Legislation has taken place in the past. The fact is that, from the
Vienna Congress of 1815 onwards, agreements have been arrived at upon a
number of rules of International Law. However, such agreements have only
occurred occasionally, because the Community of civilised States has not
hitherto possessed a permanently established organ for legislating. Much
of the legislation which has taken place in the past was only a
by-product of Congresses or Conferences which had assembled for other
purposes. On the other hand, when legislation on a certain subject was
considered pressing, a Congress or Conference was convened for that
very purpose. It will be only when the Hague Peace Conferences have
become permanently established that an organ of the League of Nations
for legislating internationally will be at hand. And a wide field is
open for such legislation. The bulk of International Law in its present
state is--if I may say so--a book law, it is customary law which is only
to be found in text-books of International Law; it is, as regards many
points, controversial; it has many gaps; and it is in many ways
uncertain. International Legislation will be able gradually to create
international statutes which will turn this book law into firm, clear,
and authoritative statutory law.
XI. But you must not imagine that International Legislation is an easy
matter. It is in fact full of difficulties of all kinds. I will only
mention four:
There is, firstly, the language question. Since it is impossible to
draft International Statutes in all languages, it is absolutely
necessary to agree upon one language, and this language at present is,
as you all know, French. Yet, difficult as the language question is, it
is not insurmountable. It is hardly greater than the difficulty which
arises when two States, which speak different languages, have to agree
upon an ordinary convention. One point, however, must be specially
observed, and that is: when any question of the interpretation of an
International Statute occurs, it is the French text of the statute which
is authoritative, and not the text of the translation into other
languages.
XII. Another difficulty with regard to International Legislation is the
conflicting _national_ interests of the different States. As
International Statutes are only possible when the several States come to
an agreement, it will often not be possible to legislate internationally
on a given matter, because the interests of the different States will be
so conflicting that an agreement cannot be arrived at. On the other
hand, as time goes on the international interests of the several States
frequently become so powerful that these Governments are quite ready to
brush aside their particular interests, and to agree upon a compromise
which makes International Legislation concerning the matter in question
possible.
XIII. A third difficulty with regard to International Legislation is of
quite a particular kind. It arises from the fact that International
Statutes cannot be created by a vote of the majority of States, but only
by a unanimous vote of all the members of the Community of civilised
States.
This difficulty, however, can be overcome by dropping the contention
that no legislation of any kind can be proceeded with unless every
member of the League of Nations agrees to it. It is a well-known fact
that a distinction has to be made between _universal_ International Law,
that is, rules to which every civilised State agrees, and _general_
International Law, that is, rules to which only the greater number of
States agree. Now it is quite certain that no universal International
Law can be created by legislation to which not every member of the
League of Nations has agreed. Nothing, however, ought to prevent those
States which are ready to agree to certain new rules of International
Law, from legislating _for their own number_ on a certain matter. If
such legislation is really of value, the time will come when the
dissenting States will gradually accede. The Second Hague Peace
Conference acted on this principle, for a good many of its Conventions
were only agreed upon by the greater number, and not by all, of the
participating States.
XIV. A fourth difficulty with regard to International Legislation is the
difficulty of the interpretation of, and the construction to be put
upon, International Statutes as well as ordinary international
conventions. We do not as yet possess universally recognised rules of
International Law concerning such interpretation and construction. Each
nation applies to International Statutes those rules of interpretation
and construction which are valid for the interpretation and construction
of their Municipal Statutes.
Many international disputes have been due in the past to this difficulty
of interpretation and construction. A notorious example is that of the
interpretation of Article 23(h) of the Hague Regulations of 1907
concerning Land Warfare, which lays down the rule that it is forbidden
'to declare abolished, suspended, or inadmissible in a Court of Law the
rights and actions of the nationals of the hostile party.'
Germany and other continental States interpret this article to mean that
the Municipal Law of a State is not allowed to declare that the
outbreak of war suspends or avoids contracts with alien enemies, or
that war prevents alien enemies from bringing an action in the Courts.
On the other hand, England and the United States of America interpret
this article to mean merely that the _occupant of enemy territory_ is
prohibited from declaring abolished, suspended, or inadmissible in a
Court of Law the rights and actions of the nationals of the hostile
party.
What is the cause of this divergent interpretation of an article, the
literal meaning of which seems to be quite clear? The divergence is due
to the different mode of interpretation of statutes resorted to by
continental Courts, on the one hand, and, on the other hand, by British
and American Courts.
Continental Courts take into consideration not only the literal meaning
of a clause of a statute, but also the intention of the legislator as
evidenced by--what I should like to call--the history of the clause.
They look for the intention of the draftsman, they search the
Parliamentary proceedings concerning the clause, and they interpret and
construe the clause with regard to the intention of the draftsman as
well as to the proceedings in Parliament.
Now Article 23(h) of the Hague Regulations was inserted on the motion of
the German delegates to the Second Hague Peace Conference, and there is
no doubt that the German delegates intended by its insertion to prevent
the Municipal Law of belligerents from possessing a rule according to
which the outbreak of war suspends or avoids contracts with alien
enemies, and prohibits alien enemies from bringing an action in the
Courts. It is for this reason that Germany and other continental States
interpret Article 23(h) according to the intention of the German
delegates.
On the other hand, in interpreting and construing a clause of a statute,
British and American Courts refuse to take into consideration the
intention of the draftsman, Parliamentary discussions concerning the
clause, and the like. They only take into consideration the literal
meaning of the clause as it stands in the statute of which it is a part.
Now Article 23(h) is a clause in the Convention concerning the Laws and
Customs of War on Land. It is one of several paragraphs of Article 23
which comprises the prohibition of a number of acts by the armed forces
of belligerents in warfare on land, such as the employment of poison or
poisoned arms, and the like. The British and American delegates,
believing that it only concerned an act on the part of belligerent
forces occupying enemy territory, therefore consented to the insertion
of Article 23(h), and our Court of Appeal--in the case of Porter _v._
Freundenberg (1915)--held that Article 23(h) is to be interpreted in
that sense.[1]
Be that as it may, the difficulty of interpretation and construction of
international treaties will exist so long as no International Statute
has been agreed upon which lays down detailed rules concerning
interpretation and construction, or so long as International Courts have
not developed such rules in practice. But the problem of International
Courts is itself a very difficult one; it will be the subject of my
third lecture which will deal with Administration of Justice and
Mediation within the League of Nations.
[1] By a letter of February 28, 1911, I drew the attention of the
Foreign Office to the interpretation of Article 23(h) which generally
prevailed on the Continent. This letter and the answer I received were
privately printed, and copies were distributed amongst those members and
associates of the Institute of International Law who attended the
meeting at Madrid. Since French, German, and Italian International Law
Journals published translations, but the original of the correspondence
was never published in this country, I think it advisable to append it
to this lecture.
APPENDIX
CORRESPONDENCE WITH THE FOREIGN OFFICE RESPECTING THE INTERPRETATION OF
ARTICLE 23(h) OF THE HAGUE REGULATIONS CONCERNING LAND WARFARE
LETTER FROM THE PRESENT WRITER TO THE FOREIGN OFFICE.
WHEWELL HOUSE, CAMBRIDGE,
_28th February, 1911_.
TO
THE UNDER SECRETARY OF STATE
FOR FOREIGN AFFAIRS.
SIR,--
I venture to bring the following matter before your consideration:--
In the course of my recent studies I have been dealing with the laws and
usages of war on land, and I have had to consider the interpretation of
Article 23(h) of the Regulations attached to the Convention of 1907
relating to the Laws and Customs of war on land. I find that the
interpretation prevailing among all continental and some English and
American authorities is contrary to the old English rule, and I would
respectfully ask to be informed of the view which His Majesty's
Government place upon the article in question.
To give some idea as to how an interpretation of Article 23(h) contrary
to the old English rule prevails generally, I will quote a number of
French, German, English, and American writers, the works of whom I have
at hand in my library, and I will also quote the German _Weissbuch_
concerning the results of the second Hague Conference of 1907.
Bonfils, _Manuel de droit international public_, 5th ed. by Fauchille,
1908, discusses, on page 651, the doctrine which denies to an enemy
subject any _persona standi in judicio_, but adds:--'... Article 23(h)
decide qu'il est interdit de declarer eteints, suspendus ou non
recevables en justice, les droits et actions des nationaux de la partie
adverse.'
Politis, Professor of International Law in the University of Poitiers
(France), in his report to the Institute of International Law, Session
of Paris (1910), concerning _Effets de la Guerre sur les Obligations
Internationales et les Contrats prives_, page 18, says:
'Un point hors de doute, c'est, que la guerre ne peut, ni par elle-meme
ni par la volonte des belligerants, affecter la validite ou l'execution
des contrats anterieurs. Cette regle fait desormais partie du droit
positif. L'article 23(h) du nouveau Reglement de la Haye interdit
formellement aux belligerants "de declarer eteints, suspendus ou non
recevables en justice les droits et actions des nationaux de la partie
adverse."
'Cette formule condamne d'anciens usages conserves encore, en partie,
dans certains pays. Elle proscrit d'abord tous les moyens--annulation ou
confiscation--par lesquels on chercherait a atteindre, dans leur
existence, les droits nes avant la guerre. Elle exclut, en second lieu,
l'ancienne pratique qui interdisait aux particuliers ennemis l'acces des
tribunaux. Elle prohibe, enfin, toutes les mesures legislatives ou
autres tendant a entraver au cours de la guerre l'execution ou les
effets utiles des obligations privees, notamment le cours des interets.
'Il y a la progres incontestable. Et l'on doit etre reconnaissant a la
delegation allemande a la 2e Conference de la paix de l'avoir provoque.
'L'accueil empresse et unanime qu'a recu cette heureuse initiative
permet d'esperer que de nouveaux progres pourront etre realises dans cet
ordre d'idees.
'On doit souhaiter que la disposition de l'article 23(h), etrangere a
l'hypothese de l'occupation du territoire ennemi, soit distraite du
reglement de 1907 (comme les articles 57 a 60 l'ont ete du Reglement de
1899) pour etre mieux placee dans une convention nouvelle, ou d'autres
textes viendraient la completer.'
Ullmann, _Voelkerrecht_, 2nd ed. 1908, p. 474, says:--
'Auch der Rechtsverkehr wird durch den Ausbruch des Krieges nicht
unterbrochen oder gehemmt. Die nach Landesrecht frueher uebliche
zeitweise Aufhebung der Klagbarkeit vom Schuldverbindlichkeiten des
Staates oder eines Angehoerigen gegen Angehoerige des Feindes ist durch
Artikel 23(h) untersagt.'
Wehberg, _Das Beuterecht im Land- und Seekriege_, 1909, pp. 5 and 6
says:--
'Article 46 Absatz 2 bestimmt:--"Das Privateigentum darf nicht
eingezogen werden." In konsequenter Durchfuehrung dieses Satzes bestimmt
der auf deutschen Antrag 1907 hinzugefuegte Article 23(h):--"Untersagt
ist die Aufhebung oder zeitweilige Ausserkraftsetzung der Rechte und
Forderungen von Angehoerigen der Gegenpartei oder der Ausschliessung
ihrer Klagbarkeit."'
Whittuck, _International Documents_, London 1908, Introduction p. xxvii,
says--'In Article 23(h) it is prohibited to declare abolished, suspended
or inadmissible in a court of law the rights and actions of the
nationals of the other belligerent which is a development of the
principle that the private property of the subjects of a belligerent is
not subject to confiscation. This new prohibition if accepted by this
country would necessitate some changes in our municipal law.'
Holland, _The Laws of War on Land_, 1908, says on p. 5 that:--'Article
23(h) seems to require the Signatory Powers to the convention concerned
to legislate for the abolition of an enemy's disability to sustain a
_persona standi in judicio_.' (See also Holland, _loco citato_, p. 44,
where he expresses his doubts concerning the interpretation of Article
23(h).)
Bordwell, _The Law of War between Belligerents_, Chicago 1908,
recognises on page 210 the fact that according to Article 23(h) an alien
enemy must now be allowed to sue in the courts of a belligerent, and
Gregory, Professor in the University of Iowa, who reviews Bordwell's
work in the _American Journal of International Law_, Volume 3 (1909),
page 788, takes up the same standpoint.
The only author who interprets Article 23(h) in a different way is
General Davis, who in his _Elements of International Law_, 3rd edition
1908, page 578, note 1, says:--
'It is more than probable that this humane and commendable purpose would
fail of accomplishment if a military commander conceived it to be within
his authority to suspend or nullify their operation, or to regard their
application in certain cases as a matter falling within his
administrative discretion. Especially is this true where a military
officer refuses to receive well grounded complaints, or declines to
receive demands for redress, in respect to the acts or conduct of the
troops under his command, from persons subject to the jurisdiction of
the enemy who find themselves, for the time being, in the territory
which he holds in military occupation. To provide against such a
contingency it was deemed wise to add an appropriate declaratory clause
to the prohibition of Article 23.'
It is very unfortunate that the book of General Davis is not at all
known on the Continent, and that therefore none of the continental
authors have any knowledge of the fact that a divergent interpretation
from their own of Article 23(h) is being preferred by an American
author.
It is likewise very unfortunate that neither the English Bluebook on the
Second Hague Peace Conference (see Parliamentary Papers, Miscellaneous
No. 4, 1907, page 104) nor the official minutes of the proceedings of
the Conference, edited by the Dutch Government, give any such
information concerning the construction of Article 23(h) as could assist
a jurist in forming an opinion regarding the correct interpretation.
It is, however, of importance to take notice of the fact that Article
23(h) is an addition to Article 23 which was made on the proposition of
Germany, and that Germany prefers an interpretation of Article 23(h)
which would seem to coincide with the interpretation preferred by all
the continental writers. This becomes clearly apparent from the German
_Weissbuch ueber die Ergebnisse der im Jahre 1907 in Haag abgehaltenen
Friedensconferenz_, which contains on page 7 the following:--
'Der Artikel 23 hat gleichfalls auf deutschen Antrag zwei wichtige
Zusaetze erhalten. Durch den ersten wird der Grundsatz der
Unverletzlichkeit des Privateigenthumes auch auf dem Gebiete der
Forderungsrechte anerkannt. Nach der Gesetzgebung einzelner Staaten soll
naemlich der Krieg die Folge haben, dass die Schuldverbindlichkeiten des
Staates oder seiner Angehoerigen gegen Angehoerige des Feindes aufgehoben
oder zeitweilig ausser Kraft gesetzt oder wenigstens von der
Klagbarkeit ausgeschlossen werden. Solche Vorschriften werden nun durch
den Artikel 23 Abs. 1 unter h fuer unzulaessig erklaert.'
However this may be, the details given above show sufficiently that a
divergent interpretation of Article 23(h) from the old English rule is
prevalent on the Continent, and is to some extent also accepted by
English and American Authorities, and it is for this reason that I would
ask whether His Majesty's Government consider that the old English rule
is no longer in force.
I have, &c.,
(Signed) L. OPPENHEIM.
LETTER FROM THE FOREIGN OFFICE TO THE PRESENT WRITER.
FOREIGN OFFICE,
_March 27, 1911_.
SIR,--
I am directed by Secretary Sir E. Grey to thank you for your letter of
February 28th, and for drawing his attention to the misconceptions which
appear to prevail so largely among the continental writers on
international law with regard to the purport and effect of Article 23(h)
of the Convention of October 18th, 1907, respecting the laws and customs
of war on land.
It seems very strange that jurists of the standing of those from whose
writings you quote could have attributed to the article in question the
meaning and effect they have given it if they had studied the general
scheme of the instrument in which it finds a place.
The provision is inserted at the end of an article dealing with the
prohibited modes of warfare. It forms part of Chapter I. of Section II.
of the Regulations annexed to the Convention. The title of Chapter I. is
'Means of injuring the enemy, sieges and bombardment': and if the
article itself is examined it will be seen to deal with such matters as
employing poison or poisoned weapons, refusing quarter, use of treachery
and the unnecessary destruction of private property. Similarly the
following articles (24 to 28) all deal with the restrictions which the
nations felt it incumbent upon them from a sense of humanity to place
upon the conduct of their armed forces in the actual prosecution of
military operations.
The Regulation in which these articles figure is itself merely an annex
to the Convention which alone forms the contractual obligation between
the parties, and the engagement which the parties to the Convention have
undertaken is (Article 1) to 'issue instructions to their armed land
forces in conformity with the Regulations respecting the Law and Customs
of war on land.'
This makes it abundantly clear that the purpose and scope of the
Regulations is limited to the proceedings of the armies in the field;
those armies are under the orders of the commanders, and the Governments
are bound to issue instructions to those commanders to act in accordance
with the Regulations. That is all. There is nothing in the Convention or
in the Regulations dealing with the rights or the status of the
non-combatant individuals, whether of enemy nationality or domiciled in
enemy territory. They are, of course, if inhabitants of the theatre of
war, affected by the provisions of the Regulations because they are
individuals who are affected by the military operations, and in a sense
a regulation which forbids a military commander from poisoning a well
gives a non-combatant inhabitant a right or a quasi-right not to have
his well poisoned, but his rights against his neighbours, his relations
with private individuals, whether of his own or of enemy nationality,
remain untouched by this series of rules for the conduct of warfare on
land.
Turning now to the actual wording of Article 23(h) it will be seen that
it begins with the wording 'to declare.' It is particularly forbidden
'to _declare_ abolished, &c.' This wording necessarily contemplates the
issue of some proclamation or notification purporting to abrogate or to
change rights previously existing and which would otherwise have
continued to exist, and in view of Article I of the Convention this
hypothetical proclamation must have been one which it was assumed the
commander of the army would issue; consequently, stated broadly, the
effect of Article 23(h) is that a commander in the field is forbidden to
attempt to terrorise the inhabitants of the theatre of war by depriving
them of existing opportunities of obtaining relief to which they are
entitled in respect of private claims.
Sir E. Grey is much obliged to you for calling his attention to the
extract which you quote from the German White Book. This extract may be
translated as follows:--'Article 23 has also received on German
proposal two weighty additions. By the first the fundamental principle
of the inviolability of private property in the domain of legal claims
is recognised. According to the legislation of individual states, war
has the result of extinguishing or temporarily suspending, or at least
of suppressing the liability of the state or its nationals to be sued by
nationals of the enemy. These prescriptions have now been declared
inadmissible by Article 23(h).'
The original form of the addition to Article 23 which the German
delegates proposed was as follows: 'de declarer eteintes, suspendues ou
non recevables les reclamations privees de ressortissants de la Partie
adverse' (see proces-verbal of the 2nd meeting of the 1st sub-Committee
of the 2nd Committee, 10th July, 1907).
There is nothing to show that any explanation was vouchsafed to the
effect that the proposed addition to the article was intended to mean
more than its wording necessarily implied, though there is a statement
by one of the German delegates in the proces-verbal of the 1st meeting
of the 1st sub-Committee of the 2nd Committee, on July 3rd, which in all
probability must have referred to this particular amendment, though the
proces-verbal does not render it at all clear; nor is the statement
itself free from ambiguity. An amendment was suggested and accepted at
the second meeting to add the words 'en justice' after 'non recevables,'
and in this form the sub-article was considered by an examining
committee, was accepted and incorporated in Article 23, and brought
before and accepted by the Conference in its 4th Plenary Sitting on the
17th August, 1907.
The subsequent alteration in the wording must have been made by the
Drafting Committee, but cannot have been considered to affect the
substance of the provision, as in the 10th Plenary Sitting on October
17th, 1907, the reporter of the Drafting Committee, in dealing with the
verbal amendments made in this Convention, merely said, 'En ce qui
concerne le reglement lui-meme, je n'appellerai pas votre attention sur
les differentes modifications de style sans importance que nous y avons
introduites.'
Nor is there anything to indicate any such far-reaching interpretation
as the German White Book suggests in the report which accompanied the
draft text of the Convention when it was brought before the Plenary
Sitting of the Conference (Annex A. to 4th Plenary Sitting). It merely
states that the addition is regarded as embodying in very happy terms a
consequence of the principles accepted in 1899.