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were agreed upon. He says in this connection that "If no one had thought of the League of Nations before, it would none the less have been needful, about the end of 1918, to invent something of the kind." The author says that General Smuts' pamphlet was the most important single contribution made to the constitution of the League, and that this was probably due to the fact that he had the advantage of knowing a great deal more than any previous writer about the discussions that had already taken place on the subject between the Allies.

The commentary on the various articles of the League is sympathetic and clarifying. On Article X, which has been made the bone of contention in this country, he calls attention to the fact that the words "as against external aggression" are of the first importance, and afford no ground for the fear that the League will be used as a Holy Alliance to suppress national or other movements within the boundaries of the member States. Commenting on the rest of Article X, he says:

In the second sentence the words are "the Council shall advise"-not prescribe. They are plain enough, but there is a disposition in some quarters to ignore them. Some Americans are afraid of the United States being compelled under this article to do police work in Europe or Asia, which may be foreign to American interests. They forget that the United States has a permanent place and vote in the Council, that nothing can be done without the unanimous advice of the Council, and that even then the Council has no compulsory power. We have even seen an apprehension expressed that Canada might be called upon to join in operations against Great Britain. Such fears are, to speak frankly, midsummer madness. Still less is there any interference with any constitutional provision in any member State requiring the consent of the legislature to a declaration of war.

Sir Frederick Pollock is a staunch advocate of the establishment of an International Court of Justice. He says: "The League stands for peace among nations assured by justice. But there can be no settled justice without judgment and no judgment without a tribunal.” He concurs, however, in the wisdom of Article XIV, which did not undertake the immediate organization of a court, but directed the Council to submit plans for its establishment. Referring to the provision that the court may give an advisory opinion upon any question referred to it by the Council or by the Assembly, he says: "There is European precedent in the statutory authority of the Judicial Committee of the Privy Council to advise the Crown on questions officially referred to it." He calls attention to the fact that American courts have held that it is beyond their competence, in the absence of special constitutional provision, to give advice to executive authorities.

The volume, as a whole, is a valuable contribution to the subject, and should be of particular interest to Americans who are interested in jurisprudence and political science.

JOHN H. LATANÉ.

Das Völkerrechtliche Delikt. By Dr. Karl Strupp. V. III, part la of Handbuch des Völkerrechts, edited by Professor Fritz Stier-Somlo. Berlin: W. Kohlhammer, 1920. Pp. 223.

This is a scholarly work of first rank. It deals with the international responsibility or legal liability of the state for torts committed by authorities of the state upon aliens or foreign states. This subject, although of primary importance in the theory and practice of international law, is almost neglected by the writers of general treatises on international law; it is discussed by certain specialists in monographs, of which that by Triepel (1899) was the first of note. This neglect is the more surprising in that the subject makes a peculiar appeal to the lawyer, involving the relation between international law and municipal law, the principles of agency in the relation between the state and its officers and organs of government, the legal status of aliens, due process of law in the concept "denial of justice," and the subjects of damages and means of redress.

The present work constitutes an analytical and critical discussion of state liability for tort, including in its source material the theories of jurists and writers, the decisions of international tribunals, and the practice of states. It is strictly legal in character and evidences not only a mastery of the data of the subject, but a profound analytical mind to be welcomed in the field of international law. The work is perhaps, like Anzilotti's and Triepel's, more important for the theorist in the subject than for the practitioner, although ample citations of cases, made available by previous research, are not lacking. It is on the theoretical side that contributions were needed by the profession, and the author has met the need satisfactorily. The book, he says, was for the most part written before the war, although it has but just been published (1920).

The book is divided into four main parts: (1) The international tort in general, including the theories of liability with and without fault; (2) state responsibility in particular types of cases and for particular classes of agents; (3) factors limiting the conception of wrongdoing in acts inflicting injury on other states, embracing (a) an exhaustive discussion of the history, theory and practice of acts justified under the guise of self-preservation or "law of necessity," and (b) a brief discussion of the subject of reprisals in international law; and (4) the consequences of international tort and the method of obtaining reparation.

It is of course a fact that there are but few positive rules of international law of universal application. But the author builds his study on the maxim pacta sunt servanda as the measure of international duty and the test of liability, including the rules binding upon a group of states or individual states, whether based on treaty or custom. He examines the various theories of liability, such as Anzilotti's, who does not believe that injury is necessary, in addition to violation of law, as a foundation of state liability-which most authorities maintain-but predicates liability on the mere violation of international law, whether resulting in injury or not. That raises the question whether all states, including the one directly affected, may not claim reparation for breach of a rule of international law, analogous to municipal theories of criminal law.

Dr. Strupp criticizes Oppenheim's distinction between the direct responsi

bility of the state for its own agents and the so-called indirect responsibility for the acts of private individuals. He shows, correctly, we believe, that mere failure on the part of the state to prevent or punish the injury to the alien is not participation in the wrong, but an independent ground of liability. It is liable for its failure to perform an international duty, not for the injury inflicted by the private individual, between whom and the state there is no privity.

Again, he criticizes sharply the many arbitral awards and the supporting opinion of writers making a distinction between the liability of the state for acts of superior and of inferior officials. As a rule, only acts of the former have been deemed to express the state will, those of the latter (unless ratified or unreproved) being deemed merely unauthorized private torts upon aliens, which, if corrected and rebuked by superior officers, have been held to relieve the state from international liability. The author applies this same criticism throughout to the various classes of state agents-inferior judges, soldiers whether under command of officers or not, and administrative authorities. He regards the distinction as unlegal; he asserts that the suppression or removal of the effects of the tort by superior officers still leaves it a tort from the moment of commission by the inferior officer. This is the view also that seems to have been taken by President Wilson when he deemed the alleged insult to our flag at Tampico by two subordinate officers of Mexico a ground for international hostility against the Mexican national Government. It is not, however, the view entertained by most arbitral tribunals, nor by most Foreign Offices, which in this respect would accord the alien no greater claims to redress than the citizen, even in countries where the citizen can sue. The author's view, while more strictly legal than is the actual practice, would impose upon the state a greater measure of guaranty to aliens for the efficient operation of all parts of its state machinery than international practice has yet recognized. The author admits that the minor official must, as a condition of invoking state liability, have been acting within the scope of his authority, but does not satisfactorily dispose of the question whether a tort committed by him upon an individual could ever be deemed within the scope of his authority. It is on this point that some of the cases denying state liability actually turn.

Dr. Strupp also expresses vigorous dissent from a modern theory sustaining state liability for the acts of successful revolutionists from the beginning of the revolution, on the theory that "the revolution represents ab initio a changing national will, crystallizing in the final successful result." See Bolivar Railway Co. v. Venezuela, February 17, 1903 (Ralston, 394). He claims, with some merit, that this is inconsistent with the theory that the state is also liable for the acts of the titular government up to the time it is displaced, and asserts that there cannot at the same time be two organs representing the state. He claims that a date line must be drawn at which the old government terminates, and the new government begins, its representative character. He disputes sharply the writer's criticism of the Didier decision before the Chilean-American arbitral tribunal of 1892, in which the commission dismissed a claim against Chile for goods supplied to the successful revolutionary party of Gen. Carrera in 1816, on the ground that Chile was not recognized by the United States until 1822.

However responsive to exact legal theory the author's view may be, it must be recalled that the professed state acts of the two alleged organs operate in different spheres, and that, more important, rules of expediency have weighty influence upon the law and have dictated the established practice of holding states liable for wrongful acts-no distinction need be made between torts and breaches of contract-of successful revolutionists. The author admits the existence of the custom, but finds it unlegal.

His discussion of fault as an essential element of state liability is doubtless the best yet published. He does not go so far as Anzilotti in limiting the necessity of chargeable fault. He would confine the necessity of showing fault merely to cases where there has been an omission of proper state action imposing liability, and he cites Serbia's condonation of the Slav efforts to encompass the severance of Slav provinces from Austria. In cases of positive acts of commission causing injury to other states, directly or through their citizens, he deems proof of fault to be unnecessary. This was not Secretary of State Bayard's view. Where international law imposes a specific duty, the author believes failure to perform it, regardless of fault, a sufficient ground of liability. Nor does he believe absence of ability to prevent an injury a sufficient defense, holding that its absence must be satisfactorily explained.

The term "denial of justice" is analyzed and the practice criticized. It may well be. The unilateral determination of the existence of a "denial of justice" and the unrestrained employment of self-help to enforce the conclusion thus reached, militates against the strict concurrence of legal theory with actual practice. The author renders useful service in distinguishing the unjust judgment from the denial of justice, and in endeavoring to substitute accuracy for vagueness in the connotation of the latter term. Unfortunately the cases do not sustain the scientific limitations of the term, and writers must take account of the unscientific practice.

The "law of necessity" as a concept of international law occupies about a third of the work. In the author's view, necessity is considered as a limitation upon otherwise tortious acts. He discusses critically the many cases in practice justified under this head or under the head of self-preservation, notably Canning's justification for the occupation of the neutral island of Madeira, 1801, Castlereagh's notes, the Caroline case in 1842, the Zamora decision, and Germany's invasion of Belgium. The plausibility of the legal argument raises doubts as to the practical possibility of convincing the scientific German mind on this last case, although the author is as objective as can be expected. His discussion of the principle rebus sic stantibus, on which he justifies the Bolshevist attitude toward the Treaty of Brest-Litovsk, raises the question-not asserted, however-whether Germany might not seek to advance the same principle with respect to the Treaty of Versailles, as time elapses. As a study of the concept of "necessity" in international law, the reviewer knows of no work to equal this. The author has produced a work certain to take its place among the most thoughtful of the contributions to a difficult topic of international law, the practical and scientific importance of which is not generally appreciated. EDWIN M. BORCHARD.

THE ADMINISTRATION OF JUSTICE IN THE SWISS FEDERAL

COURT IN INTERCANTONAL DISPUTES

BY DR. DIETRICH SCHINDLER, OF ZURICH

I. THE JURISDICTION OVER INTERCANTONAL CONFLICTS

1. HISTORICAL DEVELOPMENT (1291-1848)

It is inherent in the nature of a closer relation of states that an organ be created for the decision of disputes between the individual members of a confederation. The Swiss Confederation has at all times applied itself to this task.1

The oldest league of the three original cantons, Uri, Schwyz and Unterwalden, of 1291, which forms the origin of the Confederation, provided the following procedure for the settlement of disputes:

If dissension shall arise between any of the confederates, prudent men of the Confederation shall come together to settle the dispute between the parties as shall seem right to them, and the party which rejects their judgment shall be an enemy to the other confederates. If war or discord shall arise among any of the confederates, and one contending party refuses to accept proffered justice or satisfaction, the confederates are bound to assist the other party.2

If this provision still left the settlement of disputes to the initiative of well-disposed men, the league made with Zurich in 1351, as well as the later leagues, provided a real arbitral procedure. This was the form of decision of intercantonal disputes which was suited to the earlier political conditions of the Confederation. Until the year 1848 (with the exception of the years 1798-1815) such conflicts were actually settled by arbitral courts. But just as the old Confederation (as it existed until 1798)-in contradistinction to modern confederations of states and federal states-was not a state united by a uniform constitution, but a conglomeration of different leagues among the individual cantons (called also Orte and Stände), so, too, a uniform regulation of the system of arbitral courts was lacking. Each of the leagues determined in its own manner, which often differed from that of the others, the regulation of the arbitral procedure for disputes between the members

* Translated from the German by E. H. Zeydel, Washington, D. C.

1 On the historical development of intercantonal law in general, cf. Max Huber, this JOURNAL, January, 1909, p. 67.

2 English translation of I. M. Vincent, Government in Switzerland, New York, 1900.

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