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.
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.
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.
VII. The objection to the reception of the Central Powers, and of
Germany especially, into the League.
VIII. The objection to the reception of the minor transoceanic
States into the League.
IX. The seven principles which ought to be accepted with regard to
the organisation of the new League of Nations.
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.
XI. The difficulty in the way of International Legislation on
account of the language question.
XII. The difficulty created by the conflicting national interests of
the several States.
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.
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.
THE LECTURE
I. In my first lecture on the League of Nations I recommended the
following three rules to be laid down by a League of Nations:
Firstly, every State must submit all judicial disputes to an
International Court of Justice and must abide by the judgment of such
Court.
Secondly, every State previous to resorting to arms, must submit every
political and non-judicial dispute to an International Council of
Conciliation and must at any rate listen to the advice of such Council.
Thirdly, the member States must unite their forces against such State or
States as should resort to arms without previously having submitted the
matter in dispute to an International Court of Justice or to an
International Council of Conciliation.
And I added that these three rules cannot create a satisfactory
condition of affairs unless four problems are faced and solved, namely:
The Organisation of the League, Legislation by the League,
Administration of Justice and Mediation within the League. My lecture
to-day will deal with two of these problems, namely the Organisation and
the Legislation of the League.
Let us first consider the Organisation of the League. Hitherto the body
of civilised States which form the Family of Nations and which, as I
pointed out in my first lecture, is really a League of Nations evolved
by custom, has been an unorganised Community. This means that, although
there are plenty of legal rules for the intercourse of the several
States one with another, the Community of civilised States does not
possess any permanently established organs or agents for the conduct of
its common affairs. At present these affairs, if they are peaceably
settled, are either settled by ordinary diplomatic negotiation or, if
the matter is pressing and of the greatest importance, by temporarily
convened International Conferences or Congresses.
II. It is true there are the so-called Great Powers which are the
leaders of the Family of Nations, and it is therefore asserted by some
authorities that the Community of States has acquired a certain amount
of organisation because the Great Powers are the legally recognised
superiors of the minor States.
But is this assertion correct? The Great Powers, are they really the
legally recognised superiors of the minor States?
I deny it. A Great Power is any large-sized State possessing a large
population which gains such economic, military, and naval strength that
its political influence must be reckoned with by all the other Powers.
At the time of the outbreak of the World War eight States had to be
considered as Great Powers, namely Great Britain, Austria-Hungary,
France, Germany, Italy, Russia, the United States of America, and Japan.
But it is very probable that the end of the World War will see the
number of Great Powers reduced to six. The collapse and break up of
Russia has surely for the present eliminated her from the number of
Great Powers. And it is quite certain that Austria-Hungary will not
emerge from the struggle as a Great Power, if she emerges from it as a
whole at all. History teaches that the number of the Great Powers is by
no means stable, and changes occasionally take place. Look at the
condition of affairs during the nineteenth century. Whereas at the time
of the Vienna Congress in 1815 eight States, namely Great Britain,
Austria, France, Portugal, Prussia, Spain, Sweden, and Russia were still
considered Great Powers, their number soon decreased to five, because
Portugal, Spain, and Sweden ceased to be Great Powers. On the other
hand, Italy joined the number of the Great Powers after her unification
in 1860; the United States of America joined the Great Powers after the
American Civil War in 1865; and Japan emerged as a Great Power from her
war with China in 1895.
Be that as it may, so much is certain, a State is a Great Power not by
law but only by its political influence. The Great Powers are the
leaders of the Family of Nations because their political influence is
so great. Their political and economic influence is in the long run
irresistible; therefore all arrangements made by the Great Powers
naturally in most cases gain, either at once or in time, the consent of
the minor States. It may be said that the Great Powers exercise a kind
of political hegemony within the Family of Nations. Yet this hegemony is
not based on law, it is simply a political fact, and it is certainly not
a consequence of an organisation of the Family of Nations.
III. The demand for a proper organisation of the Community of States
had, up to the outbreak of the World War, been raised exclusively on the
part of the so-called Pacifists in order to make the abolition of war a
possibility. It is a common assertion on the part of the Pacifists that
War cannot die out so long as there is no Central Political Authority in
existence above the several States which could compel them to bring
their disputes before an International Court and also compel them to
carry out the judgments of such a Court. For this reason many Pacifists
aim at such an organisation of the Community of States as would bring
all the civilised States of the world within the bonds of a federation.
They demand a World Federation of all the civilised States, or at any
rate a federation of the States of Europe, on the model of the United
States of America.
If such a Federal World State were practically possible, there would be
no objection to it, although International Law as such would cease to
exist and be replaced by the Constitutional Law of this Federal World
State. But in my first lecture I pointed out that such a Federal World
State is practically impossible. And it is not even desirable.
The development of mankind would seem in the main to be indissolubly
connected with the national development of the peoples. Most peoples
possessing a strong national consciousness desire an independent State
in which they can live according to their own ideals. They want to be
their own masters, and not to be part and parcel of a Federal World
State to which they would have to surrender a great part of their
independence. Moreover--as I likewise pointed out in my first lecture
(pp. 18-20)--it would be impossible to establish a strong Government and
a strong Parliament in a Federal World State.
However this may be, it is not at all certain that war would altogether
disappear in a Federal World State. The history of Federal States
teaches that wars do occasionally break out between their member States.
Think of the war between the Roman Catholic and the Protestant member
States of the Swiss Confederation in 1847, of the war in 1863 between
the Northern and the Southern member States within the Federation which
is called the United States of America, and of the war between Prussia
and Austria within the German Confederation in 1866.
IV. But what kind of organisation of the League of Nations is possible
if we reject the idea of a Federal State?
Neither I, nor anyone else who does not like to build castles in the
air, can answer this question directly by making a detailed proposal. It
is at present quite impossible to work out a practical scheme according
to which a more detailed organisation of the League of Nations could be
realised. But so much is certain that every attempt at organising this
League must start from, and must keep intact, the independence and the
equality of all civilised States. It is for this reason that a Central
Political Authority above the sovereign States can never be thought of.
Every attempt to organise a League of Nations on the model of a Federal
State is futile. If a detailed organisation of the League should ever
come, it will be one _sui generis_, one absolutely of its own kind; such
as has never been seen before. And it is at present quite impossible to
map out a detailed plan of such an organisation although, as I shall
have to show you later, the first step towards an organisation has
already been made, and further steps towards the ideal can be taken. The
reason that it is at present impossible is that the growth and the final
shape of the organisation of the League of Nations will, and must, go
hand in hand with the progress of International Law. But the progress of
International Law is conditioned by the growth, the strengthening, and
the deepening of international economic and other interests, and of
international morality. It is a matter of course that this progress can
only be realised very slowly, for there is concerned a process of
development through many generations and perhaps through centuries, a
development whose end no one can foresee. It is sufficient for us to
state that the development had already begun before the World War, and
to try to foster it, as far as is in our power, after the conclusion of
peace.
V. I said that this development has begun. Where is this beginning of
the development to be found?
It is to be found in the establishment of the Permanent Court of
Arbitration at the Hague and the Office therewith connected. The
Permanent Court of Arbitration is not an institution of the several
States, but an institution of the Community of States in
contradistinction to its several members. Had the International Prize
Court agreed upon by the Second Hague Peace Conference of 1907 been
established, there would have come into existence another institution of
the Community of States.
But the establishment of International Courts would not justify the
assertion that thereby the Community of States has turned from an
unorganised community into an organised community. To reach this goal
another step is required, namely an agreement amongst the Powers,
according to which the Hague Peace Conferences would be made a permanent
institution which periodically, within fixed intervals, assemble without
being convened by one Power or another. If this were done, we could say
that the hitherto unorganised Community of States had turned into an
organised League of Nations, for by such periodically assembling Hague
Peace Conferences there would be established an organ for the conduct
of all such international matters as require international legislation
or other international action.
However that may be, the organisation created by the fact that the Hague
Peace Conferences periodically assembled, would only be an immature one;
more steps would be necessary in order that the organisation of the
Community of States might become more perfect and more efficient. Yet
progress would be slow, for every attempt at a progressive step meets
with opposition, and it would be only when the _international_ interests
of the civilised States become victorious over their particular
_national_ interests that the Community of States would gradually
receive a more perfect organisation.
VI. There is no doubt that the experiences of mankind during the World
War have been quickening development more than could have been expected
in normal times. The universal demand for a new League of Nations
accepting the principles that every judicial dispute amongst nations
must be settled by International Courts and that every political dispute
must, before the parties resort to arms, be brought before a Council of
Conciliation, demonstrates clearly that the Community of States must now
deliberately give itself some kind of organisation, because without it
the principles just mentioned cannot be realised.
Now a number of schemes for the organisation of a new League of Nations
have been made public. They all agree upon the three aims of the League
and the three rules for the realisation of these aims which I mentioned
in my first lecture, namely compulsory settlement of all judicial
disputes by International Courts of Justice, compulsory mediation in
cases of political disputes by an International Council of Conciliation,
and the duty of the members of the League to turn against any one member
which should resort to arms in violation of the principles laid down by
the League. However, these schemes differ very much with regard to the
_organisation_ of the League. I cannot now discuss the various schemes
in detail. It must suffice to say that some of them embody proposals for
a more or less state-like organisation and are therefore not acceptable
to those who share my opinion that any state-like organisation of the
League is practically impossible. But though some of the schemes, as for
instance that of Lord Bryce and that of Sir Willoughby Dickinson, avoid
this mistake, none of them take as their starting point that which I
consider to be the right one, namely the beginning made at the two Hague
Peace Conferences. _In my opinion the organisation of a new League of
Nations should start from the beginning made by the two Hague Peace
Conferences._
VII. However, there is much objection to this, because it would
necessitate the admission into the new League of all those States which
took part in the Second Hague Peace Conference, including, of course,
the Central Powers. The objections to such a wide range of the League
are two-fold.
In the first instance, the admission of the Central Powers, and
especially of Germany, into the League is deprecated. By her attack on
Belgium at the outbreak of the war, and by her general conduct of the
war, Germany has deliberately taken up an attitude which proves that,
when her military interests are concerned, she does not consider herself
bound by any treaty, by any rule of law, or by any principle of
humanity. How can we expect that she will carry out the engagements into
which she might enter by becoming a member of the League of Nations?
My answer is that, provided she be utterly defeated and no peace of
compromise be made with her, militarism in Germany will be doomed, the
reparation to be exacted from her for the many cruel wrongs must lead to
a change of Constitution and Government, and this change of Constitution
and Government will make Germany a more acceptable member of a new
League of Nations. The utter defeat of Germany is a necessary
preliminary condition to the possibility of her entrance into a League
of Nations. Those who speak of the foundation of a League of Nations as
a means of ending the World War by a peace of compromise with Germany
are mistaken. The necessary presuppositions of such a League are
entirely incompatible with an unbroken Prussian militarism.
But while her utter defeat is the necessary preliminary condition to her
entrance into a League of Nations, the inclusion of Germany in the
League, after her utter defeat, is likewise a necessity. The reason is
that, as I pointed out in my first lecture (p. 17), in case the Central
Powers were excluded from the League, they would enter into a League of
their own, and the world would then be divided into two rival camps, in
the same way as before the war the Triple Alliance was faced by the
Entente. _The world would be proved not ripe for a new League of Nations
if peace were concluded with an undefeated Germany; and the League would
miss its purpose if to a defeated and repenting Germany entrance into it
were refused._
VIII. In the second instance, the entrance of the great number of minor
transoceanic States into the League is deprecated because these States
would claim an equal vote with the European Powers and thereby obstruct
progress within the League.
It is asserted that some of the minor transatlantic States made the
discussions at the Hague Conferences futile by their claim to an equal
vote. Now it is true that some of these States have to a certain extent
impeded the work of the Hague Conferences, but some of the minor States
of Europe, and even some of the Great Powers, have done likewise. The
Community of States consisting of sovereign States does not possess any
means of compelling a minority of States to fall in with the views of
the majority, but I shall show you very soon, when I approach the
problem of International Legislation, that International Legislation of
a kind is possible in spite of this fact. And so much is certain that
the minimum of organisation of the new League which is now necessary,
cannot be considered to be endangered by the admittance of the minor
transoceanic States into the League. Progress will in any case be slow,
and perfect unanimity among the Powers will in any and every case only
be possible where the _international_ interests of all the Powers compel
them to put aside their real or imaginary particular _national_
interests.
IX. For these reasons I take it for granted that the organisation of a
new League of Nations should start from the beginning made by the Hague
Peace Conferences. Therefore the following seven principles ought to be
accepted:
First principle: The League of Nations is composed of all civilised
States which recognise one another's external and internal
independence and absolute equality before International Law.
Second principle: The chief organ of the League is the Peace
Conference at the Hague. The Peace Conferences meet
periodically--say every two or three years--without being convened
by any special Power. Their task is the gradual codification of
International Law and the agreement upon such International
Conventions as are from time to time necessitated by new
circumstances and conditions.
Third principle: A permanent Council of the Conference is to be
created, the members of which are to be resident at the Hague and
are to conduct all the current business of the League of Nations.
This current business comprises: The preparation of the meetings of
the Peace Conference; the conduct of communications with the several
members of the League with regard to the preparation of the work of
the Peace Conferences; and all other matters of international
interest which the Conference from time to time hands over to the
Council.
Fourth principle: Every recognised sovereign State has a right to
take part in the Peace Conferences.
Fifth principle: Resolutions of the Conference can come into force
only in so far as they become ratified by the several States
concerned. On the other hand, every State agrees once for all
faithfully to carry out those resolutions which have been ratified
by it.
Sixth principle: Every State that takes part in the Peace
Conferences is bound only by such resolutions of the Conferences as
it expressly agrees to and ratifies. Resolutions of a majority only
bind the majority. On the other hand, no State has a right to demand
that only such resolutions as it agrees to shall be adopted.
Seventh principle: All members of the League of Nations agree once
for all to submit all judicial disputes to International Courts
which are to be set up, and to abide by their judgments. They
likewise agree to submit, previous to resorting to arms, all
non-judicial disputes to International Councils of Conciliation
which are to be set up. And they all agree to unite their economic,
military, and naval forces against any one or more States which
resort to arms without submitting their disputes to International
Courts of Justice or International Councils of Conciliation.
You will have noticed that my proposals do not comprise the creation of
an International Government, an International Executive, an
International Parliament, and an International Army and Navy which would
serve as an International Police Force. No one can look into the future
and say what it will bring, but it is certain that for the present, and
for some generations to come, all attempts at creating an International
Government are not only futile but dangerous; because it is almost
certain that a League of Nations comprising an International Executive,
an International Parliament, and an International Army and Navy would
soon collapse.
X. However this may be, and whatever may be the details of the
organisation of the League, such necessary organisation is not an end in
itself but a means of attaining three objects, namely: International
Legislation, International Administration of Justice, and International
Mediation. I shall discuss International Administration of Justice and
International Mediation in my next lecture, to-day I will only draw your
attention to International Legislation.
In using the term 'International Legislation,' it must be understood
that 'legislation' is here to be understood in a figurative sense only.
When we speak of legislation in everyday language, we mean that process
of parliamentary activity by which Municipal Statutes are called into
existence. Municipal Legislation presupposes a sovereign power, which
prescribes rules of conduct to its subjects. It is obvious that within
the Community of States no such kind of legislation can take place.
Rules of conduct for the members of the League of Nations can only be
created by an agreement amongst those members. Whereas Municipal
Statutes contain the rules of conduct set by an authority sovereign over
its subjects, International Statutes--if I may be allowed to use that
term--contain rules of conduct which the members of the Community of
States have agreed to set for themselves. International Statutes are
created by the so-called Law-making Treaties of the Powers. But in one
point Municipal Legislation and the Law-making Treaties of the Powers
resemble one another very closely:--both intend to create law, and for
this reason it is permissible to use the term 'International
Legislation' figuratively for the conclusion of such international
treaties as contain rules of International Law.