Chapter III: Part 3

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

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

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

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

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

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

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

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

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

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

X. Having given you the outlines of a scheme concerning International Administration of Justice, I now turn to International Mediation by International Councils of Conciliation.

For a satisfactory proposal concerning International Councils of Conciliation two starting points offer themselves. One starting point is the special form of mediation recommended by Article 8 of the Hague Convention concerning the pacific settlement of international disputes. The following is the text of this Article 8:

'The Signatory Powers are agreed in recommending the application,
when circumstances allow, of special mediation in the following
form:--

'In case of a serious difference endangering peace, the contending
States choose respectively a Power, to which they intrust the
mission of entering into direct communication with the Power chosen
on the other side, with the object of preventing the rupture of
pacific relations.

'For the period of this mandate, the term of which, in default of
agreement to the contrary, cannot exceed thirty days, the States at
variance cease from all direct communication on the subject of the
dispute, which is regarded as referred exclusively to the mediating
Powers. These Powers shall use their best efforts to settle the
dispute.

'In case of a definite rupture of pacific relations, these Powers
remain jointly charged with the task of taking advantage of any
opportunity to restore peace.'

The second starting point is supplied by the Permanent International Commissions of the so-called Bryan Peace Treaties concluded in 1913-14 by the United States of America with a number of other States. These peace treaties are not in every point identical, but of interest to us here are the clauses according to which Permanent International Commissions are set up to serve as Councils of Conciliation. The following is the text of the three articles concerned of the treaty between the United States and Great Britain of September 15, 1914:

Art. I. 'The High Contracting Parties agree that all disputes
between them, of every nature whatsoever, other than disputes the
settlement of which is provided for and in fact achieved under
existing agreements between the High Contracting Parties, shall,
when diplomatic methods of adjustment have failed, be referred for
investigation and report to a permanent International Commission, to
be constituted in the manner prescribed in the next succeeding
article; and they agree not to declare war or begin hostilities
during such investigation and before the report is submitted.'

Art. II. 'The International Commission shall be composed of five
members, to be appointed as follows: One member shall be chosen from
each country, by the Government thereof; one member shall be chosen
by each Government from some third country; the fifth member shall
be chosen by common agreement between the two Governments, it being
understood that he shall not be a citizen of either country. The
expenses of the Commission shall be paid by the two Governments in
equal proportions.'

'The International Commission shall be appointed within six months
after the exchange of the ratifications of this treaty; and
vacancies shall be filled according to the manner of the original
appointment.'

Art. III. 'In case the High Contracting Parties shall have failed to
adjust a dispute by diplomatic methods, they shall at once refer it
to the International Commission for investigation and report. The
International Commission may, however, spontaneously by unanimous
agreement offer its services to that effect, and in such case it
shall notify both Governments and request their co-operation in the
investigation.'

Keeping in view the special form of mediation recommended by Article 8 of the Hague Convention concerning the Pacific Settlement of International Disputes and the stipulations of the Bryan Peace Treaties concerning Permanent International Commissions, we can reach a satisfactory solution of the problem of International Mediation if we take into consideration the two reasons why a League of Nations must stipulate the compulsion of its members to bring non-justiciable disputes before a Council of Conciliation previous to resorting to hostilities. These reasons are, firstly, that war in future shall not be declared without a previous attempt to have the dispute peaceably settled, and, secondly, that war in future shall not break out like a bolt from the blue.

XI. My proposal concerning International Councils of Conciliation is the following:

Every member of the League shall appoint for a term of years--say five or ten--two conciliators and two deputy conciliators from among their own subjects, and one conciliator and one deputy conciliator from among the subjects of some other State. Now when a non-justiciable dispute arises between two States which has not been settled by diplomatic means, the three conciliators of each party in dispute shall meet to investigate the matter, to report thereon, and to propose, if possible, a settlement.

According to this proposal there would be in existence a number of Councils of Conciliation equal to half the number of the members of the League. Whenever a dispute arises, the Permanent Council of Conciliation--with which I shall deal presently--shall appoint a Chairman from amongst its own members. The Council thus constituted shall investigate the case, report on it, send a copy to each party in dispute and to the Permanent Council of Conciliation.

The _Permanent_ Council of Conciliation should be a _small_ Council to be established by each of the Great Powers appointing one conciliator and one deputy conciliator for a period of--say--five or ten years. The reason why only the Great Powers should be represented in the Permanent Council of Conciliation at the Hague is that naturally, in case coercion is to be resorted to against a State which begins war without having previously submitted the dispute to a Council of Conciliation, the Great Powers will be chiefly concerned. This Permanent Council of Conciliation would have to watch the political life of the members of the League and communicate with all the Governments of the members in case the peace of the world were endangered by the attitude of one of the members; for instance by one or more of the members arming excessively. The Council would likewise be competent to draw the attention of States involved in a dispute to the fact that they ought to bring it before either the International Court of Justice or their special Council of Conciliation.

This proposal of mine concerning mediation within the League of Nations is, of course, sketchy and would need working out in detail if one were thinking of preparing a full plan for its realisation. However that may be, my proposal concerning a number of Councils of Conciliation has the advantage that non-justiciable disputes would in each case be investigated and reported on by conciliators who have once for all been appointed by the States in dispute and who therefore possess their confidence. On the other hand, the proposed Permanent Council of Conciliation would guarantee to the Great Powers that important influence which is due to them on account of the fact that they would be chiefly concerned in case economic, military, or naval measures had to be resorted to against a recalcitrant member of the League.

XII. Having discussed International Mediation by International Councils of Conciliation, I must now turn to two questions which I have hitherto purposely omitted, although in the eyes of many people they stand in the forefront of interest, namely, firstly, _disarmament_ as a consequence of the peaceable settlement of disputes by an International Court of Justice and International Councils of Conciliation, and, secondly, the question of the _surrender of sovereignty_ which it is asserted 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 maintained that disarmament can neither diminish the number of wars nor abolish war altogether, but that, if the number of wars diminishes or if war be abolished altogether, disarmament will follow. There is no doubt that when once the new League of Nations is in being, war will occur much more rarely than hitherto. For this reason disarmament will _ipso facto_ follow the establishment of a League of Nations, and the details of such disarmament are matters which will soon be solved when once the new League has become a reality. Yet I must emphasise the fact that disarmament is not identical with the total abolition of armies and navies. The possibility must always be kept in view that one or more members of the League will be recalcitrant, and that then the other members must unite their forces against them. And there must likewise be kept in view the possibility of a war between two members of the League on account of a political dispute in which mediation by the International Councils of Conciliation was unsuccessful. Be that as it may, it is certain that in time disarmament can take place to a very great extent, and it is quite probable that large standing armies based on conscription might everywhere be abolished and be replaced by militia.

XIII. Let me now turn to the question of sovereignty. Is the assertion really true that States renounce their sovereignty by entering into the League? The answer depends entirely upon the conception of sovereignty with which one starts. If sovereignty were absolutely unfettered liberty of action, a loss of sovereignty would certainly be involved by membership of the League, because every member submits to the obligation never to resort to arms on account of a judicial dispute, and in case of a political dispute to resort to arms only after having given an opportunity of mediation to an International Council of Conciliation. But in fact sovereignty does not mean absolutely boundless liberty of action; and moreover sovereignty has at no time been a conception upon the contents of which there has been general agreement.

The term 'sovereignty' was introduced into political science by Bodin in his celebrated work 'De la Republique,' which appeared in 1577. Before that time, the word _souverain_ was used in France for any political or other authority which was not subordinate to any higher authority; for instance, the highest Courts were called _cours souveraines_. Now Bodin gave quite a new meaning to the old term. Being under the influence and in favour of the policy of centralisation initiated by Louis XI of France (1461-1483), the founder of French absolutism, Bodin defines sovereignty as the 'absolute and perpetual power within a State.' However, even Bodin was far from considering sovereignty to give absolutely unfettered freedom of action, for he conceded that sovereignty was restricted by the commandments of God and by the rules of the Law of Nature. Be that as it may, this conception of sovereignty once introduced 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 into consideration that the science of politics has learnt to distinguish between sovereignty of the State and sovereignty 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; and neither the monarch, nor Parliament, nor the people can possess any sovereignty of their own. The sovereignty of a monarch, or of a Parliament, or of the whole people is not an original attribute of their own, but derives from the sovereignty of the State which is governed by them. It is outside the scope of this lecture to give you a history of the conception of sovereignty, it suffices to state the undeniable fact that from the time when the term was first introduced into political science until the present day there has never been unanimity with regard to its meaning, except that it is a synonym for independence of all earthly authority.

Now, do you believe that the independence of a State is really infringed because it agrees never to make war on account of a judicial dispute, and in case of a political dispute not to resort to arms before having given opportunity of mediation to International Councils of Conciliation? Independence is not boundless liberty of a State to do what it likes, without any restriction whatever. The mere fact that there is an International Law in existence restricts the unbounded liberty of action of every civilised State, because every State is prohibited from interfering with the affairs of every other State. The fact is that the independence of every State finds its limitation in the independence of every other State. And it is generally admitted that a State can through conventions--such as a treaty of alliance or of neutrality or others--enter into many obligations which more or less restrict its liberty of action. Independence is a question of degree, and, therefore, it is also a question of degree whether or no the independence of a State is vitally encroached upon by a certain restriction. In my opinion the independence of a State is as little infringed by an agreement to submit all its judicial disputes to the judgment of a Court and not to resort to arms for a settlement, as the liberty of a citizen is infringed because in a modern State he can no longer resort to arms on account of a dispute with a fellow citizen but must submit it to the judgment of the Court.

And even if it were otherwise, if the entrance of a State into the new League of Nations did involve an infringement of its sovereignty and independence, humanity need not grieve over it. The Prussian conception of the State as an end in itself and of the authority of the State as something above everything else and divine--a conception which found support in the philosophy of Hegel and his followers--is adverse to the ideal of democracy and constitutional government. Just as Henri IV of France said 'La France vaut bien une messe,' we may well say 'La paix du monde vaut bien la perte de l'independance de l'etat.'

XIV. I have come to the end of this course of lectures, but before we part I should like, in conclusion, to touch upon a question which has frequently been put with regard to the proposal of a new League of Nations:--Can it really be expected that, in case of a great conflict of interests, all the members of the League will faithfully carry out their engagements? Will the new League stand the strain of such conflicts as shake the very existence of States and Nations? Will the League really stand the test of History?

History teaches that many a State has entered into engagements with the intention of faithfully carrying them out, but, when a grave conflict arose, matters assumed a different aspect, with the consequence that the engagements remained unfulfilled. Will it be different in the future? Can the Powers which enter into the League of Nations trust to the security which it promises? Can they be prepared to disarm, although there is no guarantee that, when grave conflicts of vital interests arise, all the members of the League will faithfully stand by their engagements?

These are questions which it is difficult to answer because no one can look into the future. We can only say that, if really constitutional and democratic government all the world over makes international politics honest and reliable and excludes secret treaties, all the chances are that the members of the League will see that their true interests and their lasting welfare are intimately connected with the necessity of fulfilling the obligations to which they have submitted by their entrance into the League. The upheaval created by the present World War, the many millions of lives sacrificed, and the enormous economic losses suffered during these years of war, not only by the belligerents but also by all neutrals, will be remembered for many generations to come. It would therefore seem to be certain that, while the memory of these losses in lives and wealth lasts, all the members of the League will faithfully carry out the obligations connected with the membership of the League into which they enter for the purpose of avoiding such a disaster as, like a bolt from the blue, fell upon mankind by the outbreak of the present war. On the other hand, I will not deny that no one can guarantee the future; that conflicts may arise which will shake the foundations of the League of Nations; that the League may fall to pieces; and that a disaster like the present may again visit mankind. Our generation can only do its best for the future, and it 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 Nations defined, 23, 28, 35-36.

Article 8 of the Hague Convention concerning 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, with Foreign Office, 48-55.

Autocratic Government, 11.

Belgium, 37, 66.

Bodin, 76.

Bonfils on Article 23(h) of the Hague Regulations 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 become members 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 to settle, 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
Land Warfare, 51.

Democracy, 10, 11.

Dickinson, scheme of Sir Willoughby, 36.

Disarmament, 21, 74.

Dubois, Pierre, 8.

Dynastic wars, 10.

Engagements of the members of the League of Nations, security for
fulfilment of, 79.

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

Family, the, a product of natural development, 10.

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

Federal World State, A, 18-20;
demanded by Pacifists, 31;
why not possible, 19.

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

German Confederation, civil war within the, 32.

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

Germany, is she to become a member of the League of Nations? 17, 36;
necessity for the utter defeat of, 15, 37.

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

Greece, city States of ancient, 7.

Gregory on Article 23(h) of the Hague Regulations 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 International
Disputes, Article 8 of, 70.

Hague Peace Conferences, 34;
method of legislating by, 45;
the work of, obstructed by some States, 38;
standing council of, proposed, 39;
starting point of organisation of League of Nations by, 36, 39;
votes of States of equal value at, 38.

Hague Regulations concerning Land Warfare, 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 the establishment of, 72-74;
starting points for, 70.

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

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

International Court of Justice, 18, 28, 65-68;
manning of, 65;
proposed permanent bench of, 65, 66;
proposed special 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 at present, 43;
and League of Nations interdependent, 6, 33;
complied with often without Courts, 60;
grew by custom during Middle Ages, 8;
not in being in antiquity, 6;
progress of, 33, 35, 38;
universal and general, difference between, 44.

International Legislation, 38, 41-48;
a by-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 a majority vote cannot
create a statute, 44;
difficulties of, created by the language question, 43;
meaning of the term, 41;
possible even without International Courts, 42, 60;
possible only by agreement of all the States, 42;
wide field open for, 43.

International Statutes, cannot be created by majority vote, 44;
interpretation and construction of, 45;
what 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 sense started already, 8, 16;
conception of, very old, 6;
demand for, universal, 11;
impossibility of state-like organisation of, 36;
no unanimity concerning its aims or organisation, 18;
organisation of, demanded, 31;
problems connected with, 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, a necessity, 22, 33;
what is new in the now 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 historical development, 10, 14;
conception of, 13, 14;
not to be confounded with race, 13-14.

Nations, not to be confounded with States, 13, 14.

Nationality, principle of, 14, 32.

'Natura non facit saltus,' 5.

Naturalists, the School of, 62.

Oppenheim, letter of Foreign Office concerning Article 23(h) of the
Hague Regulations 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 Commissions of the Bryan Peace Treaties, 71.

Podiebrad, 8.

Police, International, 6, 41.

Politis on Article 23(h) of the Hague Regulations 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 natural development, 10;
not to be confounded with Nation, 13, 14.

Rebus sic stantibus, proposal for dealing with the clause, 69.

Religion, wars of, 10.

Sovereignty, conception of, 75;
not surrendered by entrance into the League of Nations, 74, 75, 78.

State, ideal of the national, 14.

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

Statutes, difference between International and Municipal, 42.

Sully, 9.

Swiss Confederation, civil war within the, 32.

Switzerland, 13.

Taft, Ex-President, 5.

Transoceanic States, entrance into League of Nations of, 38.

Tribe, the, a product of natural development, 10.

Ubi societas ibi jus, 8.

Ullmann, on Article 23(h) of the Hague Regulations concerning Land
Warfare, 50.

United States, civil war in the, 32.

Vienna Congress, the, 30, 42.

Votes, equality of, at Hague Peace Conferences, 38.

Wars for national unity, 10.

Wehberg on Article 23(h) of the Hague Regulations concerning Land
Warfare, 50.

Whewell, Dr., 4.

Whittuck on Article 23(h) of the Hague Regulations concerning Land
Warfare, 50.

Wilson, President, 5.

World Federation, a demand of Pacifists, 31.

AT THE BALLANTYNE PRESS
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Transcriber's Note:

Minor typographical errors have been corrected without note. Variant
spellings have been retained. Hyphenation has been standardised.