And since that time many other schemes of similar kind have

Produced by Stephen Blundell and the Online Distributed

Proofreading Team at https://www.pgdp.net (This file was

produced from images generously made available by The

Internet Archive/Canadian Libraries)

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.

The League of Nations and Its Problems: Three Lectures · 第 1 / 5 段