lassa oppenheim ---- the league of nations and its problems - three lectures

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CONTRIBUTIONS TOINTERNATIONAL LAW ANDDIPLOMACY

Edited by L. OPPENHEIM, M.A.,LL.D.

Membre de l'Institut de DroitInternational, Whewell Professor of International Law in the University of Cambridge, Honorary Member of theRoyal Academy of Jurisprudence atMadrid, Corresponding Member of theAmerican Institute of InternationalLaw.

THE LEAGUE OF NATIONS ANDITS PROBLEMS



CONTRIBUTIONS TOINTERNATIONAL LAW ANDDIPLOMACY.

Edited by L. OPPENHEIM, M.A.,LL.D., Whewell Professor of International Law in the University of Cambridge.

A GUIDE TO DIPLOMATICPRACTICE. By the Right Hon. SirERNEST SATOW, G.C.M.G., LL.D.,D.C.L., formerly Envoy Extraordinary

and Minister Plenipotentiary. 2Volumes. 8vo. 30 s. net.



INTERNATIONALCONVENTIONS AND THIRDSTATES. A Monograph. By RONALDF. ROXBURGH, of the MiddleTemple, Barrister-at-Law; formerly

hewell International Law Scholar inthe University of Cambridge; formerly Scholar of Trinity College, Cambridge.8vo. 7s. 6d. 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.

HEWELL PROFESSOR OFINTERNATIONAL LAW IN THEUNIVERSITY OF CAMBRIDGEMEMBRE DE L'INSTITUT DEDROIT INTERNATIONAL.HONORARY MEMBER OF THEROYAL ACADEMY OFURISPRUDENCE AT MADRID,

CORRESPONDING MEMBER OFTHE AMERICAN INSTITUTE OF



INTERNATIONAL LAW

Festina lente

LONGMANS, GREEN AND CO. 39PATERNOSTER ROW, LONDON

FOURTH AVENUE & 30THSTREET, NEW YORK, BOMBAY,CALCUTTA, AND MADRAS. 1919

PREFACE

The three lectures collected in thisvolume were prepared without any

intention of publication. They weredelivered for the purpose of drawing



attention to the links which connect theproposal for a League of Nations withthe past, to the difficulties which standin the way of the realisation of theproposal, and to some schemes by

hich these difficulties might be

overcome. When it was suggested thatthe lectures should be brought beforethe public at large by being issued inbook form I hesitated, because I wasdoubtful whether the academic methodnatural to a University lecture would besuitable to a wider public. Afterconsideration, however, I came to theconclusion that their publication mightbe useful, because the lectures attempt

to show how the development initiatedby the two Hague Peace Conferences



could be continued by turning themovement for a League of Nationsinto the road of progress that theseConferences 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 haveproved the futility of the work of theHague Conferences. Throughout theseanxious years we have upheld theopinion that the progress initiated atthe Hague has by no means been sweptaway by the attitude of lawlessnessdeliberately 'because necessity knows

no law' taken up by Germany, providedonly that she should be utterly defeated,



and should be compelled to atone andmake ample reparation for the many cruel wrongs which cry to Heaven.

hile I am writing these lines, there ishappily no longer any doubt that thiscondition will be fulfilled. We therefore

believe that, after the map of Europehas been redrawn by the coming PeaceCongress, the third Conference oughtto assemble at the Hague for thepurpose of establishing the demandedLeague of Nations and supplying it

ith the rudiments of an organisation.

How this could be accomplished in avery simple way the following three

lectures attempt to show. They likewiseoffer some very slight outlines of a



scheme for setting up InternationalCouncils of Conciliation as well as anInternational Court of Justicecomprising a number of Benches. I

ould ask the reader kindly to takethese very lightly outlined schemes for

hat they are worth. Whatever may betheir defects they indicate a way out of some of the great difficulties whichbeset the realisation of the universaldemand for International Councils of Conciliation and an InternationalCourt of Justice.

It is well known that several of theallied Governments have appointed

Committees to study the problem of aLeague of Nations and to prepare a



scheme which could be put before thecoming Peace Congress. But unless all,or at any rate all the more important,neutral States are represented, it will beimpossible for an all-embracing Leagueof Nations to be created by that

Congress; although a scheme couldell be adopted which would keep the

door open for all civilised States.However, until all these States haveactually been received within thecharmed circle, the League will not becomplete nor its aims fully realised.

hatever the coming Peace Congressmay be able to achieve with regard to ascheme for the establishment of the

League of Nations, another the thirdHague Peace Conference will be needed



to set it going.

L. OPPENHEIM.

P.S. While this Preface and volume weregoing through the Press, Austria-

Hungary and Germany surrendered,and unprecedented revolutions brokeout which swept the Hapsburg, theHohenzollern, and all the otherGerman dynasties away. No one canforesee what will be the ultimate fateand condition of those two oncemighty empires. It is obvious that, hadthe first and second lectures beendelivered after these stirring events took

place, some of the views to be foundtherein expressed would have been



modified or differently expressed. I maask the reader kindly to keep this inmind while reading the following pages.However, the general bearing of thearguments, and the proposals for theorganisation of the League of Nations

and the establishment of anInternational Court of Justice andInternational Councils of Conciliation,are in no way influenced by these laterevents.

CONTENTS

PAGE



FIRST LECTURE: THE AIMS OFTHE LEAGUE OF NATIONS 1

I. The purpose of the three Lectures isto draw attention to the links whichconnect the proposed League of

Nations with the past, to the difficultiesinvolved in the proposal, and to the

ay in which they can be overcome 4

II. The conception of a League of Nations is not new, but is as old asInternational Law, because any kind of International Law and some kind of aLeague of Nations are interdependentand correlative 6

III. During antiquity no International



Law in the modern sense of the termas possible, because the common

interests which could force a numberof independent States into aCommunity of States were lacking 6

IV. But during the second part of theMiddle Ages matters began to change.During the fifteenth, sixteenth andseventeenth centuries an InternationalLaw, and with it a kind of League of Nations, became a necessity andtherefore grew by custom. At the sametime arose the first schemes for aLeague 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 evolvedby custom could not undertake to

prevent war; the conditions prevailing up to the outbreak of the FrenchRevolution made it impossible; it wasonly during the nineteenth century thatthe principle of nationality madegrowth 9

VI. The outbreak of the present Worldar is epoch-making because it is at

bottom a fight between the principle of

democratic and constitutionalgovernment and the principle of



militarism and autocratic government.The three new points in the presentdemand 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-calledInternationalism 11

VIII. The League of Nations now aimed at is not really a League of Nations but of States. The ideal of thenational State 13

IX. The two reasons why theestablishment of a new League of

Nations is conditioned by the utterdefeat 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 shouldcreate a Federal World State 18

XII. The demand for an InternationalArmy and Navy 20

XIII. The new League of Nationscannot give itself a constitution of astate-like character, but only one sui eneris on very simple lines 22

XIV. The three aims of the new League



of Nations, and the four problems tobe faced and solved in order to makepossible the realisation of these aims23

SECOND LECTURE:

ORGANISATION ANDLEGISLATION OF THE LEAGUEOF 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 theseveral States one with another 28

II. The position of the Great Powers



ithin the Community of States is amere political fact not based on Law 29

III. The pacifistic demand or a Federalorld State in order to make the

abolition of war a possibility 31

IV. Every attempt at organising thedesired new League of Nations muststart from, and keep intact, theindependence and equality of theseveral States, with the consequencethat the establishment of a centralpolitical authority above the sovereignStates is an impossibility 32

V. The development of an organisationof the Community of States began



before the outbreak of the World Warand is to be found in the establishmentof the Permanent Court of Arbitrationat the Hague by the First Hague PeaceConference of 1899. But more steps

ill be necessary to turn the hitherto

unorganised Community of States intoan organised League of Nations 34

VI. The organisation of the desirednew League of Nations should startfrom the beginning made by the HaguePeace Conferences, and the Leagueshould therefore include all theindependent 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 theLeague 38

IX. The seven principles which oughtto be accepted with regard to theorganisation 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, thefirst of which is InternationalLegislation. The meaning of the term

International Legislation' incontradistinction to Municipal



Legislation. International Legislation inthe 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 theconflicting national interests of theseveral States 44

XIII. The difficulty caused by the factthat International Statutes cannot becreated by a majority vote of the States.The difference between universal andgeneral International Law offers a way

out 44



XIV. The difficulty created by the factthat 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 Regulationsconcerning Land Warfare 45

ppendix : Correspondence with theForeign Office respecting theInterpretation of Article 23(h) of theHague Regulations concerning Land

arfare 48

THIRD LECTURE:

ADMINISTRATION OF JUSTICEAND MEDIATION WITHIN THE



LEAGUE OF NATIONS 57

I. Administration of Justice within theLeague is a question of InternationalCourts, but it is incorrect to assert thatInternational Legislation necessitates

the existence of International Courts60

II. The Permanent Court of Arbitration created by the First HaguePeace Conference 61

III. The difficulties connected withInternational Administration of Justiceby International Courts 62

IV. The necessity for a Court of Appeal



above the International Court of FirstInstance 63

V. The difficulties connected with thesetting up and manning of International Courts of Justice 64

VI. Details of a scheme whichrecommends itself because itdistinguishes between the Court as a

hole and the several Benches whichould be called upon to decide the

cases 65

VII. The advantages of therecommended scheme 67

VIII. A necessary provision for so-



called complex cases of dispute 68

IX. A necessary provision with regardto the notorious clause rebus sic stantibus69

X. The two starting points for asatisfactory proposal concerning International Mediation by International Councils of Conciliation.Article 8 of the Hague Conventionconcerning Pacific Settlement of International Disputes. The PermanentInternational Commissions of theBryan Peace Treaties 70

XI. Details of a scheme whichrecommends itself for the



establishment of InternationalCouncils 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 expectedthat, in case of a great conflict of interests, all the members of the League

ill faithfully carry out theirengagements 78

ALPHABETICAL INDEX 81



FIRST LECTURE

THE AIMS OF THE LEAGUE OFNATIONS

SYNOPSIS

I. The purpose of the three Lectures isto draw attention to the links whichconnect the proposed League of Nations with the past, to the difficultiesinvolved in the proposal, and to the

ay in which they can be overcome.

II. The conception of a League of

Nations is not new, but is as old asInternational Law, because any kind of



International Law and some kind of aLeague of Nations are interdependentand correlative.

III. During antiquity no InternationalLaw in the modern sense of the term

as possible, because the commoninterests which could force a numberof independent States into acommunity of States were lacking.

IV. But during the second part of theMiddle Ages matters began to change.During the fifteenth, sixteenth, andseventeenth centuries an InternationalLaw, and with it a kind of League of

Nations, became a necessity andtherefore grew by custom. At the same



time arose the first schemes for aLeague 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 evolvedby custom could not undertake toprevent wars; the conditions prevailing up to the outbreak of the FrenchRevolution made it impossible; it wasonly during the nineteenth century thatthe principle of nationality madegrowth.

VI. The outbreak of the present World



ar is epoch-making because it is atbottom a fight between the principle of democratic and constitutionalgovernment 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 Nationsarose, and its connection with so-calledInternationalism.

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 theestablishment of a new League of Nations is conditioned by the utterdefeat 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 demandthat the new League of Nations shouldcreate a Federal World State.

XII. The demand for an InternationalArmy and Navy.

XIII. The new League of Nationscannot give itself a constitution of a



state-like character, but only one sui eneris on very simple lines.

XIV. The three aims of the new Leagueof Nations, and the four problems tobe faced and solved in order to make

possible the realisation of these aims.

THE LECTURE

I. Dr. Whewell, the founder of theChair of International Law which Ihave the honour to occupy in thisUniversity, laid the injunction uponevery holder of the Chair that heshould '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 theevils of war and finally to extinguish

ar between nations.' It is to comply ith the spirit, if not with the letter, of

this injunction that I have announcedthe series of three lectures on a League

of Nations. The present is the first, andin it I propose to treat of the Aims of the League. But, before I enter into adiscussion of these aims, I should liketo point out that I have no intention of dealing with the question whether orno a League of Nations should befounded at all. To my mind, andprobably to the minds of most of youhere, this question has been

satisfactorily answered by the leading politicians of all parties and all



countries since ex-President Taft put itsoon after the outbreak of the World

ar; it suffices to mention Earl Grey inGreat Britain and President Wilson inAmerica. In giving these lectures Ipropose to draw your attention, on the

one hand, to the links which connectthe proposal for a League of Nations

ith the past, and, on the other hand,to the difficulties with which therealisation of the proposal mustnecessarily be attended; and also to the

ays in which, in my opinion, thesedifficulties can be overcome.

There is an old adage which says Natur

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 withHistory. History in most cases takes noleaps, but if exceptionally History doestake a leap, there is great danger of abad slip backwards following. We must

be on our guard lest the proposedLeague of Nations should take a leapin the dark, and the realisation of proposals be attempted which are sodaring and so entirely out of keeping

ith the historical development of International Law and the growth of the Society of Nations, that there

ould be great danger of the wholescheme collapsing and the whole

movement coming to naught.



The movement for a League of Nations is sound, for its purpose is tosecure a more lasting peace amongst thenations of the world than has hithertoprevailed. But a number of schemes torealise this purpose have been

published which in my opinion gomuch too far because they compriseproposals which are not realisable inour days. You know that not only anInternational Court of Justice and anInternational Council of Conciliationhave been proposed, but also somekind 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 InternationalGovernment could guarantee thecondition of permanent peace in the

orld.

II. You believe no doubt, because

nearly everyone believes it, that theconception of a League of Nations issomething quite new. Yet this is not thecase, although there is something new in the present conception, something

hich did not exist previously. Theconception of a League of Nations isvery old, is indeed as old as modernInternational Law, namely about fourhundred years. International Law could

not have come into existence without atthe same time calling into existence a



League of Nations. Any kind of an International Law and some kind or other oa League of Nations are interdependent ancorrelative. This assertion possibly surprises you, and I must therefore say a few words concerning the origin of

modern International Law in order tomake matters clear.

III. In ancient times no InternationalLaw in the modern sense of the termexisted. It is true there existed rules of religion and of law concerning international relations, andambassadors and heralds wereeverywhere considered sacrosanct. But

these rules were not rules of anInternational Law, they were either



religious rules or rules which were partof the Municipal Law of the severalStates. For instance: the Romans hadvery detailed rules concerning theirrelations 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 notinternational rules.

Now what was the reason that antiquity did not know of any International Law

The reason was that between the severalindependent States of antiquity nosuch intimate intercourse arose and no

such common views existed as tonecessitate a law between them. Only



between the several city States of ancient Greece arose some kind of

hat we should now call 'InternationalLaw,' because these city States formed aCommunity fostered by the samelanguage, the same civilisation, the same

religion, the same general ideas, and by constant commercial and otherintercourse. On the other hand, theRoman Empire was a world empire, itgradually absorbed all the independentnations in the West. And when theRoman Empire fell to pieces inconsequence of the migration of thepeoples, the old civilisation came to anend, international commerce and

intercourse ceased almost entirely, andit was not till towards the end of the



Middle Ages that matters began tochange.

IV. During the second part of theMiddle Ages more and moreindependent States arose on the

European continent, and during thefifteenth and sixteenth centuries thenecessity for a Law of Nations madeitself felt. A multitude of SovereignStates had now established themselves

hich, although they were absolutely independent of one another, wereknitted together by constantcommercial and other intercourse, by acommon religion, and by the same

moral principles. Gradually and almostunconsciously the conviction had



grown upon these independent Statesthat, in spite of everything whichseparated them, they formed aCommunity the intercourse of which

as ruled by certain legal principles.International Law grew out of custom

because it was a necessity according tothe well-known rule ubi societas ibi jus ,

here there is a community of intereststhere must be law. The severalindependent States had thus gradually and unconsciously formed themselvesinto a Society, the afterwards so-calledFamily of Nations, or, in other words, aLeague of Nations.

And no sooner had this League of Nations come into existence and even



some time before that date than anumber of schemes for theestablishment of eternal peace madetheir appearance.

The first of these schemes was that of

the French lawyer Pierre Dubois , who, asearly as 1305, in his work 'Derecuperatione terre sancte,' proposed analliance between all Christian Powersfor the purpose of the maintenance of peace and the establishment of apermanent Court of Arbitration for thesettlement of differences betweenmembers of the alliance.

Another was that of Antoine Marini , theChancellor of Podiebrad, King of



Emeric Crucee , who, in 1623, proposedthe establishment of a Unionconsisting not only of the ChristianStates but of all States of the world,

ith a General Council seated atVenice.

And since that time many otherschemes of similar kind have madetheir appearance, the enumeration anddiscussion of which is outside ourpresent purpose. So much is certainthat all these schemes were Utopian.Nevertheless, a League of Nationshaving once come into existence,International Law grew more and

more, and when in 1625 Hugo Grotiuspublished his immortal work on 'The



Law of War and Peace,' the system of International Law offered in his work conquered the world and became thebasis of all following development.

V. However, although a League of

Nations must be said to have been inexistence for about 400 years, becauseno International Law would have beenpossible without it, this League of Nations could not, and was notintended to, prevent war between itsmembers. I say: it could not prevent

ar. Why not It could not prevent waron account of the conditions whichprevailed within the international

society from the Middle Ages till, say,the outbreak of the present war. These



conditions are intimately connectedith the growth of the several States of

Europe.

hereas the family, the tribe, and therace are natural products, the nation as

ell as the State are products of historical development. All nations areblends of more or less different races,and all States were originally foundedon force: strong rulers subjectedneighbouring tribes and peoples totheir sway and thus formed coherentnations. Most of the States in Europeare the product of the activity of strong dynasties which through war

and conquest, and through marriageand purchase, united under one



sovereign the lands which form theStates and the peoples which form thenations. Up to the time of the FrenchRevolution, 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 thedynasties concerned, or so-calledcolonial wars fought for the acquisitionof transoceanic colonies. It was not tillthe nineteenth century that wars for thepurpose of national unity broke out,and dynastic wars began gradually todisappear. During the nineteenthcentury the nations, so to say, found

themselves; some kind of constitutional government was



everywhere introduced; and democracy became the ideal, although it was by nomeans everywhere realised.

VI. It is for this reason that theoutbreak of the present war is epoch-

making, because it has becomeapparent that, whatever may be the waraims of the belligerents, at bottom this

orld War is a fight between the idealof democracy and constitutionalgovernment on the one hand, andautocratic government and militarismon the other. Everywhere theconviction has become prevalent thatthings 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 anew League of Nations to take theplace of that which has been inexistence for about 400 years, hasarisen.

Now what is new in the desired new League of Nations

Firstly, this new League would befounded upon a solemn treaty, whereasthe League of Nations hitherto wasonly based upon custom.

Secondly, for the purpose of making ar rarer or of abolishing it altogether,

this new League of Nations wouldenact the rule that no State is allowed



to resort to arms without previously having submitted the dispute to anInternational Court or a Council of Conciliation.

Thirdly, this new League of Nations

ould be compelled to create somekind of organisation for itself, becauseotherwise it could not realise itspurpose to make war rarer or abolish italtogether.

VII. The demand for a new League of Nations is universal, for it is made, notonly everywhere in the allied countries,but in the countries of the Central

Powers, and it will surely be realisedhen the war is over, at any rate to a



certain extent. It is for this reason thatthe present World War has not only notdestroyed so-called Internationalism,but has done more for it than many years of peace could have done.

hat is Internationalism

Internationalism is the conviction thatall the civilised States form oneCommunity throughout the world inspite of the various factors whichseparate the nations from one another;the conviction that the interests of allthe nations and States are indissolubly interknitted, and that, therefore, the

Family of Nations must establishinternational institutions for the



purpose of guaranteeing a more generaland a more lasting peace than existed informer times. Internationalism hadmade great strides during the secondpart of the nineteenth century onaccount of the enormous development

of international commerce andinternational communication favouredby railways, the steamship, thetelegraph, and a great many scientificdiscoveries and technical inventions.But what a disturbing and destroying factor war really is, had not becomefully apparent till the present war,because this is a world war whichinterferes almost as much with the

elfare of neutrals as with the welfareof belligerents. It has become apparent



during the present war that thediscoveries and developments of science and technology, which haddone so much during the second half of the nineteenth century for thematerial welfare of the human race

during peace, were likewise at thedisposal of belligerents for anenormous, and hitherto unthought-of,destruction of life and wealth. It is forthis reason that in the camp of friendand foe, among neutrals as well asamong belligerents, the conviction hasbecome universal that the conditionsof international life prevailing beforethe outbreak of the World War must be

altered; that international institutionsmust be established which will make



the outbreak of war, if not impossible,at any rate only an exceptionalpossibility. The demand for a new League of Nations has thus arisen andperemptorily requires fulfilment.

VIII. However, in considering thedemand for a new League of Nations,it is necessary to avoid confusing nations with States. It should always beremembered that, when we speak of aLeague of Nations, we do not really mean a League of Nations but aLeague of States. It is true that there aremany States in existence which in themain are made up of one nation,

although fractions of other nationsmay be comprised in them. But it is



equally true that there are some Statesin existence which include members of several nations. Take as an exampleSwitzerland which, although only avery small State, nevertheless comprisesthree national elements, namely

German, French, and Italian. Anotherexample is the British Empire, which isa world empire and comprises anumber of different nations.

That leads me to the question: What isa nation

A nation must not be confounded witha race. A nation is a product of

historical development, whereas a raceis a product of natural growth. One



speaks of a nation when a complexbody of human beings is united by living in the same land, by the samelanguage, the same literature, the samehistorical traditions, and the samegeneral views of life. All nations are a

mixture of several diverse racialelements which in the course of historical development have to a certainextent been united by force of circumstances. The Swiss as a peopleare politically a nation, although thecomponent parts of the population of Switzerland are of different nationalcharacters and even speak differentlanguages. Historical development in

general, and in many cases force inparticular, have played a great part in



the blending of diverse racial elementsinto nations; just as they have played agreat part in the building up of States.The demand that every nation shouldhave a separate State of its own theideal of the so-called national State

appears very late in history; it is aproduct of the last two centuries, and it

as not till the second half of thenineteenth century that the so-calledprinciple of nationality made itsappearance and gained great influence.It may well be doubted whether eachnation, be it ever so small, will succeedin establishing a separate State of itsown, although where national

consciousness becomesoverwhelmingly strong, it will probably



in every case succeed in time either inestablishing a State of its own, or at any rate in gaining autonomy. Be that as itmay, it is a question for the future; somuch 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 ispossible unless the Central Powers, andGermany in especial, are utterly defeated during the World War, andthat for two reasons.

One reason is that a great alteration of the map of Europe is an absolutely



necessary condition for the satisfactory orking of a League of Nations.

Unless an independent Poland beestablished; unless the problem of Alsace-Lorraine be solved; unless theTrentino be handed over to Italy; unless

the Yugo-Slavs be united with Servia;unless the Czecho-Slovaks be freedfrom the Austrian yoke; and unless theproblem of Turkey and the TurkishStraits be solved, no lasting peace canbe expected in Europe, even if aLeague of Nations be established.

The other reason is that, unlessGermany be utterly defeated, the spirit

of militarism, which is not compatibleith a League of Nations, will remain a



menace to the world.

hat is militarism It is that conceptionof the State which bases the power of the State, its influence, its progress, andits development exclusively on military

force. The consequence is that warbecomes part of the settled policy of amilitarist State; the acquisition of further territory and population by conquest is continually before the eyesof such a Government; and thecondition of peace is only a shorter orlonger interval between periods of war.A military State submits toInternational Law only so long as it

serves its interests, but violatesInternational Law, and particularly



International Law concerning war,herever and whenever this law stands

in the way of its military aims. Thehole history of Prussia exemplifies

this. Now in a League of Nations peacemust be the normal condition. If war

occurs at all within such a League, itcan only be an exceptional phase andmust be only for the purpose of re-establishing peace. It is true a Leagueof Nations will not be able entirely todispense with military force, yet suchforce appears only in the backgroundas an ultima ratio to be applied againstsuch Power as refuses to submit itsdisagreements with other members of

the League either to an InternationalCourt of Justice or an International



Council of Conciliation.

X. Be that as it may, in a sense theLeague of Nations has already startedits career, because twenty-five States areunited on the one side and are fighting

this war in vindication of InternationalLaw. These States are I enumerate themchronologically as they entered into the

ar: Russia (the Bolsheviks have madepeace, but in fact one may stillenumerate Russia as a belligerent),France, Belgium, Great Britain, Servia,Montenegro, Japan, San Marino,Portugal, Italy, Roumania, the UnitedStates, Cuba, Panama, Greece, Siam,

Liberia, China, Brazil, Ecuador,Guatemala, Nicaragua, Costa Rica,



Haiti, Honduras. Besides these twenty-five States which are at war with theCentral Powers, the following fourStates, without having declared war,have broken off diplomatic relations

ith Germany, namely: Bolivia, San

Domingo, Peru, Uruguay.

Now there may be said to be about fifty civilised States in existence. Of these, asI have just pointed out, twenty-five arefighting against the Central Powers,four have broken off relations withGermany, the Central Powersthemselves are four in number, with theconsequence 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, andMonaco in Europe; Mexico, Salvador,Colombia, Venezuela, Chile, Argentina,and Paraguay in America; and Persia in

Asia.

It may be taken for granted that all theneutral States, and all the States fighting on the side of the Allies, and also thefour States which, although they are notfighting on the side of the Allies, havebroken off relations with Germany, areprepared to enter into a League of Nations.

But what about the Central Powers, and



Germany in especial I shall discuss inmy next lecture the question whetherthe Central Powers are to becomemembers of the League. To-day it mustsuffice to say that, when once utterly defeated, they will be only too glad to

be received as members. On the otherhand, if they were excluded, the world

ould again be divided into two rivalcamps, just as before the war the TripleAlliance was faced by the Entente. Nodisarmament would be possible, and

ith regard to every other matterprogress would be equally impossible.Therefore the Central Powers mustbecome 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 werevictorious, or if peace were concluded

ith an undefeated Germany, the worldould not be ripe for a League of

Nations because militarism would not

have been exterminated.

XI. I have hitherto discussed theLeague of Nations only in a general

ay, without mentioning that there isno unanimity concerning its aims orconcerning the details of itsorganisation. Many people think that it

ould be possible to do away with warfor ever, and they therefore demand a

orld 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 thedemand is raised not only for anInternational Court and for anInternational Council of Conciliation,but also for an International

Government, an InternationalParliament, and an International Army and Navy, a so-called InternationalPolice.

I believe that these demands go muchtoo far and are impossible of realisation. A Federal State comprising all the single States of the wholecivilised world is a Utopia, and an

International Army and Navy would bea danger to the peace of the world.



hy is a World State not possible, atany rate not in our time

No one has ever thought that a WorldState in the form of one single State

ith one single Government would bepossible. Those who plead for a WorldState plead for it in the form of aFederal State comprising all the singleStates of the world on the pattern of the United States of America. But eventhis modified ideal is not, in my opinion, realisable at present. Why notTo realise this ideal there would berequired a Federal Government, and a

Federal Parliament; and the FederalGovernment would have to possess



strong powers to enforce its demands.A powerless Federal Government

ould be worse than no government atall. But how is it possible to establish atpresent a powerful FederalGovernment over the whole world

How is it possible to establish a Federalorld Parliament

Constitutional Government within theseveral States has to grapple with many difficulties, and these difficulties wouldbe more numerous, greater, and muchmore complicated within a Federal

orld State. We need democracy andconstitutional Government in every

single State, and this can only berealised by party Government and



elections of Parliament at shortintervals. The waves of party strife risehigh within the several States; nosooner is one party in, than the otherparty looks out for an opening into

hich a wedge can be pushed to turn

the Government out. In normal timesthis works on the whole quite well

ithin the borders of the several States,because the interests concerned are notso widely opposed to one another thatthe several parties cannot alternatively govern. But when it comes to applying the same system of Government to aFederal World State, the interests atstake are too divergent. The East and

the West, the South and the North, theinterests of maritime States and land-



locked States, the ideals and interests of industrial and agricultural States, andmany other contrasts, are too great forit to be possible to govern a Federal

orld State by the same institutions asa State of ordinary size and

composition.

The British World Empire may be takenas an example to show that it isimpossible for one single centralGovernment to govern a number of States with somewhat divergentinterests. We all know that the BritishEmpire comprising the UnitedKingdom and the so-called

independent dominions, namely Canada, Newfoundland, Australia, New



Zealand, and South Africa, is kepttogether not really by the powers of theBritish Government but by the good

ill of the component parts. TheGovernment of the United Kingdomcould not keep the Empire together by

force, could not compel by force oneof the independent dominions tosubmit to a demand, in case it refusedto comply. The interests of the severalcomponent parts of the British Empireare so divergent that no centralGovernment could keep them togetheragainst their will. Now what applies tothe British Empire, which is to a greatextent bound together by the same

language, the same literature, and thesame Law, would apply much more to a



Federal State comprising the whole of the world: such a Federal State, so far as

e can see, is impossible.

XII. But what about an InternationalArmy and Navy

It is hardly worth while to say muchabout them. Those who propose theestablishment of an InternationalArmy and Navy presuppose that thenational armies and navies would beabolished so that the worldGovernment would have the power,

ith the help of the InternationalArmy and Navy, at any moment to

crush any attempt of a recalcitrantmember of the Federal World State to



avoid its duties. This InternationalArmy and Navy would be the mostpowerful instrument of force whichthe world has ever seen, because every attempt to resist it would be futile. Andthe Commander of the International

Army and the Commander of theInternational Navy would be menholding in their hands the greatestpower that can be imagined.

The old question therefore arises: Quis custodiet ipsos custodes which I should likehere to translate freely by: Who willkeep in order those who are to keep the

orld in order A League of Nations

hich can only be kept together by apowerful International Army and Navy,



is a contradiction in itself; for theindependence and equality of themember States of the League wouldsoon disappear. It is a fact I make thisstatement although I am sure it will beviolently contradicted that, just as

hitherto, so within a League of Nationssome kind of Balance of Power only can guarantee the independence andequality of the smaller States. For theCommunity of Power, on which theLeague of Nations must rest, would atonce disappear if one or two membersof the League became so powerful thatthey could disregard the combinedpower of the other members. Every

scheme of this movement musttherefore see to it that no member of



the League is more armed than isnecessary considering the extent of itsterritory and other factors concerned.But be that as it may, an InternationalArmy and Navy is practically impossible, just as a Federal World

State is impossible.

XIII. Yet while a Federal World State isimpossible, a League of Nations is not,provided such league gives itself aconstitution, not of a state-likecharacter, but one sui generis . What canbe done is this: the hithertounorganised Family of Nations canorganise itself on simple lines so as to

secure, on the one hand, the absoluteindependence of every State, and, on



the other hand, the peaceful co-existence of all the States.

It is possible, in my opinion, toestablish an International Court of ustice before which the several States

engage to appear in case a conflictarises between two or more of them

hich can be judicially settled, that is,can be settled by a rule of law. There isas little reason why two or more Statesshould go to war on account of aconflict which can be settled upon thebasis of law, as there is for two privateindividuals 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 apolitical character which cannot besettled on the basis of a rule of law,there is no reason why, when the Statesin conflict cannot settle them by

diplomatic negotiation, they shouldresort to arms, before bringing theconflict before some Council of Conciliation and giving the latter anopportunity of investigating the matterand proposing a fair compromise.

Under modern conditions of civilisation the whole world suffers incase war breaks out between even only

two States, and for this reason it isadvisable that the rest of the world



should unite and oppose such State asould resort to arms without having

submitted its case to an InternationalCourt of Justice or an InternationalCouncil of Conciliation.

XIV. In my opinion the aims of aLeague of Nations should therefore bethree:

The first aim should be to prevent theoutbreak of war altogether on accountof so-called judicial disputes, that isdisputes which can be settled on thebasis of a rule of law. For this reasonthe League should stipulate that every

State must submit all judicial disputesithout exception to an International



Court of Justice and must abide by theudgment of such Court.

The second aim should be to preventthe sudden outbreak of war onaccount of a political dispute and to

insist on an opportunity for mediation.For this reason the League shouldstipulate that every State, previous toresorting to arms over a politicaldispute, must submit it to anInternational Council of Conciliationand must at any rate listen to the adviceof such Council.

The third aim should be to provide a

sanction for the enforcement of thetwo rules just mentioned. For this



reason the League should stipulate thatall the member States of the Leaguemust unite their economic, military, andnaval forces against such member ormembers as would resort to arms eitheron account of a judicial dispute which

ought to have been settled by anInternational Court of Justice, or onaccount of a political dispute withoutpreviously having submitted it to anInternational Council of Conciliationand listened to the latter's advice.

These should be, in my opinion, thethree aims of a League of Nations andthe three rules necessary for the

realisation of these aims. However, it isnot so easy to realise them, and it is



therefore necessary to face and solvefour problems: There is, firstly, theproblem of the Organisation of theLeague; secondly, the problem of Legislation within the League; thirdly,the problem of Administration of

ustice within the League; and fourthly,the problem of Mediation within theLeague four problems which I shalldiscuss in the two following lectures.

I have only named three aims and fourproblems because I have in my mindthose aims which are the nearest andthose problems which are the mostpressing and the most urgent. The

range of vision of the League of Nations, when once established, will no



doubt gradually become wider andider; new aims will arise and new

problems will demand solution, but allsuch possible future aims and futureproblems are outside the scope of these lectures.

SECOND LECTURE

ORGANISATION ANDLEGISLATION OF THE LEAGUEOF 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 theseveral States one with another.

II. The position of the Great Powersithin the Community of States is a

mere political fact not based on Law.

III. The pacifistic demand for a Federalorld State in order to make the

abolition of war a possibility.

IV. Every attempt at organising thedesired new League of Nations must

start from, and keep intact, theindependence and equality of the



several States, with the consequencethat the establishment of a centralpolitical authority above the sovereignStates is an impossibility.

V. The development of an organisation

of the Community of States beganbefore the outbreak of the World Warand is to be found in the establishmentof the Permanent Court of Arbitrationat the Hague by the First Hague PeaceConference of 1899. But more steps

ill be necessary to turn the hithertounorganised Community of States intoan organised League of Nations.

VI. The organisation of the desirednew League of Nations should start



from the beginning made by the HaguePeace Conferences, and the Leagueshould therefore include all theindependent 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 theLeague.

IX. The seven principles which oughtto be accepted with regard to theorganisation of the new League of

Nations.



XIII. The difficulty caused by the factthat International Statutes cannot becreated by a majority vote of the States.The difference between universal andgeneral International Law offers a way out.

XIV. The difficulty created by the factthat there are as yet no universally recognised rules concerning interpretation and construction of International Statutes and ordinary conventions. The notorious Article23(h) of the Hague Regulationsconcerning 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 Leagueof Nations:

Firstly, every State must submit all

udicial disputes to an InternationalCourt of Justice and must abide by theudgment of such Court.

Secondly, every State previous toresorting to arms, must submit every political and non-judicial dispute to anInternational Council of Conciliationand must at any rate listen to the adviceof such Council.

Thirdly, the member States must unite



their forces against such State or Statesas should resort to arms withoutpreviously having submitted the matterin dispute to an International Court of ustice or to an International Council

of Conciliation.

And I added that these three rulescannot create a satisfactory conditionof affairs unless four problems arefaced and solved, namely: TheOrganisation of the League, Legislationby the League, Administration of ustice and Mediation within the

League. My lecture to-day will deal withtwo of these problems, namely the

Organisation and the Legislation of theLeague.



Let us first consider the Organisationof the League. Hitherto the body of civilised States which form the Family of Nations and which, as I pointed outin my first lecture, is really a League of

Nations evolved by custom, has beenan unorganised Community. Thismeans that, although there are plenty of legal rules for the intercourse of theseveral States one with another, theCommunity of civilised States does notpossess any permanently establishedorgans or agents for the conduct of itscommon affairs. At present theseaffairs, if they are peaceably settled, are

either settled by ordinary diplomaticnegotiation or, if the matter is pressing



and of the greatest importance, by temporarily convened InternationalConferences or Congresses.

II. It is true there are the so-calledGreat Powers which are the leaders of

the Family of Nations, and it istherefore asserted by some authoritiesthat the Community of States hasacquired a certain amount of organisation because the Great Powersare the legally recognised superiors of the minor States.

But is this assertion correct The GreatPowers, are they really the legally

recognised superiors of the minorStates



I deny it. A Great Power is any large-sized State possessing a largepopulation which gains such economic,military, and naval strength that itspolitical influence must be reckoned

ith by all the other Powers. At thetime of the outbreak of the World Wareight States had to be considered asGreat 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

ill see the number of Great Powersreduced to six. The collapse and break

up of Russia has surely for the presenteliminated her from the number of



Great Powers. And it is quite certainthat Austria-Hungary will not emergefrom the struggle as a Great Power, if she emerges from it as a whole at all.History teaches that the number of theGreat Powers is by no means stable,

and changes occasionally take place.Look at the condition of affairs during the nineteenth century. Whereas at thetime of the Vienna Congress in 1815eight States, namely Great Britain,Austria, France, Portugal, Prussia,Spain, Sweden, and Russia were stillconsidered Great Powers, their numbersoon decreased to five, becausePortugal, 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 theGreat Powers after the American Civil

ar in 1865; and Japan emerged as aGreat Power from her war with Chinain 1895.

Be that as it may, so much is certain, aState is a Great Power not by law butonly by its political influence. TheGreat Powers are the leaders of theFamily of Nations because theirpolitical influence is so great. Theirpolitical and economic influence is inthe long run irresistible; therefore allarrangements 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 theGreat Powers exercise a kind of political hegemony within the Family of Nations. Yet this hegemony is notbased 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 properorganisation of the Community of States had, up to the outbreak of the

orld War, been raised exclusively onthe part of the so-called Pacifists inorder to make the abolition of war apossibility. It is a common assertion on

the part of the Pacifists that Warcannot die out so long as there is no



Central Political Authority in existenceabove the several States which couldcompel them to bring their disputesbefore an International Court and alsocompel them to carry out theudgments of such a Court. For this

reason many Pacifists aim at such anorganisation of the Community of States as would bring all the civilisedStates of the world within the bondsof a federation. They demand a WorldFederation of all the civilised States, orat any rate a federation of the States of Europe, on the model of the UnitedStates of America.

If such a Federal World State werepractically possible, there would be no



objection to it, although InternationalLaw as such would cease to exist andbe replaced by the Constitutional Law of this Federal World State. But in my first lecture I pointed out that such aFederal World State is practically

impossible. And it is not even desirable.

The development of mankind wouldseem in the main to be indissolubly connected with the nationaldevelopment of the peoples. Mostpeoples possessing a strong nationalconsciousness desire an independentState in which they can live according to their own ideals. They want to be

their own masters, and not to be partand parcel of a Federal World State to



hich they would have to surrender agreat part of their independence.Moreover as I likewise pointed out inmy first lecture (pp. 18-20) it would beimpossible to establish a strong Government and a strong Parliament in

a Federal World State.

However this may be, it is not at allcertain that war would altogetherdisappear in a Federal World State. Thehistory of Federal States teaches that

ars do occasionally break out betweentheir member States. Think of the warbetween the Roman Catholic and theProtestant member States of the Swiss

Confederation in 1847, of the war in1863 between the Northern and the



Southern member States within theFederation which is called the UnitedStates of America, and of the warbetween Prussia and Austria within theGerman Confederation in 1866.

IV. But what kind of organisation of the League of Nations is possible if wereject the idea of a Federal State

Neither I, nor anyone else who doesnot like to build castles in the air, cananswer this question directly by making a detailed proposal. It is at present quiteimpossible to work out a practicalscheme according to which a more

detailed organisation of the League of Nations could be realised. But so much



is certain that every attempt atorganising this League must start from,and must keep intact, the independenceand the equality of all civilised States. Itis for this reason that a Central PoliticalAuthority above the sovereign States

can never be thought of. Every attemptto organise a League of Nations on themodel of a Federal State is futile. If adetailed organisation of the Leagueshould ever come, it will be one sui eneris , one absolutely of its own kind;

such as has never been seen before.And it is at present quite impossible tomap out a detailed plan of such anorganisation although, as I shall have to

show you later, the first step towards anorganisation has already been made,



and further steps towards the ideal canbe taken. The reason that it is at presentimpossible is that the growth and thefinal shape of the organisation of theLeague of Nations will, and must, gohand in hand with the progress of

International Law. But the progress of International Law is conditioned by thegrowth, the strengthening, and thedeepening of international economicand other interests, and of internationalmorality. It is a matter of course thatthis progress can only be realised very slowly, for there is concerned a processof development through many generations and perhaps through

centuries, a development whose end noone 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 thedevelopment to be found

It is to be found in the establishmentof the Permanent Court of Arbitrationat the Hague and the Office therewithconnected. The Permanent Court of Arbitration is not an institution of theseveral States, but an institution of theCommunity of States in

contradistinction to its severalmembers. Had the International Prize



Court agreed upon by the SecondHague Peace Conference of 1907 beenestablished, there would have comeinto existence another institution of theCommunity of States.

But the establishment of InternationalCourts would not justify the assertionthat thereby the Community of Stateshas turned from an unorganisedcommunity into an organisedcommunity. To reach this goal anotherstep is required, namely an agreementamongst the Powers, according to

hich the Hague Peace Conferencesould be made a permanent institution

hich periodically, within fixedintervals, assemble without being



convened by one Power or another. If this were done, we could say that thehitherto unorganised Community of States had turned into an organisedLeague of Nations, for by suchperiodically assembling Hague Peace

Conferences there would be establishedan organ for the conduct of all suchinternational matters as requireinternational legislation or otherinternational action.

However that may be, the organisationcreated by the fact that the Hague PeaceConferences periodically assembled,

ould only be an immature one; more

steps would be necessary in order thatthe organisation of the Community of



States might become more perfect andmore efficient. Yet progress would beslow, for every attempt at a progressivestep meets with opposition, and it

ould be only when the international interests of the civilised States become

victorious over their particular national interests that the Community of States

ould gradually receive a more perfectorganisation.

VI. There is no doubt that theexperiences of mankind during the

orld War have been quickening development more than could havebeen expected in normal times. The

universal demand for a new League of Nations accepting the principles that



mentioned in my first lecture, namely compulsory settlement of all judicialdisputes by International Courts of ustice, compulsory mediation in cases

of political disputes by an InternationalCouncil of Conciliation, and the duty

of the members of the League to turnagainst any one member which shouldresort to arms in violation of theprinciples laid down by the League.However, these schemes differ very much with regard to the organisation of the League. I cannot now discuss thevarious schemes in detail. It mustsuffice to say that some of themembody proposals for a more or less

state-like organisation and are thereforenot acceptable to those who share my



opinion that any state-like organisationof the League is practically impossible.But though some of the schemes, asfor instance that of Lord Bryce andthat of Sir Willoughby Dickinson,avoid this mistake, none of them take

as their starting point that which Iconsider to be the right one, namely thebeginning made at the two Hague PeaceConferences. In my opinion the organisatiof a new League of Nations should start rom the beginning made by the two HaguePeace Conferences.

VII. However, there is much objectionto this, because it would necessitate the

admission into the new League of allthose States which took part in the



Second Hague Peace Conference,including, of course, the CentralPowers. The objections to such a widerange 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 theoutbreak of the war, and by her generalconduct of the war, Germany hasdeliberately taken up an attitude whichproves that, when her military interestsare concerned, she does not considerherself bound by any treaty, by any ruleof 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 beutterly defeated and no peace of compromise be made with her,

militarism in Germany will be doomed,the reparation to be exacted from herfor the many cruel wrongs must lead toa change of Constitution andGovernment, and this change of Constitution and Government willmake Germany a more acceptablemember of a new League of Nations.The utter defeat of Germany is anecessary preliminary condition to the

possibility of her entrance into aLeague of Nations. Those who speak



of the foundation of a League of Nations as a means of ending the

orld War by a peace of compromiseith Germany are mistaken. The

necessary presuppositions of such aLeague are entirely incompatible with

an unbroken Prussian militarism.

But while her utter defeat is thenecessary preliminary condition to herentrance into a League of Nations, theinclusion of Germany in the League,after her utter defeat, is likewise anecessity. The reason is that, as Ipointed out in my first lecture (p. 17),in case the Central Powers were

excluded from the League, they wouldenter into a League of their own, and



the world would then be divided intotwo rival camps, in the same way asbefore the war the Triple Alliance wasfaced by the Entente. The world would beroved not ripe for a new League of Natio

if peace were concluded with an undefeate

Germany; and the League would miss its urpose if to a defeated and repenting

Germany entrance into it were refused.

VIII. In the second instance, theentrance of the great number of minortransoceanic States into the League isdeprecated because these States wouldclaim an equal vote with the EuropeanPowers and thereby obstruct progress

ithin the League.



It is asserted that some of the minortransatlantic States made thediscussions at the Hague Conferencesfutile by their claim to an equal vote.Now it is true that some of these Stateshave to a certain extent impeded the

ork of the Hague Conferences, butsome of the minor States of Europe,and even some of the Great Powers,have done likewise. The Community of States consisting of sovereign Statesdoes not possess any means of compelling a minority of States to fallin with the views of the majority, but Ishall show you very soon, when Iapproach the problem of International

Legislation, that InternationalLegislation of a kind is possible in spite



of this fact. And so much is certainthat the minimum of organisation of the new League which is now necessary,cannot be considered to be endangeredby the admittance of the minortransoceanic States into the League.

Progress will in any case be slow, andperfect unanimity among the Powers

ill in any and every case only bepossible where the international interestsof all the Powers compel them to putaside their real or imaginary particularnational interests.

IX. For these reasons I take it forgranted that the organisation of a new

League of Nations should start fromthe beginning made by the Hague Peace



Conferences. Therefore the following seven principles ought to be accepted:

First principle: The League of Nationsis composed of all civilised States

hich recognise one another's external

and internal independence andabsolute equality before InternationalLaw.

Second principle: The chief organ of the League is the Peace Conference atthe Hague. The Peace Conferences meetperiodically say every two or three years

ithout being convened by any specialPower. Their task is the gradual

codification of International Law andthe agreement upon such International



Conventions as are from time to timenecessitated by new circumstances andconditions.

Third principle: A permanent Councilof the Conference is to be created, the

members of which are to be resident atthe Hague and are to conduct all thecurrent business of the League of Nations. This current businesscomprises: The preparation of themeetings of the Peace Conference; theconduct of communications with theseveral members of the League withregard to the preparation of the work of the Peace Conferences; and all other

matters of international interest whichthe Conference from time to time



hands over to the Council.

Fourth principle: Every recognisedsovereign State has a right to take partin the Peace Conferences.

Fifth principle: Resolutions of theConference can come into force only inso far as they become ratified by theseveral States concerned. On the otherhand, every State agrees once for allfaithfully to carry out those resolutions

hich have been ratified by it.

Sixth principle: Every State that takespart in the Peace Conferences is bound

only by such resolutions of theConferences as it expressly agrees to



and ratifies. Resolutions of a majority only bind the majority. On the otherhand, no State has a right to demandthat only such resolutions as it agrees toshall be adopted.

Seventh principle: All members of theLeague of Nations agree once for all tosubmit all judicial disputes toInternational Courts which are to beset up, and to abide by their judgments.They likewise agree to submit, previousto resorting to arms, all non-judicialdisputes to International Councils of Conciliation which are to be set up.And they all agree to unite their

economic, military, and naval forcesagainst any one or more States which



resort to arms without submitting theirdisputes to International Courts of ustice or International Councils of

Conciliation.

ou will have noticed that my

proposals do not comprise the creationof an International Government, anInternational Executive, anInternational Parliament, and anInternational Army and Navy which

ould serve as an International PoliceForce. No one can look into the futureand say what it will bring, but it iscertain that for the present, and forsome generations to come, all attempts

at creating an InternationalGovernment are not only futile but



dangerous; because it is almost certainthat a League of Nations comprising anInternational Executive, anInternational Parliament, and anInternational Army and Navy wouldsoon collapse.

X. However this may be, and whatevermay be the details of the organisationof the League, such necessary organisation is not an end in itself buta means of attaining three objects,namely: International Legislation,International Administration of Justice,and International Mediation. I shalldiscuss International Administration

of Justice and International Mediationin my next lecture, to-day I will only



draw your attention to InternationalLegislation.

In using the term 'InternationalLegislation,' it must be understood thatlegislation' is here to be understood in

a figurative sense only. When we speak of legislation in everyday language, wemean that process of parliamentary activity by which Municipal Statutes arecalled into existence. MunicipalLegislation presupposes a sovereignpower, which prescribes rules of conduct to its subjects. It is obviousthat within the Community of Statesno such kind of legislation can take

place. Rules of conduct for themembers of the League of Nations can



only be created by an agreementamongst those members. WhereasMunicipal Statutes contain the rules of conduct set by an authority sovereignover its subjects, International Statutesif I may be allowed to use that term

contain rules of conduct which themembers of the Community of Stateshave agreed to set for themselves.International Statutes are created by theso-called Law-making Treaties of thePowers. But in one point MunicipalLegislation and the Law-making Treaties of the Powers resemble oneanother very closely: both intend tocreate law, and for this reason it is

permissible to use the termInternational Legislation' figuratively



for the conclusion of suchinternational treaties as contain rules of International Law.

Now it would be very misleading tobelieve that no International Legislation

has taken place in the past. The fact isthat, from the Vienna Congress of 1815 onwards, agreements have beenarrived at upon a number of rules of International Law. However, suchagreements have only occurredoccasionally, because the Community of civilised States has not hithertopossessed a permanently establishedorgan for legislating. Much of the

legislation which has taken place in thepast was only a by-product of



Congresses or Conferences which hadassembled for other purposes. On theother hand, when legislation on acertain subject was considered pressing,a Congress or Conference wasconvened for that very purpose. It will

be only when the Hague PeaceConferences have become permanently established that an organ of the Leagueof Nations for legislating internationally will be at hand. And a

ide field is open for such legislation.The bulk of International Law in itspresent state is if I may say so a book law, it is customary law which is only tobe 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 ablegradually to create international statutes

hich will turn this book law into firm,clear, and authoritative statutory law.

XI. But you must not imagine thatInternational 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 draftInternational Statutes in all languages, itis absolutely necessary to agree uponone 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 greaterthan the difficulty which arises whentwo States, which speak differentlanguages, have to agree upon anordinary convention. One point,however, must be specially observed,

and that is: when any question of theinterpretation of an InternationalStatute occurs, it is the French text of the statute which is authoritative, andnot the text of the translation intoother languages.

XII. Another difficulty with regard toInternational Legislation is theconflicting national interests of the

different States. As InternationalStatutes are only possible when the



several States come to an agreement, itill often not be possible to legislate

internationally on a given matter,because the interests of the differentStates will be so conflicting that anagreement cannot be arrived at. On the

other hand, as time goes on theinternational interests of the severalStates frequently become so powerfulthat these Governments are quite ready to brush aside their particular interests,and to agree upon a compromise whichmakes International Legislationconcerning the matter in questionpossible.

XIII. A third difficulty with regard toInternational Legislation is of quite a



particular kind. It arises from the factthat International Statutes cannot becreated 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 beovercome by dropping the contentionthat no legislation of any kind can beproceeded with unless every memberof the League of Nations agrees to it.It is a well-known fact that a distinctionhas to be made between universal International Law, that is, rules to

hich every civilised State agrees, and

eneral International Law, that is, rules tohich only the greater number of



States agree. Now it is quite certain thatno universal International Law can becreated by legislation to which notevery 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, thetime will come when the dissenting States will gradually accede. The SecondHague Peace Conference acted on thisprinciple, for a good many of itsConventions were only agreed upon by the greater number, and not by all, of

the participating States.



XIV. A fourth difficulty with regard toInternational Legislation is thedifficulty of the interpretation of, andthe construction to be put upon,International Statutes as well asordinary international conventions. We

do not as yet possess universally recognised rules of International Law concerning such interpretation andconstruction. Each nation applies toInternational Statutes those rules of interpretation and construction whichare valid for the interpretation andconstruction of their MunicipalStatutes.

Many international disputes have beendue in the past to this difficulty of



Courts.

On the other hand, England and theUnited States of America interpret thisarticle to mean merely that the occupant of enemy territory is prohibited from

declaring abolished, suspended, orinadmissible in a Court of Law therights and actions of the nationals of the hostile party.

hat is the cause of this divergentinterpretation of an article, the literalmeaning of which seems to be quiteclear The divergence is due to thedifferent mode of interpretation of

statutes resorted to by continentalCourts, on the one hand, and, on the



other hand, by British and AmericanCourts.

Continental Courts take intoconsideration not only the literalmeaning of a clause of a statute, but

also the intention of the legislator asevidenced by what I should like to callthe history of the clause. They look forthe intention of the draftsman, they search the Parliamentary proceedingsconcerning the clause, and they interpret and construe the clause withregard to the intention of thedraftsman as well as to the proceedingsin Parliament.

Now Article 23(h) of the Hague



Regulations was inserted on the motionof the German delegates to the SecondHague Peace Conference, and there isno doubt that the German delegatesintended by its insertion to prevent theMunicipal Law of belligerents from

possessing a rule according to whichthe outbreak of war suspends or avoidscontracts with alien enemies, andprohibits alien enemies from bringing an action in the Courts. It is for thisreason that Germany and othercontinental States interpret Article23(h) according to the intention of theGerman delegates.

On the other hand, in interpreting andconstruing a clause of a statute, British



and American Courts refuse to takeinto consideration the intention of thedraftsman, Parliamentary discussionsconcerning the clause, and the like.They only take into consideration theliteral meaning of the clause as it stands

in the statute of which it is a part. Now Article 23(h) is a clause in theConvention concerning the Laws andCustoms of War on Land. It is one of several paragraphs of Article 23 whichcomprises the prohibition of a numberof acts by the armed forces of belligerents in warfare on land, such asthe employment of poison or poisonedarms, and the like. The British and

American delegates, believing that itonly concerned an act on the part of



belligerent forces occupying enemy territory, therefore consented to theinsertion of Article 23(h), and ourCourt of Appeal in the case of Porterv. Freundenberg (1915) held thatArticle 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 beenagreed upon which lays down detailedrules concerning interpretation andconstruction, or so long asInternational Courts have not

developed such rules in practice. Butthe problem of International Courts is



itself a very difficult one; it will be thesubject of my third lecture which willdeal with Administration of Justice andMediation within the League of Nations.

[1] By a letter of February 28, 1911, Idrew the attention of the ForeignOffice to the interpretation of Article23(h) which generally prevailed on theContinent. This letter and the answer Ireceived were privately printed, andcopies were distributed amongst thosemembers and associates of the Instituteof International Law who attended themeeting at Madrid. Since French,

German, and Italian International Law ournals published translations, but the



original of the correspondence wasnever published in this country, I think it advisable to append it to this lecture.

APPENDIX

CORRESPONDENCE WITH THEFOREIGN OFFICE RESPECTINGTHE INTERPRETATION OFARTICLE 23(h) OF THE HAGUEREGULATIONS CONCERNINGLAND WARFARE

LETTER FROM THE PRESENTRITER TO THE FOREIGN

OFFICE.

HEWELL HOUSE, CAMBRIDGE,



28th February, 1911.

TO THE UNDER SECRETARY OFSTATE FOR FOREIGN AFFAIRS.

SIR,

I venture to bring the following matterbefore your consideration:

In the course of my recent studies Ihave been dealing with the laws andusages of war on land, and I have hadto consider the interpretation of Article23(h) of the Regulations attached tothe Convention of 1907 relating to the

Laws and Customs of war on land. Ifind that the interpretation prevailing



among all continental and someEnglish and American authorities iscontrary to the old English rule, and I

ould respectfully ask to be informedof the view which His Majesty'sGovernment place upon the article in

question.

To give some idea as to how aninterpretation of Article 23(h) contrary to the old English rule prevailsgenerally, I will quote a number of French, German, English, andAmerican writers, the works of whom Ihave at hand in my library, and I willalso quote the German Weissbuch

concerning the results of the secondHague Conference of 1907.



Bonfils, Manuel de droit international ublic , 5th ed. by Fauchille, 1908,

discusses, on page 651, the doctrinehich denies to an enemy subject any

ersona standi in judicio, but adds: '...

Article 23(h) decide qu'il est interdit dedeclarer eteints, suspendus ou nonrecevables en justice, les droits etactions des nationaux de la partieadverse.'

Politis, Professor of International Law in the University of Poitiers (France), inhis report to the Institute of International Law, Session of Paris

(1910), concerning Effets de la Guerre surles Obligations Internationales et les Contra



rives , page 18, says:

Un point hors de doute, c'est, que laguerre ne peut, ni par elle-meme ni parla volonte des belligerants, affecter lavalidite ou l'execution des contrats

anterieurs. Cette regle fait desormaispartie du droit positif. L'article 23(h) dunouveau Reglement de la Haye interditformellement aux belligerants "dedeclarer eteints, suspendus ou nonrecevables en justice les droits et actionsdes nationaux de la partie adverse."

Cette formule condamne d'anciensusages conserves encore, en partie, dans

certains pays. Elle proscrit d'abord tousles moyens annulation ou confiscation



par lesquels on chercherait a atteindre,dans leur existence, les droits nes avantla guerre. Elle exclut, en second lieu,l'ancienne pratique qui interdisait auxparticuliers ennemis l'acces destribunaux. Elle prohibe, enfin, toutes

les mesures legislatives ou autrestendant a entraver au cours de la guerrel'execution ou les effets utiles desobligations privees, notamment le coursdes interets.

Il y a la progres incontestable. Et l'ondoit etre reconnaissant a la delegationallemande a la 2e Conference de la paixde l'avoir provoque.

L'accueil empresse et unanime qu'a



recu cette heureuse initiative permetd'esperer que de nouveaux progrespourront etre realises dans cet ordred'idees.

On doit souhaiter que la disposition de

l'article 23(h), etrangere a l'hypothese del'occupation du territoire ennemi, soitdistraite du reglement de 1907 (commeles articles 57 a 60 l'ont ete duReglement de 1899) pour etre mieuxplacee dans une convention nouvelle,ou d'autres textes viendraient lacompleter.'

Ullmann, Voelkerrecht , 2nd ed. 1908, p.

474, says:



hinzugefuegte Article 23(h): "Untersagtist die Aufhebung oder zeitweiligeAusserkraftsetzung der Rechte undForderungen von Angehoerigen derGegenpartei oder der Ausschliessung ihrer Klagbarkeit."'

hittuck, International Documents ,London 1908, Introduction p. xxvii,says 'In Article 23(h) it is prohibited todeclare abolished, suspended orinadmissible in a court of law therights and actions of the nationals of the other belligerent which is adevelopment of the principle that theprivate property of the subjects of a

belligerent is not subject toconfiscation. This new prohibition if



accepted by this country wouldnecessitate some changes in ourmunicipal law.'

Holland, The Laws of War on Land ,1908, says on p. 5 that: 'Article 23(h)

seems to require the Signatory Powersto the convention concerned tolegislate for the abolition of an enemy'sdisability to sustain a persona standi in udicio.' (See also Holland, loco citato, p.44, where he expresses his doubtsconcerning the interpretation of Article23(h).)

Bordwell, The Law of War between

Belligerents , Chicago 1908, recognises onpage 210 the fact that according to



Article 23(h) an alien enemy must now be allowed to sue in the courts of abelligerent, 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 upthe same standpoint.

The only author who interprets Article23(h) in a different way is GeneralDavis, who in his Elements of International Law , 3rd edition 1908, page578, note 1, says:

It is more than probable that thishumane and commendable purpose



ould fail of accomplishment if amilitary commander conceived it to be

ithin his authority to suspend ornullify their operation, or to regardtheir application in certain cases as amatter falling within his administrative

discretion. Especially is this true wherea military officer refuses to receive wellgrounded complaints, or declines toreceive demands for redress, in respectto the acts or conduct of the troopsunder his command, from personssubject to the jurisdiction of the enemy

ho find themselves, for the timebeing, in the territory which he holds inmilitary occupation. To provide against

such a contingency it was deemed wiseto add an appropriate declaratory clause



Government, give any suchinformation concerning theconstruction of Article 23(h) as couldassist a jurist in forming an opinionregarding the correct interpretation.

It is, however, of importance to takenotice of the fact that Article 23(h) isan addition to Article 23 which wasmade on the proposition of Germany,and that Germany prefers aninterpretation of Article 23(h) which

ould seem to coincide with theinterpretation preferred by all thecontinental writers. This becomesclearly apparent from the German

Weissbuch ueber die Ergebnisse der im Jah1907 in Haag abgehaltenen



Friedensconferenz , which contains on page7 the following:

Der Artikel 23 hat gleichfalls auf deutschen Antrag zwei wichtigeZusaetze erhalten. Durch den ersten

ird der Grundsatz derUnverletzlichkeit desPrivateigenthumes auch auf demGebiete der Forderungsrechteanerkannt. Nach der Gesetzgebung einzelner Staaten soll naemlich derKrieg die Folge haben, dass dieSchuldverbindlichkeiten des Staatesoder seiner Angehoerigen gegenAngehoerige des Feindes aufgehoben

oder zeitweilig ausser Kraft gesetzt oderenigstens von der Klagbarkeit



ausgeschlossen werden. SolcheVorschriften werden nun durch denArtikel 23 Abs. 1 unter h fuerunzulaessig erklaert.'

However this may be, the details given

above show sufficiently that a divergentinterpretation of Article 23(h) from theold English rule is prevalent on theContinent, and is to some extent alsoaccepted by English and AmericanAuthorities, and it is for this reason thatI would ask whether His Majesty'sGovernment consider that the oldEnglish rule is no longer in force.

I have, &c.,



(Signed) L. OPPENHEIM.

LETTER FROM THE FOREIGNOFFICE TO THE PRESENT

RITER.

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 hisattention to the misconceptions whichappear to prevail so largely among thecontinental writers on international law

ith regard to the purport and effectof Article 23(h) of the Convention of



October 18th, 1907, respecting the lawsand customs of war on land.

It seems very strange that jurists of thestanding of those from whose writingsyou quote could have attributed to the

article in question the meaning andeffect they have given it if they hadstudied the general scheme of theinstrument in which it finds a place.

The provision is inserted at the end of an article dealing with the prohibitedmodes of warfare. It forms part of Chapter I. of Section II. of theRegulations annexed to the

Convention. The title of Chapter I. isMeans of injuring the enemy, sieges



and bombardment': and if the articleitself is examined it will be seen to deal

ith such matters as employing poisonor poisoned weapons, refusing quarter,use of treachery and the unnecessary destruction of private property.

Similarly the following articles (24 to28) all deal with the restrictions whichthe nations felt it incumbent uponthem from a sense of humanity toplace upon the conduct of their armedforces in the actual prosecution of military operations.

The Regulation in which these articlesfigure is itself merely an annex to the

Convention which alone forms thecontractual obligation between the



parties, and the engagement which theparties to the Convention haveundertaken is (Article 1) to 'issueinstructions to their armed land forcesin conformity with the Regulationsrespecting the Law and Customs of

ar on land.'

This makes it abundantly clear that thepurpose and scope of the Regulationsis limited to the proceedings of thearmies in the field; those armies areunder the orders of the commanders,and the Governments are bound toissue instructions to those commandersto act in accordance with the

Regulations. That is all. There isnothing in the Convention or in the



Regulations dealing with the rights orthe status of the non-combatantindividuals, 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 theRegulations because they areindividuals who are affected by themilitary operations, and in a sense aregulation which forbids a military commander from poisoning a wellgives a non-combatant inhabitant aright or a quasi-right not to have his

ell poisoned, but his rights against hisneighbours, his relations with private

individuals, whether of his own or of enemy nationality, remain untouched b



this series of rules for the conduct of arfare on land.

Turning now to the actual wording of Article 23(h) it will be seen that itbegins with the wording 'to declare.' It

is particularly forbidden 'to declare abolished, &c.' This wording necessarily contemplates the issue of someproclamation or notificationpurporting to abrogate or to changerights previously existing and which

ould otherwise have continued toexist, and in view of Article I of theConvention this hypotheticalproclamation must have been one

hich it was assumed the commanderof the army would issue; consequently,



stated broadly, the effect of Article23(h) is that a commander in the field isforbidden to attempt to terrorise theinhabitants of the theatre of war by depriving them of existing opportunities of obtaining relief to

hich they are entitled in respect of private claims.

Sir E. Grey is much obliged to you forcalling his attention to the extract whichyou quote from the German WhiteBook. This extract may be translated asfollows: 'Article 23 has also received onGerman proposal two weighty additions. By the first the fundamental

principle of the inviolability of privateproperty in the domain of legal claims



is recognised. According to thelegislation of individual states, war hasthe result of extinguishing ortemporarily suspending, or at least of suppressing the liability of the state orits nationals to be sued by nationals of

the enemy. These prescriptions havenow been declared inadmissible by Article 23(h).'

The original form of the addition toArticle 23 which the German delegatesproposed was as follows: 'de declarereteintes, suspendues ou non recevablesles reclamations privees deressortissants 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 theeffect that the proposed addition to thearticle was intended to mean more than

its wording necessarily implied, thoughthere is a statement by one of theGerman delegates in the proces-verbalof the 1st meeting of the 1st sub-Committee of the 2nd Committee, onuly 3rd, which in all probability must

have referred to this particularamendment, though the proces-verbaldoes not render it at all clear; nor is thestatement itself free from ambiguity. An

amendment was suggested andaccepted at the second meeting to add



the words 'en justice' after 'nonrecevables,' and in this form the sub-article was considered by an examining committee, was accepted andincorporated in Article 23, and broughtbefore and accepted by the Conference

in its 4th Plenary Sitting on the 17thAugust, 1907.

The subsequent alteration in theording must have been made by the

Drafting Committee, but cannot havebeen considered to affect the substanceof the provision, as in the 10th Plenary Sitting on October 17th, 1907, thereporter of the Drafting Committee, in

dealing with the verbal amendmentsmade in this Convention, merely said,



En ce qui concerne le reglement lui-meme, je n'appellerai pas votreattention sur les differentesmodifications de style sans importanceque nous y avons introduites.'

Nor is there anything to indicate any such far-reaching interpretation as theGerman White Book suggests in thereport which accompanied the drafttext of the Convention when it wasbrought before the Plenary Sitting of the Conference (Annex A. to 4thPlenary Sitting). It merely states that theaddition is regarded as embodying invery happy terms a consequence of the

principles accepted in 1899.



The result appears to Sir E. Grey to bethat neither the wording nor thecontext nor the circumstances attending the introduction of the provision

hich now figures as Article 23(h)support the interpretation which the

riters you quote place upon it andhich the German White Book

endorses.

Sir E. Grey notices that, in the extractyou quote, Monsieur Politis, afterplacing his own interpretation upon thearticle, remarks that it is quite foreign tothe hypothesis of the occupation of territory and ought to be removed from

the Regulations and turned into aConvention by itself. If this



interpretation were correct, this remark of Monsieur Politis is certainly true:but the fact that the provision appears

here it does should have suggested toMonsieur Politis that it does not bearthe interpretation he puts upon it.

Nor does it appear to Sir E. Grey thatthe provision conflicts with theprinciple of the English common law that an enemy subject is not entitled tobring an action in the courts to sustaina contract, commerce with enemy subjects being illegal.

That principle operates automatically

on the outbreak of war, it requires nodeclaration by the Government, still



enquiry and consideration, and, whenmade at all, it must be done by aconvention that applies to war both onland and sea.

They certainly have not become parties

to any such modification by agreeing toa convention which relates only to theinstructions they are to give thecommanders of their armed forces, and

hich is limited to war on land.

I am, &c.,

(Signed) F. A. CAMPBELL.



THIRD LECTURE

ADMINISTRATION OF JUSTICEAND MEDIATION WITHIN THELEAGUE OF NATIONS

SYNOPSIS

I. Administration of Justice within theLeague is a question of InternationalCourts, but it is incorrect to assert thatInternational Legislation necessitatesthe existence of International Courts.

II. The Permanent Court of Arbitration created by the First Hague

Peace Conference.



III. The difficulties connected withInternational Administration of Justiceby International Courts.

IV. The necessity for a Court of Appealabove the International Court of First

Instance.

V. The difficulties connected with thesetting up of International Courts of ustice.

VI. Details of a scheme whichrecommends itself because itdistinguishes between the Court as a

hole and the several Benches which

ould be called upon to decide thecases.



VII. The advantages of therecommended scheme.

VIII. A necessary provision for so-called complex cases of dispute.

IX. A necessary provision with regardto the notorious clause rebus sic stantibus.

X. The two starting points for asatisfactory proposal concerning International Mediation by International Councils of Conciliation.Article 8 of the Hague Conventionconcerning Pacific Settlement of

International disputes. The PermanentInternational Commissions of the



Bryan Peace Treaties.

XI. Details of a scheme whichrecommends itself for theestablishment of InternationalCouncils of Conciliation.

XII. The question of disarmament.

XIII. The assertion that Statesrenounce their sovereignty by entering into the League.

XIV. Conclusion: Can it be expectedthat, in case of a great conflict of interests, all the members of the League

ill faithfully carry out theirengagements



THE LECTURE

I. My last lecture dealt with theorganisation of a League of Nationsand International Legislation by the

League. To-day I want to draw yourattention to InternationalAdministration of Justice andInternational Mediation within theLeague.

I begin with InternationalAdministration of Justice which, of course, is a question of InternationalCourts of Justice. Hitherto, although

International Legislation has been tosome extent in existence, no



International Courts have beenestablished before which States indispute have been compelled to appear.Now there is no doubt thatInternational Legislation loses in valueif there are no arrangements for

International Administration of Justiceby independent and permanentInternational Courts. Yet it is incorrectto assert, although it is frequently done,that one may not speak of legislationand a law created by legislation withoutthe existence of Courts to administersuch law.

hy is this assertion incorrect Because

the function of Courts is to decidecontroversial questions of law or of fact



in case the respective parties cannotagree concerning them. However, inmost 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 existencefor several hundred years, and itscommands have in most cases beencomplied with in the absence of International Courts. On the otherhand, 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 nohighly developed Community can exist



for long without Courts of Justice.

II. The Community of civilised Statesdid not, until the end of the nineteenthcentury, possess any permanentinstitution which made the

administration of international justicepossible. When States were in conflictand, instead of having recourse toarms, resolved to have the disputepeaceably settled by an award, in every case they agreed upon so-calledarbitration, and they nominated one ormore arbitrators, whom they asked togive a verdict. For this reason, it was anepoch-making step forward when the

First Peace Conference of 1899 agreedupon the institution of a Permanent



Court of Arbitration, and a code of rules for the procedure before thisCourt. Although the term 'PermanentCourt of Arbitration,' as applied to theinstitution established by the FirstHague Peace Conference, is only a

euphemism, since actually the Courtconcerned is not a permanent one andthe members of the Court have inevery case to be nominated by theparties, there is in existence, firstly, apermanent panel of persons from

hich the arbitrators may be selected;secondly, a permanent office at theHague; and, thirdly, a code of procedure before the Court. Thereby

an institution has been establishedhich is always at hand in case the



parties in conflict want to make use of it; whereas in former times parties inconflict had to negotiate a long time inorder to set up the machinery forarbitration. And the short time of twenty years has fully justified the

expectations aroused by the institutionof the Permanent Court of Arbitration, for a good number of cases have been brought before it andsettled to the satisfaction of the partiesconcerned.

And the Second Hague PeaceConference of 1907 contemplatedfurther steps by agreeing upon a treaty

concerning the establishment of anInternational Court of Appeal in Prize



Cases, and upon a draft treaty concerning a really PermanentInternational Court of Justice side by side with the existing Court of Arbitration. Although neither of thesecontemplated International Courts has

been established, there is no doubt that,if after the present war a League of Nations becomes a reality, one or moreInternational Courts of Justice willsurely be established, although theexisting Permanent Court of Arbitration may remain in being.

III. But just as regards InternationalLegislation, I must warn you not to

imagine that InternationalAdministration of Justice by



International Courts is an easy matter.It is in fact full of difficulties of many kinds.

The peculiar character of InternationalLaw; the rivalry between the different

schools of international jurists, namely the Naturalists, Positivists, andGrotians; the question of language; thepeculiarities of the systems of law of the different States, of theirconstitutions, and many otherdifficulties, entail the danger thatInternational Courts may become thearena of national jealousies, of empty talk, and of political intrigues, instead

of being pillars of international justice.



Everything depends upon whatprinciples will guide the States in theirselection of the individuals whom they appoint as members of InternationalCourts. Not diplomatists, notpoliticians, but only men ought to be

appointed who have had a training inlaw in general, and in International Law in particular; men who are linguists,knowing, at any rate, the Frenchlanguage besides their own; men whopossess independence of character andare free from national prejudices of every kind. There is no doubt that,under present conditions andcircumstances of international life, the

institution of International Courtsrepresents an unheard of experiment.



There is, however, likewise no doubtthat now is the time for the experimentto be made, and I believe that theexperiment will be successful, providedthe several States are careful in theappointment of the judges.

IV. And it must be emphasised that anInternational Court of Appeal abovethe one or several International Courtsis a necessity. Just as Municipal Courtsof Justice, so International Courts of ustice are not infallible. If the States

are to be compelled to have theirudicial 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 inthis way that in time a body of International Case Law can grow up,

hich will be equivalent in its influenceupon the practice of the States to themunicipal case law of the different

States.

V. I have hitherto considered in ageneral way only the difficulties of International Administration of Justice;I have not touched upon the particulardifficulties connected with the setting up and manning of InternationalCourts. If the several States could easily agree upon, say, five qualified men as

udges of a Court of First Instance,and upon, say, seven qualified men as



udges of a Court of Appeal, thereould be no difficulty whatever in

setting up these two Courts. Andperhaps some generations hence thetime may come when such anagreement will be possible. In our time

it cannot be expected, and heretherefore lies the great difficulty in the

ay of setting up and manning International Courts of Justice; becausethere is no doubt that each State willclaim the right to appoint at least oneman of its own choice to sit as judge inthe International Court or Courts. Andsince there are about fifty or morecivilised independent States in

existence, the International Courtould comprise fifty or more members.



Now why would the several Statesclaim a right to appoint at least oneman of their own choice as judge They

ould do this because they desire tohave a representative of their own

general legal views in the Court. It is aell-known fact that not only the legal

systems which prevail in the severalStates differ, but also that there aredifferences concerning the fundamentalconceptions of justice, law, procedure,and evidence. Each State fears that anInternational Court will create apractice fundamentally divergent fromits general legal views, unless there is at

least one representative of its owngeneral legal views sitting in the Court.



I think that in spite of everything thedifficulty is not insurmountableprovided a scheme for an InternationalCourt which follows closely the modelof Municipal Courts is not insisted

upon. Just as the organisation of aLeague of Nations cannot follow themodel of the organisation of a State,so the attempt to set up anInternational Court must not aim atfollowing closely the model of Municipal Courts. What is required isan institution which secures thesettlement of judicial internationaldisputes by giving judgments on the

basis of law. I think this demand can besatisfied by a scheme which would meet



both the claim of each State tonominate one judge and the necessity not to overcrowd the Bench whichdecides each dispute.

VI. The scheme which I should like to

recommend is one which distinguishesbetween the Court as a whole and theseveral Benches which would be calledupon to decide the several cases. It is asfollows:

The Court as a whole to consist of asmany judges as there are members of the League, each member to appointone judge and one deputy judge who

ould take the place of the judge incase of illness or death or other cause



fifth; and so on. Anyhow, somearrangement would have to be madeaccording to which the minor Powersunite upon the appointment of half the number of the Permanent Bench.

If a judicial dispute arises between twoStates, the case to go in the firstinstance before a Bench comprising thetwo judges appointed by the two Statesin dispute and a President who, as eachcase arises, is to be selected by thePermanent Bench of the Court fromthe members of this Bench. This Courtof First Instance having given itsudgment, each party to have a right of

appeal. The appeal to go before thePermanent Bench at the Hague, which



is to give judgment with a quorum of six judges with the addition of thoseudges who served as the Bench of

First Instance. The right of appeal toexist only on questions of law and noton questions of fact.

Decisions of the Appeal Court to bebinding precedents for itself and forany Courts of First Instance. Butshould the Appeal Court desire to goback on a former decision of law, thisto be possible only at a meeting of theCourt comprising at least twelvemembers of the Permanent Bench.

VII. The proposal which I have justsketched, and which will need to be



orked out in detail if it is to berealised, offers the following advantages:

Every case would in the first instancebe decided by a small Bench which

ould enjoy the confidence of bothparties because they would have theirown judge in the Court. This point isof particular importance with regard tothe mode of taking evidence andmaking clear the facts; but is likewiseof importance on account of thedivergence of fundamental legal viewsand the like.

Since the Court of Appeal would only decide points of law, the facts as



elucidated by the Bench of FirstInstance would remain settled. But theexistence of the Court of Appeal

ould enable the parties to re-arguequestions of law with all details. Thefact that six of the Bench which serves

as a Court of Appeal are members of the Permanent Bench would guaranteea thorough reconsideration of thepoints of law concerned, and likewisethe maintenance and sequence of tradition in InternationalAdministration 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



time involved a vital political principleor claim. Take the case of a SouthAmerican State entering into anagreement with a non-American Stateto lease to it a coaling station: this caseis justiciable, but besides the question

of law there is a political claim involvedin it, namely, the Monroe doctrine of the United States. Unless provision bemade for the settlement of suchcomplex cases, the League of Nations

ill not be a success, for it might wellhappen that a case touches vitalpolitical interests in such a way as notto permit a State to have it settled by amere juristic decision.

Now my proposal to meet such



complex cases is that when a party objects to a settlement of a case onmere juristic principles, although theother party maintains that it is austiciable case, the Bench which is to

serve as Bench of First Instance shall

investigate the matter with regard to thequestion whether the case is morepolitical than legal in nature. If theCourt decides the question in thenegative, then the same Court shall giveudgment on the dispute; but, if the

Court decides the question in theaffirmative, then the case shall bereferred by the Court to theInternational Council of Conciliation.

hatever the decision of the Bench of First Instance may be, each party shall



have the right of appeal to thePermanent Bench which serves as theCourt of Appeal.

IX. The other point which I desire tomention before I leave the subject of

International Administration of Justiceconcerns the notorious principleconventio omnis intelligitur rebus sic stant.

ou know that almost all publicists andalso almost all Governments assert theexistence of a customary rule according to which a vital change of circumstances after ratification of atreaty may be of such a kind as toustify a party in demanding to be

released either from the whole treaty orfrom certain obligations stipulated in it.



two starting points offer themselves.One starting point is the special formof mediation recommended by Article8 of the Hague Convention concerning the pacific settlement of internationaldisputes. The following is the text of

this Article 8:

The Signatory Powers are agreed inrecommending the application, whencircumstances allow, of specialmediation in the following form:

In case of a serious differenceendangering peace, the contending States choose respectively a Power, to

hich they intrust the mission of entering into direct communication



ith the Power chosen on the otherside, with the object of preventing therupture of pacific relations.

For the period of this mandate, theterm of which, in default of agreement

to the contrary, cannot exceed thirty days, the States at variance cease fromall direct communication on the subjectof the dispute, which is regarded asreferred exclusively to the mediating Powers. These Powers shall use theirbest efforts to settle the dispute.

In case of a definite rupture of pacificrelations, these Powers remain jointly

charged with the task of taking advantage of any opportunity to



Art. I. 'The High Contracting Partiesagree that all disputes between them, of every nature whatsoever, other thandisputes the settlement of which isprovided for and in fact achieved underexisting agreements between the High

Contracting Parties, shall, whendiplomatic methods of adjustmenthave failed, be referred for investigationand report to a permanentInternational Commission, to beconstituted in the manner prescribed inthe next succeeding article; and they agree not to declare war or beginhostilities during such investigation andbefore the report is submitted.'

Art. II. 'The International Commission



shall be composed of five members, tobe appointed as follows: One membershall be chosen from each country, by the Government thereof; one membershall be chosen by each Governmentfrom some third country; the fifth

member shall be chosen by commonagreement between the twoGovernments, it being understood thathe shall not be a citizen of eithercountry. The expenses of theCommission shall be paid by the twoGovernments in equal proportions.'

The International Commission shall beappointed within six months after the

exchange of the ratifications of thistreaty; and vacancies shall be filled



according to the manner of the originalappointment.'

Art. III. 'In case the High Contracting Parties shall have failed to adjust adispute by diplomatic methods, they

shall at once refer it to the InternationalCommission for investigation andreport. The International Commissionmay, however, spontaneously by unanimous agreement offer its servicesto that effect, and in such case it shallnotify both Governments and requesttheir co-operation in the investigation.'

Keeping in view the special form of

mediation recommended by Article 8of the Hague Convention concerning



the Pacific Settlement of InternationalDisputes and the stipulations of theBryan Peace Treaties concerning Permanent International Commissions,

e can reach a satisfactory solution of the problem of International

Mediation if we take into considerationthe two reasons why a League of Nations must stipulate the compulsionof its members to bring non-justiciabledisputes before a Council of Conciliation previous to resorting tohostilities. These reasons are, firstly, that

ar in future shall not be declaredithout a previous attempt to have the

dispute peaceably settled, and, secondly,

that war in future shall not break outlike a bolt from the blue.



XI. My proposal concerning International Councils of Conciliationis the following:

Every member of the League shall

appoint for a term of years say five orten two conciliators and two deputy conciliators from among their ownsubjects, and one conciliator and onedeputy conciliator from among thesubjects of some other State. Now

hen a non-justiciable dispute arisesbetween two States which has not beensettled by diplomatic means, the threeconciliators of each party in dispute

shall meet to investigate the matter, toreport thereon, and to propose, if



possible, a settlement.

According to this proposal there wouldbe in existence a number of Councilsof Conciliation equal to half thenumber of the members of the League.

henever a dispute arises, thePermanent Council of Conciliation

ith which I shall deal presently shallappoint a Chairman from amongst itsown members. The Council thusconstituted shall investigate the case,report on it, send a copy to each party in dispute and to the PermanentCouncil of Conciliation.

The Permanent Council of Conciliationshould be a small Council to be



established by each of the GreatPowers appointing one conciliator andone deputy conciliator for a period of say five or ten years. The reason why only the Great Powers should berepresented in the Permanent Council

of Conciliation at the Hague is thatnaturally, in case coercion is to beresorted to against a State which begins

ar without having previously submitted the dispute to a Council of Conciliation, the Great Powers will bechiefly concerned. This PermanentCouncil of Conciliation would have to

atch the political life of the membersof the League and communicate with

all the Governments of the members incase the peace of the world were



has the advantage that non-justiciabledisputes would in each case beinvestigated and reported on by conciliators who have once for all beenappointed by the States in dispute and

ho therefore possess their confidence.

On the other hand, the proposedPermanent Council of Conciliation

ould guarantee to the Great Powersthat important influence which is dueto them on account of the fact thatthey would be chiefly concerned in caseeconomic, military, or naval measureshad to be resorted to against arecalcitrant member of the League.

XII. Having discussed InternationalMediation by International Councils of



Conciliation, I must now turn to twoquestions which I have hithertopurposely omitted, although in the eyesof many people they stand in theforefront of interest, namely, firstly,disarmament as a consequence of the

peaceable settlement of disputes by anInternational Court of Justice andInternational Councils of Conciliation,and, secondly, the question of thesurrender of sovereignty which it isasserted is involved by the entrance of any State into the proposed League of Nations.

Now as regards disarmament, I have

deliberately abstained from mentioning it hitherto, although it is certainly a



question of the greatest importance.The reason for my abstention is a very simple one. I have always maintainedthat disarmament can neither diminishthe number of wars nor abolish waraltogether, but that, if the number of

ars diminishes or if war be abolishedaltogether, disarmament will follow.There is no doubt that when once thenew League of Nations is in being, war

ill occur much more rarely thanhitherto. For this reason disarmament

ill ipso facto follow the establishmentof a League of Nations, and the detailsof such disarmament are matters which

ill soon be solved when once the new

League has become a reality. Yet I mustemphasise the fact that disarmament is



not identical with the total abolition of armies and navies. The possibility mustalways be kept in view that one or moremembers of the League will berecalcitrant, and that then the othermembers must unite their forces against

them. And there must likewise be keptin view the possibility of a war betweentwo members of the League onaccount of a political dispute in whichmediation by the InternationalCouncils of Conciliation wasunsuccessful. Be that as it may, it iscertain that in time disarmament cantake place to a very great extent, and itis quite probable that large standing

armies based on conscription mighteverywhere be abolished and be



replaced by militia.

XIII. Let me now turn to the questionof sovereignty. Is the assertion really true that States renounce theirsovereignty by entering into the League

The answer depends entirely upon theconception of sovereignty with whichone starts. If sovereignty wereabsolutely unfettered liberty of action,a loss of sovereignty would certainly beinvolved by membership of the League,because every member submits to theobligation never to resort to arms onaccount of a judicial dispute, and incase of a political dispute to resort to

arms only after having given anopportunity of mediation to an



International Council of Conciliation.But in fact sovereignty does not meanabsolutely boundless liberty of action;and moreover sovereignty has at notime been a conception upon thecontents of which there has been

general agreement.

The term 'sovereignty' was introducedinto political science by Bodin in hiscelebrated work 'De la Republique,'

hich appeared in 1577. Before thattime, the word souverain was used inFrance for any political or otherauthority which was not subordinate toany higher authority; for instance, the

highest Courts were called cours souveraines . Now Bodin gave quite a new



meaning to the old term. Being underthe influence and in favour of thepolicy of centralisation initiated by Louis XI of France (1461-1483), thefounder of French absolutism, Bodindefines sovereignty as the 'absolute and

perpetual power within a State.'However, even Bodin was far fromconsidering sovereignty to giveabsolutely unfettered freedom of action, for he conceded that sovereignty

as restricted by the commandmentsof God and by the rules of the Law of Nature. Be that as it may, thisconception of sovereignty onceintroduced was universally accepted;

but at the same time the meaning of the term became immediately a bone of



contention between the schools of publicists. And it is to be taken intoconsideration that the science of politics has learnt to distinguishbetween sovereignty of the State andsovereignty of the agents who exercise

the sovereign powers of the State.According to the modern view sovereignty is a natural attribute of every independent State as a State; andneither the monarch, nor Parliament,nor the people can possess any sovereignty of their own. Thesovereignty of a monarch, or of aParliament, or of the whole people isnot an original attribute of their own,

but derives from the sovereignty of theState which is governed by them. It is



outside the scope of this lecture to giveyou a history of the conception of sovereignty, it suffices to state theundeniable fact that from the time

hen the term was first introduced intopolitical science until the present day

there has never been unanimity withregard to its meaning, except that it is asynonym for independence of allearthly authority.

Now, do you believe that theindependence of a State is really infringed because it agrees never tomake war on account of a judicialdispute, and in case of a political

dispute not to resort to arms beforehaving given opportunity of mediation



to International Councils of Conciliation Independence is notboundless liberty of a State to do whatit likes, without any restriction

hatever. The mere fact that there is anInternational Law in existence restricts

the unbounded liberty of action of every civilised State, because every Stateis prohibited from interfering with theaffairs of every other State. The fact isthat the independence of every Statefinds its limitation in the independenceof every other State. And it is generally admitted that a State can throughconventions such as a treaty of allianceor of neutrality or others enter into

many obligations which more or lessrestrict its liberty of action.



Independence is a question of degree,and, therefore, it is also a question of degree whether or no the independenceof a State is vitally encroached upon by a certain restriction. In my opinion theindependence of a State is as little

infringed by an agreement to submit allits judicial disputes to the judgment of a Court and not to resort to arms for asettlement, as the liberty of a citizen isinfringed because in a modern State hecan no longer resort to arms onaccount of a dispute with a fellow citizen but must submit it to theudgment of the Court.

And even if it were otherwise, if theentrance of a State into the new League



of Nations did involve an infringementof its sovereignty and independence,humanity need not grieve over it. ThePrussian conception of the State as anend in itself and of the authority of the State as something above everything

else and divine a conception whichfound support in the philosophy of Hegel and his followers is adverse tothe ideal of democracy andconstitutional government. Just asHenri IV of France said 'La Francevaut bien une messe,' we may well say La paix du monde vaut bien la perte del'independance de l'etat.'

XIV. I have come to the end of thiscourse of lectures, but before we part I



should like, in conclusion, to touchupon a question which has frequently been put with regard to the proposalof a new League of Nations: Can itreally be expected that, in case of agreat conflict of interests, all the

members of the League will faithfully carry out their engagements Will thenew League stand the strain of suchconflicts as shake the very existence of States and Nations Will the Leaguereally stand the test of History

History teaches that many a State hasentered into engagements with theintention of faithfully carrying them

out, but, when a grave conflict arose,matters assumed a different aspect, with



the consequence that the engagementsremained unfulfilled. Will it bedifferent in the future Can the Powers

hich enter into the League of Nationstrust to the security which it promisesCan they be prepared to disarm,

although there is no guarantee that,hen grave conflicts of vital interests

arise, all the members of the Leagueill faithfully stand by their

engagements

These are questions which it is difficultto answer because no one can look intothe future. We can only say that, if really constitutional and democratic

government all the world over makesinternational politics honest and



reliable and excludes secret treaties, allthe chances are that the members of the League will see that their trueinterests and their lasting welfare areintimately connected with the necessity of fulfilling the obligations to which

they have submitted by their entranceinto the League. The upheaval createdby the present World War, the many millions of lives sacrificed, and theenormous economic losses sufferedduring these years of war, not only by the belligerents but also by all neutrals,

ill be remembered for many generations to come. It would thereforeseem to be certain that, while the

memory of these losses in lives andealth lasts, all the members of the



League will faithfully carry out theobligations connected with themembership of the League into whichthey enter for the purpose of avoiding such a disaster as, like a bolt from theblue, fell upon mankind by the

outbreak of the present war. On theother hand, I will not deny that no onecan guarantee the future; that conflictsmay arise which will shake thefoundations of the League of Nations;that the League may fall to pieces; andthat a disaster like the present may again visit mankind. Our generationcan only do its best for the future, andit must be left to succeeding

generations to perpetuate the work initiated by us.



INDEX

Administration of Justice by

International Courts, difficulties of, 62;maintenance of tradition of, 67;permanent institution for the, 61.

Aims of the League of Nationsdefined, 23, 28, 35-36.

Article 8 of the Hague Conventionconcerning the Pacific Settlement of International Disputes, 70.

Article 23(h) of the Hague Regulations



concerning Land Warfare, 45-55;controversy respecting interpretation of,45; correspondence respecting, withForeign Office, 48-55.

Autocratic Government, 11.

Belgium, 37, 66.

Bodin, 76.

Bonfils on Article 23(h) of the HagueRegulations concerning Land Warfare,49.

Bordwell on Article 23(h) of the Hague

Regulations concerning Land Warfare,50.



British Empire, 13, 20.

Bryan Peace Treaties, 71.

Bryce, Lord, scheme of, 36.

Central Powers, the, are they to becomemembers of the League of Nations 17,36; necessity for utter defeat of, 15, 37.

Colonies, wars for the acquisition of,10.

Complex cases of dispute, how tosettle, 68.

Congress of Vienna, 30, 42.



Constitutional Government, 10, 11;necessity for, 19.

Court of Appeal, International, 66, 67,69; manning of, 64.

Court of Arbitration, establishment of International, 61.

Court of First Instance, International,64; manning of, 66.

Crucee, Emeric, 9.

Davis, General, on Article 23(h) of the

Hague Regulations concerning Landarfare, 51.



Democracy, 10, 11.

Dickinson, scheme of Sir Willoughby,36.

Disarmament, 21, 74.

Dubois, Pierre, 8.

Dynastic wars, 10.

Engagements of the members of theLeague of Nations, security forfulfilment of, 79.

Equality, of States, 33, 39; of the votesat Hague Peace Conferences, 38.



Family, the, a product of naturaldevelopment, 10.

Family of Nations, political hegemony of the Great Powers within the, 31.

Federal World State, A, 18-20;demanded by Pacifists, 31; why notpossible, 19.

Foreign Office, letter of, to ProfessorOppenheim concerning Article 23(h),52-55.

German Confederation, civil war

ithin the, 32.



German Weissbuch on Article 23(h) of the Hague Regulations concerning Land Warfare, 51, 54, 55.

Germany, is she to become a memberof the League of Nations 17, 36;

necessity for the utter defeat of, 15, 37.

Great Powers, 30, 66; power andinfluence of the, 29-31.

Greece, city States of ancient, 7.

Gregory on Article 23(h) of the HagueRegulations concerning Land Warfare,50.

Grey, Earl, 5, 52, 53, 55.



Grotians, the School of, 62.

Grotius, Hugo, 9.

Hague Convention concerning the

Pacific Settlement of InternationalDisputes, Article 8 of, 70.

Hague Peace Conferences, 34; methodof legislating by, 45; the work of,obstructed by some States, 38; standing council of, proposed, 39; starting pointof organisation of League of Nationsby, 36, 39; votes of States of equalvalue at, 38.

Hague Regulations concerning Land



arfare, controversy respecting interpretation of Article 23(h) of, 45.

Henry IV of France, 9, 78.

Holland, Professor, on Article 23(h) of

the Hague Regulations concerning Land Warfare, 50.

Independence of States, what it is, 33,77.

International Army and Navy, why impossible, 6, 18, 20-22, 41.

International Case Law, 64.

International Council of Conciliation,



28, 40, 69; scheme for theestablishment of, 72-74; starting pointsfor, 70.

International Court of Appeal, 66, 67;a necessity, 63; manning of, 64.

International Court of First Instance,64; manning of proposed bench toserve as, 64.

International Court of Justice, 18, 28,65-68; manning of, 65; proposedpermanent bench of, 65, 66; proposedspecial benches of, for different cases,66.

International Courts, claims of all



States in manning of, 64; difficulties of manning of, 65; precedents of, 64.

International Executive, why impossible, 19, 41.

International Government, why impossible, 19.

International Law, a book law atpresent, 43; and League of Nationsinterdependent, 6, 33; complied withoften without Courts, 60; grew by custom during Middle Ages, 8; not inbeing in antiquity, 6; progress of, 33, 35,38; universal and general, difference

between, 44.



International Legislation, 38, 41-48; aby-product only in the past, 42;difficulties of, created by conflicting interests of States, 44; difficulties of,created by different methods of interpretation and construction, 45;

difficulties of, created by the fact that amajority vote cannot create a statute, 44;difficulties of, created by the languagequestion, 43; meaning of the term, 41;possible even without InternationalCourts, 42, 60; possible only by agreement of all the States, 42; widefield open for, 43.

International Statutes, cannot be

created by majority vote, 44;interpretation and construction of, 45;



hat are 42.

Internationalism, growth of, 12.

Law-making treaties, what are 42.

La France vaut bien une messe,' 78.

League of Nations, 3, 8; aims defined,23, 28, 35-36; and International Law interdependent, 6; career in a sensestarted already, 8, 16; conception of,very old, 6; demand for, universal, 11;impossibility of state-like organisationof, 36; no unanimity concerning itsaims or organisation, 18; organisation

of, demanded, 31; problems connectedith, 24, 28; seven principles of, which



ought to be adopted, 39-41; so-called,but League of States is meant, 13;starting point of organisation of, 33,36, 39; constitution sui generis of, anecessity, 22, 33; what is new in thenow desired, 11; when it would be an

organised community, 11, 34.

Marini, Antoine, 8.

Mediation, International. See International Council of Conciliation.

Militarism, conception of, 15; Prussian,16.

Nation, the, a product of historicaldevelopment, 10, 14; conception of, 13,



14; not to be confounded with race, 13-14.

Nations, not to be confounded withStates, 13, 14.

Nationality, principle of, 14, 32.

Natura non facit saltus,' 5.

Naturalists, the School of, 62.

Oppenheim, letter of Foreign Officeconcerning Article 23(h) of the HagueRegulations to Professor, 52-55.

Pacifists, 31.



Parliament, International, why impossible, 18, 19.

Permanent Court of Arbitration,International, 34; establishment of, by the First Peace Conference, 61.

Permanent International Commissionsof the Bryan Peace Treaties, 71.

Podiebrad, 8.

Police, International, 6, 41.

Politis on Article 23(h) of the HagueRegulations concerning Land Warfare,

49, 55.



Porter v. Freundenberg, case of, 47.

Positivists, the School of, 62.

Precedents of International Courts, 66.

Principle of Nationality, 14, 32.

Prize Court, International, proposed by Second Peace Conference, 34.

Quis custodiet ipsos custodes 21.

Race, a product of naturaldevelopment, 10; not to be confounded

ith Nation, 13, 14.

Rebus sic stantibus, proposal for



dealing with the clause, 69.

Religion, wars of, 10.

Sovereignty, conception of, 75; notsurrendered by entrance into the

League of Nations, 74, 75, 78.

State, ideal of the national, 14.

States of the World, the 25 Alliedbelligerent and the 17 neutral, 16-17.

Statutes, difference betweenInternational and Municipal, 42.

Sully, 9.



Swiss Confederation, civil war withinthe, 32.

Switzerland, 13.

Taft, Ex-President, 5.

Transoceanic States, entrance intoLeague of Nations of, 38.

Tribe, the, a product of naturaldevelopment, 10.

Ubi societas ibi jus, 8.

Ullmann, on Article 23(h) of the

Hague Regulations concerning Landarfare, 50.



United States, civil war in the, 32.

Vienna Congress, the, 30, 42.

Votes, equality of, at Hague Peace

Conferences, 38.

ars for national unity, 10.

ehberg on Article 23(h) of the HagueRegulations concerning Land Warfare,50.

hewell, Dr., 4.

hittuck on Article 23(h) of theHague Regulations concerning Land



Minor typographical errors have beencorrected without note. Variantspellings have been retained.