« PreviousContinue »
troversies might not more profitably be approached from the political side. Instead of attempting a strictly legal classification which would virtually amount to codification, the task would be in a large measure simplified. It would become one rather of providing the means, the machinery for deciding in a given case whether the political considerations at stake would exclude a purely judicial decision, and demand adjustment either through diplomacy or arbitration.
We face here a fact of the utmost importance concerning the competency as well as the prestige of the Court of International Justice. We should not forget that this Court owes its creation primarily to the need and to the demand for an administration of international justice entirely dissociated from diplomatic jugglery or arbitral compromise. The respect and confidence which this new Court should inspire will depend largely on the manner in which it courageously refuses to become involved in the political disputes of nations. The Court unquestionably will be called on, under the vague general terms of Article 36 defining its competency, to decide whether certain of the disputes submitted are not essentially political in character and hence not "proper to be brought before a court of justice.”
The refusal of the Court of International Justice to entertain various disputes involving political considerations would not result in any injury to the nations concerned inasmuch as there already exists the much older institution of the Permanent Court of Arbitration at The Hague, whose function, and in fact, whose raison d'être alongside of the new Court of International Justice should be the decision of disputes involving considerations not entirely justiciable in their character. Nothing could be more dangerous to the whole cause of justice amongst nations than to attempt to burden the new Court of International Justice with "all cases which the parties refer to it." Nothing would appear to be more favorable to this cause than the existence of courts of arbitration and of other means of adjustment and conciliation to provide for a peaceful decision of those special questions which are outside of the competency of a pure court of justice.
By way of summary, then, this problem of the classification of international disputes of a justiciable nature, while primarily a juristic problem, would appear to be involved essentially in the consideration of the actual status of international society. There would seem to exist serious grounds for doubting whether it would be possible to attempt a classification of a purely scientific character which would not have more of an academic value than a practical significance. May we not be compelled, after all, to approach this task from the political end and try by a process of elimination, that is to say, by dealing with the exceptions rather than with the rule, to finally arrive at the desired goal, namely the free untrammeled administration of inter. national justice?
PHILIP MARSHALL BROWN.
“AS IF FOR AN ACT OF PIRACY" The treaty concluded between the United States, the British Empire, France, Italy and Japan at the Washington Conference on February 6, 1922, which imposes limitations upon the use of submarines as commerce destroyers in war and is generally known as the Declaration of Washington, provides in Article III as follows:
The Signatory Powers, desiring to insure the enforcement of the humane rules of existing law declared by them with respect to attacks upon and the seizure and destruction of merchant ships, further declare that any person in the service of any Power who shall violate any of those rules, whether or not such person is under orders of a governmental superior, shall be deemed to have violated the laws of war and shall be liable to trial and punishment as if for an act of piracy, and may be brought to trial before the civil or military authorities of any Power within the jurisdiction of which he may be found.
The rules referred to are stated in Article I of the treaty as follows:
The Signatory Powers declare that among the rules adopted by civilized nations for the protection of the lives of neutrals and noncombatants at sea in time of war, the following are to be deemed an established part of international law;
(1) A merchant vessel must be ordered to submit to visit and search to determine its character before it can be seized.
A merchant vessel must not be attacked unless it refuse to submit to visit and search after warning, or to proceed as directed after seizure.
A merchant vessel must not be destroyed unless the crew and passengers have been first placed in safety.
(2) Belligerent submarines are not under any circumstances exempt from the universal rules above stated; and if a submarine can not capture a merchant vessel in conformity with these rules the existing law of nations requires it to desist from attack and from seizure and to permit the merchant vessel to proceed unmolested.
It appears from the published records of the Conference that in the diseussion among the representatives of these five Powers as to the declaration that a violation of these laws of war would be punished “as if for an act of piracy," assent was given to the following propositions as the legal basis of this declaration: that the rules, the violation of which is to be punished as for an act of piracy, are rules of the existing laws of war; that the five Powers represented are competent to make a declaration characterizing a violation of the existing laws of war as a crime which would subject the violator to punishment; that they are competent to declare that those who violate the laws of war are punishable as for acts of piracy; that as they were not making law, but a declaration regarding existing law, no limitation of its application to the Powers represented was necessary.
They also assented to the following limitations upon their powers: that it would not be competent for them to make an agreement between themselves which would have the effect of a law of nations, upon which they could pronounce a punishment as for piracy; that for this reason the punishment as for piracy could not be applied by this treaty to violations of the new rule adopted in Article IV prohibiting the use of submarines as commerce destroyers; that until this rule passed beyond the contractual state and became an accepted rule of international law, they are constrained to limit their enforcement of it to their contractual obligations as between themselves.
With reference to the phrase "punishment as if for an act of piracy,” its meaning was stated to be that a violation of the laws of war therein specified should be punished as an act of piracy is punished. It was further stated that under this provision the offender would not be subject to the limitations of territorial jurisdiction, the peculiarity about the punishment for piracy being that, although the act is done on the high seas and not within the jurisdiction of any country, nevertheless it can be punished in any country where the offender is found.
In the United States, Congress is empowered by the Constitution “to define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” Many treaty stipulations dealing with matters entrusted to Congress under the Constitution have been held to be self-executing without legislative action, although it has sometimes been the practice in similar cases for Congress to enact appropriate legislation for carrying out treaty stipulations.
The purpose of the treaty, so far as these provisions are concerned, is stated in the preamble to be "to make more effective the rules adopted by civilized nations for the protection of the lives of neutrals and noncombatants at sea in time of war." It is of interest to note that the provisions above quoted apply not merely to submarines but to surface ships of war as well when used as commerce destroyers, and as indicated by the preamble it is inspired by humane sentiments for the protection of lives rather than by the mere utilitarian purpose of protecting property, no mention of which is made in the treaty.
CHANDLER P. ANDERSON.
THE NOBEL PEACE PRIZE FOR 1921 The Nobel Peace Prize of approximately forty thousand dollars was intended to be awarded every year, and has been, with the exception of 1914, 1915, 1916 and 1918.
Usually the prize has been to one individual or has been divided between two candidates. On three occasions it was granted to institutions: in 1904, to the Institute of International Law, in 1910 to the Permanent International Peace Bureau of Berne, and in 1917 to the International Red Cross of Geneva.
In the year 1921 (on December 10th, to be accurate) the peace prize for 1921 was awarded, one half to Karl Hjalmar Branting, Prime Minister of Sweden, and one half to Christian Lous Lange of Norway, Secretary-General of the Interparliamentary Union. The award is made in Christiania by a committee of five members elected by the Norwegian Storthing, “to the
1 Extent and Limitation of the Treaty-Making Power, by Chandler P. Anderson, American Journal of International Law. July, 1907.
person who shall have done most or the best work in the interest of the brotherhood of peoples, of the abolition or reduction of standing armies, as well as of the formation and propagation of peace congresses.
Both of the recipients qualified under one if not more of the three subdivisions.
Mr. Branting was born at Stockholm on November 23, 1860. He is a journalist by profession and was for thirty years editor of the Social Democrat (1887–1917), until his appointment as Minister of Finance in October, 1917. In March, 1920, he became Prime Minister of Sweden, serving until December of that year. After the elections in the fall of 1921, which were favorable to the Socialists, he again became Prime Minister (October 11th), which post he still holds. In 1920 and in 1921, at the first and second sessions of the League of Nations held in Geneva, he was chairman of the Committee on Disarmament in the Assembly, and in March of last year he was appointed a member of the Commission on Disarmament appointed by the Council of the League, of which Mr. Réné Viviani of France was chairman.
Mr. Branting is in fact as well as in title the leader of the Social Democratic Party in Sweden, and has been very prominent in the international gatherings of Socialists. He is, of course, an advocate of the League of Nations, and during the Peace Conference in Paris he was a strenuous advocate of peace on the lines of President Wilson's "fourteen points." He has been a prolific writer as well as an agitator, some of his publications being Socialism (1892), Military Riksdag vs. Folksriksdag (1892), Social Democracy's Century (1896), The Political Crisis (1914), Against the Personal Monarchies (1914), The Laboring Class and the World Situation (1915), The Waves Rise (1917).
Mr. Lange was born at Stavanger, Norway, on September 17, 1869. He was Secretary of the Nobel Committee in the Storthing from 1900 until 1909. He represented Norway at the Second Hague Peace Conference of 1907, distinguishing himself by his advocacy of arbitration. Since July 1, 1909, he has been Secretary-General of the Interparliamentary Union.
Mr. Lange is an apostle of peace. It is the serious mission of his life. He has brought his native and highly trained intelligence to its advancement, and he has brushed aside worldly honors. Among others, it may be mentioned that he refused no less a post than the Ministry of Foreign Affairs of his native country, as its acceptance would have interfered with his peace work.
He is an admirable linguist, speaking French and German as if they were his mother-tongue, and in his English there is no trace of the foreigner.
Mr. Lange has a very facile pen as well as a supple tongue. Among his many works one is a masterpiece. It is The History of Internationalism (Histoire de l'Internationalisme), the first volume of which, ending with the Peace of Westphalia of 1648, appeared in 1919. The second will continue the history from 1648 to 1815, and will, Mr. Lange assures us, appear shortly. The third and concluding volume will carry the narrative from 1815 to the present day.
This great work, written by Mr. Lange in French, is a tribute to French as the international language par excellence. It is a monument to the peace movement. It is a monument to the author.
In his last will and testament creating the five prizes, of which the peace prize is one, Mr. Alfred Nobel stated it to be his "express will that nationality shall not be taken into account in conferring the prizes, so that the prize may go to the most deserving, whether he be a Scandinavian or not." The Peace Prize for the year 1921 has been worthily bestowed, and to Scandinavians.
JAMES BROWN SCOTT.
PROPOSED AMENDMENTS TO THE COVENANT OF THE LEAGUE OF NATIONS
The Second Assembly of the League of Nations, on October 3-5, 1921, passed a number of resolutions amending the Covenant of the League.' The amendments deal with the election of non-permanent members of the Council of the League, the allocation of the expenses of the League, recognize judicial settlement as a means of settling international disputes and fit the Permanent Court of International Justice into the scheme of the League, modify the existing provisions concerning the use of force and economic pressure, and change the method of amending the Covenant.
The Council of the League consists of "representatives of the Principal Allied and Associated Powers, together with representatives of four other members of the League. These four members of the League," Article 4 provides, "shall be elected by the Assembly from time to time in its discretion.". The Assembly now proposes to insert the following paragraph between the second and third paragraphs of Article 4:
The Assembly shall fix by a two-thirds majority the rules dealing with the election of the non-permanent Members of the Council, and particularly such regulations as relate to their term of office and the
conditions of re-eligibility. The allocation of the expenses of the League is provided for in Article 6 of the Covenant, the last paragraph of which reads that "the expenses of the Secretariat shall be borne by the members of the League in accordance with the apportionment of the expenses of the International Bureau of the Universal Postal Union,” and in the section of the peace treaties dealing with the International Labor Organization, under which all expenses of that organization "shall be paid to the Director by the Secretary-General of the League of Nations out of the general funds of the League,” except 1 League of Nations Official Journal, January, 1922, pages 6–34.
The text of the Covenant of the League of Nations, which is referred to in this comment, may be found in the Official Journal of the League of Nations, No. 1, February, 1920, pages 3–12. It is printed in the Supplement to the American Journal of International Law, Vol. 15, 1921, pp. 4-13.