Imágenes de páginas
PDF
EPUB

Two prominent illustrations of this fully developed type of the Law of Nations may be cited; one, the universal declaration that piracy is a crime against the world; the other, the right and duty of all states to suppress the slave-trade, which is a crime against humanity. As to the criminality of these practices the sentiment of civilized peoples is today a unit.

Piracy has been for ages condemned in word if not in deed. "Pirata est hostis humani generis" wrote Coke (3 Inst., 113), though at the same time the Elizabethan seamen with piratical license were plundering the ships and colonies of Spain. The history of the Buccaneers and the exploits of the Barbary corsairs show that until a comparatively recent time there was so great a lack of harmony in idea and action by nations that there failed to be an effective expression of the will of the World Sovereign. With the beginning of the nineteenth century, however, the opposition became so universal that piracy practically disappeared from the seas, except on the western side of the Pacific. In the case of the slave-trade, the legality of the traffic was generally accepted until the outburst of the spirit of individualism toward the close of the eighteenth century caused the civilized states of Europe to change radically their views upon the subject. Less than a hundred years ago the slaver plied his trade with little fear of molestation; and, although in a few states the traffic was denounced as immoral and by legislation declared criminal, there was no such general condemnation by the powerful states of the world as to warrant a government to extend its suppressive operations to others than its own nationals.

Under the influence of new ideas as to the rights of man and following the initiative of Great Britain, a new sentiment toward the institution of slavery became ascendant, and Christian states with practical unanimity prohibited their members from engaging in the trade, and by treaties agreed to suppress it upon the high seas. So universal was this prohibitive policy and so extensive were the treaty powers conferred, that there could be no reasonable doubt but that the moral sentiment of those controlling the physical strength of the world was hostile, not only to the slave-trade, but to slavery as well. This union of action and harmony of idea found definite expression in joint conventions by the principal nations of the world in 1885 in the Berlin General Act, and in 1890 in the Brussels General Act, by which they mutually agreed to suppress the trade both on land and on sea. The sentiment of those possessing the World Sovereignty is but another name for the World Sovereign's will under the influence of ethical principles, and the treaty recognition of such sentiment is but the formal interpretation and political sanction of such will.

As a result of this attitude of mankind toward these two great public crimes, the one destructive of the institution of property, the other, of personal liberty, piracy and the slave-trade wherever practiced are subject to punishment by any political authority apprehending the persons engaging therein irrespective of their nationality or allegiance. In a word, the pirate and the slave-trader are world-outlaws, and have been so declared by the manifest will of the World Sovereign.

INCREASING RECOGNITION OF WORLD SOVEREIGNTY AND WORLD LAW.

The international adoption of policies like those relating to piracy and the slave-trade is a manifestation of the existence of a sovereign will in the world, which is super-national and supreme. It is suggestive of the possibilities of the future. The influence of the collective opinion of nations operating throughout the Community of Nations compels state after state to recognize the superiority of World Sovereignty over the sovereignty in a state and consequently the superiority of law emanating from the higher authority over the municipal legal codes of states. This influence is forcing political rulers of nations to submit to the dictates of the World Sovereign rather than to incur the condemnation, if not the hostility, of the great civilized states, the most powerful and most influential members of the Community of Nations. Thus far such disfavor is the punishment which follows the violation of those rules of the Law of Nations, the interpretation of which is substantially undisputed and which are confined chiefly to humanity of conduct.11 The fear of this disfavor or condemnation, though not an actual force, has become a powerful influence in directing international intercourse.

As yet such declarations of the sovereign will relate to that great common possession of mankind, the high seas, or to the conduct of hostilities between belligerent states in the futile attempt to make war humane. But such historical events as the intervention by foreign Powers in behalf of Greece in 1827 and in behalf of the Christians of Mount Lebanon in 1860, and the menacing protests of the great nations to the Ottoman Government against the treatment of the Armenians, are declarations of executive authority superior to national authority assumed in the name of humanity-or more properly in the name of the World Sovereign-which indicate a more perfect unity among nations for the enforcement of the sovereign will of mankind.

DEVELOPMENT OF GOVERNMENTAL FUNCTIONS IN THE COMMUNITY OF NATIONS

The beginnings of the three distinct branches of government in a state, as it emerges from the chaotic condition of barbarous individualism and becomes a political organism, seem to be simultaneous. The mind cannot conceive of the determination, the interpretation, and the application of the sovereign will being separated in the expression of sovereignty. That is, the expression of sovereignty, though it be a single and distinct act, necessarily involves the three functions of political government of which all relate to law. Therefore, whatever may be the development of one branch of government, the other two branches should be in a similar state of development. If the legislative method is crude and simple, the executive and judicial methods will be equally crude and simple; and, conversely, if the legislative method is complex, the executive and judicial methods will be found to be complex. The three branches and functions of government develop along parallel lines.

11 "The duties which are imposed by these rules [of international morality] are enforced by moral sanctions, by apprehension on the part of sovereigns and nations of incurring the hostility of other States, in case they should violate maxims generally received and respected by the civilized world." (Wheaton, preface, p. cxcii.)

This is illustrated in the present stage of the evolution of World Sovereignty, which, being in the process of political formation, is simple, crude, and almost barbarous. In the Community of Nations, selfish individualism controls the actions of states. The executive function is rudimentary, giving but occasional and feeble evidence of existence. The judicial function is unformed; in its place is the barbaric method of trial by combat, or the more rational though primitive mode of voluntary submission to arbitration. And the legislative function, though giving evidence of development in the increasing number of international assemblages, is supplanted by the assumption that the will of the World Sovereign coincides with customs, usages and the principles of natural justice.

THE LAW OF NATIONS, A COMPLETE LEGAL CODE

Until the time is ripe for the establishment of a central government to announce, interpret, and enforce World Law, the express will of the World Sovereign, the Law of Nations will lack that great branch of Constitutional Law which relates to the form, powers, and duties of government. It, however, contains that other branch of Constitutional Law which in a single state deals with civil or individual liberty, and in a federal state with state liberty. In the Community of Nations this branch of law relates to national independence. With this exception as to governmental institutions, the Law of Nations is as complete in subject-matter as the body of Municipal Law in the most highly developed state, though there is wanting that consistency and harmony of interpretation and application which are the products of sovereignty when exercised through the agency of a fully organized and permanent government.

Resting upon natural justice, like the Common Law of England which furnishes a complete body of laws applicable to every relation existing in human society, the Law of Nations is equally complete in its rules as to the relations existing in the society of nations. The rules of the Common Law, however, though limitless in source and application, require two things before they can be declared in terms-first, a controversy as to rights, and, second, a judicial determination of such controversy. It is not so with the rules of the Law of Nations; they may be and are declared by publicists and governments in the abstract without concrete cases arising. Thus in one sense the International Code is much more comprehensive and complete than the Common Law, though in fact the controversies between individuals are so numerous and so varied that a case is hardly conceivable in which the principles involved have not been passed upon and declared by the courts. The result is that the Common Law as it exists today is founded almost entirely upon precedent, while the Law of Nations is based immediately upon morality, equity, and reason, those qualities which should be preeminent in the Universal Sovereign of mankind, the perfection of whose will should find manifestation in the laws emanating from the highest political authority in the world, a code perfect in righteousness.

OUTLINE OF A PLAN FOR THE MAINTENANCE OF INTERNATIONAL PEACE, BASED UPON THE PROGRESSIVE

DEVELOPMENT OF ACCEPTED METHODS1

By GEORGE A. FINCH

Assistant Technical Adviser to the American Commission to Negotiate Peace

1. GENERAL ARBITRATION FOR ARBITRAL DISPUTES

International arbitration is the oldest and most favored method of settling disputes between nations when diplomacy fails. The Hague Conventions of 1899 and 1907 for the Peaceful Settlement of International Disputes both declare that "In questions of a legal nature, and especially in the interpretation or application of international conventions, arbitration is recognized by the Contracting Powers as the most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle." (Art. 16 of the Convention of 1899, and Art. 38 of the Convention of 1907.)

The opposition of Germany individually and as head of the Triple Alliance prevented the adoption of a general treaty of arbitration at both the Hague Conferences; but outside the Conferences the other nations sought to give effect to the spirit of the foregoing declaration by concluding separate treaties of arbitration pursuant to its terms. Numbers of such treaties have been negotiated, the signatories including 37 nations, among them all the principal belligerents in the present war.2

At the present Peace Conference, Germany will not be in the position effectively to oppose the wishes of the civilized world, as she was and did at The Hague. It is submitted, therefore, that the logical step for the Allies to take is to do now what they so earnestly desired to do but were prevented by Germany from doing in 1907, namely, conclude a general treaty of compulsory arbitration of arbitral disputes, using as a model the separate treaties now in force between most of them. By using a formula already familiar to and accepted by the contracting parties, objections to the extent or meaning of the covenant are likely to be obviated in the Peace Conference, as well as in the national legislative bodies whose consent to ratification may be necessary in some countries.

The provision more generally used to prescribe the scope of the arbitral jurisdiction under these treaties follows closely the language of the articles of the Hague Conventions, above quoted, and is commonly used by the United 1 Prepared at Paris, December, 1918.

2 This JOURNAL, Vol. 2, pp. 824-826.

28

States and the other great Powers in the separate treaties between them. It reads as follows:

Differences which may arise of a legal nature, or relating to the interpretation of treaties existing between the two contracting parties, and which it may not have been possible to settle by diplomacy, shall be referred to the Permanent Court of Arbitration established at The Hague by the convention of the 29th July, 1899; provided, nevertheless, that they do not affect the vital interests, the independence, or the honor of the two contracting states, and do not concern the interests of third parties.

Treaties containing the above article have been concluded by the following Powers parties to the present Peace Conference:

Austria-Hungary with Great Britain, Portugal, Switzerland, United States.
Brazil with China, Great Britain, United States, Venezuela, Cuba.
China with Brazil and the United States.

France with Denmark, Great Britain, Italy, Netherlands, Norway, Portugal,
Spain, Sweden, Switzerland, United States.

Germany with Great Britain.

Italy with France, Great Britain, Portugal, Switzerland, United States. Japan with United States.

Portugal with Austria-Hungary, France, Great Britain, Italy, Norway, Sweden, Switzerland, United States.

Great Britain with Austria-Hungary, Denmark, Brazil, Colombia, France, Germany, Italy, Netherlands, Norway, Sweden, Portugal, Spain, Switzerland, United States.

United States with Austria-Hungary, Brazil, China, Costa Rica, Denmark, Ecuador, France, Great Britain, Haiti, Italy, Japan, Mexico, Netherlands, Norway, Portugal, Paraguay, Peru, Salvador, Spain, Sweden, Switzerland, Uruguay.

The foregoing data are taken from the treaties published from time to time in this JOURNAL and are not claimed to be complete. It may be that an examination of other treaty collections will bring to light additional treaties of this character.

2.

INTERNATIONAL COMMISSIONS OF INQUIRY FOR NON-ARBITRAL DISPUTES

It has probably been observed with some misgiving that the foregoing suggestion for a general arbitration treaty retains the usual exceptions reserving from arbitration differences which may affect the vital interests, independence or honor of the contracting states. The retention of these exceptions, or the substitution of some other proviso of like import, is, however, regarded as most important and necessary, for it is believed improbable that any general arbitration treaty broader in scope than the separate arbitration treaties now in force would, even if agreed to by the peace delegates, be ratified, especially by the United States. Ample warrant for this statement may be found in the unhappy fate of the so-called Taft Arbitration Treaties of 1911 between the

« AnteriorContinuar »