30. When we speak of legislation we have in view as a rule a state, wherein there is a law-making power which acts without reference to the consent of individual subjects. For even if in a constitutional state an individual does anyhow exercise so much influence upon legislation as comes from voting at the election of members of parliament, still he has no direct influence, and must submit to a law that has been enacted whether he approves of it or not. That is why it is asserted that there cannot be any talk of legislation in the domain of international law. And, in fact, that is so if we adhere rigorously to the meaning of the concept ‘legislation’, as developed in the domain of internal state life. The nature of the case does not, however, demand so rigid an adherence as this; legislation is really nothing more than the conscious creation of law in contrast to the growth of law out of custom. And it is an admitted fact that, side by side with international law developed in this latter way, there is an international law which the members of the community of states have expressly created by agreement. We might therefore quite well substitute the term agreeing a law for the term decreeing a law, but why introduce a new technical term? This international ‘agreeing a law’ does consciously and intentionally create law, and it is therefore a source of law. And provided that we always bear in mind that this source of law operates only through a quasi-legislative activity, there is no obstacle to speaking, in a borrowed sense, of international ‘legislation’. Nevertheless, agreeable and apt as this term is, it must not lead us to assimilate the internal legislation of a state and international legislation save in the one respect that in both law is made in a direct, conscious and purposive manner, in contrast to law that originates in custom.

31. International law of the legislative kind existed before the law of the Hague Peace Conferences; it issued from the conventions drawn up from time to time at congresses and conferences. It was a great step forward that the Congress of Vienna was able, for the first time, to create general international law by agreement, and that thereby general international law of the legislative kind could come into existence side by side with the customary law of nations. But the nineteenth century introduced international legislation only occasionally. If, as sketched above, success attends the attempt to make the Hague Peace Conferences a permanent institution, there would be evolved for the society of states a legislative organ corresponding to the parliaments of individual states. A wide field opens thus for further international legislative activity. Even if the time be not ripe for a comprehensive codification of the whole law of nations, there is nevertheless a series of matters in need of international regulation; for example, extradition, the so-called international private law and international criminal law, acquisition and loss of nationality, and a series of other matters, not to mention matters of international administration. Matters which are already governed by customary law might also be brought within the domain of enacted law, and at the same time could be put as regards details upon a surer basis. I have in mind the law of ambassadors and consuls, the law concerning the open sea and territorial waters, the law about merchantmen and men-of-war in foreign territorial waters, and more of this kind.

32. The peculiar character of international legislation involves, however, difficulties of all sorts.

There is, to begin with, the question of language. Seeing that it is impossible to employ all languages in the enactment of rules of international law, an agreement must be made for adopting some one language for these laws, in the same way that French is used at the present time. But the difficulty thence arising is not insuperable, and is hardly greater than that which is encountered in drafting a treaty between peoples whose speech belongs to different families. It must, however, be a rigid rule that in every case of doubt the text of the law in its original language not that of a translation into the languages of other countries is authoritative.

33. There is, secondly, the difficulty of contenting the opposite interests of the members of the community of states. But this, too, is in practice not insurmountable. Of course, where there is such a brawling between these interests that no agreement is possible, there can from the outset be no talk of international legislation. This, however, is not everywhere the case. On the contrary, it is often and in different areas the case, that the international interests of states make themselves felt so urgently and so cogently that these states are ready to sacrifice their particular interests if only a reasonable compromise be open to them.

34. There is further the difficulty of finding expression in adequate language for the intention of the legislator. Even the internal legislation of states suffers under this difficulty in so far as the art of legislation is still very clumsy and undeveloped. For international legislation there is in addition the further difficulty that different groups of peoples employ very different methods in drafting their laws. If we were to give to an Englishman, a Frenchman, and a German the task of drafting a law upon the same topic, and if they were provided with the point of view from which the regulation of individual points was to proceed, so that the intention of the draftsmen would be the same, three very different drafts would nevertheless emerge. The English draft would deal in the most concrete manner possible with the situations to which it meant to apply; it would adduce as many particular cases as possible, and so would run the risk of forgetting some series of cases altogether. The German draft would be as abstract as is possible, and would entirely disregard individual cases, except such as required a special treatment; and so it would expose itself to the danger that in practice cases would be brought within the enactment which were outside the intention of the legislator. The French draft would attach more weight to principles than to individual points, enunciating principles in a legislative manner and leaving it to practice to construct out of these principles the rule for the particular case. Now, seeing that French is the language of international legislation, and so in the editing of drafts at the Hague Conferences the lion’s share will naturally fall to French jurists attending the Conference, it will scarcely be possible to prevent the French method of legislation from obtaining great influence over international legislation. But there is no need for this mode of legislation to become dominant. The jurist representatives of other states must see to it that the French method is perfected by their own; the English and the Germans must make it their business to bring the drafts into a more concrete form, and to split up principles into more abstract rules. In this way, it may in time be possible by means of common international labour to make essential advance in the art of legislation.

35. But the difficulties inherent in the legislative method must not be confused with those which come from a careless employment of the method; the latter must always be avoided, otherwise we arrive at contradictions of interpretation, and these are insuperable.

An example of such carelessness is afforded by the incorporation at the second Hague Conference of a new provision in the former Article 23 of the ‘Regulations respecting the laws of land warfare’. I am referring to the provision added under the letter (h), which runs as follows: [It is forbidden] ’to declare extinguished, suspended, or unenforceable in a court of law, the rights and rights of action of the nationals of the adverse party’.

36. From the German memorandum on the second Peace Conference it is quite clear that this additional rule, which was proposed by Germany and adopted by the Conference, was directed to the alteration of the rule, prevailing in several states, whereby during a war the subjects of one belligerent lose in the country of the other belligerent their persona standi in judicio, and the like. It is in this sense, then, that the addition has been unanimously interpreted by German literature, with the agreement of many foreign writers. The official standpoint of England, on the contrary, is that Article 23 (h) has nothing whatever to do with the municipal law of the belligerent countries. Article 23 (h), so the English Foreign Office explains, forms a subdivision of Article 23, which itself comes under the second section (headed ‘Hostilities’) of the Regulations, and forbids a series of acts which otherwise might be resorted to in the exercise of hostilities by the members of the contending armies, and by their commanding officers. That this interpretation is the right one so it is further explained by the English side is shown by the fact that Article 1 of the Convention expressly says, with reference to the ’Regulations respecting the laws of land warfare’, that the contracting parties shall issue to their armed land forces instructions which shall be in conformity with the ‘Regulations respecting the laws of land warfare’ annexed to the Convention. It would therefore be the duty of every contracting power to instruct the commanders of its forces in an enemy’s country (among other things) not ’to declare extinguished, suspended, or unenforceable in a court of law, the rights and rights of action of the nationals of the adverse party’.

37. This is also the opinion of Davis, one of the American delegates to the second Hague Conference; he gives the following explanation with regard to Article 23 (h), in the third edition of his Elements of International Law (New York, 1908), :

In this article a number of acts are described to which neither belligerent is permitted to resort in the conduct of his military operations. It was the well-understood purpose of the Convention of 1899 to impose certain reasonable and wholesome restrictions upon the authority of commanding generals and their subordinates in the theatre of belligerent activity. It is more than probable that this humane and commendable purpose would fail of accomplishment if a military commander conceived it to be within his authority to suspend or nullify their operation, or to regard their application as a matter falling within his administrative discretion. Especially is this true where a military officer refuses to receive well-grounded complaints, or declines to consider demands for redress, in respect to the acts or conduct of the troops under his command, from persons subject to the jurisdiction of the enemy, who find themselves, for the time being, in the territory which he holds in military occupation. To provide against such a contingency it was deemed wise to add an appropriate declaratory clause to the prohibitions of Article 23. The prohibition is included in section (h).

38. If, from the fact that Davis was an American delegate, we may conclude that he represents the government view of the United States of North America, we are confronted by the fact that official England and America adopt an interpretation of Article 23 (h) which is entirely at variance with that of Germany, and it is quite impossible to build a bridge of reconciliation between the two camps. This regrettable fact has its origin simply in the careless use of the legislative method. If the German conception of Article 23 (h) be the correct one, the lines of subsection (h) ought never to have found a shelter in Article 23, for they have not the slightest connexion with hostilities between the contending forces. If, on the other hand, the Anglo-American interpretation be the right one, pains should have been taken to secure a wholly different draft of the provision in question, for the present wording is by no means transparently clear. The protocols of the Conference (Actes, i, 101; iii, 14, 103) are not sufficiently explicit on the matter. The German delegate, Goeppert, did indeed explain (cf. Actes, iii, 103) at the session of the first subcommission of the Second Commission on July 3, 1907, ’that this proposal is in the direction of not limiting to corporeal goods the inviolability of enemy property, and that it has in view the whole domain of obligations with the object of forbidding all legislative measures which, in time of war, would deprive an enemy subject of the right to take proceedings for the performance of a contract in the courts of the adverse party’. But we shall scarcely go wrong if we assume that the members of the Second Commission, who were entrusted with the consideration of the ‘Regulations respecting the laws of land warfare’, had not sufficiently realized the full meaning of the German proposal. It would otherwise be quite unintelligible that the reporter upon the German proposal could say (cf. Actes, i, 101): ’This addition is deemed a very happy attempt to bring out in clear language one of the principles admitted in 1899’, for these ‘principles’ (concerning the immunity of the private property of enemy subjects in land warfare) have very little indeed to do with the question of the persona standi in judicio of an enemy subject.

39. A difficulty of a special kind besets international legislation, owing to the fact that international rules cannot be created by a majority vote, and that, when once in existence, they cannot be repealed save by a unanimous resolution.

But when once we free ourselves from the preconception that the equality of states makes it improper for legislative conferences to adopt any resolutions which are not unanimously supported, there is nothing to prevent a substantial result being arrived at even without unanimity. At this point the difference between general and universal international law furnishes a way out. Rules of universal international law must certainly rest on unanimity. It is postulated in the equality of states that no state can be bound by any law to which it has not given its consent. But there is naught to prevent a legislative conference from framing rules of general international law for those states which assent to it and leaving the dissentient states out of consideration. If the inclusion in a single convention of all the points under discussion be avoided, and if the method, adopted at the second Peace Conference, of dividing the topics of discussion among as many smaller conventions as possible be followed, it will always be found possible to secure the support of the greater number of states for the regulation of any given matter. In no long time thereafter the dissentient states will give in their adherence to these conventions, either in their existing or some amended form. Attention will then be paid also to the consolidation of several smaller laws in a single more comprehensive statute. The nature of the case and the conditions of international life call for concessions without which no progress would be practicable. The course of international legislation hitherto shows unmistakably that the trodden path is the right path. And it must be emphasized that it is open to a state to assent to an act of international legislation although some one or other provision thereof be unacceptable to it. In such a case the assent of the state in question is given with a reservation as regards the particular article of the Act, so that it is in no wise bound by that article. Numerous instances of this could be adduced: thus, at the Hague Conference of 1907 Germany withheld her assent to some of the proposed rules of land war, and England to certain articles in Conventions V and XIII.

40. So also, the difficulty is not insuperable as regards the other point, namely, that international enactments when once in existence cannot be repealed or amended save by a unanimous resolution of the participant states. Here, too, the analogy between municipal and international legislation must not be pushed too far. Municipal legislation can at any time be annulled or altered by the sovereign law-maker; but international legislation, for want of a sovereign over sovereign states, is not open to such treatment. Here there is a way out, which was in fact adopted at the second Peace Conference, and also at the Naval Conference of London, namely, the enactment of laws so limited in duration to a period of years, that at the expiry of the period every participant state can withdraw. In this way, for example, it was agreed that the law about the International Prize Court and the Declaration of London should only be in force for twelve years, and that any of the powers which were parties thereto might withdraw twelve months before the expiry of that period, and that, if and as far as no withdrawal ensued, these laws should from time to time be continued in force automatically for a further period of six years. This kind of international legislation, with its time limit and the right of denunciation, is to be recommended wherever more or less hazardous legislative experiments are being made, or where interests are at stake which in course of time are liable to such an alteration as obliges states to insist on the amendment or repeal of the previously made law. For example, the International Prize Court as a whole, and its composition, constitution, and procedure in particular, form an unparalleled experiment. But the fact that its institution is only to be agreed on for a period of twelve years facilitates its general acceptance, because of the possibility of either abrogating it altogether, or of reforming it, should experience show this to be necessary.

41. However this may be, one point must be decisively emphasized, international legislation can no longer be left to mere chance. Apart from the Declaration of London and the Geneva Convention, it has always hitherto been a more or less happy chance which has controlled international legislation. Of conscious legislative consideration and deliberation, based on far-reaching, thoroughgoing preparation, there is no trace. For example, the Declaration of Paris of 1856 was but a by-product of the Peace of Paris of the same year. So also the legislation of the first Peace Conference was simply due to the anxiety to accomplish something positive which might conceal the fact that the proposed aim of the Conference general disarmament, to wit had in no wise been realized. At the second Peace Conference we did indeed see individual states appear with some well-prepared projects of legislation, but the preparation was entirely one-sided on the part of the states in question, and not general; accordingly, the adoption, rejection, amendment, and final shaping of these projects were also none the less the result of chance. The second Peace Conference itself took steps to prevent a repetition of this, calling the attention of the powers in its Final Act to the necessity of preparing the programme of the future third Conference a sufficient time in advance to ensure its deliberations being conducted with the necessary authority and expedition:

In order to attain this object the Conference considers that it would be very desirable that, some two years before the probable date of the meeting, a preparatory committee should be charged by the Governments with the task of collecting the various proposals to be submitted to the Conference, of ascertaining what subjects are ripe for embodiment in an international regulation, and of preparing a programme which the Governments should decide upon in sufficient time to enable it to be carefully examined by each country.

42. In contrast to the rules of the Peace Conferences, a really notable and exemplary preparation took place in connexion with the Declaration of London, and the befitting result was a law excellent alike in matter and in form. England, the state which summoned the Naval Conference of London, made a collection of the topics which would arise, and communicated it to the states attending the Conference with the request that they would send in full statements on the subjects mentioned. After the answers to this request had come in they were collated with regard to each of the points on which discussion would arise, and bases de discussion were elaborated which made a thorough examination of each point possible at the Conference. By this means it was at once made clear when the different states were in accord and when not. The door to compromise was opened. And apart from a few vexed questions an agreement was in this way successfully reached with regard to a comprehensive law resting at every point on exhaustive deliberation.

43. This model method must be the method of the future. If, as indicated in Se above, Ar, a permanent commission for the preparation of the Peace Conferences be successfully inaugurated, it will be its task to make preliminary preparations for the legislative activity of the Conferences in the manner just sketched out, and chance will no longer have the same part to play as heretofore. International legislation will no longer produce anything so full of gaps as the ’Regulations respecting the laws of land warfare’, which leave essential matters for instance, capitulations and armistices without any adequate regulation.

44. Of course, where the interests of different states are still involved in some uncertainty, or are in such antagonism that a complete agreement is impossible, even the fullest preparation and most painstaking deliberation will not procure a more satisfactory treatment for many matters than that the legislation which regulates them should be (so to say) only experimental and intentionally incomplete and fragmentary in character. Thus, for example, the Conventions about the conversion of merchantmen into men-of-war and about the use of mines in naval war can only be considered as legislative experiments, regulating these matters merely temporarily and in an incomplete and unsatisfactory manner. But even conventions which designedly are full of lacunae have their value. They embody all the same an agreement upon some important parts of the respective topics, and provide a regulation which in every case is better than the chaos previously prevailing in the areas in question. They also constitute a firm nucleus round which either custom or future legislation can develop further regulation.

45. But even if international legislation attains the degree of success suggested, there still remains another great difficulty which must indirectly influence legislation itself, and that is the interpretation of international statutes once they have been enacted. It is notorious that no generally received rule of the law of nations exists for the interpretation of international treaties. Grotius and his successors applied thereto the rules of interpretation adopted in Roman law, but these rules, despite their aptness, are not recognized as international rules of construction. It can scarcely be said, however, that insurmountable difficulties have arisen hitherto out of this situation, for the majority of treaties have been between two parties, and the interpretation thereof is the affair of the contracting parties exclusively, and can be ultimately settled by arbitration. But in the case of general or universal international enactments we have to deal with conventions between a large number of states or between all states, and the question, accordingly, now becomes acute.

46. The difficulty of solving this question is increased by the fact that jurists of different nations are influenced by their national idiosyncrasies in the interpretation of enactments, and are dependent on the method of their school of law. Here are contrarieties which must always make themselves powerfully felt. The continental turn of mind is abstract, the turn of the English and American mind is concrete. Germans, French, and Italians have learnt to apply the abstract rules of codified law to concrete cases; in their abstract mode of thought they believe in general principles of law, and they work outwards from these. English and Americans, on the contrary, learn their law from decided cases ’law is that which the courts recognize as a coactive rule’ is an accepted and widely current definition of law in the Anglo-American jurisprudence; they regard abstract legal rules, which for the most part they do not understand, with marked distrust; they work outwards from previously decided cases and, when a new case arises, they always look for the respects in which it is to be taken as covered by previous cases; they turn away as far as possible from general principles of law, and always fasten on the characteristic features of the particular case. If continental jurists may be said to adapt their cases to the law, English and American jurists may be said to adapt the law to their cases. It is obvious that this difference of intellectual attitude and of juristic training must exercise a far-reaching influence on the interpretation and construction of international enactments.

47. It is because of what has just been explained that the rules for the interpretation of domestic legislation are different with different nations. For example, whilst in Germany and France the judge avails himself more or less liberally of the Materialien of a statute in order to arrive at its meaning, the English judge limits himself to the strict wording of the text, and utterly refuses to listen to an argument based on the historical origin of the statute. The English bench, sticking more closely to the letter of the law, allows also an extensive or restrictive interpretation thereof much more seldom than the continental judiciary does.

48. A good illustration of the factors under consideration was furnished by the movement in England against the ratification of the Declaration of London, and the discussion evoked thereby in the press and in Parliament. It was asserted that many rules of the Declaration were so indefinitely framed as to lie open, castle and keep, to the arbitrary inroads of a belligerent interpreter. And when the advocates of ratification pointed to the official ’General Report presented to the Naval Conference by its Drafting Committee’, which gave a satisfying solution to the issues raised, the answer came that neither a belligerent nor the International Prize Court would be bound by the interpretation of the Declaration contained in this General Report. It was asserted that the ratification of the Declaration would refer only to the text itself, and that the General Report, not being thereby ratified, would not be binding; only by express extension of the ratification to the General Report could the latter bind.

Continental jurisprudence, if my conception of it be correct, would stand shaking its head at the whole of this discussion. It would ask how there could be any talk of ratifying a report, ratification having only to do with agreements. And as regards the question of the binding character of the General Report, there might indeed be some objection on the Continent to the epithet ‘binding’, but, on the other hand, there would be no doubt that the interpretation of the Declaration given in the Report must be accepted on all sides. The Report expressly says:

We now reach the explanation of the Declaration itself, on which we shall try, by summarizing the reports already approved by the Conference, to give an exact and uncontroversial commentary; this, when it has become an official commentary by receiving the approval of the Conference, would be fit to serve as a guide to the different authorities administrative, military, and judicial who may be called on to apply it.

Seeing that the Conference unanimously accepted the Report, there is expressed in it and by it the real and true meaning of the individual articles of the Declaration as the Conference itself understood and intended it. Every attempt to procure an inconsistent interpretation must come to grief on this fact, and so the Report is in this sense ‘binding’. The ratification of a treaty extends, of course, not only to the words themselves, but also to their meaning, and if the Conference which produces an agreement itself unanimously applies a definite meaning to the words of the agreement, there cannot remain any doubt that this is the meaning of the verbal text. Nevertheless, the contrary was maintained in England by a party of men of legal eminence, and the explanation of this is only to be found in the fact that these English lawyers were applying to the interpretation of the Declaration the rules which govern the interpretation of English statutes. The only way to enable the English Government to ratify the Declaration seems to be a statement by the Powers at the time of ratification that the interpretation of the Declaration expressed in the General Report is accepted on all sides.

49. However this may be, the illustration adduced is sufficient proof that the interpretation of international enactments creates a difficulty of its own for international legislation. International legislators must bring even greater solicitude than municipal legislators to the expression of their real meaning in rigid terms. And this aim can only be attained by the most assiduous preparation and consideration of the contents of the enactment. It would be best if these contents were published and thereby submitted to expert discussion before they were finally accepted at the Conferences. The national jurisconsults of the participant states would thus be enabled to criticize the proposals and to indicate the points which especially need clearing up. It might also be possible to consider the enactment, by convention, of an international ordinance containing a series of rules for the interpretation and construction of all international statutes. This much is sure, that the interpretation of international statutes must be freer than that of municipal statutes, and must therefore be directed rather to the spirit of the law than to the meaning of the words used. This is all the more requisite because French legal language is foreign to most of the states concerned, and because it is not to be expected that before ratification they should obtain minute information about the meaning of every single foreign word employed.