The Future of International Law Part 3

[Sidenote: International laws which are limited in point of time.]

40. So also, the difficulty is not insuperable as regards the other point, namely, that international enactments when once in existence cannot be repealed or amended save by a unanimous resolution of the partic.i.p.ant states. Here, too, the a.n.a.logy between munic.i.p.al and international legislation must not be pushed too far. Munic.i.p.al legislation can at any time be annulled or altered by the sovereign law-maker; but international legislation, for want of a sovereign over sovereign states, is not open to such treatment. Here there is a way out, which was in fact adopted at the second Peace Conference, and also at the Naval Conference of London, namely, the enactment of laws so limited in duration to a period of years, that at the expiry of the period every partic.i.p.ant state can withdraw. In this way, for example, it was agreed that the law about the International Prize Court and the Declaration of London should only be in force for twelve years, and that any of the powers which were parties thereto might withdraw twelve months before the expiry of that period, and that, if and as far as no withdrawal ensued, these laws should from time to time be continued in force automatically for a further period of six years. This kind of international legislation, with its time limit and the right of denunciation, is to be recommended wherever more or less hazardous legislative experiments are being made, or where interests are at stake which in course of time are liable to such an alteration as obliges states to insist on the amendment or repeal of the previously made law.

For example, the International Prize Court as a whole, and its composition, const.i.tution, and procedure in particular, form an unparalleled experiment. But the fact that its inst.i.tution is only to be agreed on for a period of twelve years facilitates its general acceptance, because of the possibility of either abrogating it altogether, or of reforming it, should experience show this to be necessary.

[Sidenote: International legislation no longer to be left to mere chance.]

41. However this may be, one point must be decisively emphasized,--international legislation can no longer be left to mere chance. Apart from the Declaration of London and the Geneva Convention, it has always. .h.i.therto been a more or less happy chance which has controlled international legislation. Of conscious legislative consideration and deliberation, based on far-reaching, thoroughgoing preparation, there is no trace. For example, the Declaration of Paris of 1856 was but a by-product of the Peace of Paris of the same year. So also the legislation of the first Peace Conference was simply due to the anxiety to accomplish something positive which might conceal the fact that the proposed aim of the Conference--general disarmament, to wit--had in no wise been realized. At the second Peace Conference we did indeed see individual states appear with some well-prepared projects of legislation, but the preparation was entirely one-sided on the part of the states in question, and not general; accordingly, the adoption, rejection, amendment, and final shaping of these projects were also none the less the result of chance. The second Peace Conference itself took steps to prevent a repet.i.tion of this, calling the attention of the powers in its Final Act to the necessity of preparing the programme of the future third Conference a sufficient time in advance to ensure its deliberations being conducted with the necessary authority and expedition:

In order to attain this object the Conference considers that it would be very desirable that, some two years before the probable date of the meeting, a preparatory committee should be charged by the Governments with the task of collecting the various proposals to be submitted to the Conference, of ascertaining what subjects are ripe for embodiment in an international regulation, and of preparing a programme which the Governments should decide upon in sufficient time to enable it to be carefully examined by each country.

[Sidenote: The Declaration of London thoroughly prepared beforehand.]

42. In contrast to the rules of the Peace Conferences, a really notable and exemplary preparation took place in connexion with the Declaration of London, and the befitting result was a law excellent alike in matter and in form. England, the state which summoned the Naval Conference of London, made a collection of the topics which would arise, and communicated it to the states attending the Conference with the request that they would send in full statements on the subjects mentioned. After the answers to this request had come in they were collated with regard to each of the points on which discussion would arise, and _bases de discussion_ were elaborated which made a thorough examination of each point possible at the Conference. By this means it was at once made clear when the different states were in accord and when not. The door to compromise was opened. And apart from a few vexed questions an agreement was in this way successfully reached with regard to a comprehensive law resting at every point on exhaustive deliberation.

[Sidenote: The preparation of the Declaration a pattern for future international legislation.]

43. This model method must be the method of the future. If, as indicated in --26 above, Art. 5, a permanent commission for the preparation of the Peace Conferences be successfully inaugurated, it will be its task to make preliminary preparations for the legislative activity of the Conferences in the manner just sketched out, and chance will no longer have the same part to play as heretofore. International legislation will no longer produce anything so full of gaps as the 'Regulations respecting the laws of land warfare', which leave essential matters--for instance, capitulations and armistices--without any adequate regulation.

[Sidenote: Intentionally incomplete and fragmentary laws.]

44. Of course, where the interests of different states are still involved in some uncertainty, or are in such antagonism that a complete agreement is impossible, even the fullest preparation and most painstaking deliberation will not procure a more satisfactory treatment for many matters than that the legislation which regulates them should be (so to say) only experimental and intentionally incomplete and fragmentary in character. Thus, for example, the Conventions about the conversion of merchantmen into men-of-war and about the use of mines in naval war can only be considered as legislative experiments, regulating these matters merely temporarily and in an incomplete and unsatisfactory manner. But even conventions which designedly are full of lacunae have their value. They embody all the same an agreement upon some important parts of the respective topics, and provide a regulation which in every case is better than the chaos previously prevailing in the areas in question. They also const.i.tute a firm nucleus round which either custom or future legislation can develop further regulation.

[Sidenote: Interpretation of international statutes.]

45. But even if international legislation attains the degree of success suggested, there still remains another great difficulty which must indirectly influence legislation itself, and that is the interpretation of international statutes once they have been enacted. It is notorious that no generally received rule of the law of nations exists for the interpretation of international treaties. Grotius and his successors applied thereto the rules of interpretation adopted in Roman law, but these rules, despite their aptness, are not recognized as international rules of construction. It can scarcely be said, however, that insurmountable difficulties have arisen hitherto out of this situation, for the majority of treaties have been between two parties, and the interpretation thereof is the affair of the contracting parties exclusively, and can be ultimately settled by arbitration. But in the case of general or universal international enactments we have to deal with conventions between a large number of states or between all states, and the question, accordingly, now becomes acute.

[Sidenote: International differences as regards interpretation.]

46. The difficulty of solving this question is increased by the fact that jurists of different nations are influenced by their national idiosyncrasies in the interpretation of enactments, and are dependent on the method of their school of law. Here are contrarieties which must always make themselves powerfully felt. The continental turn of mind is abstract, the turn of the English and American mind is concrete.

Germans, French, and Italians have learnt to apply the abstract rules of codified law to concrete cases; in their abstract mode of thought they believe in general principles of law, and they work outwards from these.

English and Americans, on the contrary, learn their law from decided cases--'law is that which the courts recognize as a coactive rule' is an accepted and widely current definition of law in the Anglo-American jurisprudence; they regard abstract legal rules, which for the most part they do not understand, with marked distrust; they work outwards from previously decided cases and, when a new case arises, they always look for the respects in which it is to be taken as covered by previous cases; they turn away as far as possible from general principles of law, and always fasten on the characteristic features of the particular case.

If continental jurists may be said to adapt their cases to the law, English and American jurists may be said to adapt the law to their cases. It is obvious that this difference of intellectual att.i.tude and of juristic training must exercise a far-reaching influence on the interpretation and construction of international enactments.

[Sidenote: Different nations have different canons of interpretation.]

47. It is because of what has just been explained that the rules for the interpretation of domestic legislation are different with different nations. For example, whilst in Germany and France the judge avails himself more or less liberally of the _Materialien_[1] of a statute in order to arrive at its meaning, the English judge limits himself to the strict wording of the text, and utterly refuses to listen to an argument based on the historical origin of the statute. The English bench, sticking more closely to the letter of the law, allows also an extensive or restrictive interpretation thereof much more seldom than the continental judiciary does.

[1] It seems impossible to find any single English phrase which gives the meaning of _Materialien_ in this context. In the _Materialien_ of a statute is comprised everything officially put on record concerning it between the time the draftsman undertakes to draft the measure and the time it is placed on the statute-book. For instance, the commentary which a draftsman on the Continent always adds to his draft, giving the reasons for the provisions of the Bill; the discussions in Parliament about the Bill; and the like.--TRANSLATOR.

[Sidenote: Controverted interpretation of the Declaration of London an example.]

48. A good ill.u.s.tration of the factors under consideration was furnished by the movement in England against the ratification of the Declaration of London, and the discussion evoked thereby in the press and in Parliament. It was a.s.serted that many rules of the Declaration were so indefinitely framed as to lie open, castle and keep, to the arbitrary inroads of a belligerent interpreter. And when the advocates of ratification pointed to the official 'General Report presented to the Naval Conference by its Drafting Committee', which gave a satisfying solution to the issues raised, the answer came that neither a belligerent nor the International Prize Court would be bound by the interpretation of the Declaration contained in this General Report. It was a.s.serted that the ratification of the Declaration would refer only to the text itself, and that the General Report, not being thereby ratified, would not be binding; only by express extension of the ratification to the General Report could the latter bind.

Continental jurisprudence, if my conception of it be correct, would stand shaking its head at the whole of this discussion. It would ask how there could be any talk of ratifying a report, ratification having only to do with agreements. And as regards the question of the binding character of the General Report, there might indeed be some objection on the Continent to the epithet 'binding', but, on the other hand, there would be no doubt that the interpretation of the Declaration given in the Report must be accepted on all sides. The Report expressly says:

We now reach the explanation of the Declaration itself, on which we shall try, by summarizing the reports already approved by the Conference, to give an exact and uncontroversial commentary; this, when it has become an official commentary by receiving the approval of the Conference, would be fit to serve as a guide to the different authorities--administrative, military, and judicial--who may be called on to apply it.

Seeing that the Conference unanimously accepted the Report, there is expressed in it and by it the real and true meaning of the individual articles of the Declaration as the Conference itself understood and intended it. Every attempt to procure an inconsistent interpretation must come to grief on this fact, and so the Report is in this sense 'binding'. The ratification of a treaty extends, of course, not only to the words themselves, but also to their meaning, and if the Conference which produces an agreement itself unanimously applies a definite meaning to the words of the agreement, there cannot remain any doubt that this is the meaning of the verbal text. Nevertheless, the contrary was maintained in England by a party of men of legal eminence, and the explanation of this is only to be found in the fact that these English lawyers were applying to the interpretation of the Declaration the rules which govern the interpretation of English statutes. The only way to enable the English Government to ratify the Declaration seems to be a statement by the Powers at the time of ratification that the interpretation of the Declaration expressed in the General Report is accepted on all sides.

[Sidenote: Some proposals for the avoidance of difficulties in interpretation.]

49. However this may be, the ill.u.s.tration adduced is sufficient proof that the interpretation of international enactments creates a difficulty of its own for international legislation. International legislators must bring even greater solicitude than munic.i.p.al legislators to the expression of their real meaning in rigid terms. And this aim can only be attained by the most a.s.siduous preparation and consideration of the contents of the enactment. It would be best if these contents were published and thereby submitted to expert discussion before they were finally accepted at the Conferences. The national jurisconsults of the partic.i.p.ant states would thus be enabled to criticize the proposals and to indicate the points which especially need clearing up. It might also be possible to consider the enactment, by convention, of an international ordinance containing a series of rules for the interpretation and construction of all international statutes. This much is sure, that the interpretation of international statutes must be freer than that of munic.i.p.al statutes, and must therefore be directed rather to the spirit of the law than to the meaning of the words used.

This is all the more requisite because French legal language is foreign to most of the states concerned, and because it is not to be expected that before ratification they should obtain minute information about the meaning of every single foreign word employed.

CHAPTER III

INTERNATIONAL ADMINISTRATION OF JUSTICE

[Sidenote: Law can exist without official administration.]

50. It is inherent in the nature of law that it should be put in question whenever from time to time one party raises a claim in the name of the law which the other resists in the name of the same law. If, however, it be a.s.serted that there cannot be any law where there is no official administration of justice, this is a fallacy, and the fallacy lies in considering the presence of the elements of the more perfect situation to be presupposed in the less perfect situation. Beyond a doubt it is the administration of law which gives law the certainty that its authority will in every case obtain operative effect. But this operative effect is obtainable even apart from administration, because those who are subject to the law are in most cases clear as to its contents, and so they raise no question about it, but submit to its application without any need of recourse to jurisdictional officials.

All the same, when a dispute does arise, law needs official administration: and, accordingly, in the long run, no highly developed legal society can dispense with it.

[Sidenote: The Hague Court of Arbitration as a permanent inst.i.tution.]

51. Until the end of the nineteenth century the society of states possessed no organ which made international administration of justice possible. When states had made up their mind to have a dispute between them settled amicably, they either appointed the head of a foreign state or a foreign international jurist as arbiter, or they selected a number of persons to form an arbitral tribunal. It was a great step forward when the first Hague Conference established a Permanent Court of Arbitration and agreed on international rules of procedure for the conduct of this court. And if, seeing that in every particular instance the court is ultimately chosen by the parties, the expression 'Permanent Court of Arbitration' is only a euphemism, nevertheless the permanent list of persons from among whom the arbiters can be chosen, and, in addition, the Permanent Bureau of the Court of Arbitration at The Hague, and, lastly, the international rules of procedure, represent at least the elements of a permanent court. Thereby an inst.i.tution is obtained which is always available if only parties will make use of it, whereas such an inst.i.tution was entirely lacking formerly, and if parties wanted an arbitration they had to enter on lengthy arrangements about the machinery of the process. And the short experience of twelve years has already shown how valuable the inst.i.tution is, and how well adapted to induce disputant states to make use of it.

[Sidenote: The proposed International Prize Court and Court of Arbitral Justice.]

52. The second Peace Conference took, however, another great step forward in the resolution to establish an international court of appeal in prize matters, and also in the proposal about a really permanent international court to exist by the side of the Court of Arbitration.

And the United States of North America have recently entered on negotiations with the object of utilizing the International Prize Court, should it come into existence, as at the same time a permanent tribunal for all legal issues. Here present and future touch hands, and these proposed inst.i.tutions must therefore be discussed. Attacks upon them have been made from two sides, it being a.s.serted that they infringe the principles of the equality and sovereignty of states.

[Sidenote: Does the const.i.tution of the International Prize Court violate the principle of the equality of states?]

53. It is alleged that the principle of equality is violated in that the Prize Court is contemplated as consisting of fifteen members, so that, while the eight Great Powers are always represented by a member, the thirty-seven smaller states are only represented by seven members who take their seats in the court in rotation according to a definite plan.

Now it is not clear how the principle of equality can be deemed violated thereby. This principle has really nothing to do with the const.i.tution of an international court so long as no state is compelled to submit itself to such a tribunal against its will. It would be possible to const.i.tute an international court without basing it on the representation of definite states, and that is very likely to come to pa.s.s in the future, when fuller confidence in the international judicature is felt. In the proposed composition of the Prize Court expression is given, undoubtedly, to the actually existing _political inequality_ of states, a matter which, however, has not the least connexion with their _legal equality_. This political inequality will never disappear from the world, and if in course of time the creation of an international judicature is really intended, the realization of this idea is only possible subject to the existence of political inequality.

There is little doubt that when we come to the const.i.tuting of the Prize Court certain smaller states will abstain because no permanent representation therein is allotted to them. But it may confidently be expected that the recalcitrant states will give in their adherence in the future, when they begin to see what beneficent results the inst.i.tution has produced.

[Sidenote: Does the International Prize Court restrict the sovereignty of the several states?]

54. The International Prize Court violates the sovereignty of states just as little as it violates the principle of equality. No state submitting itself to an international tribunal submits itself thereby to the power of any other earthly sovereign so long as no other power is entrusted with the execution of the awards of the international tribunal, that is to say, so long as submission to any such award rests always and entirely on the voluntary submission of the state concerned.

If this be not correct, then there would also be an invasion of sovereignty whenever--as indeed happens everywhere more or less--a state submits itself to the decrees of its own courts, and allows its subjects an appeal to its courts against the measures of the government. In the latter, as in the former case, what we have is merely the demission to the determination of the court of the question whether certain acts and claims are consistent with law. He who at the present day conceives sovereignty as an unlimited arbitrariness of conduct is guilty of an anachronism which is everywhere contradicted by the mere fact that there are such things as international law and const.i.tutional law.