The League of Nations and Its Problems: Three Lectures

The subsequent alteration in the wording must have been made by the Drafting Committee, but cannot have been considered to affect the substance of the provision, as in the 10th Plenary Sitting on October 17th, 1907, the reporter of the Drafting Committee, in dealing with the verbal amendments made in this Convention, merely said, 'En ce qui concerne le règlement lui-même, je n'appellerai pas votre attention sur les différentes modifications de style sans importance que nous y avons introduites.'

Nor is there anything to indicate any such far-reaching interpretation as the German White Book suggests in the report which accompanied the draft text of the Convention when it was brought before the Plenary Sitting of the Conference (Annex A. to 4th Plenary Sitting). It merely states that the addition is regarded as embodying in very happy terms a consequence of the principles accepted in 1899.

The result appears to Sir E. Grey to be that neither the wording nor the context nor the circumstances attending the introduction of the provision which now figures as Article 23(h) support the interpretation which the writers you quote place upon it and which the German White Book endorses.

Sir E. Grey notices that, in the extract you quote, Monsieur Politis, after placing his own interpretation upon the article, remarks that it is quite foreign to the hypothesis of the occupation of territory and ought to be removed from the Regulations and turned into a Convention by itself. If this interpretation were correct, this remark of Monsieur Politis is certainly true: but the fact that the provision appears where it does should have suggested to Monsieur Politis that it does not bear the interpretation he puts upon it.

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

That principle operates automatically on the outbreak of war, it requires no declaration by the Government, still less by a commander in the field, to bring it into operation. It is a principle which applies equally whether the war is being waged on land or sea, and which is applied in all the courts and not merely in those within the field of the operations of the military commanders.

The whole question of the effect of war upon the commerce of private persons may require reconsideration in the future; the old rules may be scarcely consistent with the requirements or the conditions of modern commerce; but a modification of those rules is not one to which His Majesty's Government could be a party except after careful enquiry and consideration, and, when made at all, it must be done by a convention that applies to war both on land and sea.

They certainly have not become parties to any such modification by agreeing to a convention which relates only to the instructions they are to give the commanders of their armed forces, and which is limited to war on land.

    I am, &c.,
    (Signed) F. A. CAMPBELL.

Third Lecture

ADMINISTRATION OF JUSTICE AND MEDIATION WITHIN THE LEAGUE OF NATIONS

SYNOPSIS

I. Administration of Justice within the League is a question of International Courts, but it is incorrect to assert that International Legislation necessitates the existence of International Courts.

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

III. The difficulties connected with International Administration of Justice by International Courts.

IV. The necessity for a Court of Appeal above the International Court of First Instance.

V. The difficulties connected with the setting up of International Courts of Justice.

VI. Details of a scheme which recommends itself because it distinguishes between the Court as a whole and the several Benches which would be called upon to decide the cases.

VII. The advantages of the recommended scheme.

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

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

X. The two starting points for a satisfactory proposal concerning International Mediation by International Councils of Conciliation. Article 8 of the Hague Convention concerning Pacific Settlement of International disputes. The Permanent International Commissions of the Bryan Peace Treaties.

XI. Details of a scheme which recommends itself for the establishment of International Councils of Conciliation.

XII. The question of disarmament.

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

XIV. Conclusion: Can it be expected that, in case of a great conflict of interests, all the members of the League will faithfully carry out their engagements?

THE LECTURE

I. My last lecture dealt with the organisation of a League of Nations and International Legislation by the League. To-day I want to draw your attention to International Administration of Justice and International Mediation within the League.

I begin with International Administration of Justice which, of course, is a question of International Courts of Justice. Hitherto, although International Legislation has been to some extent in existence, no International Courts have been established before which States in dispute have been compelled to appear. Now there is no doubt that International Legislation loses in value if there are no arrangements for International Administration of Justice by independent and permanent International Courts. Yet it is incorrect to assert, although it is frequently done, that one may not speak of legislation and a law created by legislation without the existence of Courts to administer such law.

Why is this assertion incorrect? Because the function of Courts is to decide controversial questions of law or of fact in case the respective parties cannot agree concerning them. However, in most cases the law is not in jeopardy, and its commands are carried out by those concerned without any necessity for a Court to declare the law. Modern International Law has been in existence for several hundred years, and its commands have in most cases been complied with in the absence of International Courts. On the other hand, there is no doubt that, if controversies arise about a question of law or a question of fact, the authority of the law can be successfully vindicated only by the verdict of a Court. And it is for this reason that no highly developed Community can exist for long without Courts of Justice.

II. The Community of civilised States did not, until the end of the nineteenth century, possess any permanent institution which made the administration of international justice possible. When States were in conflict and, instead of having recourse to arms, resolved to have the dispute peaceably settled by an award, in every case they agreed upon so-called arbitration, and they nominated one or more arbitrators, whom they asked to give a verdict. For this reason, it was an epoch-making step forward when the First Peace Conference of 1899 agreed upon the institution of a Permanent Court of Arbitration, and a code of rules for the procedure before this Court. Although the term 'Permanent Court of Arbitration,' as applied to the institution established by the First Hague Peace Conference, is only a euphemism, since actually the Court concerned is not a permanent one and the members of the Court have in every case to be nominated by the parties, there is in existence, firstly, a permanent panel of persons from which the arbitrators may be selected; secondly, a permanent office at the Hague; and, thirdly, a code of procedure before the Court. Thereby an institution has been established which is always at hand in case the parties in conflict want to make use of it; whereas in former times parties in conflict had to negotiate a long time in order to set up the machinery for arbitration. And the short time of twenty years has fully justified the expectations aroused by the institution of the Permanent Court of Arbitration, for a good number of cases have been brought before it and settled to the satisfaction of the parties concerned.

And the Second Hague Peace Conference of 1907 contemplated further steps by agreeing upon a treaty concerning the establishment of an International Court of Appeal in Prize Cases, and upon a draft treaty concerning a really Permanent International Court of Justice side by side with the existing Court of Arbitration. Although neither of these contemplated International Courts has been established, there is no doubt that, if after the present war a League of Nations becomes a reality, one or more International Courts of Justice will surely be established, although the existing Permanent Court of Arbitration may remain in being.

III. But just as regards International Legislation, I must warn you not to imagine that International Administration of Justice by International Courts is an easy matter. It is in fact full of difficulties of many kinds.

The peculiar character of International Law; the rivalry between the different schools of international jurists, namely the Naturalists, Positivists, and Grotians; the question of language; the peculiarities of the systems of law of the different States, of their constitutions, and many other difficulties, entail the danger that International Courts may become the arena of national jealousies, of empty talk, and of political intrigues, instead of being pillars of international justice.

Everything depends upon what principles will guide the States in their selection of the individuals whom they appoint as members of International Courts. Not diplomatists, not politicians, but only men ought to be appointed who have had a training in law in general, and in International Law in particular; men who are linguists, knowing, at any rate, the French language besides their own; men who possess independence of character and are free from national prejudices of every kind. There is no doubt that, under present conditions and circumstances of international life, the institution of International Courts represents an unheard of experiment. There is, however, likewise no doubt that now is the time for the experiment to be made, and I believe that the experiment will be successful, provided the several States are careful in the appointment of the judges.

IV. And it must be emphasised that an International Court of Appeal above the one or several International Courts is a necessity. Just as Municipal Courts of Justice, so International Courts of Justice are not infallible. If the States are to be compelled to have their judicial disputes settled by International Administration of Justice, there must be a possibility of bringing an appeal from lower International Courts to a Higher Court. It is only in this way that in time a body of International Case Law can grow up, which will be equivalent in its influence upon the practice of the States to the municipal case law of the different States.

V. I have hitherto considered in a general way only the difficulties of International Administration of Justice; I have not touched upon the particular difficulties connected with the setting up and manning of International Courts. If the several States could easily agree upon, say, five qualified men as judges of a Court of First Instance, and upon, say, seven qualified men as judges of a Court of Appeal, there would be no difficulty whatever in setting up these two Courts. And perhaps some generations hence the time may come when such an agreement will be possible. In our time it cannot be expected, and here therefore lies the great difficulty in the way of setting up and manning International Courts of Justice; because there is no doubt that each State will claim the right to appoint at least one man of its own choice to sit as judge in the International Court or Courts. And since there are about fifty or more civilised independent States in existence, the International Court would comprise fifty or more members.

Now why would the several States claim a right to appoint at least one man of their own choice as judge? They would do this because they desire to have a representative of their own general legal views in the Court. It is a well-known fact that not only the legal systems which prevail in the several States differ, but also that there are differences concerning the fundamental conceptions of justice, law, procedure, and evidence. Each State fears that an International Court will create a practice fundamentally divergent from its general legal views, unless there is at least one representative of its own general legal views sitting in the Court.

I think that in spite of everything the difficulty is not insurmountable provided a scheme for an International Court which follows closely the model of Municipal Courts is not insisted upon. Just as the organisation of a League of Nations cannot follow the model of the organisation of a State, so the attempt to set up an International Court must not aim at following closely the model of Municipal Courts. What is required is an institution which secures the settlement of judicial international disputes by giving judgments on the basis of law. I think this demand can be satisfied by a scheme which would meet both the claim of each State to nominate one judge and the necessity not to overcrowd the Bench which decides each dispute.

VI. The scheme which I should like to recommend is one which distinguishes between the Court as a whole and the several Benches which would be called upon to decide the several cases. It is as follows:

The Court as a whole to consist of as many judges as there are members of the League, each member to appoint one judge and one deputy judge who would take the place of the judge in case of illness or death or other cause of absence. The President, the Vice-President, and, say, twelve or fourteen members to constitute the Permanent Bench of the Court and therefore to be resident the whole year round at the Hague. Half of the members of this Permanent Bench of the Court to be appointed by the Great Powers—each Great Power to appoint one—and the other half of the members to be appointed by the minor Powers. Perhaps the Scandinavian Powers might agree upon the nomination of one member; Holland and Spain and Portugal upon another; Belgium, Switzerland, and Luxemburg upon a third; the Balkan States upon a fourth; Argentina, Brazil, and Chile upon a fifth; and so on. Anyhow, some arrangement would have to be made according to which the minor Powers unite upon the appointment of half the number of the Permanent Bench.

If a judicial dispute arises between two States, the case to go in the first instance before a Bench comprising the two judges appointed by the two States in dispute and a President who, as each case arises, is to be selected by the Permanent Bench of the Court from the members of this Bench. This Court of First Instance having given its judgment, each party to have a right of appeal. The appeal to go before the Permanent Bench at the Hague, which is to give judgment with a quorum of six judges with the addition of those judges who served as the Bench of First Instance. The right of appeal to exist only on questions of law and not on questions of fact.

Decisions of the Appeal Court to be binding precedents for itself and for any Courts of First Instance. But should the Appeal Court desire to go back on a former decision of law, this to be possible only at a meeting of the Court comprising at least twelve members of the Permanent Bench.

VII. The proposal which I have just sketched, and which will need to be worked out in detail if it is to be realised, offers the following advantages:

Every case would in the first instance be decided by a small Bench which would enjoy the confidence of both parties because they would have their own judge in the Court. This point is of particular importance with regard to the mode of taking evidence and making clear the facts; but is likewise of importance on account of the divergence of fundamental legal views and the like.

Since the Court of Appeal would only decide points of law, the facts as elucidated by the Bench of First Instance would remain settled. But the existence of the Court of Appeal would enable the parties to re-argue questions of law with all details. The fact that six of the Bench which serves as a Court of Appeal are members of the Permanent Bench would guarantee a thorough reconsideration of the points of law concerned, and likewise the maintenance and sequence of tradition in International Administration of Justice.

Again, the fact that the Court of Appeal is to comprise, besides six members of the Permanent Bench, those three judges who sat as the Bench of First Instance would guarantee that the judges appointed by the States in dispute could again bring into play any particular views of law they may hold.

VIII. This is the outline of my scheme for the establishment and manning of the International Court of Justice. But before I leave the subject, I must say a few words concerning two important points which almost all other schemes for the establishment of an International Court overlook. Firstly, the necessity to make provision for what I should like to call complex cases of dispute; namely, cases which are justiciable but in which, besides the question of law, there is at the same time involved a vital political principle or claim. Take the case of a South American State entering into an agreement with a non-American State to lease to it a coaling station: this case is justiciable, but besides the question of law there is a political claim involved in it, namely, the Monroe doctrine of the United States. Unless provision be made for the settlement of such complex cases, the League of Nations will not be a success, for it might well happen that a case touches vital political interests in such a way as not to permit a State to have it settled by a mere juristic decision.

Now my proposal to meet such complex cases is that when a party objects to a settlement of a case on mere juristic principles, although the other party maintains that it is a justiciable case, the Bench which is to serve as Bench of First Instance shall investigate the matter with regard to the question whether the case is more political than legal in nature. If the Court decides the question in the negative, then the same Court shall give judgment on the dispute; but, if the Court decides the question in the affirmative, then the case shall be referred by the Court to the International Council of Conciliation. Whatever the decision of the Bench of First Instance may be, each party shall have the right of appeal to the Permanent Bench which serves as the Court of Appeal.

IX. The other point which I desire to mention before I leave the subject of International Administration of Justice concerns the notorious principle conventio omnis intelligitur rebus sic stantibus. You know that almost all publicists and also almost all Governments assert the existence of a customary rule according to which a vital change of circumstances after ratification of a treaty may be of such a kind as to justify a party in demanding to be released either from the whole treaty or from certain obligations stipulated in it. But the meaning of the term 'vital change of circumstances' is elastic, and there is therefore great danger that the principle conventio omnis intelligitur rebus sic stantibus will be abused for the purpose of hiding the violation of treaties behind the shield of law. This danger will remain so long as there is no International Court in existence which, on the motion of one of the contracting parties, could set aside the treaty obligation whose fulfilment has become so oppressive that in justice the obliged party might ask to be released. Now, as the League of Nations is to set up an International Court of Justice, my proposal is that the Court should be declared competent to give judgment on the claim of a party to a treaty to be released from its obligations on account of vital change of circumstances. Of course the case would go before that Bench of the Court which is to serve as the Court of First Instance, and an appeal would lie to the Permanent Bench which serves as the Court of Appeal.