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.
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.