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health are prepared by those who are healthy, and desire to remain so, and to fight in every imaginable way against disease. They are not made by or to meet the desires of those who look upon disease as normal and natural and, if not praiseworthy, at least not to be interfered with by the healthy, as it is today by, for instance, quarantining the sufferer. When, however, the laws of war are being framed, instead of allowing them to be dictated by those whose interests are in peace and the ways of peace and who expect themselves to remain peaceful and desire their neighbors to do the same, we allow them to be dictated by those who expect to go to war and who desire their warlike operations facilitated and legalized even at the expense of other nations, instead of proscribed and confined.
If the laws of war were framed by those who desired to preserve peace and to make war objectionable to those who engaged in it, instead of being framed from the reverse point of view, several things occur to the present writer as likely to take place among many other reforms which undoubtedly would follow. For instance: If war is to be treated as an evil, as it is, the international laws of war and national laws as well, should prohibit, under the severest possible penalties, the sale of arms or ammunition to any nation at war or which may be reasonably expected soon to take up arms. If our laws, international and national, were further civilized from the same point of view, smug financiers in European capitals would not furnish money to enable wars to be carried on, as they have been doing even within the past few months.
Rewriting the laws of war from the standpoint of health rather than of disease, neutral nations will not permit themselves to be interfered with in conducting the orderly operations of commerce because two nations, crazed with the war spirit, are at each other's throats. Such neutral nations would say that there was no foundation in justice for the so-called right of blockade and that they had a perfect right to trade with whomsoever they might choose, without being halted, directed and controlled by a bad-tempered or covetous combatant. It remains true, however, that it might also be well to consider the boycott of fighting nations by refusing all commercial intercourse with them till war ceases, thus pursuing the analogy afforded by imprisonment of civil offenders till they have had time to repent of their misdeeds.
Again, such neutral nations might well insist that they and their citizens should not be made the sufferers, as they are today, under the common law of war, from what are called the accidents of war. If a
man, crazed with anger, striving to kill his enemy, shoots a gun at him, killing a by-stander, he is not acquitted of responsibility either civil or criminal. There is no more reason in justice why, if a nation, filled with fury against its neighbor, bombards that neighbor's cities, it should not be held responsible for the damage inflicted by its misdirected shots striking the property of neutrals. If nations propose to dance to the strange tune of war, they should be prepared to pay the piper and should not be permitted to lay down rules absolving them from any such responsibility.
The ideas above expressed may seem so fanciful at first glance, because unaccustomed, as to have about them an air of unsoundness, but the writer believes this erroneous. They merely suggest the logical application to the laws of war of those principles of order and decency which we apply in our daily life as between man and man, and the reason is by no means apparent why one man should be obligated to treat his neighbor with courtesy and respect and a million men should find themselves at perfect liberty to set aside all laws of decency. There seems at least to be no reason why we should not speedily surrender our ancient, barbaric and illogical point of view for one which will be truly modern, civilized and logical.
The man who will consider in all its ramifications the rewriting of the laws of war from the standpoint of international health and justice, abandoning the standpoint of international disease and consecrated injustice, will work to bring about an ultimate revolution in our international affairs by no means inferior to that accomplished by Grotius and more lasting, because he will base his reasoning upon immutable principles of right. He will at the same time, his ideas once accepted, do more to establish the cause of peace than existing activities have been able to accomplish, and this simply through applying to nations acting in their national capacities the inexorable logic we apply to individuals acting in their private capacities.
The work of M. Mérignhac has not done this, but we may not criticise him therefor, since no predecessor has done it. Within the limitations under which he has written, his work is well done, but the future, if we are to progress, must show a greater work upon the laws of war, which I believe will be of the character I have endeavored to indicate.
JACKSON H. RALSTON.
Staatliches deutsches International-privatrecht und völkerrechtliches International-privatrecht der Haagerverträge. By Wilhelm Kaufmann. Breslau: M. & H. Marcus. 1910. pp. 59.
In this pamphlet - a reprint of a portion of a jubilee number dedicated by members of the law faculty of the University of Berlin to Professor Otto Gierke on the occasion of the 50th anniversary of his Promovierung as doctor - Professor Kaufmann undertakes a study of the nature of the rules of private international law sanctioned by the German legislator and of those adopted by the convention of The Hague. The author shows the fundamental differences existing in many respects between the aims, scope, and application of the rules prescribed by a particular sovereign Power for the solution of the conflict of laws and those resulting from international agreement between a number of states. He points out the defects which in the very nature of things, attach to the regulation of the conflict of laws by a single state, and the advantages resulting from international agreement. Special consideration is given to renvoi, to public policy, and to other questions demanding different solutions according to the nature of the system (whether national or international) of which they form a part.
ERNEST G. LORENZEN.
Le Droit des Gens en Marche vers la Paix et la Guerre de Tripoli. By Jonkheer J. C. C. Den Beer Poortugael. The Hague: Martinus Nijhoff. 1912. vii, 133 pages.
This book is the outgrowth of an effort made by the author in 1911 to coöperate with the Carnegie Peace Endowment, Division of International Law, in its work of promoting the development of the law of nations and the substitution of a judicial system for war in the settlement of controversies. A memorandum sent in the autumn of 1911 to Dr. James Brown Scott, who had invited his coöperation, constitutes the basis of this work, though this memorandum has been revised, much enlarged and brought up to date.
General Den Beer Poortugael, the author, was, before his death recently, one of the most eminent authorities of Western Europe on international law. He represented The Netherlands in both the Hague Conferences, where he took advanced ground in favor of limitation of armaments and the substitution of a general judicial system for war in dealing with international differences.
In the opening of his work he takes a rather pessimistic view of the
general political situation at the time when it was written, in 1911. Insurrections in Mexico, in South and Central America, and in China, and the troubles in Northern Africa, etc., led him to feel that we are not very far advanced in the domain of law (droit) in international affairs, notwithstanding the two peace conferences at The Hague. As the general political situation of the world has not improved but in some respects grown worse since his volume was written two years ago, his treatment of his subject is peculiarly appropriate to our time.
In his rapid historical sketch of the character of wars, their calamities, disasters, cruelties and injustices, he reminds one of the earlier pacifists Worcester, Dodge, Channing, and Ladd-in his conception of the moral baseness of the system of brute force. He does not believe that war will disappear from the world at one blow. But he holds that it is not an inevitable expression of human nature and society, as some have held, and that it will certainly gradually decline with the progress of the true principles of civilization.
He pens a very severe word of condemnation for spying in time of peace, as well as for the shocking cruelties of both the Italian and the Turkish soldiers in the Tripolitan war, of which he gives examples. He admits the great difficulty of applying the accepted laws of war in a conflict with uncivilized peoples. But the fact that such peoples do not observe these laws does not excuse a civilized Power from respecting and keeping them in a war with the uncivilized.
In his chapter on Italy's declaration of war against Turkey, he examines the grievances, which were brought forward by the Italian Government to justify its course, and finds that these furnish not even a plausible excuse for the declaration in the manner in which it was made. Italy proceeded on the theory that "might makes right." The declaration was in violation of the Hague Conventions of 1899 and 1907. It was likewise in violation of Article VII of the Treaty of Paris of 1856, which pledged the signatories to respect the territorial integrity of the Ottoman Empire. It was furthermore in violation of Article VIII of the same treaty, which stipulates that before going to war a nation shall notify the other signatory Powers and give time for mediation. Italy acted as if this treaty had no existence. Treaties, the author holds, are inviolable, and no one nation party to a treaty has the right to free itself from its obligations without the consent of the other contracting party. Italy's pretended right to Tripoli because the Romans once occupied the country, or because of its geographical situation, or be
cause of the action of the other Powers in seizing portions of Northern Africa, the author meets with scarcely suppressed ridicule. He cites the utterances of prominent men and journals in other countries, and the numerously signed Juridical Protest of eminent Englishmen in support of his claim that the general public opinion of the civilized world condemned the conduct of Italy.
In his chapter on "The Remedies" for war, the author deals in a trenchant way with the influence of the chauvinistic press, which he considers to be very often, if not generally, in our day the "deadly influence" which engenders war. He cites examples from the English papers before the outbreak of the Boer War, and from the Italian journals which did so much to bring on the war in Tripoli. This class of journals must, he says, be combatted with the same arms, that is, with other papers. He lays great stress on the education of the young, who must be taught that there is not one morality for individuals and another for states. "There are not two kinds of morality, one for individuals and another for peoples, one for the poor and another for the rich, one for the small and another for the great of the earth. Evil remains evil everywhere and for all. The commands which God has given and placed in the conscience of men and which Moses engraved on tables of stone on Mount Sinai must regulate the conduct of the entire world without any exception." The children at home and in the schools must be "penetrated" with this universal morality. Among the fruitful sources of war he places "secret treaties," which have done such enormous mischief among the modern European nations. This abuse of treaties, which are "the corner-stone of international law," must be wholly abandoned. In his treatment of the great armaments of the day, as a ruinous charge on the people and as provocative of suspicion and jealousy, which are liable to provoke war through their employment to promote economic expansion, he leaves nothing to be said. He urges the freest intercourse among peoples in education, travel, trade, etc. "Everybody for everybody" should be the slogan.
The whole chapter on the remedies for war, including the section on obligatory arbitration, is of a very high order, and has rarely, if ever, been surpassed in its insight both moral and political. He makes a fine discrimination between real and spurious national honor and quotes approvingly President Taft's famous utterance in New York on March 22, 1910, in favor of arbitration even of questions of honor and vital interest.