context nor the circumstances attending the introduction of the
provision which now figures as Article 23(h) support the interpretation
which the writers you quote place upon it and which the German White
Book endorses.
Sir E. Grey notices that, in the extract you quote, Monsieur Politis,
after placing his own interpretation upon the article, remarks that it
is quite foreign to the hypothesis of the occupation of territory and
ought to be removed from the Regulations and turned into a Convention by
itself. If this interpretation were correct, this remark of Monsieur
Politis is certainly true: but the fact that the provision appears where
it does should have suggested to Monsieur Politis that it does not bear
the interpretation he puts upon it.
Nor does it appear to Sir E. Grey that the provision conflicts with the
principle of the English common law that an enemy subject is not
entitled to bring an action in the courts to sustain a contract,
commerce with enemy subjects being illegal.
That principle operates automatically on the outbreak of war, it
requires no declaration by the Government, still less by a commander in
the field, to bring it into operation. It is a principle which applies
equally whether the war is being waged on land or sea, and which is
applied in all the courts and not merely in those within the field of
the operations of the military commanders.
The whole question of the effect of war upon the commerce of private
persons may require reconsideration in the future; the old rules may be
scarcely consistent with the requirements or the conditions of modern
commerce; but a modification of those rules is not one to which His
Majesty's Government could be a party except after careful enquiry and
consideration, and, when made at all, it must be done by a convention
that applies to war both on land and sea.
They certainly have not become parties to any such modification by
agreeing to a convention which relates only to the instructions they are
to give the commanders of their armed forces, and which is limited to
war on land.
I am, &c.,
(Signed) F. A. CAMPBELL.
THIRD LECTURE
ADMINISTRATION OF JUSTICE AND MEDIATION WITHIN THE LEAGUE OF NATIONS
SYNOPSIS
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.
II. The Permanent Court of Arbitration created by the First Hague
Peace Conference.
III. The difficulties connected with International Administration of
Justice by International Courts.
IV. The necessity for a Court of Appeal above the International
Court of First Instance.
V. The difficulties connected with the setting up of International
Courts of Justice.
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.
VII. The advantages of the recommended scheme.
VIII. A necessary provision for so-called complex cases of dispute.
IX. A necessary provision with regard to the notorious clause _rebus
sic stantibus_.
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.
XI. Details of a scheme which recommends itself for the
establishment of International Councils of Conciliation.
XII. The question of disarmament.
XIII. The assertion that States renounce their sovereignty by
entering into the League.
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?
THE LECTURE
I. My last lecture dealt with the organisation of a League of Nations
and International Legislation by the League. To-day I want to draw your
attention to International Administration of Justice and International
Mediation within the League.
I begin with International Administration of Justice which, of course,
is a question of International Courts of Justice. Hitherto, although
International Legislation has been to some extent in existence, no
International Courts have been established before which States in
dispute have been compelled to appear. Now there is no doubt that
International Legislation loses in value if there are no arrangements
for International Administration of Justice by independent and permanent
International Courts. Yet it is incorrect to assert, although it is
frequently done, that one may not speak of legislation and a law created
by legislation without the existence of Courts to administer such law.
Why is this assertion incorrect? Because the function of Courts is to
decide _controversial_ questions of law or of fact in case the
respective parties cannot agree concerning them. However, in most cases
the law is not in jeopardy, and its commands are carried out by those
concerned without any necessity for a Court to declare the law. Modern
International Law has been in existence for several hundred years, and
its commands have in most cases been complied with in the absence of
International Courts. On the other hand, there is no doubt that, if
controversies arise about a question of law or a question of fact, the
authority of the law can be successfully vindicated only by the verdict
of a Court. And it is for this reason that no highly developed Community
can exist for long without Courts of Justice.
II. The Community of civilised States did not, until the end of the
nineteenth century, possess any permanent institution which made the
administration of international justice possible. When States were in
conflict and, instead of having recourse to arms, resolved to have the
dispute peaceably settled by an award, in every case they agreed upon
so-called arbitration, and they nominated one or more arbitrators, whom
they asked to give a verdict. For this reason, it was an epoch-making
step forward when the First Peace Conference of 1899 agreed upon the
institution of a Permanent Court of Arbitration, and a code of rules for
the procedure before this Court. Although the term 'Permanent Court of
Arbitration,' as applied to the institution established by the First
Hague Peace Conference, is only a euphemism, since actually the Court
concerned is not a permanent one and the members of the Court have in
every case to be nominated by the parties, there is in existence,
firstly, a permanent panel of persons from which the arbitrators may be
selected; secondly, a permanent office at the Hague; and, thirdly, a
code of procedure before the Court. Thereby an institution has been
established which is always at hand in case the parties in conflict
want to make use of it; whereas in former times parties in conflict had
to negotiate a long time in order to set up the machinery for
arbitration. And the short time of twenty years has fully justified the
expectations aroused by the institution of the Permanent Court of
Arbitration, for a good number of cases have been brought before it and
settled to the satisfaction of the parties concerned.
And the Second Hague Peace Conference of 1907 contemplated further steps
by agreeing upon a treaty concerning the establishment of an
International Court of Appeal in Prize Cases, and upon a draft treaty
concerning a really Permanent International Court of Justice side by
side with the existing Court of Arbitration. Although neither of these
contemplated International Courts has been established, there is no
doubt that, if after the present war a League of Nations becomes a
reality, one or more International Courts of Justice will surely be
established, although the existing Permanent Court of Arbitration may
remain in being.
III. But just as regards International Legislation, I must warn you not
to imagine that International Administration of Justice by International
Courts is an easy matter. It is in fact full of difficulties of many
kinds.
The peculiar character of International Law; the rivalry between the
different schools of international jurists, namely the Naturalists,
Positivists, and Grotians; the question of language; the peculiarities
of the systems of law of the different States, of their constitutions,
and many other difficulties, entail the danger that International Courts
may become the arena of national jealousies, of empty talk, and of
political intrigues, instead of being pillars of international justice.
Everything depends upon what principles will guide the States in their
selection of the individuals whom they appoint as members of
International Courts. Not diplomatists, not politicians, but only men
ought to be appointed who have had a training in law in general, and in
International Law in particular; men who are linguists, knowing, at any
rate, the French language besides their own; men who possess
independence of character and are free from national prejudices of every
kind. There is no doubt that, under present conditions and circumstances
of international life, the institution of International Courts
represents an unheard of experiment. There is, however, likewise no
doubt that _now_ is the time for the experiment to be made, and I
believe that the experiment will be successful, provided the several
States are careful in the appointment of the judges.
IV. And it must be emphasised that an International Court of Appeal
above the one or several International Courts is a necessity. Just as
Municipal Courts of Justice, so International Courts of Justice are not
infallible. If the States are to be compelled to have their judicial
disputes settled by International Administration of Justice, there must
be a possibility of bringing an appeal from lower International Courts
to a Higher Court. It is only in this way that in time a body of
International Case Law can grow up, which will be equivalent in its
influence upon the practice of the States to the municipal case law of
the different States.
V. I have hitherto considered in a general way only the difficulties of
International Administration of Justice; I have not touched upon the
particular difficulties connected with the setting up and manning of
International Courts. If the several States could easily agree upon,
say, five qualified men as judges of a Court of First Instance, and
upon, say, seven qualified men as judges of a Court of Appeal, there
would be no difficulty whatever in setting up these two Courts. And
perhaps some generations hence the time may come when such an agreement
will be possible. In our time it cannot be expected, and here therefore
lies the great difficulty in the way of setting up and manning
International Courts of Justice; because there is no doubt that each
State will claim the right to appoint at least one man of its own choice
to sit as judge in the International Court or Courts. And since there
are about fifty or more civilised independent States in existence, the
International Court would comprise fifty or more members.
Now why would the several States claim a right to appoint at least one
man of their own choice as judge? They would do this because they desire
to have a representative of their own general legal views in the Court.
It is a well-known fact that not only the legal systems which prevail in
the several States differ, but also that there are differences
concerning the fundamental conceptions of justice, law, procedure, and
evidence. Each State fears that an International Court will create a
practice fundamentally divergent from its general legal views, unless
there is at least one representative of its own general legal views
sitting in the Court.
I think that in spite of everything the difficulty is not insurmountable
provided a scheme for an International Court which follows closely the
model of Municipal Courts is not insisted upon. Just as the organisation
of a League of Nations cannot follow the model of the organisation of a
State, so the attempt to set up an International Court must not aim at
following closely the model of Municipal Courts. What is required is an
institution which secures the settlement of judicial international
disputes by giving judgments on the basis of law. I think this demand
can be satisfied by a scheme which would meet both the claim of each
State to nominate one judge and the necessity not to overcrowd the Bench
which decides each dispute.
VI. The scheme which I should like to recommend is one which
distinguishes between the Court as a whole and the several Benches which
would be called upon to decide the several cases. It is as follows:
The Court as a whole to consist of as many judges as there are members
of the League, each member to appoint one judge and one deputy judge who
would take the place of the judge in case of illness or death or other
cause of absence. The President, the Vice-President, and, say, twelve or
fourteen members to constitute the Permanent Bench of the Court and
therefore to be resident the whole year round at the Hague. Half of the
members of this Permanent Bench of the Court to be appointed by the
Great Powers--each Great Power to appoint one--and the other half of the
members to be appointed by the minor Powers. Perhaps the Scandinavian
Powers might agree upon the nomination of one member; Holland and Spain
and Portugal upon another; Belgium, Switzerland, and Luxemburg upon a
third; the Balkan States upon a fourth; Argentina, Brazil, and Chile
upon a fifth; and so on. Anyhow, some arrangement would have to be made
according to which the minor Powers unite upon the appointment of half
the number of the Permanent Bench.
If a judicial dispute arises between two States, the case to go in the
first instance before a Bench comprising the two judges appointed by the
two States in dispute and a President who, as each case arises, is to be
selected by the Permanent Bench of the Court from the members of this
Bench. This Court of First Instance having given its judgment, each
party to have a right of appeal. The appeal to go before the Permanent
Bench at the Hague, which is to give judgment with a quorum of six
judges with the addition of those judges who served as the Bench of
First Instance. The right of appeal to exist only on questions of law
and not on questions of fact.
Decisions of the Appeal Court to be binding precedents for itself and
for any Courts of First Instance. But should the Appeal Court desire to
go back on a former decision of law, this to be possible only at a
meeting of the Court comprising at least twelve members of the Permanent
Bench.
VII. The proposal which I have just sketched, and which will need to be
worked out in detail if it is to be realised, offers the following
advantages:
Every case would in the first instance be decided by a small Bench which
would enjoy the confidence of both parties because they would have their
own judge in the Court. This point is of particular importance with
regard to the mode of taking evidence and making clear the facts; but is
likewise of importance on account of the divergence of fundamental legal
views and the like.
Since the Court of Appeal would only decide points of law, the facts as
elucidated by the Bench of First Instance would remain settled. But the
existence of the Court of Appeal would enable the parties to re-argue
questions of law with all details. The fact that six of the Bench which
serves as a Court of Appeal are members of the Permanent Bench would
guarantee a thorough reconsideration of the points of law concerned, and
likewise the maintenance and sequence of tradition in International
Administration of Justice.
Again, the fact that the Court of Appeal is to comprise, besides six
members of the Permanent Bench, those three judges who sat as the Bench
of First Instance would guarantee that the judges appointed by the
States in dispute could again bring into play any particular views of
law they may hold.
VIII. This is the outline of my scheme for the establishment and manning
of the International Court of Justice. But before I leave the subject, I
must say a few words concerning two important points which almost all
other schemes for the establishment of an International Court overlook.
Firstly, the necessity to make provision for what I should like to call
complex cases of dispute; namely, cases which are justiciable but in
which, besides the question of law, there is at the same time involved a
vital political principle or claim. Take the case of a South American
State entering into an agreement with a non-American State to lease to
it a coaling station: this case is justiciable, but besides the question
of law there is a political claim involved in it, namely, the Monroe
doctrine of the United States. Unless provision be made for the
settlement of such complex cases, the League of Nations will not be a
success, for it might well happen that a case touches vital political
interests in such a way as not to permit a State to have it settled by a
mere juristic decision.
Now my proposal to meet such complex cases is that when a party objects
to a settlement of a case on mere juristic principles, although the
other party maintains that it is a justiciable case, the Bench which is
to serve as Bench of First Instance shall investigate the matter with
regard to the question whether the case is more political than legal in
nature. If the Court decides the question in the negative, then the same
Court shall give judgment on the dispute; but, if the Court decides the
question in the affirmative, then the case shall be referred by the
Court to the International Council of Conciliation. Whatever the
decision of the Bench of First Instance may be, each party shall have
the right of appeal to the Permanent Bench which serves as the Court of
Appeal.
IX. The other point which I desire to mention before I leave the subject
of International Administration of Justice concerns the notorious
principle _conventio omnis intelligitur rebus sic stantibus_. You know
that almost all publicists and also almost all Governments assert the
existence of a customary rule according to which a vital change of
circumstances after ratification of a treaty may be of such a kind as to
justify a party in demanding to be released either from the whole treaty
or from certain obligations stipulated in it. But the meaning of the
term 'vital change of circumstances' is elastic, and there is therefore
great danger that the principle _conventio omnis intelligitur rebus sic
stantibus_ will be abused for the purpose of hiding the violation of
treaties behind the shield of law. This danger will remain so long as
there is no International Court in existence which, on the motion of one
of the contracting parties, could set aside the treaty obligation whose
fulfilment has become so oppressive that in justice the obliged party
might ask to be released. Now, as the League of Nations is to set up an
International Court of Justice, my proposal is that the Court should be
declared competent to give judgment on the claim of a party to a treaty
to be released from its obligations on account of vital change of
circumstances. Of course the case would go before that Bench of the
Court which is to serve as the Court of First Instance, and an appeal
would lie to the Permanent Bench which serves as the Court of Appeal.
X. Having given you the outlines of a scheme concerning International
Administration of Justice, I now turn to International Mediation by
International Councils of Conciliation.
For a satisfactory proposal concerning International Councils of
Conciliation two starting points offer themselves. One starting point is
the special form of mediation recommended by Article 8 of the Hague
Convention concerning the pacific settlement of international disputes.
The following is the text of this Article 8:
'The Signatory Powers are agreed in recommending the application,
when circumstances allow, of special mediation in the following
form:--
'In case of a serious difference endangering peace, the contending
States choose respectively a Power, to which they intrust the
mission of entering into direct communication with the Power chosen
on the other side, with the object of preventing the rupture of
pacific relations.
'For the period of this mandate, the term of which, in default of
agreement to the contrary, cannot exceed thirty days, the States at
variance cease from all direct communication on the subject of the
dispute, which is regarded as referred exclusively to the mediating
Powers. These Powers shall use their best efforts to settle the
dispute.
'In case of a definite rupture of pacific relations, these Powers
remain jointly charged with the task of taking advantage of any
opportunity to restore peace.'
The second starting point is supplied by the Permanent International
Commissions of the so-called Bryan Peace Treaties concluded in 1913-14
by the United States of America with a number of other States. These
peace treaties are not in every point identical, but of interest to us
here are the clauses according to which Permanent International
Commissions are set up to serve as Councils of Conciliation. The
following is the text of the three articles concerned of the treaty
between the United States and Great Britain of September 15, 1914:
Art. I. 'The High Contracting Parties agree that all disputes
between them, of every nature whatsoever, other than disputes the
settlement of which is provided for and in fact achieved under
existing agreements between the High Contracting Parties, shall,
when diplomatic methods of adjustment have failed, be referred for
investigation and report to a permanent International Commission, to
be constituted in the manner prescribed in the next succeeding
article; and they agree not to declare war or begin hostilities
during such investigation and before the report is submitted.'
Art. II. 'The International Commission shall be composed of five
members, to be appointed as follows: One member shall be chosen from
each country, by the Government thereof; one member shall be chosen
by each Government from some third country; the fifth member shall
be chosen by common agreement between the two Governments, it being
understood that he shall not be a citizen of either country. The
expenses of the Commission shall be paid by the two Governments in
equal proportions.'
'The International Commission shall be appointed within six months
after the exchange of the ratifications of this treaty; and
vacancies shall be filled according to the manner of the original
appointment.'
Art. III. 'In case the High Contracting Parties shall have failed to
adjust a dispute by diplomatic methods, they shall at once refer it
to the International Commission for investigation and report. The
International Commission may, however, spontaneously by unanimous
agreement offer its services to that effect, and in such case it
shall notify both Governments and request their co-operation in the
investigation.'
Keeping in view the special form of mediation recommended by Article 8
of the Hague Convention concerning the Pacific Settlement of
International Disputes and the stipulations of the Bryan Peace Treaties
concerning Permanent International Commissions, we can reach a
satisfactory solution of the problem of International Mediation if we
take into consideration the two reasons why a League of Nations must
stipulate the compulsion of its members to bring non-justiciable
disputes before a Council of Conciliation previous to resorting to
hostilities. These reasons are, firstly, that war in future shall not be
declared without a previous attempt to have the dispute peaceably
settled, and, secondly, that war in future shall not break out like a
bolt from the blue.
XI. My proposal concerning International Councils of Conciliation is the
following: