The League of Nations and Its Problems: Three Lectures

Continental Courts take into consideration not only the literal meaning of a clause of a statute, but also the intention of the legislator as evidenced by—what I should like to call—the history of the clause. They look for the intention of the draftsman, they search the Parliamentary proceedings concerning the clause, and they interpret and construe the clause with regard to the intention of the draftsman as well as to the proceedings in Parliament.

Now Article 23(h) of the Hague Regulations was inserted on the motion of the German delegates to the Second Hague Peace Conference, and there is no doubt that the German delegates intended by its insertion to prevent the Municipal Law of belligerents from possessing a rule according to which the outbreak of war suspends or avoids contracts with alien enemies, and prohibits alien enemies from bringing an action in the Courts. It is for this reason that Germany and other continental States interpret Article 23(h) according to the intention of the German delegates.

On the other hand, in interpreting and construing a clause of a statute, British and American Courts refuse to take into consideration the intention of the draftsman, Parliamentary discussions concerning the clause, and the like. They only take into consideration the literal meaning of the clause as it stands in the statute of which it is a part. Now Article 23(h) is a clause in the Convention concerning the Laws and Customs of War on Land. It is one of several paragraphs of Article 23 which comprises the prohibition of a number of acts by the armed forces of belligerents in warfare on land, such as the employment of poison or poisoned arms, and the like. The British and American delegates, believing that it only concerned an act on the part of belligerent forces occupying enemy territory, therefore consented to the insertion of Article 23(h), and our Court of Appeal—in the case of Porter v. Freundenberg (1915)—held that Article 23(h) is to be interpreted in that sense.[1 - By a letter of February 28, 1911, I drew the attention of the Foreign Office to the interpretation of Article 23(h) which generally prevailed on the Continent. This letter and the answer I received were privately printed, and copies were distributed amongst those members and associates of the Institute of International Law who attended the meeting at Madrid. Since French, German, and Italian International Law Journals published translations, but the original of the correspondence was never published in this country, I think it advisable to append it to this lecture.]

Be that as it may, the difficulty of interpretation and construction of international treaties will exist so long as no International Statute has been agreed upon which lays down detailed rules concerning interpretation and construction, or so long as International Courts have not developed such rules in practice. But the problem of International Courts is itself a very difficult one; it will be the subject of my third lecture which will deal with Administration of Justice and Mediation within the League of Nations.

APPENDIX

CORRESPONDENCE WITH THE FOREIGN OFFICE RESPECTING THE INTERPRETATION OF ARTICLE 23(h) OF THE HAGUE REGULATIONS CONCERNING LAND WARFARE

LETTER FROM THE PRESENT WRITER TO THE FOREIGN OFFICE

    Whewell House, Cambridge,
    28th February, 1911.

To

The Under Secretary of State for Foreign Affairs.

Sir,—

I venture to bring the following matter before your consideration:—

In the course of my recent studies I have been dealing with the laws and usages of war on land, and I have had to consider the interpretation of Article 23(h) of the Regulations attached to the Convention of 1907 relating to the Laws and Customs of war on land. I find that the interpretation prevailing among all continental and some English and American authorities is contrary to the old English rule, and I would respectfully ask to be informed of the view which His Majesty's Government place upon the article in question.

To give some idea as to how an interpretation of Article 23(h) contrary to the old English rule prevails generally, I will quote a number of French, German, English, and American writers, the works of whom I have at hand in my library, and I will also quote the German Weissbuch concerning the results of the second Hague Conference of 1907.

Bonfils, Manuel de droit international public, 5th ed. by Fauchille, 1908, discusses, on page 651, the doctrine which denies to an enemy subject any persona standi in judicio, but adds:—'… Article 23(h) décide qu'il est interdit de déclarer éteints, suspendus ou non recevables en justice, les droits et actions des nationaux de la partie adverse.'

Politis, Professor of International Law in the University of Poitiers (France), in his report to the Institute of International Law, Session of Paris (1910), concerning Effets de la Guerre sur les Obligations Internationales et les Contrats privés, page 18, says:

'Un point hors de doute, c'est, que la guerre ne peut, ni par elle-même ni par la volonté des belligérants, affecter la validité ou l'exécution des contrats antérieurs. Cette règle fait désormais partie du droit positif. L'article 23(h) du nouveau Règlement de la Haye interdit formellement aux belligérants "de déclarer éteints, suspendus ou non recevables en justice les droits et actions des nationaux de la partie adverse."

'Cette formule condamne d'anciens usages conservés encore, en partie, dans certains pays. Elle proscrit d'abord tous les moyens—annulation ou confiscation—par lesquels on chercherait à atteindre, dans leur existence, les droits nés avant la guerre. Elle exclut, en second lieu, l'ancienne pratique qui interdisait aux particuliers ennemis l'accès des tribunaux. Elle prohibe, enfin, toutes les mesures législatives ou autres tendant à entraver au cours de la guerre l'exécution ou les effets utiles des obligations privées, notamment le cours des intérêts.

'Il y a là progrès incontestable. Et l'on doit être reconnaissant à la délégation allemande à la 2e Conférence de la paix de l'avoir provoqué.

'L'accueil empressé et unanime qu'a reçu cette heureuse initiative permet d'espérer que de nouveaux progrès pourront être réalisés dans cet ordre d'idées.

'On doit souhaiter que la disposition de l'article 23(h), étrangère à l'hypothèse de l'occupation du territoire ennemi, soit distraite du règlement de 1907 (comme les articles 57 à 60 l'ont été du Règlement de 1899) pour être mieux placée dans une convention nouvelle, où d'autres textes viendraient la compléter.'

Ullmann, Völkerrecht, 2nd ed. 1908, p. 474, says:—

'Auch der Rechtsverkehr wird durch den Ausbruch des Krieges nicht unterbrochen oder gehemmt. Die nach Landesrecht frueher uebliche zeitweise Aufhebung der Klagbarkeit vom Schuldverbindlichkeiten des Staates oder eines Angehörigen gegen Angehörige des Feindes ist durch Artikel 23(h) untersagt.'

Wehberg, Das Beuterecht im Land- und Seekriege, 1909, pp. 5 and 6 says:—

'Article 46 Absatz 2 bestimmt:—"Das Privateigentum darf nicht eingezogen werden." In konsequenter Durchführung dieses Satzes bestimmt der auf deutschen Antrag 1907 hinzugefügte Article 23(h):—"Untersagt ist die Aufhebung oder zeitweilige Ausserkraftsetzung der Rechte und Forderungen von Angehoerigen der Gegenpartei oder der Ausschliessung ihrer Klagbarkeit."'

Whittuck, International Documents, London 1908, Introduction p. xxvii, says—'In Article 23(h) it is prohibited to declare abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the other belligerent which is a development of the principle that the private property of the subjects of a belligerent is not subject to confiscation. This new prohibition if accepted by this country would necessitate some changes in our municipal law.'

Holland, The Laws of War on Land, 1908, says on p. 5 that:—'Article 23(h) seems to require the Signatory Powers to the convention concerned to legislate for the abolition of an enemy's disability to sustain a persona standi in judicio.' (See also Holland, loco citato, p. 44, where he expresses his doubts concerning the interpretation of Article 23(h).)

Bordwell, The Law of War between Belligerents, Chicago 1908, recognises on page 210 the fact that according to Article 23(h) an alien enemy must now be allowed to sue in the courts of a belligerent, and Gregory, Professor in the University of Iowa, who reviews Bordwell's work in the American Journal of International Law, Volume 3 (1909), page 788, takes up the same standpoint.

The only author who interprets Article 23(h) in a different way is General Davis, who in his Elements of International Law, 3rd edition 1908, page 578, note 1, says:—

'It is more than probable that this humane and commendable purpose would fail of accomplishment if a military commander conceived it to be within his authority to suspend or nullify their operation, or to regard their application in certain cases as a matter falling within his administrative discretion. Especially is this true where a military officer refuses to receive well grounded complaints, or declines to receive demands for redress, in respect to the acts or conduct of the troops under his command, from persons subject to the jurisdiction of the enemy who find themselves, for the time being, in the territory which he holds in military occupation. To provide against such a contingency it was deemed wise to add an appropriate declaratory clause to the prohibition of Article 23.'

It is very unfortunate that the book of General Davis is not at all known on the Continent, and that therefore none of the continental authors have any knowledge of the fact that a divergent interpretation from their own of Article 23(h) is being preferred by an American author.

It is likewise very unfortunate that neither the English Bluebook on the Second Hague Peace Conference (see Parliamentary Papers, Miscellaneous No. 4, 1907, page 104) nor the official minutes of the proceedings of the Conference, edited by the Dutch Government, give any such information concerning the construction of Article 23(h) as could assist a jurist in forming an opinion regarding the correct interpretation.

It is, however, of importance to take notice of the fact that Article 23(h) is an addition to Article 23 which was made on the proposition of Germany, and that Germany prefers an interpretation of Article 23(h) which would seem to coincide with the interpretation preferred by all the continental writers. This becomes clearly apparent from the German Weissbuch ueber die Ergebnisse der im Jahre 1907 in Haag abgehaltenen Friedensconferenz, which contains on page 7 the following:—

'Der Artikel 23 hat gleichfalls auf deutschen Antrag zwei wichtige Zusätze erhalten. Durch den ersten wird der Grundsatz der Unverletzlichkeit des Privateigenthumes auch auf dem Gebiete der Forderungsrechte anerkannt. Nach der Gesetzgebung einzelner Staaten soll nämlich der Krieg die Folge haben, dass die Schuldverbindlichkeiten des Staates oder seiner Angehörigen gegen Angehörige des Feindes aufgehoben oder zeitweilig ausser Kraft gesetzt oder wenigstens von der Klagbarkeit ausgeschlossen werden. Solche Vorschriften werden nun durch den Artikel 23 Abs. 1 unter h für unzulässig erklärt.'

However this may be, the details given above show sufficiently that a divergent interpretation of Article 23(h) from the old English rule is prevalent on the Continent, and is to some extent also accepted by English and American Authorities, and it is for this reason that I would ask whether His Majesty's Government consider that the old English rule is no longer in force.

    I have, &c.,
    (Signed) L. OPPENHEIM.

LETTER FROM THE FOREIGN OFFICE TO THE PRESENT WRITER

    Foreign Office,
    March 27, 1911.

Sir,—

I am directed by Secretary Sir E. Grey to thank you for your letter of February 28th, and for drawing his attention to the misconceptions which appear to prevail so largely among the continental writers on international law with regard to the purport and effect of Article 23(h) of the Convention of October 18th, 1907, respecting the laws and customs of war on land.

It seems very strange that jurists of the standing of those from whose writings you quote could have attributed to the article in question the meaning and effect they have given it if they had studied the general scheme of the instrument in which it finds a place.

The provision is inserted at the end of an article dealing with the prohibited modes of warfare. It forms part of Chapter I. of Section II. of the Regulations annexed to the Convention. The title of Chapter I. is 'Means of injuring the enemy, sieges and bombardment': and if the article itself is examined it will be seen to deal with such matters as employing poison or poisoned weapons, refusing quarter, use of treachery and the unnecessary destruction of private property. Similarly the following articles (24 to 28) all deal with the restrictions which the nations felt it incumbent upon them from a sense of humanity to place upon the conduct of their armed forces in the actual prosecution of military operations.

The Regulation in which these articles figure is itself merely an annex to the Convention which alone forms the contractual obligation between the parties, and the engagement which the parties to the Convention have undertaken is (Article 1) to 'issue instructions to their armed land forces in conformity with the Regulations respecting the Law and Customs of war on land.'

This makes it abundantly clear that the purpose and scope of the Regulations is limited to the proceedings of the armies in the field; those armies are under the orders of the commanders, and the Governments are bound to issue instructions to those commanders to act in accordance with the Regulations. That is all. There is nothing in the Convention or in the Regulations dealing with the rights or the status of the non-combatant individuals, whether of enemy nationality or domiciled in enemy territory. They are, of course, if inhabitants of the theatre of war, affected by the provisions of the Regulations because they are individuals who are affected by the military operations, and in a sense a regulation which forbids a military commander from poisoning a well gives a non-combatant inhabitant a right or a quasi-right not to have his well poisoned, but his rights against his neighbours, his relations with private individuals, whether of his own or of enemy nationality, remain untouched by this series of rules for the conduct of warfare on land.

Turning now to the actual wording of Article 23(h) it will be seen that it begins with the wording 'to declare.' It is particularly forbidden 'to declare abolished, &c.' This wording necessarily contemplates the issue of some proclamation or notification purporting to abrogate or to change rights previously existing and which would otherwise have continued to exist, and in view of Article I of the Convention this hypothetical proclamation must have been one which it was assumed the commander of the army would issue; consequently, stated broadly, the effect of Article 23(h) is that a commander in the field is forbidden to attempt to terrorise the inhabitants of the theatre of war by depriving them of existing opportunities of obtaining relief to which they are entitled in respect of private claims.

Sir E. Grey is much obliged to you for calling his attention to the extract which you quote from the German White Book. This extract may be translated as follows:—'Article 23 has also received on German proposal two weighty additions. By the first the fundamental principle of the inviolability of private property in the domain of legal claims is recognised. According to the legislation of individual states, war has the result of extinguishing or temporarily suspending, or at least of suppressing the liability of the state or its nationals to be sued by nationals of the enemy. These prescriptions have now been declared inadmissible by Article 23(h).'

The original form of the addition to Article 23 which the German delegates proposed was as follows: 'de déclarer éteintes, suspendues ou non recevables les réclamations privées de ressortissants de la Partie adverse' (see procès-verbal of the 2nd meeting of the 1st sub-Committee of the 2nd Committee, 10th July, 1907).

There is nothing to show that any explanation was vouchsafed to the effect that the proposed addition to the article was intended to mean more than its wording necessarily implied, though there is a statement by one of the German delegates in the procès-verbal of the 1st meeting of the 1st sub-Committee of the 2nd Committee, on July 3rd, which in all probability must have referred to this particular amendment, though the procès-verbal does not render it at all clear; nor is the statement itself free from ambiguity. An amendment was suggested and accepted at the second meeting to add the words 'en justice' after 'non recevables,' and in this form the sub-article was considered by an examining committee, was accepted and incorporated in Article 23, and brought before and accepted by the Conference in its 4th Plenary Sitting on the 17th August, 1907.