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CONTRIBUTIONS TO INTERNATIONAL LAW
AND DIPLOMACY
Edited by L. OPPENHEIM, M.A., LL.D.
Membre de l'Institut de Droit International,
Whewell Professor of International Law in the University of Cambridge,
Honorary Member of the Royal Academy of Jurisprudence at Madrid,
Corresponding Member of the American Institute of International Law.
THE LEAGUE OF NATIONS
AND ITS PROBLEMS
CONTRIBUTIONS TO INTERNATIONAL
LAW AND DIPLOMACY.
Edited by L. OPPENHEIM, M.A., LL.D., Whewell Professor of International
Law in the University of Cambridge.
A GUIDE TO DIPLOMATIC PRACTICE. By the Right Hon. Sir ERNEST SATOW,
G.C.M.G., LL.D., D.C.L., formerly Envoy Extraordinary and Minister
Plenipotentiary. 2 Volumes. 8vo. 30_s._ net.
INTERNATIONAL CONVENTIONS AND THIRD STATES. A Monograph. By RONALD F.
ROXBURGH, of the Middle Temple, Barrister-at-Law; formerly Whewell
International Law Scholar in the University of Cambridge; formerly
Scholar of Trinity College, Cambridge. 8vo. 7_s._ 6_d._ net.
LONGMANS, GREEN AND CO.,
London, New York, Bombay, Calcutta, and Madras.
THE
LEAGUE OF NATIONS
AND ITS PROBLEMS
THREE LECTURES
BY
L. OPPENHEIM, M.A., LL.D.
WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE UNIVERSITY OF CAMBRIDGE
MEMBRE DE L'INSTITUT DE DROIT INTERNATIONAL. HONORARY MEMBER OF
THE ROYAL ACADEMY OF JURISPRUDENCE AT MADRID, CORRESPONDING
MEMBER OF THE AMERICAN INSTITUTE OF
INTERNATIONAL LAW
_Festina lente_
LONGMANS, GREEN AND CO.
39 PATERNOSTER ROW, LONDON
FOURTH AVENUE & 30TH STREET, NEW YORK,
BOMBAY, CALCUTTA, AND MADRAS.
1919
PREFACE
The three lectures collected in this volume were prepared without any
intention of publication. They were delivered for the purpose of drawing
attention to the links which connect the proposal for a League of
Nations with the past, to the difficulties which stand in the way of the
realisation of the proposal, and to some schemes by which these
difficulties might be overcome. When it was suggested that the lectures
should be brought before the public at large by being issued in book
form I hesitated, because I was doubtful whether the academic method
natural to a University lecture would be suitable to a wider public.
After consideration, however, I came to the conclusion that their
publication might be useful, because the lectures attempt to show how
the development initiated by the two Hague Peace Conferences could be
continued by turning the movement for a League of Nations into the road
of progress that these Conferences opened.
Professional International lawyers do not share the belief that the
outbreak of the World War and its, in many ways, lawless and atrocious
conduct have proved the futility of the work of the Hague Conferences.
Throughout these anxious years we have upheld the opinion that the
progress initiated at the Hague has by no means been swept away by the
attitude of lawlessness deliberately--'because necessity knows no
law'--taken up by Germany, provided only that she should be utterly
defeated, and should be compelled to atone and make ample reparation for
the many cruel wrongs which cry to Heaven. While I am writing these
lines, there is happily no longer any doubt that this condition will be
fulfilled. We therefore believe that, after the map of Europe has been
redrawn by the coming Peace Congress, the third Conference ought to
assemble at the Hague for the purpose of establishing the demanded
League of Nations and supplying it with the rudiments of an
organisation.
How this could be accomplished in a very simple way the following three
lectures attempt to show. They likewise offer some very slight outlines
of a scheme for setting up International Councils of Conciliation as
well as an International Court of Justice comprising a number of
Benches. I would ask the reader kindly to take these very lightly
outlined schemes for what they are worth. Whatever may be their defects
they indicate a way out of some of the great difficulties which beset
the realisation of the universal demand for International Councils of
Conciliation and an International Court of Justice.
It is well known that several of the allied Governments have appointed
Committees to study the problem of a League of Nations and to prepare a
scheme which could be put before the coming Peace Congress. But unless
all, or at any rate all the more important, neutral States are
represented, it will be impossible for an all-embracing League of
Nations to be created by that Congress; although a scheme could well be
adopted which would keep the door open for all civilised States.
However, until all these States have actually been received within the
charmed circle, the League will not be complete nor its aims fully
realised. Whatever the coming Peace Congress may be able to achieve with
regard to a scheme for the establishment of the League of Nations,
another--the third--Hague Peace Conference will be needed to set it
going.
L. OPPENHEIM.
P.S.--While this Preface and volume were going through the Press,
Austria-Hungary and Germany surrendered, and unprecedented
revolutions broke out which swept the Hapsburg, the Hohenzollern,
and all the other German dynasties away. No one can foresee what
will be the ultimate fate and condition of those two once mighty
empires. It is obvious that, had the first and second lectures been
delivered after these stirring events took place, some of the views
to be found therein expressed would have been modified or
differently expressed. I may ask the reader kindly to keep this in
mind while reading the following pages. However, the general bearing
of the arguments, and the proposals for the organisation of the
League of Nations and the establishment of an International Court of
Justice and International Councils of Conciliation, are in no way
influenced by these later events.
CONTENTS
PAGE
FIRST LECTURE: THE AIMS OF THE LEAGUE OF NATIONS 1
I. The purpose of the three Lectures is to draw attention to
the links which connect the proposed League of Nations with
the past, to the difficulties involved in the proposal, and to
the way in which they can be overcome 4
II. The conception of a League of Nations is not new, but is
as old as International Law, because any kind of International
Law and some kind of a League of Nations are interdependent and
correlative 6
III. During antiquity no International Law in the modern
sense of the term was possible, because the common interests
which could force a number of independent States into a
Community of States were lacking 6
IV. But during the second part of the Middle Ages matters
began to change. During the fifteenth, sixteenth and
seventeenth centuries an International Law, and with it a kind
of League of Nations, became a necessity and therefore grew by
custom. At the same time arose the first schemes for a League
of Nations guaranteeing permanent peace, namely those of Pierre
Dubois (1305), Antoine Marini (1461), Sully (1603), and Emeric
Crucee (1623). Hugo Grotius' immortal work on 'The Law of War
and Peace' (1625) 7
V. The League of Nations thus evolved by custom could not
undertake to prevent war; the conditions prevailing up to the
outbreak of the French Revolution made it impossible; it was
only during the nineteenth century that the principle of
nationality made growth 9
VI. The outbreak of the present World War is epoch-making
because it is at bottom a fight between the principle of
democratic and constitutional government and the principle of
militarism and autocratic government. The three new points in
the present demand for a League of Nations 11
VII. How and why the peremptory demand for a new League of
Nations arose, and its connection with so-called
Internationalism 11
VIII. The League of Nations now aimed at is not really a
League of Nations but of States. The ideal of the national
State 13
IX. The two reasons why the establishment of a new League of
Nations is conditioned by the utter defeat of the Central
Powers 15
X. Why--in a sense--the new League of Nations may be said to
have already started its career 16
XI. The impossibility of the demand that the new League of
Nations should create a Federal World State 18
XII. The demand for an International Army and Navy 20
XIII. The new League of Nations cannot give itself a
constitution of a state-like character, but only one _sui
generis_ on very simple lines 22
XIV. The three aims of the new League of Nations, and the
four problems to be faced and solved in order to make possible
the realisation of these aims 23
SECOND LECTURE: ORGANISATION AND LEGISLATION
OF THE LEAGUE OF NATIONS 25
I. The Community of civilised States, the at present
existing League of Nations, is a community without any
organisation, although there are plenty of legal rules for the
intercourse of the several States one with another 28
II. The position of the Great Powers within the Community of
States is a mere political fact not based on Law 29
III. The pacifistic demand or a Federal World State in order
to make the abolition of war a possibility 31
IV. Every attempt at organising the desired new League of
Nations must start from, and keep intact, the independence and
equality of the several States, with the consequence that the
establishment of a central political authority above the
sovereign States is an impossibility 32
V. The development of an organisation of the Community of
States began before the outbreak of the World War and is to be
found in the establishment of the Permanent Court of
Arbitration at the Hague by the First Hague Peace Conference of
1899. But more steps will be necessary to turn the hitherto
unorganised Community of States into an organised League of
Nations 34
VI. The organisation of the desired new League of Nations
should start from the beginning made by the Hague Peace
Conferences, and the League should therefore include all the
independent civilised States 35
VII. The objection to the reception of the Central Powers,
and of Germany especially, into the League 36
VIII. The objection to the reception of the minor
transoceanic States into the League 38
IX. The seven principles which ought to be accepted with
regard to the organisation of the new League of Nations 39
X. The organisation of the League of Nations is not an end in
itself but only a means of attaining three objects, the first
of which is International Legislation. The meaning of the term
'International Legislation' in contradistinction to Municipal
Legislation. International Legislation in the past and in the
future 41
XI. The difficulty in the way of International Legislation on
account of the language question 43
XII. The difficulty created by the conflicting national
interests of the several States 44
XIII. The difficulty caused by the fact that International
Statutes cannot be created by a majority vote of the States.
The difference between universal and general International Law
offers a way out 44
XIV. The difficulty created by the fact that there are as yet
no universally recognised rules concerning interpretation and
construction of International Statutes and ordinary
Conventions. The notorious Article 23(h) of the Hague
Regulations concerning Land Warfare 45
_Appendix_: Correspondence with the Foreign Office respecting
the Interpretation of Article 23(h) of the Hague Regulations
concerning Land Warfare 48
THIRD LECTURE: ADMINISTRATION OF JUSTICE AND
MEDIATION WITHIN THE LEAGUE OF NATIONS 57
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 60
II. The Permanent Court of Arbitration created by the First
Hague Peace Conference 61
III. The difficulties connected with International
Administration of Justice by International Courts 62
IV. The necessity for a Court of Appeal above the
International Court of First Instance 63
V. The difficulties connected with the setting up and manning
of International Courts of Justice 64
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 65
VII. The advantages of the recommended scheme 67
VIII. A necessary provision for so-called complex cases of
dispute 68
IX. A necessary provision with regard to the notorious clause
_rebus sic stantibus_ 69
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 70
XI. Details of a scheme which recommends itself for the
establishment of International Councils of Conciliation 72
XII. The question of disarmament 74
XIII. The assertion that States renounce their sovereignty by
entering into the League 75
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? 78
ALPHABETICAL INDEX 81
FIRST LECTURE
THE AIMS OF THE LEAGUE OF NATIONS
SYNOPSIS
I. The purpose of the three Lectures is to draw attention to the
links which connect the proposed League of Nations with the past, to
the difficulties involved in the proposal, and to the way in which
they can be overcome.
II. The conception of a League of Nations is not new, but is as old
as International Law, because any kind of International Law and some
kind of a League of Nations are interdependent and correlative.
III. During antiquity no International Law in the modern sense of
the term was possible, because the common interests which could
force a number of independent States into a community of States were
lacking.
IV. But during the second part of the Middle Ages matters began to
change. During the fifteenth, sixteenth, and seventeenth centuries
an International Law, and with it a kind of League of Nations,
became a necessity and therefore grew by custom. At the same time
arose the first schemes for a League of Nations guaranteeing
permanent peace, namely those of Pierre Dubois (1305), Antoine
Marini (1461), Sully (1603), and Emeric Crucee (1623). Hugo Grotius'
immortal work on 'The Law of War and Peace' (1625).
V. The League of Nations thus evolved by custom could not undertake
to prevent wars; the conditions prevailing up to the outbreak of the
French Revolution made it impossible; it was only during the
nineteenth century that the principle of nationality made growth.
VI. The outbreak of the present World War is epoch-making because it
is at bottom a fight between the principle of democratic and
constitutional government and the principle of militarism and
autocratic government. The three new points in the present demand
for a League of Nations.
VII. How and why the peremptory demand for a new League of Nations
arose, and its connection with so-called Internationalism.
VIII. The League of Nations now aimed at is not really a League of
Nations but of States. The ideal of the National State.
IX. The two reasons why the establishment of a new League of Nations
is conditioned by the utter defeat of the Central Powers.
X. Why--in a sense--the new League of Nations may be said to have
already started its career.
XI. The impossibility of the demand that the new League of Nations
should create a Federal World State.
XII. The demand for an International Army and Navy.
XIII. The new League of Nations cannot give itself a constitution of
a state-like character, but only one _sui generis_ on very simple
lines.
XIV. The three aims of the new League of Nations, and the four
problems to be faced and solved in order to make possible the
realisation of these aims.
THE LECTURE
I. Dr. Whewell, the founder of the Chair of International Law which I
have the honour to occupy in this University, laid the injunction upon
every holder of the Chair that he should 'make it his aim,' in all parts
of his treatment of the subject, 'to lay down such rules and suggest
such measures as may tend to diminish the evils of war and finally to
extinguish war between nations.' It is to comply with the spirit, if not
with the letter, of this injunction that I have announced the series of
three lectures on a League of Nations. The present is the first, and in
it I propose to treat of the Aims of the League. But, before I enter
into a discussion of these aims, I should like to point out that I have
no intention of dealing with the question whether or no a League of
Nations should be founded at all. To my mind, and probably to the minds
of most of you here, this question has been satisfactorily answered by
the leading politicians of all parties and all countries since
ex-President Taft put it soon after the outbreak of the World War; it
suffices to mention Earl Grey in Great Britain and President Wilson in
America. In giving these lectures I propose to draw your attention, on
the one hand, to the links which connect the proposal for a League of
Nations with the past, and, on the other hand, to the difficulties with
which the realisation of the proposal must necessarily be attended; and
also to the ways in which, in my opinion, these difficulties can be
overcome.
There is an old adage which says _Natura non facit saltus_, Nature takes
no leaps. Everything in Nature develops gradually, step by step, and
organically. It is, at any rate as a rule, the same with History.
History in most cases takes no leaps, but if exceptionally History does
take a leap, there is great danger of a bad slip backwards following. We
must be on our guard lest the proposed League of Nations should take a
leap in the dark, and the realisation of proposals be attempted which
are so daring and so entirely out of keeping with the historical
development of International Law and the growth of the Society of
Nations, that there would be great danger of the whole scheme collapsing
and the whole movement coming to naught.
The movement for a League of Nations is sound, for its purpose is to
secure a more lasting peace amongst the nations of the world than has
hitherto prevailed. But a number of schemes to realise this purpose
have been published which in my opinion go much too far because they
comprise proposals which are not realisable in our days. You know that
not only an International Court of Justice and an International Council
of Conciliation have been proposed, but also some kind of International
Government, some kind of International Parliament, an International
Executive, and even an International Army and Navy--a so-called
International Police--by the help of which the International Government
could guarantee the condition of permanent peace in the world.
II. You believe no doubt, because nearly everyone believes it, that the
conception of a League of Nations is something quite new. Yet this is
not the case, although there is something new in the present conception,
something which did not exist previously. The conception of a League of
Nations is very old, is indeed as old as modern International Law,
namely about four hundred years. International Law could not have come
into existence without at the same time calling into existence a League
of Nations. _Any kind of an International Law and some kind or other of
a League of Nations are interdependent and correlative._ This assertion
possibly surprises you, and I must therefore say a few words concerning
the origin of modern International Law in order to make matters clear.
III. In ancient times no International Law in the modern sense of the
term existed. It is true there existed rules of religion and of law
concerning international relations, and ambassadors and heralds were
everywhere considered sacrosanct. But these rules were not rules of an
_International_ Law, they were either religious rules or rules which
were part of the Municipal Law of the several States. For instance: the
Romans had very detailed rules concerning their relations with other
States in time of peace and war; but these were rules of Roman law, not
rules of the law of other countries, and certainly not _international_
rules.
Now what was the reason that antiquity did not know of any International
Law?
The reason was that between the several independent States of antiquity
no such intimate intercourse arose and no such common views existed as
to necessitate a law between them. Only between the several city States
of ancient Greece arose some kind of what we should now call
'International Law,' because these city States formed a Community
fostered by the same language, the same civilisation, the same religion,
the same general ideas, and by constant commercial and other
intercourse. On the other hand, the Roman Empire was a world empire, it
gradually absorbed all the independent nations in the West. And when the
Roman Empire fell to pieces in consequence of the migration of the
peoples, the old civilisation came to an end, international commerce and
intercourse ceased almost entirely, and it was not till towards the end
of the Middle Ages that matters began to change.
IV. During the second part of the Middle Ages more and more independent
States arose on the European continent, and during the fifteenth and
sixteenth centuries the necessity for a Law of Nations made itself felt.
A multitude of Sovereign States had now established themselves which,
although they were absolutely independent of one another, were knitted
together by constant commercial and other intercourse, by a common
religion, and by the same moral principles. Gradually and almost
unconsciously the conviction had grown upon these independent States
that, in spite of everything which separated them, they formed a
Community the intercourse of which was ruled by certain legal
principles. International Law grew out of custom because it was a
necessity according to the well-known rule _ubi societas ibi jus_, where
there is a community of interests there must be law. The several
independent States had thus gradually and unconsciously formed
themselves into a Society, the afterwards so-called Family of Nations,
or, in other words, a League of Nations.
And no sooner had this League of Nations come into existence--and even
some time before that date--than a number of schemes for the
establishment of eternal peace made their appearance.
The first of these schemes was that of the French lawyer _Pierre
Dubois_, who, as early as 1305, in his work 'De recuperatione terre
sancte,' proposed an alliance between all Christian Powers for the
purpose of the maintenance of peace and the establishment of a permanent
Court of Arbitration for the settlement of differences between members
of the alliance.
Another was that of _Antoine Marini_, the Chancellor of Podiebrad, King
of Bohemia, who adopted the scheme in 1461. This scheme proposed the
foundation of a Federal State to comprise all the existing Christian
States and the establishment of a permanent Congress to be seated at
Basle in Switzerland, this Congress to be the highest organ of the
Federation.
A third scheme was that of _Sully_, adopted by Henri IV of France,
which, in 1603, proposed the division of Europe into fifteen States and
the linking together of these into a Federation with a General Council
as its highest organ.
And a fourth scheme was that of _Emeric Crucee_, who, in 1623, proposed
the establishment of a Union consisting not only of the Christian States
but of all States of the world, with a General Council seated at Venice.
And since that time many other schemes of similar kind have made their
appearance, the enumeration and discussion of which is outside our
present purpose. So much is certain that all these schemes were Utopian.
Nevertheless, a League of Nations having once come into existence,
International Law grew more and more, and when in 1625 Hugo Grotius
published his immortal work on 'The Law of War and Peace,' the system of
International Law offered in his work conquered the world and became the
basis of all following development.
V. However, although a League of Nations must be said to have been in
existence for about 400 years, because no International Law would have
been possible without it, this League of Nations could not, and was not
intended to, prevent war between its members. I say: it could not
prevent war. Why not? It could not prevent war on account of the
conditions which prevailed within the international society from the
Middle Ages till, say, the outbreak of the present war. These conditions
are intimately connected with the growth of the several States of
Europe.
Whereas the family, the tribe, and the race are natural products, the
nation as well as the State are products of historical development. All
nations are blends of more or less different races, and all States were
originally founded on force: strong rulers subjected neighbouring tribes
and peoples to their sway and thus formed coherent nations. Most of the
States in Europe are the product of the activity of strong dynasties
which through war and conquest, and through marriage and purchase,
united under one sovereign the lands which form the States and the
peoples which form the nations. Up to the time of the French Revolution,
throughout the sixteenth, seventeenth, and eighteenth centuries, all
wars were either wars of religion, or dynastic wars fought for the
increase of the territory under the sway of the dynasties concerned, or
so-called colonial wars fought for the acquisition of transoceanic
colonies. It was not till the nineteenth century that wars for the
purpose of national unity broke out, and dynastic wars began gradually
to disappear. During the nineteenth century the nations, so to say,
found themselves; some kind of constitutional government was everywhere
introduced; and democracy became the ideal, although it was by no means
everywhere realised.
VI. It is for this reason that the outbreak of the present war is
epoch-making, because it has become apparent that, whatever may be the
war aims of the belligerents, at bottom this World War is a fight
between the ideal of democracy and constitutional government on the one
hand, and autocratic government and militarism on the other. Everywhere
the conviction has become prevalent that things cannot remain as they
were before the outbreak of the present war, and therefore the demand
for a League of Nations, or--I had better say--for a new League of
Nations to take the place of that which has been in existence for about
400 years, has arisen.
Now what is new in the desired new League of Nations?
Firstly, this new League would be founded upon a solemn treaty, whereas
the League of Nations hitherto was only based upon custom.
Secondly, for the purpose of making war rarer or of abolishing it
altogether, this new League of Nations would enact the rule that no
State is allowed to resort to arms without previously having submitted
the dispute to an International Court or a Council of Conciliation.
Thirdly, this new League of Nations would be compelled to create some
kind of organisation for itself, because otherwise it could not realise
its purpose to make war rarer or abolish it altogether.
VII. The demand for a new League of Nations is universal, for it is
made, not only everywhere in the allied countries, but in the countries
of the Central Powers, and it will surely be realised when the war is
over, at any rate to a certain extent. It is for this reason that the
present World War has not only not destroyed so-called Internationalism,
but has done more for it than many years of peace could have done.
What is Internationalism?
Internationalism is the conviction that all the civilised States form
one Community throughout the world in spite of the various factors which
separate the nations from one another; the conviction that the interests
of all the nations and States are indissolubly interknitted, and that,
therefore, the Family of Nations must establish international
institutions for the purpose of guaranteeing a more general and a more
lasting peace than existed in former times. Internationalism had made
great strides during the second part of the nineteenth century on
account of the enormous development of international commerce and
international communication favoured by railways, the steamship, the
telegraph, and a great many scientific discoveries and technical
inventions. But what a disturbing and destroying factor war really is,
had not become fully apparent till the present war, because this is a
_world_ war which interferes almost as much with the welfare of neutrals
as with the welfare of belligerents. It has become apparent during the
present war that the discoveries and developments of science and
technology, which had done so much during the second half of the
nineteenth century for the material welfare of the human race during
peace, were likewise at the disposal of belligerents for an enormous,
and hitherto unthought-of, destruction of life and wealth. It is for
this reason that in the camp of friend and foe, among neutrals as well
as among belligerents, the conviction has become universal that the
conditions of international life prevailing before the outbreak of the
World War must be altered; that international institutions must be
established which will make the outbreak of war, if not impossible, at
any rate only an exceptional possibility. The demand for a new League of
Nations has thus arisen and peremptorily requires fulfilment.
VIII. However, in considering the demand for a new League of Nations, it
is necessary to avoid confusing nations with States. It should always be
remembered that, when we speak of a League of Nations, we do not really
mean a League of Nations but a League of States. It is true that there
are many States in existence which in the main are made up of one
nation, although fractions of other nations may be comprised in them.
But it is equally true that there are some States in existence which
include members of several nations. Take as an example Switzerland
which, although only a very small State, nevertheless comprises three
national elements, namely German, French, and Italian. Another example
is the British Empire, which is a world empire and comprises a number of
different nations.
That leads me to the question: What is a nation?
A nation must not be confounded with a race. A nation is a product of
historical development, whereas a race is a product of natural growth.
One speaks of a nation when a complex body of human beings is united by
living in the same land, by the same language, the same literature, the
same historical traditions, and the same general views of life. All
nations are a mixture of several diverse racial elements which in the
course of historical development have to a certain extent been united by
force of circumstances. The Swiss as a people are politically a nation,
although the component parts of the population of Switzerland are of
different national characters and even speak different languages.
Historical development in general, and in many cases force in
particular, have played a great part in the blending of diverse racial
elements into nations; just as they have played a great part in the
building up of States. The demand that every nation should have a
separate State of its own--the ideal of the so-called national
State--appears very late in history; it is a product of the last two
centuries, and it was not till the second half of the nineteenth century
that the so-called principle of nationality made its appearance and
gained great influence. It may well be doubted whether each nation, be
it ever so small, will succeed in establishing a separate State of its
own, although where national consciousness becomes overwhelmingly
strong, it will probably in every case succeed in time either in
establishing a State of its own, or at any rate in gaining autonomy. Be
that as it may, it is a question for the future; so much is certain,
what is intended now to be realised, is not a League of Nations, but a
League of States, although it is called a League of Nations.
IX. However, no League of Nations is possible unless the Central Powers,
and Germany in especial, are utterly defeated during the World War, and
that for two reasons.
One reason is that a great alteration of the map of Europe is an
absolutely necessary condition for the satisfactory working of a League
of Nations. Unless an independent Poland be established; unless the
problem of Alsace-Lorraine be solved; unless the Trentino be handed over
to Italy; unless the Yugo-Slavs be united with Servia; unless the
Czecho-Slovaks be freed from the Austrian yoke; and unless the problem
of Turkey and the Turkish Straits be solved, no lasting peace can be
expected in Europe, even if a League of Nations be established.
The other reason is that, unless Germany be utterly defeated, the spirit
of militarism, which is not compatible with a League of Nations, will
remain a menace to the world.
What is militarism? It is that conception of the State which bases the
power of the State, its influence, its progress, and its development
exclusively on military force. The consequence is that war becomes part
of the settled policy of a militarist State; the acquisition of further
territory and population by conquest is continually before the eyes of
such a Government; and the condition of peace is only a shorter or
longer interval between periods of war. A military State submits to
International Law only so long as it serves its interests, but violates
International Law, and particularly International Law concerning war,
wherever and whenever this law stands in the way of its military aims.
The whole history of Prussia exemplifies this. Now in a League of
Nations peace must be the normal condition. If war occurs at all within
such a League, it can only be an exceptional phase and must be only for
the purpose of re-establishing peace. It is true a League of Nations
will not be able entirely to dispense with military force, yet such
force appears only in the background as an _ultima ratio_ to be applied
against such Power as refuses to submit its disagreements with other
members of the League either to an International Court of Justice or an
International Council of Conciliation.
X. Be that as it may, in a sense the League of Nations has already
started its career, because twenty-five States are united on the one
side and are fighting this war in vindication of International Law.
These States are--I enumerate them chronologically as they entered into
the war:--Russia (the Bolsheviks have made peace, but in fact one may
still enumerate Russia as a belligerent), France, Belgium, Great
Britain, Servia, Montenegro, Japan, San Marino, Portugal, Italy,
Roumania, the United States, Cuba, Panama, Greece, Siam, Liberia, China,
Brazil, Ecuador, Guatemala, Nicaragua, Costa Rica, Haiti, Honduras.
Besides these twenty-five States which are at war with the Central
Powers, the following four States, without having declared war, have
broken off diplomatic relations with Germany, namely: Bolivia, San
Domingo, Peru, Uruguay.
Now there may be said to be about fifty civilised States in existence.
Of these, as I have just pointed out, twenty-five are fighting against
the Central Powers, four have broken off relations with Germany, the
Central Powers themselves are four in number, with the consequence that
thirty-three of the fifty States are implicated in the war. Only the
seventeen remaining States are neutral, namely: Sweden, Norway, Denmark,
Holland, Luxemburg, Switzerland, Spain, Lichtenstein, and Monaco in
Europe; Mexico, Salvador, Colombia, Venezuela, Chile, Argentina, and
Paraguay in America; and Persia in Asia.
It may be taken for granted that all the neutral States, and all the
States fighting on the side of the Allies, and also the four States
which, although they are not fighting on the side of the Allies, have
broken off relations with Germany, are prepared to enter into a League
of Nations.
But what about the Central Powers, and Germany in especial? I shall
discuss in my next lecture the question whether the Central Powers are
to become members of the League. To-day it must suffice to say that,
when once utterly defeated, they will be only too glad to be received as
members. On the other hand, if they were excluded, the world would again
be divided into two rival camps, just as before the war the Triple
Alliance was faced by the Entente. No disarmament would be possible, and
with regard to every other matter progress would be equally impossible.
Therefore the Central Powers must become members of a League of Nations
for such a League to be of any great use, which postulates as a _sine
qua non_ that Germany must be utterly defeated in the present war. If
she were victorious, or if peace were concluded with an undefeated
Germany, the world would not be ripe for a League of Nations because
militarism would not have been exterminated.
XI. I have hitherto discussed the League of Nations only in a general
way, without mentioning that there is no unanimity concerning its aims
or concerning the details of its organisation. Many people think that it
would be possible to do away with war for ever, and they therefore
demand a World State, a Federal State comprising all the single States
of the world on the pattern of the United States of America. And for
this reason the demand is raised not only for an International Court and
for an International Council of Conciliation, but also for an
International Government, an International Parliament, and an
International Army and Navy,--a so-called International Police.
I believe that these demands go much too far and are impossible of
realisation. A Federal State comprising all the single States of the
whole civilised world is a Utopia, and an International Army and Navy
would be a danger to the peace of the world.
Why is a World State not possible, at any rate not in our time?
No one has ever thought that a World State in the form of one single
State with one single Government would be possible. Those who plead for
a World State plead for it in the form of a Federal State comprising all
the single States of the world on the pattern of the United States of
America. But even this modified ideal is not, in my opinion, realisable
at present. Why not? To realise this ideal there would be required a
Federal Government, and a Federal Parliament; and the Federal Government
would have to possess strong powers to enforce its demands. A powerless
Federal Government would be worse than no government at all. But how is
it possible to establish at present a powerful Federal Government over
the whole world? How is it possible to establish a Federal World
Parliament?
Constitutional Government within the several States has to grapple with
many difficulties, and these difficulties would be more numerous,
greater, and much more complicated within a Federal World State. We need
democracy and constitutional Government in every single State, and this
can only be realised by party Government and elections of Parliament at
short intervals. The waves of party strife rise high within the several
States; no sooner is one party in, than the other party looks out for an
opening into which a wedge can be pushed to turn the Government out. In
normal times this works on the whole quite well within the borders of
the several States, because the interests concerned are not so widely
opposed to one another that the several parties cannot alternatively
govern. But when it comes to applying the same system of Government to a
Federal World State, the interests at stake are too divergent. The East
and the West, the South and the North, the interests of maritime States
and land-locked States, the ideals and interests of industrial and
agricultural States, and many other contrasts, are too great for it to
be possible to govern a Federal World State by the same institutions as
a State of ordinary size and composition.
The British World Empire may be taken as an example to show that it is
impossible for one single central Government to govern a number of
States with somewhat divergent interests. We all know that the British
Empire comprising the United Kingdom and the so-called independent
dominions, namely Canada, Newfoundland, Australia, New Zealand, and
South Africa, is kept together not really by the powers of the British
Government but by the good will of the component parts. The Government
of the United Kingdom could not keep the Empire together by force, could
not compel by force one of the independent dominions to submit to a
demand, in case it refused to comply. The interests of the several
component parts of the British Empire are so divergent that no central
Government could keep them together against their will. Now what applies
to the British Empire, which is to a great extent bound together by the
same language, the same literature, and the same Law, would apply much
more to a Federal State comprising the whole of the world: such a
Federal State, so far as we can see, is impossible.
XII. But what about an International Army and Navy?
It is hardly worth while to say much about them. Those who propose the
establishment of an International Army and Navy presuppose that the
national armies and navies would be abolished so that the world
Government would have the power, with the help of the International Army
and Navy, at any moment to crush any attempt of a recalcitrant member of
the Federal World State to avoid its duties. This International Army and
Navy would be the most powerful instrument of force which the world has
ever seen, because every attempt to resist it would be futile. And the
Commander of the International Army and the Commander of the
International Navy would be men holding in their hands the greatest
power that can be imagined.
The old question therefore arises: _Quis custodiet ipsos custodes?_
which I should like here to translate freely by: Who will keep in order
those who are to keep the world in order? A League of Nations which can
only be kept together by a powerful International Army and Navy, is a
contradiction in itself; for the independence and equality of the member
States of the League would soon disappear. It is a fact--I make this
statement although I am sure it will be violently contradicted--that,
just as hitherto, so within a League of Nations some kind of Balance of
Power only can guarantee the independence and equality of the smaller
States. For the Community of Power, on which the League of Nations must
rest, would at once disappear if one or two members of the League became
so powerful that they could disregard the combined power of the other
members. Every scheme of this movement must therefore see to it that no
member of the League is more armed than is necessary considering the
extent of its territory and other factors concerned. But be that as it
may, an International Army and Navy is practically impossible, just as a
Federal World State is impossible.
XIII. Yet while a Federal World State is impossible, a League of Nations
is not, provided such league gives itself a constitution, not of a
state-like character, but one _sui generis_. What can be done is this:
the hitherto unorganised Family of Nations can organise itself on simple
lines so as to secure, on the one hand, the absolute independence of
every State, and, on the other hand, the peaceful co-existence of all
the States.
It is possible, in my opinion, to establish an International Court of
Justice before which the several States engage to appear in case a
conflict arises between two or more of them which can be judicially
settled, that is, can be settled by a rule of law. There is as little
reason why two or more States should go to war on account of a conflict
which can be settled upon the basis of law, as there is for two private
individuals to resort to arms in case of a dispute between them which
can be decided by a Court of Law.
Again, although there will frequently arise between States conflicts of
a political character which cannot be settled on the basis of a rule of
law, there is no reason why, when the States in conflict cannot settle
them by diplomatic negotiation, they should resort to arms, before
bringing the conflict before some Council of Conciliation and giving the
latter an opportunity of investigating the matter and proposing a fair
compromise.
Under modern conditions of civilisation the whole world suffers in case
war breaks out between even only two States, and for this reason it is
advisable that the rest of the world should unite and oppose such State
as would resort to arms without having submitted its case to an
International Court of Justice or an International Council of
Conciliation.
XIV. In my opinion the aims of a League of Nations should therefore be
three:
The first aim should be to prevent the outbreak of war altogether on
account of so-called judicial disputes, that is disputes which can be
settled on the basis of a rule of law. For this reason the League should
stipulate that every State must submit all judicial disputes without
exception to an International Court of Justice and must abide by the
judgment of such Court.
The second aim should be to prevent the sudden outbreak of war on
account of a political dispute and to insist on an opportunity for
mediation. For this reason the League should stipulate that every State,
previous to resorting to arms over a political dispute, must submit it
to an International Council of Conciliation and must at any rate listen
to the advice of such Council.
The third aim should be to provide a sanction for the enforcement of the
two rules just mentioned. For this reason the League should stipulate
that all the member States of the League must unite their economic,
military, and naval forces against such member or members as would
resort to arms either on account of a judicial dispute which ought to
have been settled by an International Court of Justice, or on account of
a political dispute without previously having submitted it to an
International Council of Conciliation and listened to the latter's
advice.
These should be, in my opinion, the three aims of a League of Nations
and the three rules necessary for the realisation of these aims.
However, it is not so easy to realise them, and it is therefore
necessary to face and solve four problems: There is, firstly, the
problem of the Organisation of the League; secondly, the problem of
Legislation within the League; thirdly, the problem of Administration of
Justice within the League; and fourthly, the problem of Mediation within
the League--four problems which I shall discuss in the two following
lectures.
I have only named three aims and four problems because I have in my mind
those aims which are the nearest and those problems which are the most
pressing and the most urgent. The range of vision of the League of
Nations, when once established, will no doubt gradually become wider and
wider; new aims will arise and new problems will demand solution, but
all such possible future aims and future problems are outside the scope
of these lectures.
SECOND LECTURE
ORGANISATION AND LEGISLATION OF THE LEAGUE OF NATIONS
SYNOPSIS
I. The Community of civilised States, the at present existing League
of Nations, is a community without any organisation, although there
are plenty of legal rules for the intercourse of the several States
one with another.
II. The position of the Great Powers within the Community of States
is a mere political fact not based on Law.
III. The pacifistic demand for a Federal World State in order to
make the abolition of war a possibility.