International Law and the World War. By James Wilford Garner. Longmans, Green & Co.: London and New York. 2 vols. pp. 524 and 504. $24.00. In this extensive work Professor Garner indulges in what, from his point of view, may properly be denominated a post mortem over such remains of international law applied to war as may be gathered up after the recent struggle. He reviews the multitudinous infractions of so-called laws of war committed by the Central Powers or by the Allies, and affecting, among other things, treatment of diplomatic and consular officers and of enemy aliens; enemy merchant vessels; transfer of merchant vessels to neutral flags; trade and intercourse with the enemy; war contracts; forbidden weapons; hostages; devastation of enemy country; submarine mines and maritime war zone; submarine warfare; defensively armed merchant vessels; bombardments; destruction of monuments; aerial warfare; treatment of prisoners; military government in Belgium; contributions; requisitions and forced labor; collective fines and community responsibility; deportation of civil population; German invasions of Belgium and other neutral territory; occupation of part of Greece by England and France; destruction of neutral merchant vessels; contraband; blockades; interference with mails; exportation of arms to belligerents; effects of war on international law and enforcement of international law in the future; beginning the whole discussion with an examination of what is called the status of international law at least with relation to war and its outbreak. The whole work is a detailed study of morbid international pathology. In writing it, Professor Garner's labors may be of great value to those who are not particularly concerned in letting the dead past bury its dead. As a complete summing up of the varied forms of violation of common right, humanity and decency which nations indulge in once their tempers are aroused, Professor Garner's work has its place. While doubtless Professor Garner's presentations with regard to particular facts, or series of facts, are generally sufficient, one notes an occasional lapse. For instance, referring to the case of Captain Fryatt, no stress is laid upon the fact that Fryatt was not shot by Germans upon being caught red-handed fighting capture. Instead, he was captured under entirely different circumstances, and made to suffer penalty for acts performed at a time then long past. Captain Fryatt's situation might have been properly compared with that of a spy who, if caught in the act of spying, could be instantly shot under the customs of war, but who, if captured later in the usual course of military operations, might not be treated otherwise than any other military enemy. Again his case could have been regarded as analogous to that of a blockade running vessel, which, by the same elusive customs, might be captured and condemned as prize if caught trying to break a blockade, but which might not be troubled when thereafter engaged in commerce having no relation to the war. In other words, the supposed offense was ended by the fact that capture did not immediately follow its commission. In truth, Captain Fryatt's killing was an act of unadulterated vengeance. In the view of the writer, the dimly appreciated fact lessening the importance of Professor Garner's learned and laborious work, is that properly speaking there are no laws of war having real existence. His travail is postulated, as it were, upon a shifting and uncertain basis with no solid rock of support in right or in binding and enforceable convention. True it is that treaties and Hague Conventions lay down what are assumed to be laws of war between the parties, and these documents are given the high sounding title of law, but they are not law though we may call them such till the "crack o' doom." They offer but the simulacrum of law, not pronounced by a superior, not based upon fundamental right, and not providing for their own enforcement. However we may paint them, they are shams, and smell of decay. "Though she may paint an inch thick, to this favor she must come.' Law, save for rules of convenience and for adjective procedure to make it effective, must be founded upon some ground-work of reason, in turn resting upon elemental principles of right. This may not be said of any of the so-called principles of international law as applied to war. These are habits or customs which may be, and, of course, are broken at will, according to the immediate apparent necessities of the parties concerned. Taking only the time to base a broad analogy upon a narrow instance, we may assume that a state can pass a law prohibiting fighting among its citizens. When it goes further and adds a proviso to the effect that if, notwithstanding, two or more citizens do fight, they shall not strike below the belt, we have in the proviso a fairly perfect analogy to the laws of war. If a treaty may say to the nations concerned that they must keep peace between themselves, and then follow with the statement: "But if you do violate this obligation you must conduct yourselves in a given manner," the treaty involves in its terms the same logical contradiction as would be involved in the prohibition in the imagined proviso of striking below the belt. Its vanity and foolishness would be obvious were it not for the labor of thought and the stupefying influence of things as they are. War itself is forbidden by decency, humanity, and that broad principle which ought to allow, save under the most extraordinary circumstances, a man to live his own life as long as he may, and not to have it taken from him by the arbitrary whim or fiat even of a state. We may not declare that the World War has given a death-blow to international law. It has not done so. Relations of right and justice must always exist between nations. The last war has simply disclosed the hollowness of our attempts to classify, under international law, what we term the laws of war. Nomenclature changes no essential; it cannot make into law the necessary obscenity of war. The cruelties incident to that organized disorder we call war are not subject to external regulation. "In vain we call old notions fudge, And bend our conscience to our dealing; And the quotation applies to other things than stealing. Of course we are not concerned particularly in discussing in this review the right of a nation to defend itself. We may simply point out that in so doing, it of necessity rightfully or wrongfully acts as its own judge and executioner. JACKSON H. RALSTON International Law. A Treatise. By L. Oppenheim, M.A., LL.D. Vol. I. Peace. Third Edition. Edited by Ronald F. Roxburgh, Cambridge: Longmans, Green & Co. 1920. pp. 799. The first edition of this great work appeared, the volume on "Peace," in 1905, on "War and Neutrality" in 1906. Professor Oppenheim brought out a second edition in 1912 and was engaged upon a new edition, which should exhibit the results of the World War, when his health broke down and his untimely death occurred October 7, 1919. His practice in preparing this new edition was to work from day to day rewriting paragraphs, marking pages for revision and new incidents on the orderly leaves of his own copy. His notes came to an end in July, 1919, and when he died, but few chapters were found ready for the printer. Mr. Roxburgh has embodied the manuscript notes in the text, scrupulously avoiding unnecessary change. In accordance with the wishes of Mrs. Oppenheim and the publisher, he has brought the narrative down to the date of publication. (The date of the preface is June 29, 1920.) Sections 50a and 50b, dealing with the World War and the Peace Conference, the editor has rewritten "with some guidance from the author's jottings." Sections 94a and 94b, as to "Self-Governing Dominions," had been roughly drafted by the author, but events moved so rapidly that the editor had to recast them. Sections 197a and 197b, on "Air and Aerial Navigation," had to be revised "to embody the new International Air Convention." The sections as to "International Commissions and Offices" have been rewritten in part "to incorporate recent events," as has, for like reason, section 476a as to "the Proposed International Prize Court and the Proposed International Court of Justice," and section 476b, as to the Permanent Court of Arbitration at The Hague has been amplified. The list of law-making treaties and non-political unions has been revised and corrected to accord with the action of the Peace Conference of 1919. Professor Oppenheim "had himself written the important sections explaining and discussing the League of Nations," but the editor has added the "section dealing with the Treaties of Peace and the position of Unions after the World War.' The work of the editor has been faithfully, modestly and intelligently accomplished. The volume is devoted to "Peace," and the forthcoming volume to "War." The latter, therefore, must deal with the precedents of the World War which, in the main, do not fit with the topics of Peace. Professor Oppenheim was born and educated in Germany, but removed to Switzerland in 1891, and to England in 1895. In the latter country he married an English lady, daughter of Lieutenant-Colonel Cowan, and there he achieved his great career as lecturer on international law at the London School of Economics, and from 1908 until his death as Whewell Professor of International Law at Cambridge, in which he worthily succeeded his friend Westlake. He took and held the place of one of England's ripest and most learned publicists, standing loyally by his adopted country during the great war. His profound acquaintance with the Continental, as well as the English and American authorities, prepared him for a unique service in the discussion of the problems of the years that have passed since his edition of 1912. It is a great loss that his lips are silent and his pen laid down. On the subject which was thought so vital, the League of Nations, he had expressed himself somewhat fully in a little volume, The League of Nations and its Problems, published in 1919, and which he kindly sent to this writer. He there traces the generation of the plans for a world league, and expresses very cautious and hesitant belief in its successful operation. The present volume devotes to this subject some thirty-seven pages. 1st, to a "Statement of the Birth and General Character of the League;" 2nd, "The Constitution of the League;" 3d, "The Functions of the League;" 4th, "Defects and Merits of the Constitution of the League." These defects, as stated by Professor Oppenheim, may be summed up as follows: First, that the league was created by the Allied and Associated Powers, not by the free deliberation of all civilized states, and its acceptance by the Central Powers was made obligatory by the Treaties of Peace, and its council consists of representatives of the "Principal Allied and Associated Powers" and of four other Powers; yet, he states, that thirteen neutral states have joined the league (that number is now much greater) and the terms of the Covenant provide opportunity for remedying its defects by amendment; that it has been enabled to undertake numbers of functions required by the treaties and the resettlement of international affairs. Second, Professor Oppenheim says objection to the predominance of the Great Powers in the Council of the League is unjustified; that those Powers are the leaders in "The Family of Nations" and when action is required, they must provide such action, and that it is, therefore, right that they should be always represented and predominant in the Council; that the rule requiring unanimity prevents abuse of such predominance. Third, that the objection that it fails to create a Super State is met by the fact that no single civilized state would have acceded to it if it had created such a Super State, and that any scheme for such creation is, in Professor Oppenheim's opinion, Utopian. Fourth, that the objection that it is a league of governments and not of peoples is met by the fact that autocracy has almost disappeared and substantially all government is representative; that moreover each nation may select its representative in its own way. Fifth, and lastly, that the objection that the League is not strong enough to secure peace (which, at the date of the present review, seems established quite beyond controversy) is based on a wrong presumption that the League was intended to be something like a Super State, whereas, it is nothing but "the organized Family of Nations." Dr. Oppenheim admits as real defects: 1st, that members may withdraw or be expelled from the League, and thus it may cease to represent the Family of Nations; 2nd, that there is no provision for a separate Council of Conciliation; 3d, that it does not make the settlement of judicial disputes, by an International Court of Justice, compulsory; 4th, the right of the Assembly of the League to advise the reconsideration by members of the League of treaties which have become inapplicable, and consideration of international conditions which may threaten the world's peace, he considers a misfortune and contends that as unanimity is required for this action, the large body of the Assembly is unfit for this function; 5th, the absence of a covenant requiring the Council to intervene if a belligerent violates fundamental rules of war, he counts a further fault. However, Professor Oppenheim thinks that the League has inaugurated a new epoch in the development of mankind by organizing "the Family of Nations." He thinks that "the absence of rigidity in the Constitution permits adaptation to future circumstances." This reviewer cannot but reflect that it affords every convenience for injurious, as well as for salutory, modification. It is almost two and a quarter years since our esteemed author wrote this discussion of the League. It seems somewhat trite, stale and perfunctory, at the present time. The phrase "Family of Nations," which proved so attractive to Professor Oppenheim, indicates a relation of common affection which is about as obvious between the nations as between the carnivorous and the herbivorous animals. The months that have passed, since the passages were written by Professor Oppenheim, seem to have developed a considerable faculty in the League for debate and expenditure, the latter especially, upon its own officers and agents. It is difficult to point to many |