The Future of International Law Part 2

6. Rules of procedure for the Conferences shall be elaborated, which shall govern the conduct of the proceedings of the Conferences, so that the proceedings can follow a defined course without degenerating into a time-wasting discussion.

7. The question of the presidency of the Conferences shall be settled once for all, so that no room be left for quarrels and jealousies about precedence. It might perhaps be found expedient before every Conference to decide on the presidency by lot.

8. All resolutions come into force only when and so far as they are ratified by the respective states. On the other hand, every state binds itself, once and for all, to carry out in good faith the resolutions which it has ratified.

9. All states bind themselves to submit to the decisions of the international tribunals to which they have appealed, so far as these decisions are within the competence of the respective tribunals.

Something like this would be the ground-plan of a const.i.tution of the international community. Rules 5-7 are demanded by the nature of the case; rules 1-4 and 8-9 contain nothing new, but merely express what observation would show to be the legal position at present.

[Sidenote: The proposed const.i.tution leaves state-sovereignty intact.]

27. It must be particularly remarked that such a const.i.tution can in no way infringe on the full sovereignty of individual states. Apart from the fact that the idea of sovereignty indicates an absolute independence of any higher earthly power, that idea has never acquired a rigid and uniformly recognized content. Times and circ.u.mstances have influenced and shaped it in different states and in the mouths of different authorities. This development of the idea, an idea which has won a place for itself and the retention of which seems desirable despite all opposition, may go further still in the future.

[Sidenote: The equality of states.]

28. The proposed const.i.tution, further, makes no inroad at all on the equality of states. This equality is the indispensable foundation of international society. The idea of equality merely expresses the fact that in all resolutions of the international society every state, whatever may be its size and political importance, obtains one voice and no more than one, that every state can be bound by a resolution only with its consent, and that no state can exercise jurisdiction over another state. It does not and cannot express more. In no circ.u.mstances is it to be a.s.serted that unanimity is a condition for all resolutions of the Conferences, and that all resolutions are void to which one or more states refuse their consent. Of course, such resolutions bind those only who a.s.sent to them, and of course unanimous resolutions alone can be considered to be universally binding. But nothing should hinder the Conferences--and so it happened in the two first Conferences--from pa.s.sing majority resolutions. It must never be lost sight of that such majority resolutions do not go to form a _universal_ but only a _general_ law of nations. Only he who repudiates the necessary distinction between a particular and a general and a universal law of nations can demand unanimity. Now the development which up to the present has taken place in the law of nations has shown the necessity of this distinction. It would be extremely difficult to enumerate any large number of universally accepted rules of the law of nations--apart from those which have obtained recognition as customary law. We have only to think of the Declaration of Paris, to which some states still refuse a.s.sent. History also teaches us that the general law of nations has a tendency gradually to become the universal law of nations. It is therefore permissible, when a forward step which fails to gain unanimous approval has become a practical matter, for that majority of states which is ready for it to take the step by themselves; the dissenting states will give in their adhesion in course of time. And if and when this should turn out not to be the case, such a majority resolution would anyhow represent, in a narrower circle of international society, a step forward from which there is no obligation to forbear merely because others are unwilling to join in taking it.

[Sidenote: Absence of any executive power.]

29. This const.i.tution, finally, makes no provision for any kind of executive power, and so it avoids the proposal to set up in international society an organization resembling that of a state. All proposals for an international executive authority run counter not only to the idea of sovereignty, but also to the ideal of international peace and of international law. The aim of this development is not the coercion of recalcitrant states, but a condition of things in which there are no recalcitrant states because every state has freely submitted to the obligation to refer disputes to the international tribunals and to abide by their decision. It is just in this respect that the international community of states differs for all time from the community of individuals who are united into a state, the latter requiring as _ultima ratio_ executive compulsion on the part of a central power, while the former consistently with its nature and definition can never possess such a central power. It will, we must confess, call for a long development before such a condition of things is realized, and, until this realization is effected, war will not disappear but will remain an historic necessity.

CHAPTER II

INTERNATIONAL LEGISLATION

[Sidenote: Quasi-legislation within the domain of international law.]

30. When we speak of legislation we have in view as a rule a state, wherein there is a law-making power which acts without reference to the consent of individual subjects. For even if in a const.i.tutional state an individual does anyhow exercise so much influence upon legislation as comes from voting at the election of members of parliament, still he has no direct influence, and must submit to a law that has been enacted whether he approves of it or not. That is why it is a.s.serted that there cannot be any talk of legislation in the domain of international law.

And, in fact, that is so if we adhere rigorously to the meaning of the concept 'legislation', as developed in the domain of internal state life. The nature of the case does not, however, demand so rigid an adherence as this; legislation is really nothing more than the conscious creation of law in contrast to the growth of law out of custom. And it is an admitted fact that, side by side with international law developed in this latter way, there is an international law which the members of the community of states have expressly created by agreement. We might therefore quite well subst.i.tute the term _agreeing a law_ for the term _decreeing a law_,--but why introduce a new technical term? This international 'agreeing a law' does consciously and intentionally create law, and it is therefore a source of law. And provided that we always bear in mind that this source of law operates only through a quasi-legislative activity, there is no obstacle to speaking, in a borrowed sense, of international 'legislation'. Nevertheless, agreeable and apt as this term is, it must not lead us to a.s.similate the internal legislation of a state and international legislation save in the one respect that in both law is made in a direct, conscious and purposive manner, in contrast to law that originates in custom.

[Sidenote: Hague Peace Conferences as an organ for international legislation.]

31. International law of the legislative kind existed before the law of the Hague Peace Conferences; it issued from the conventions drawn up from time to time at congresses and conferences. It was a great step forward that the Congress of Vienna was able, for the first time, to create general international law by agreement, and that thereby general international law of the legislative kind could come into existence side by side with the customary law of nations. But the nineteenth century introduced international legislation only occasionally. If, as sketched above, success attends the attempt to make the Hague Peace Conferences a permanent inst.i.tution, there would be evolved for the society of states a legislative organ corresponding to the parliaments of individual states. A wide field opens thus for further international legislative activity. Even if the time be not ripe for a comprehensive codification of the whole law of nations, there is nevertheless a series of matters in need of international regulation; for example, extradition, the so-called international private law and international criminal law, acquisition and loss of nationality, and a series of other matters, not to mention matters of international administration. Matters which are already governed by customary law might also be brought within the domain of enacted law, and at the same time could be put as regards details upon a surer basis. I have in mind the law of amba.s.sadors and consuls, the law concerning the open sea and territorial waters, the law about merchantmen and men-of-war in foreign territorial waters, and more of this kind.

[Sidenote: Difficulties in the way of international legislation.]

32. The peculiar character of international legislation involves, however, difficulties of all sorts.

[Sidenote: The language question.]

There is, to begin with, the question of language. Seeing that it is impossible to employ all languages in the enactment of rules of international law, an agreement must be made for adopting some one language for these laws, in the same way that French is used at the present time. But the difficulty thence arising is not insuperable, and is hardly greater than that which is encountered in drafting a treaty between peoples whose speech belongs to different families. It must, however, be a rigid rule that in every case of doubt the text of the law in its original language--not that of a translation into the languages of other countries--is authoritative.

[Sidenote: The opposing interests of the several states.]

33. There is, secondly, the difficulty of contenting the opposite interests of the members of the community of states. But this, too, is in practice not insurmountable. Of course, where there is such a brawling between these interests that no agreement is possible, there can from the outset be no talk of international legislation. This, however, is not everywhere the case. On the contrary, it is often and in different areas the case, that the _international_ interests of states make themselves felt so urgently and so cogently that these states are ready to sacrifice their particular interests if only a reasonable compromise be open to them.

[Sidenote: Contrasted methods of drafting.]

34. There is further the difficulty of finding expression in adequate language for the intention of the legislator. Even the internal legislation of states suffers under this difficulty in so far as the art of legislation is still very clumsy and undeveloped. For _international_ legislation there is in addition the further difficulty that different groups of peoples employ very different methods in drafting their laws. If we were to give to an Englishman, a Frenchman, and a German the task of drafting a law upon the same topic, and if they were provided with the point of view from which the regulation of individual points was to proceed, so that the intention of the draftsmen would be the same, three very different drafts would nevertheless emerge. The English draft would deal in the most concrete manner possible with the situations to which it meant to apply; it would adduce as many particular cases as possible, and so would run the risk of forgetting some series of cases altogether. The German draft would be as abstract as is possible, and would entirely disregard individual cases, except such as required a special treatment; and so it would expose itself to the danger that in practice cases would be brought within the enactment which were outside the intention of the legislator. The French draft would attach more weight to principles than to individual points, enunciating principles in a legislative manner and leaving it to practice to construct out of these principles the rule for the particular case. Now, seeing that French is the language of international legislation, and so in the editing of drafts at the Hague Conferences the lion's share will naturally fall to French jurists attending the Conference, it will scarcely be possible to prevent the French method of legislation from obtaining great influence over international legislation. But there is no need for this mode of legislation to become dominant. The jurist representatives of other states must see to it that the French method is perfected by their own; the English and the Germans must make it their business to bring the drafts into a more concrete form, and to split up principles into more abstract rules. In this way, it may in time be possible by means of common international labour to make essential advance in the art of legislation.

[Sidenote: These difficulties distinct from those due to carelessness.]

35. But the difficulties inherent in the legislative method must not be confused with those which come from a careless employment of the method; the latter must always be avoided, otherwise we arrive at contradictions of interpretation, and these are insuperable.

[Sidenote: Article 23 (_h_) of the Hague Regulations of land war is an example.]

An example of such carelessness is afforded by the incorporation--at the second Hague Conference--of a new provision in the former Article 23 of the 'Regulations respecting the laws of land warfare'. I am referring to the provision added under the letter (_h_), which runs as follows: [It is forbidden] 'to declare extinguished, suspended, or unenforceable in a court of law, the rights and rights of action of the nationals of the adverse party'.

[Sidenote: The German and the English interpretation of Article 23 (_h_).]

36. From the German memorandum on the second Peace Conference it is quite clear that this additional rule, which was proposed by Germany and adopted by the Conference, was directed to the alteration of the rule, prevailing in several states, whereby during a war the subjects of one belligerent lose in the country of the other belligerent their _persona standi in judicio_, and the like. It is in this sense, then, that the addition has been unanimously interpreted by German literature, with the agreement of many foreign writers. The official standpoint of England, on the contrary, is that Article 23 (_h_) has nothing whatever to do with the munic.i.p.al law of the belligerent countries. Article 23 (_h_), so the English Foreign Office explains, forms a subdivision of Article 23, which itself comes under the second section (headed 'Hostilities') of the Regulations, and forbids a series of acts which otherwise might be resorted to in the exercise of hostilities by the members of the contending armies, and by their commanding officers. That this interpretation is the right one--so it is further explained by the English side--is shown by the fact that Article 1 of the Convention expressly says, with reference to the 'Regulations respecting the laws of land warfare', that the contracting parties shall issue to their armed land forces instructions which shall be in conformity with the 'Regulations respecting the laws of land warfare' annexed to the Convention. It would therefore be the duty of every contracting power to instruct the commanders of its forces in an enemy's country (among other things) not 'to declare extinguished, suspended, or unenforceable in a court of law, the rights and rights of action of the nationals of the adverse party'.

[Sidenote: Davis's interpretation of Article 23 (_h_)]

37. This is also the opinion of Davis, one of the American delegates to the second Hague Conference; he gives the following explanation with regard to Article 23 (_h_), in the third edition of his _Elements of International Law_ (New York, 1908), p. 578:

In this article a number of acts are described to which neither belligerent is permitted to resort in the conduct of his military operations. It was the well-understood purpose of the Convention of 1899 to impose certain reasonable and wholesome restrictions upon the authority of commanding generals and their subordinates in the theatre of belligerent activity. It is more than probable that this humane and commendable purpose would fail of accomplishment if a military commander conceived it to be within his authority to suspend or nullify their operation, or to regard their application as a matter falling within his administrative discretion. Especially is this true where a military officer refuses to receive well-grounded complaints, or declines to consider demands for redress, in respect to the acts or conduct of the troops under his command, from persons subject to the jurisdiction of the enemy, who find themselves, for the time being, in the territory which he holds in military occupation. To provide against such a contingency it was deemed wise to add an appropriate declaratory clause to the prohibitions of Article 23. The prohibition is included in section (_h_).

[Sidenote: Impossible to reconcile the divergent views about Article 23 (_h_).]

38. If, from the fact that Davis was an American delegate, we may conclude that he represents the government view of the United States of North America, we are confronted by the fact that official England and America adopt an interpretation of Article 23 (_h_) which is entirely at variance with that of Germany, and it is quite impossible to build a bridge of reconciliation between the two camps. This regrettable fact has its origin simply in the careless use of the legislative method. If the German conception of Article 23 (_h_) be the correct one, the lines of subsection (_h_) ought never to have found a shelter in Article 23, for they have not the slightest connexion with hostilities between the contending forces. If, on the other hand, the Anglo-American interpretation be the right one, pains should have been taken to secure a wholly different draft of the provision in question, for the present wording is by no means transparently clear. The protocols of the Conference (_Actes_, i, 101; iii, 14, 103) are not sufficiently explicit on the matter. The German delegate, Goppert, did indeed explain (cf.

_Actes_, iii, 103) at the session of the first subcommission of the Second Commission on July 3, 1907, 'that this proposal is in the direction of not limiting to corporeal goods the inviolability of enemy property, and that it has in view the whole domain of obligations with the object of forbidding all legislative measures which, in time of war, would deprive an enemy subject of the right to take proceedings for the performance of a contract in the courts of the adverse party'. But we shall scarcely go wrong if we a.s.sume that the members of the Second Commission, who were entrusted with the consideration of the 'Regulations respecting the laws of land warfare', had not sufficiently realized the full meaning of the German proposal. It would otherwise be quite unintelligible that the reporter upon the German proposal could say (cf. _Actes_, i, 101): 'This addition is deemed a very happy attempt to bring out in clear language one of the principles admitted in 1899', for these 'principles' (concerning the immunity of the private property of enemy subjects in land warfare) have very little indeed to do with the question of the _persona standi in judicio_ of an enemy subject.

[Sidenote: Difficulties due to the fact that international law cannot be made by a majority vote, or repealed save by a unanimous vote.]

39. A difficulty of a special kind besets international legislation, owing to the fact that international rules cannot be created by a majority vote, and that, when once in existence, they cannot be repealed save by a unanimous resolution.

[Sidenote: A way out found in the difference between universal and general international law.]

But when once we free ourselves from the preconception that the equality of states makes it improper for legislative conferences to adopt any resolutions which are not unanimously supported, there is nothing to prevent a substantial result being arrived at even without unanimity. At this point the difference between general and universal international law furnishes a way out. Rules of universal international law must certainly rest on unanimity. It is postulated in the equality of states that no state can be bound by any law to which it has not given its consent. But there is naught to prevent a legislative conference from framing rules of general international law for those states which a.s.sent to it and leaving the dissentient states out of consideration. If the inclusion in a single convention of all the points under discussion be avoided, and if the method, adopted at the second Peace Conference, of dividing the topics of discussion among as many smaller conventions as possible be followed, it will always be found possible to secure the support of the greater number of states for the regulation of any given matter. In no long time thereafter the dissentient states will give in their adherence to these conventions, either in their existing or some amended form. Attention will then be paid also to the consolidation of several smaller laws in a single more comprehensive statute. The nature of the case and the conditions of international life call for concessions without which no progress would be practicable. The course of international legislation hitherto shows unmistakably that the trodden path is the right path. And it must be emphasized that it is open to a state to a.s.sent to an act of international legislation although some one or other provision thereof be unacceptable to it. In such a case the a.s.sent of the state in question is given with a reservation as regards the particular article of the Act, so that it is in no wise bound by that article. Numerous instances of this could be adduced: thus, at the Hague Conference of 1907 Germany withheld her a.s.sent to some of the proposed rules of land war, and England to certain articles in Conventions V and XIII.