form
of an antithesis in which Great Britain as a peace power at
the conference is contrasted with Greater Britain making
war on a little republic, and this is invariably followed
with a statement or inference that the Peace Conference was
a huge farce, and the Permanent Court a dire failure. It
is now quite plain that the root of the difficulty between
England and the Transvaal was not the franchise nor the
dynamite monopoly, but English _versus_ Dutch predominancy
in the whole of South Africa, and therefore a grave clash
of two opposing policies, involving the deepest questions
of interest and even self-preservation. Regarding these
questions the conference was unanimous in the opinion that
they are entirely outside the sphere of arbitrable question.
If the list of arbitral decisions hitherto given be examined it will
show that questions of the first sort above are those which have thus
far been submitted to judicial settlement.[L] It is therefore in
harmony with past experience that the conference, in generally defining
the scope of arbitration, declared it to be intended for the settlement
of “questions of a juridical nature,” especially the interpretation
and application of international agreements upon the basis of respect
for law.[M] The frequency of these “business questions” is on the
increase; they seriously embarrass diplomatic representatives, whose
proper duty is the conduct of graver matters of policy, and there is
a growing disposition to submit them to legal settlement. Under these
circumstances, there is little doubt that the time has come when the
system of special temporary courts of arbitration, splendid as their
work has been, must give way to a more adequate system--they were
indeed but stepping stones to a more permanent organization. Under the
old system each power was likely to wait for the other to take the
initiative; then came a squabble as to just how much and what part of
the difficulty should be submitted to arbitration, then a squabble
about judges, then a squabble about procedure, place of trial, and so
on--all was unpreparedness, uncertainty, and meantime angry passions
had full play.
[L] See especially the list given in the back of Darby’s
International Tribunals, p. 286.
[M] See Article XV of the Convention.
In the preparation for war the modern state lays no end of force
on the necessity for a rapid and systematic mobilization. The weak
point, however, in preparing for a judicial contest hitherto has been
the absence of any system by which to “mobilize judges and counsel”
and get the legal forces out into the field. To attain this end the
scheme presented by Lord Pauncefote and unanimously adopted by the
conference will be found to be a most striking example of the happy
adaptation of a means to an end where the way seemed blocked by
infinite difficulties. It consists of a few simple provisions for
the establishment of an International Bureau of Arbitration with an
Administrative Council, and this, with the addition of various other
features drawn from the United States, Russia, France, and Italy, with
some others, constitutes the composite plan embodied in the Final Act.
In brief outline it is as follows:
PERMANENT COURT OF ARBITRATION.--The diplomatic representatives of the
signatory powers accredited to The Hague, including the Netherlands
Minister of Foreign Affairs as president,[N] are to constitute an
administrative council. This council shall organize and establish an
International Bureau of Arbitration, of which it shall retain the
direction and control, pursuant to the provisions of the conference.
This bureau shall serve as the office of the court, and contain the
archives, and the routine business shall be conducted therein. The
signatory powers will each appoint four persons, who shall be men of
recognized ability in international law and of high character, and
the whole number of persons so appointed shall form a list or panel
of members of the court, or the international bench. In case of a
difficulty arising between two or more powers which they desire to
submit to arbitration, they agree to notify the bureau, and the bureau
will ask them to choose a certain number of judges from the panel, and
these shall constitute the special bench.[O] An agreement is then to be
drawn up stating the object of the litigation and the powers of the
arbitrators. This agreement implies the engagement of the parties to
submit in good faith to the sentence.
[N] The amendment to Lord Pauncefote’s plan, by which the Dutch
Foreign Minister was made the president, is due to Mr.
White, President of the American Commission.
[O] In case states, between whom a dispute may arise, do not
of their own accord have recourse to the tribunal, Section
27 permits the powers to remind such states that the
Permanent Court is open to them, and the giving of this
reminder is declared to be a duty in the superior interests
of peace, and is to be regarded only as an exercise of
“good offices.” To this section the United States agreed
on condition that its consent should not be regarded as a
departure from the well-known principles underlying the
foreign policy of the Republic.
ARBITRAL PROCEDURE.--For the purpose of promoting the development
of arbitration certain simple rules are formulated. The powers will
appoint special agents, who shall be intermediaries between them and
the tribunal; they will also appoint counsel. The proceedings consist
first of _instruction_--communications by the agents and counsel to the
tribunal and the opposing party, of the pleadings, etc.; and, secondly,
of _argument_--the oral development of the pleadings. The argument
being closed, the bench shall deliberate in secret, and a decision is
to be reached by a majority vote. The decision shall be written, and
is to contain the reasons of law and fact upon which it is based. In
case of disagreement, the dissenting opinion shall also be written and
contain the reasons therefor; the signature of each member is to be
added to his opinion. Subsequently the decision is to be read in open
session, in the presence of the agents and counsel of the parties.
To sum up: it contains all the essentials; it is immediately available,
provided with a permanent office, with officials, with a code of
procedure, with directions for the commencement of proceedings, the
presentation of cases, the taking of evidence by an International
Commission of Inquiry, the oral explanation and argument of the printed
case, the pronouncement of sentence in open court, the recording of
such decision, the subsequent rectification of an error therein on the
discovery of new and important facts of a decisive character, and the
preservation of the records.[P]
[P] See Articles XV to LVII of the Convention.
BASIS FOR FUTURE EVOLUTION.--With these essentials there is a basis for
a future evolution until the court shall have become as perfect in its
organization and details as the High Courts of Justice in England or
the Supreme Court of the United States.
It may not be amiss here to suggest the influence which the permanent
tribunal is calculated to exercise in the future development of
international law. The provision for a permanent bureau or record
office, in which the archives shall be kept, is sure to prove a
valuable condition for future growth, for the deposit in such bureau of
all arbitral decisions will mark the true beginning of what we may call
“International Law Reports.” To this bureau the powers undertake to
send certified copies of all special arbitration agreements, whether
embodied in treaties or otherwise; to it also will be sent the result
of all special arbitrations hereafter resorted to, and in it will be
deposited the papers, pleadings, and other documents, and especially
the decisions of the permanent court, as well as those of any special
courts which may hereafter be created from time to time. These archives
will thus furnish a wealth of material not locked up or available
only by jurists of the particular state where they may happen to be
situated, as has too often been the case heretofore, but accessible
alike to the great text writers and commentators of all nations. The
criticisms and opinions of eminent text writers have heretofore been of
great value in the improvement of international law, and under these
new and more favorable conditions their influence should be even more
beneficial in the future.
To the works of text writers will in future be added the able
discussions of counsel and the learned opinions of judges handed down
in writing, with the reasons upon which they are founded.[Q] Where
rules and usages are becoming obsolete or obviously hostile to the
growth of opinion, international judges may feel themselves bound for a
time by them and give their decisions accordingly, but they may embody
in their written decisions an _obiter dictum_ which shall prove the
death knell of the old rule and the establishment of a healthier one.
Many are the wholesome changes that have thus been wrought in English
“judge-made law” as the direct result of learned and convincing _obiter
dicta_.
[Q] For an admirable example, see the published proceedings of
the Paris Tribunal in the Venezuelan case.
The interest which will thus be stimulated in the whole subject of
international law will promote its study in all nations. Hitherto this
branch of legal education has been rather slighted; not being regarded
as essential to the ordinary practitioner, it has been neglected for
the petty provisions of some state code or involved corporation law,
but the influences already at work in favor of a more thorough and
scholarly study of this branch will be effectively aided under the new
conditions.
Though the law of nations should be uniform in all countries, a
comparison of the leading works in different countries, English and
German for instance, will reveal many differences partly traceable
to the particular system of law in which the author was grounded,
and in part to his peculiar “judicial instinct.” It is not often
that one finds an English or American lawyer thoroughly grounded in
the Roman system and the modern Continental systems founded upon
it; quite as rare is it to find a Continental lawyer learned in the
system of English jurisprudence. There have been such men, as, for
example, Rudolf Gneist, whose great work on English Constitutional
Law and History has become a classic. But, as a rule, there is among
text writers on this branch of law and among the eminent jurists
who have hitherto been connected with international tribunals much
“provincialism in thought and conception,” if the phrase may be
allowed, and to overcome it the future jurists who shall take part in
international contests before the high tribunal of the nations will
require to be more thoroughly grounded in the history and evolution of
law in general and in the study of comparative law, both private and
public, in particular, than their predecessors have been.[R] In this
connection it is not too much to hope that the unifying influence of
an international tribunal will eventually exercise a good effect in
promoting the solution of various perplexing problems on the private
side of international law, or what is known as “conflict of laws.”
[R] As evidence of increased attention to this matter in
Germany, see Wertheim, Wörterbuch des Englischen Rechts.
Having indicated some directions in which the growth of international
law will be likely to be promoted by the tribunal, the question
suggests itself whether the jurisdiction of the international court
will eventually be enlarged beyond the scope at present contemplated by
the Convention of The Hague. Will the time ever come when such a court
shall take cognizance of various matters which now lie without the
sphere of “business disputes and questions of a juridical nature” and
within that of essential interests, honor, race, and religious policies
and ideals? The statement, which is sometimes heard, that such will
never be the case, does not seem warranted when we regard the growth of
law in general, and indeed the development of this particular branch
of it, in the past, but it is safe to say that the time is a long way
off; it will depend on many things: the efficiency of the court itself,
the continued growth of neutral rights, the increasing necessity for
preserving international peace, and the infinite forces which have
tended to widen the jurisdiction of municipal law.[S]
[S] See Le Droit de la Paix, by M. Descamps.
In the growth of systems of “National Law”[T] there has been evolved
from small beginnings an ever-widening jurisdiction. Impartial courts
have inspired confidence which stimulated individuals to seek their
aid, and this has reacted to extend their jurisdiction, until now the
most intimate and complex relations between individuals, at one time
wholly without their sphere, are in these days submitted as a matter
of course to judicial settlement. Even questions of individual honor
are settled according to the well-developed principles of libel and
slander which were once considered as requiring a duel for their
satisfaction.
[T] In contradistinction to “International Law.”
A similar growth may be expected in the jurisdiction of the
international tribunal. Upon the reputation which it shall succeed
in establishing for impartiality, freedom from race and national
prejudices, regard for broad principles of law and equity, and the
thoroughness and ability with which it shall discharge its high duties
within its present sphere, will largely depend the extent to which an
advancing public opinion will enlarge its jurisdiction until it shall
embrace various classes of questions now declared non-arbitrable. No
detailed classification, however, can be thought of; each difficulty as
it arises must be determined in view of the surrounding circumstances
with due regard to the growing public feeling in favor of judicial
settlement. Under the system of voluntary arbitration there is abundant
room for growth, for the _onus_ will be thrown on each contending state
to square its conduct with that growing feeling in favor of arbitration
which it will become more and more difficult to ignore. In every
country the growth of law and the extension of the jurisdiction of the
courts which administered it have been concurrent; the same rule must
govern in the field of international law.
There are vast fields at present untouched by the law of nations.
The discovery of the New World threw the jurists of that day into
bewilderment as to how rights in the American continents might be
acquired and established. A period of doubt and dispute ensued, until
finally Grotius, by applying certain rules of Roman law regarding the
acquirement of rights by individuals through purchase, possession,
etc., and by inventing certain other rules, helped to supply a legal
foundation upon which the acquisition of these territories could be
regulated. Looking toward the future, one can see that, since there
are no more continents to be discovered and the habitable parts of
the earth have been already taken possession of by the colonial
pioneer, the great principle of the survival of the fittest must
henceforth mainly work itself out in competitions confined to the
existing territories of the various powers. This will necessitate the
consideration of some deep questions concerning the life and death of
nations and the heirship to their dominions.[U]
[U] _Vide_ Contuzzi, Leggi di Composizioni e di Decomposizioni
degli Stati.
It is widely believed, for instance, that China is dying a natural
death. Assuming it to be the fact, what will be the rules to govern
the inheritance of these Oriental domains? Great Britain, Russia,
Germany, the United States, and other nations have acquired footholds
and established interests within Chinese territory. Disputes will
inevitably arise between them; many will be settled by mutual
compromise in which, perhaps, the chief consideration will be the
amount of warlike force behind the arguments advanced; many others
will be sure to find their way to an arbitral tribunal, and before
that body arguments will be made and by that body decisions will be
handed down embracing principles not now to be found in the books, but
which the circumstances of the case and the demands of justice require.
And so will doubtless ensue a growth of “international judge-made law
and equity” which will gradually work an extension of the arbitral
jurisdiction into fields at present unknown to the law of nations. One
thing is certain: the law so developed must not, on the one hand, be in
conflict with the Grotian doctrine of the equality of states as rightly
understood, nor, on the other, with that great all-pervading law of the
survival of the fittest--a law which determines the destinies of men
and nations alike.