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Le Droit Penal International et sa mise en æuvre en temps de paix et en temps
de guerre. Par Maurice Travers. Tome I, Principes.-Règles générales de compétence des lois répressives. Paris: Recueil Sirey, 1920, pp. 676.
This is the first volume of a monumental work upon International Criminal Law in which the distinguished author sets forth the general principles of his system and the larger rules governing the validity and vigor of positive criminal law. The plan which he adopts is to reject every fiction, everything not strictly in accord with reality, and to be ready, in case of necessity, to face new problems with new conceptions. We are prepared, therefore, for a work primarily of investigation wherein abstract theories are displaced by pragmatic and positive generalizations. The author proceeds upon the theory that law is a purely experimental science. The foundation of International Criminal Law is not to be found in international cooperation, but in the necessity which each state finds for the protection and defense in the largest sense of its own social interests. Each state acts essentially in its own interest, but as between states international cooperation is the essential means by which the security of each state is guaranteed. International cooperation is therefore the superstructure which rests upon the basis of state interests. M. Travers follows De Bar in making criminal law rest essentially upon social defense and not upon individual culpability. One dominating idea in this field of law should be that in each case every opportunity be given for the investigation of facts and for the consideration and refutation of the charge, yet nothing should be neglected to reduce to a minimum the chances by which the conflict of laws may result in allowing crime to go unpunished.
Proceeding from this basic conception of social defense, the author sets forth four fundamental axioms:
(1) Every repressive law determines all questions of qualification. It is for the law of each state alone to determine as to whether a given act runs counter to the essential conditions of its life and prosperity.
(2) The penal law by which the state proceeds for the protection of its essential social interests ought to cover every circumstance involved in the criminal transaction. Whatever the place of the crime, whatever the nationality of the accused, the protective law ought to be adequate to the evil which it aims and ought to prevent.
(3) The penal law of a state, being a law of social defense, ought not to cease to be valid simply because the penal law of another state likewise undertakes to operate; every penal law ought to play the full part provided for it.
(4) Every jurisdiction should apply exclusively its own penal law.
As to the first of these axioms, the fact that the penal law of one state does or does not consider a given act in the same way that another does, namely, as punishable, is without significance in determining if a wrong has been done to the essential interests which the other state believes should be protected. If these essential interests have been put in jeopardy, the social power which has the protection of them should be able to intervene repressively. As to the second, the result would be to permit, if need be, the application of repressive laws to acts done outside the territory subject to the jurisdiction which has decreed the laws. The third would recognize concurrently superposed legislative and jurisdictional authority, as illustrated by the Convention of 1910 for the repression of the white slave traffic. The fourth is illustrated by the terms of the same convention wherein each contracting state engages by its own legislation to create and define the crime and to provide penalties therefor. All of these fundamental axioms are assisted by and tend towards the general solidarity of international assistance. International assistance, mutual aid, and cooperation proceed from international accord and agreement. Municipal legislation should act as an auxiliary. Social safety demands international assistance, but international assistance depends upon municipal legislation and adjudication. The principal forms of cooperation are exchange of services of information, of surveillance, of preliminary examinations, and of the arrest and remanding of fugitives and prisoners.
As to an international court of penal justice having jurisdiction over war crimes, M. Travers expresses the following opinion: “We believe that in principle the prosecution of infractions of the customary or conventional rules of warfare ought to be reserved to the jurisdictions of the injured state or states."
The second part, arranged into divisions, sections, chapters, sub-sections, sub-chapters, and paragraphs, carries forward a minutely organized and classified consideration of positive international penal law, largely from the point of view of comparative legislation, with special reference always to the law of France. The jurisdiction set up by the legislation of each state does not proceed arbitrarily but is generally dominated by one or more of the following factors: the territoriality of the crime, active nationality, passive nationality, and the intrinsic nature of the crime (universality), as suggested by Meili. To these the author adds the factor based upon the presence of the person charged within the territorial jurisdiction of the state which has set forth the penal law (cf., the Cutting case). The present volume considers only the first (the application of the penal law on the basis of territoriality) and the fourth (on the basis of the nature of the offense). Consideration of the territoriality of the crime demands analysis of the idea of territory. While this discussion is in general satisfactory, the portion having to do with jurisdiction over the air is somewhat brief, and, considering the recent international aërial convention, already tending to be obsolete. Special mention should be made of the detailed exposition of the situations presented by the conception of the territoriality of the crime where there is military occupation or where the territory in question is uncivilized or unoccupied.
Space does not permit a more extended review of this initial volume. In the range of national laws referred to, in the voluminous citations of adjudicated cases, and in the wealth of literature subjected to analysis, the work is as conspicuously important as it is on account of the author's candor in discussion and in his independence of judgment. With the succeeding volumes' promise and an adequate index, the work of M. Travers will indeed prove to be one of commanding value.
JESSE S. REEVES.
Grundzüge des Positiven Völkerrechts. By Dr. Karl Strupp. Bonn: Verlag
Ludwig Röhrscheid, 1921, pp. viii, 251.
An undertaking to state “the positive, actually effective, present international law” in the year 1921 would seem to require an unusual degree of confidence and courage. Dr. Strupp's book is a condensation of his lectures on international law delivered at the University of Frankfurt during the Winter Semester of 1920–1921. It is interesting to note that the book is one of a series published under the title of "Der Staatsburger” for the purpose of educating the German people in their new responsibilities of citizenship. However commendable the purpose, it seems doubtful if international law is capable of being so simplified and popularized-as has been attempted here in the brief compass of 250 pages—as to make such a text of any real value. Certainly from a scientific point of view, the treatment must be inadequate.
The plan of the book is orderly and the development logical, as one expects from a writer of Dr. Strupp's scholarly attainments. But the great body of the text might as well have been written in 1914; and, except for a parenthetical clause or a minor reference here and there, it is but a statement of the "law as it aforetime was." No adequate account is taken of the changed situation and the effects of the violent disturbances of the last few years in the society of nations. For example, the whole topic of neutrality is treated in a most fragmentary way by a recital of the provisions in the conventions of the Hague Peace Conferences; the discussion of naval warfare is largely a recapitulation of the unratified Declaration of London of 1909, including three pages of the specific articles enumerated in that obsolete instrument under the title of Contraband. That title certainly is not now if it ever was international law. The book is especially valuable for its documentation and historical ref
Dr. Strupp's great contribution to our profession in making source material available is reflected in this book. On the whole, one must admire Dr. Strupp's objective treatment. He declares ruthless submarine warfare per se unlawful and permissible only in case of "Notstand” or reprisal (page 215), which seems a cryptic and inconclusive statement-all the more so in view of the author's definition of "Notstand” as given on page 130: “Notstand, in international law, is a condition in which a state faces an instant and immediately threatening great danger, preventable only by injury to the rights of others, which danger would, under a reasonable consideration, imperil the existence, territory or people of the state or its independence to such an extent that its legal capacity to act internationally would likely be abolished or, at least, reduced to a minimum."
On page 205, Dr. Strupp says that the recent war “left the rules of naval warfare, perhaps also of land warfare, if not indeed the whole system of international law, in a state of chaos.” He evidently recognizes the problem but does not show us the path to order. As a conventional restatement of former rules, the book, on the whole, is well written history but it is not “positive, actually effective law.”
GEORGE C. BUTTE.
The Policy of the United States as regards Intervention. By Charles E. Mar
tin. New York: Longmans, Green & Co., 1921, pp. 173.
In this monograph of four chapters the author clearly traces the origin and adoption of the American cardinal policy of non-intervention, and the extension of the principle to its new phase of application to the independent states of America, and also explains the two most striking departures from the principle, in relation to American states and territory, in the cases of Cuba and Panama.
In reviewing the factors entering into the formation of the policy Dr. Martin treats rather fully the policies of the Revolution resulting in the expedient treaty of alliance of 1778, and later experiences under this alliance which brought the United States face to face with the question of interference in European affairs and through various tests pointed the way to the adoption of non-intervention as a practical policy. But quite apart from the influence of practical questions in the evolution of the policy he partly explains the existence of a theory of non-intervention to a conscious purpose resulting from geographical isolation and the conception of the right of revolution.
In the chapter on extension of the American policy, he presents, as actual cases abundantly establishing the principle of non-intervention as a definite policy, many of the chief diplomatic problems in Latin American relations: the Mississippi and Florida problems; the recognition of the Spanish American republics, the Monroe doctrine (and its antecedents), the American policy of non-alliance with Latin American states, American opposition to foreign intervention in Mexico on various occasions (to 1867), American concern and policy in connection with various international controversies of Venezuela (in 1860, 1871, 1895, and 1902–03), incidents in relations of Brazil (1825 and 1893-94), relations with Argentine (1828, 183241 and 1898), relations with Chile (1891 and 1893), the attempted intervention of Secretary Blaines in the Chile-Peruvian war in 1881 and the later reversion of Frelinghuysen to the policy of reserve and caution which radically changed the result of the war. Excepting the general right to intervene for protection of the rights and safety of its citizens, he concludes that American policy has been understood "to preclude the United States from intervening in the internal politics of American states" and "to preclude European states from intervening in the western hemisphere either to gain territory or to change the political system or control the destiny of American nations."
In discussing the factors resulting in the extension of the policy, he emphasizes the fact that each extension was made to meet the demands of new sets of circumstances.
In the third chapter the author traces the chief diplomatic instances illustrating American interest and policy in Cuba from 1808 to 1898; and in the fourth he traces the American policy in Panama, especially in its relation to the treaty of 1846 with New Grenada. He explains that each of these interventions was limited primarily to protection of American interests and led to the establishment of an independent state and an arrangement for guarantees of independence.
The volume has a synoptical table of contents and footnote references to authorities used, but has no index.
Dr. Martin has reserved for future publication the recent special situations in Santo Domingo, Nicaragua and Hayti-involving an American supervision which non-American powers would be forbidden to exercise, and which in its development (the author says) is not likely to ignore the purposes and limits of the distinguishing principle of American foreign policy.
J. M. CALLAHAN.
A Manual of International Law. By Rear Admiral C. H. Stockton, U. S.
Navy. Second revised edition. Annapolis: U. S. Naval Institute, 1921, 355 pp.
The value of this manual is proved by the fact that the original and one revised edition have become exhausted. The author is the foremost naval authority on international law in the United States, and as such his presentation of the subject carries a weight with those for whose use the book is particularly written that no work by an author without naval experience can be expected to exercise. As was so well said by the late General Davis in his review of the first edition, it "represents the experience gained in the practice of International Law by its author during a long and especially useful career as an officer of the United States Navy; a career which may be said to have culminated in his fortunate incumbency of the office of Superintendent (President) of the Naval War College.”