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亨利-梅因:国际法Lecture 12

2006-08-11 13:57   我要纠错 | 打印 | 收藏 | | |


  To this last lecture of the present course, it seems to me desirable that I should briefly notice some assertions or suggestions, not uncommonly heard in the present day, that the great evils of war might be abated by the adoption of principles of action not necessarily identical with those which have been discussed in previous lectures. I pass over general statements which seem to me to be mere calumnies, such as the charge against influential military men, that in every society they do their utmost to encourage the spirit of belligerency. Those who have had the privilege of acquaintance with famous soldiers will bear me out in saying that, while there is no class of men more humane, there is none distinguished by a deeper dislike or hatred of war, however they may believe it to be inevitable. But another assertion frequently made is much more respectable, and contains a larger proportion of truth. War, it is said, is irreconcilable with Christian belief and Christian practice. If men acted up to the standards of conduct which great numbers of them theoretically accept, there would be few wars or none. This has long been the doctrine of a sect whose various services to humanity I have already gratefully commemorated —— the Quakers; and also of an obscurer community, the Mennonites. It will be evident, I think, to everybody who bestows some careful thought on the subject, that there would be great difficulty in adapting a system which professes to regulate the relations of individual men with one another, to the relations of groups of men, of states; and in point of fact the Quakers have not always been quite consistent in the application of their principle. The Quakers of the colony of Pennsylvania were in the American War of Independence strong partisans of the colonial cause; and Benjamin Franklin has left us some curious stories of the fictions by which the Pennsylvanian Quakers reconciled their conscientious objections to war with their keen desire to assist the colonial troops. But it is proper to observe that this opinion of the unlawfulness of war has, in the course of ecclesiastical history, seemed several times likely to become the opinion of the whole Christian Church, or of a large portion of it. We have most of us been taught to believe, on the authority of a well-known passage in Tertullian, that the Roman Imperial armies were full of Christian soldiers; but the passage is inconsistent with others in the same writer; and I have seen a long catena of extracts from patristic authorities, extending from Justin Martyr to Jerome and Cyril, in which the inconsistency of the military profession with Christian belief is maintained. In fact, this became one of the main points of contention between Christians and pagans. The contention of Celsus, that the Christians refuse to bear arms even in cases of necessity, is met by Origen with the admission that the fact is so, but with the argument that the Christians do not go on campaigns with the Emperor because they serve him with their prayers. If these opinions did not become those of the whole Church, the cause must probably be sought in the course of historical events, for the invading Teutonic tribes who spread over the Empire could not be untaught the art and practice of fighting, even when they accepted some form of Christianity. Passing over a long space of time to the beginning of the modern history of Christianity, it seemed not improbable that the unlawfulness of war would become a doctrine of all the Protestant sects; among theologians not quite estranged from Catholicity, the great Erasmus wrote as strongly of the wickedness of war as any Quaker of our day could do, and Sir Thomas More charged Luther and his followers with wishing to deprive sovereigns of their authority by denying to them the power of resistance. On the other hand, the writers dealt with in the foregoing lectures, the founders of International Law, did not adopt the opinion of the Lawfulness of war, though they were nearly all Protestants. Grotius argues vehemently against it, chiefly on Scriptural grounds. I take the fact to be that he and his immediate followers conceived the body of rules which they believed themselves to have rescued from neglect to be more serviceable for the purpose of regulating the concerns of nations in war and peace, than any system which pretended to a direct descent from Christian records or Christian tradition. The Law of Nature which they spoke of, and apparently believed in, with as little hesitation as if they were thinking of the English Common Law, has not stood against the assaults of modern criticism, and specially not against the inferences suggested by the modern study of primitive mankind. But it did prove possible to apply the rules associated with it to human societies in peace and war; whereas, though a general belief that war Divas unrighteous would assuredly have had important effects, nobody can say confidently what those effects would have been, or can assert that they would have included the extension and stability of peace. Another sweeping proposal for the virtual abolition of war, one of a very different order, however, from that just considered by me, must have come under the notice of most of us. It is said that there is always an alternative to a contest in arms. Nations fight because they cannot go to law. The old idea that the disputes of states are referred by war to a supernatural arbitrament is now abandoned; but though there is no international tribunal which can entertain as of right the controversies of nations, there is a substitute for it in international arbitration. Let, therefore, every dispute be referred to an arbitrator or to a body of arbitrators, and let civilised communities defer to the award with no more demur than they exhibit in submitting to the decision of a court of justice. A belief in this remedy for war is being widely extended in our day. It is held by persons worthy of ail respect and promoted by powerful voluntary associations. I should be the last person to deny that arbitration in international affairs has often been very happily applied. Nations very often, like men, adhere to their view of disputed points more from pride of opinion than from any real interest in it. Some of these disputes, again, turn on questions of fact, which have not been solved because they have not been properly investigated, but which are easily disposed of when thus looked into by fresh and disc. passionate minds.

  But before this or any other country commits itself to arbitration as a universal remedy for war, one or two of its defects ought to be specially noticed. In the first place, though arbitration in individual disputes is well known and frequently tried. it is very unlike the arbitration proposed by its advocates for international differences. The arbitration with which all lawyers are familiar, is merely a displacement of the structure of an ordinary court of justice. The parties agree to refer all or part of the matters in dispute between them to the decision of an arbitrator, who takes the place of the judge or of the judge and a jury, and they at the same time agree that his decision, unless impeachable on certain grounds of law, shall be enforced by the court as would be its own decree. It is a very convenient course when the questions of fact to be adjudicated upon are numerous and complicated, and the principal objection to it is that it is apt to be very expensive. What I wish to point out is that arbitration as in use between individuals in England does not exclude the one great feature of a court of justice, the force which underlies its operations. There are, no doubt, arbitrations which come nearer the arbitrations contemplated by the enthusiasts for universal arbitrations between disputant sovereigns. A skilful man of business in British commercial cities, an eminent specialist in the practical applications of science, will sometimes obtain a sort of celebrity for just and wise adjudication, and nothing like the process of a court is found necessary to secure obedience to his award. It is, however, many centuries since such authority was attributed to any man or class in international matters; the current of opinion in our day runs distinctly against the assumption that any exceptional knowledge is necessary for the solution of great political and international questions, and therefore the arbitration of which we hear so much would in the long run, and if tried on a great scale, prove to have the defects which would soon show themselves in a court of justice which the State had failed to invest with irresistible coercive power.

  The want of coercive power is, in fact, the one important drawback which attends all attempts to improve International Law by contrivances imitated from the internal economy of states, by something like legislation, and by something like the administration of law by organised tribunals. Still, nobody who understands the subject, and has observed the course of events, will deny a certain measure of success to international arbitrations, and there is much reason to wish them an extended sphere. But there are some practical defects in them, as they stand, which should be observed upon, because they may possibly admit of being remedied. It is well known to English practicing lawyers that a certain class of litigants are, so to put it, unpopular in English courts, so that there is considerable difficulty in obtaining for them a full measure of justice. Among these, to give instances, are insurance companies, and

  to some extent railway companies. In the same way there are states bringing their controversies before bodies of international arbitrators who are in the same sense unpopular litigants; and, if inquiry were practicable, I should not be surprised to find that, in the opinion of English diplomatists and statesmen in charge of our foreign affairs, our own country is not a Popular litigant in arbitrations. The truth is our country is thought to be very wealthy, and to be able to bear the burden of a money award against it better than any other community. It is believed to be comparatively careless of its foreign policy, and not to show much sensitiveness under a judicial rebuff. Lastly, there is a general impression that it has so contrived its international relations as to escape from its fair share of the anxieties and sufferings which fall upon other states through war, apprehension of war, and preparation for war.

  Again, it is not, I think, to be denied that the composition of courts (if I may for the moment so style them) of international arbitration is not altogether satisfactory. An indispensable element in it is one or more of the class of lawyers who are commonly called jurists But this word has much changed its meaning. As lately as the last century there was a class of lawyers bearing this title who had made a special study of International Law, and whose collective opinion had serious influence on the development of the system. But in England the Ecclesiastical and Admiralty Courts have been transformed, and the special class of lawyers trained in Roman Civil Law who practiced in those courts has either disappeared or is on the point of disappearing. Nobody can quite say at present what a jurist is. The word is used in a number of new senses; and in point of fact most famous foreign writers on International Law are salaried functionaries of foreign chanceries, nor can any reader of very modern treatises on the subject fail to see that many of then1 are strongly affected by the official connection of the writer with his Government, and by his knowledge of the interest which he supposes that Government to have in the establishment, maintenance, or development of particular features of the international system. This last-mentioned drawback on the usefulness of international quasi-courts of arbitration, that in our day they are not always satisfactorily constituted, is closely connected with one general defect which at present characterizes them —— they do not exercise any continuous jurisdiction, they are always formed for the single occasion. It is quite uncertain what weight is to be attached to the award of international arbitrators as a precedent. The mode in which International Law makes progress in default of a regular Legislature is a very important subject, which I have not been able to take up in a manner worthy of it in the present course of lectures, but which I hope to enter upon at some future time. There is, however, no doubt that a quasi-judicial award, given on a serious occasion, and acquiesced in by powerful nations who were parties to the litigation, deeply and permanently affects the law. But quasi-courts of arbitrators, constituted ad hoc, of necessity attend simply to the question in immediate dispute, and do not weigh the opinion they give regarded as a precedent. They cannot look before and after —— to the entire history of the Law of Nations. This result of their defective structure is particularly conspicuous and particularly dangerous in what was perhaps the greatest of all arbitrations, that which settled the difference which had arisen between Great Britain and the United States as to liability for the depredations of Southern Confederate cruisers on Northern American shipping. I have nothing to say against the value of the Geneva arbitration in regard to the particular occasion on which it was resorted to. It put an end to a number of bitterly disputed questions which had accumulated during the War of Secession, and which might have smouldered on for years, to the great danger of the whole civilised world. But the serviceableness of the Geneva award in its effects on International Law is much more questionable. Even at the outset, the disputants are found arguing that the arbitrators should have regard to principles which one of them did not admit to be included in International Law. Great Britain protests against this principle, but nevertheless allows the arbitration to proceed. We may, however, be quite sure that if an analogous dispute should hereafter occur, this principle will be urged by any Power which has an interest in insisting upon it, and under any circumstances a grave uncertainty is introduced into International Law. But the Geneva decision, regarded as an international precedent, is open to much more serious objection than this. As is well known, Great Britain during the Confederate War was a neutral, and she was condemned by the arbitrators to pay very heavy damages as punishment for breaches of her duty as a neutral. She was penally dealt with for a number of acts and omissions, each in itself innocent. She had a standard of due diligence applied to her neglects which was new and extremely severe. And generally she had a rule of neutral duty applied to her which, if it has been really engrafted on the Law of Nations, has changed that law materially for the worse. But if there be one thing more than another which a true court of international justice might be desired to keep in view in its decisions, it is their future effect on the rights of neutrals. Nothing tends to enlarge the area of maritime wars so much as the neglect of these rights. Nothing tends so much to make war intolerably oppressive as any rule which helps, beyond what is absolutely necessary, to invade the principle that neutral states are merely states which have kept out of a calamity which has fallen on others, and which merely desire to follow their own business in their own way. From this point of view, the result of the Geneva arbitration is not happy. It turns back pro tanto the drift of legal opinion on neutral fights, which for many years had been setting in another direction. The Geneva arbitration, I repeat, conferred great benefit for the moment on Great Britain and the United States. But, looked at as a precedent likely to exercise serious influence on the whole Law of Nations, I fear it was dangerous, as well as reactionary and retrogressive.

  I have dwelt on this aspect of the Geneva arbitration because it puts in what appears to me a striking light the disadvantages which attend these expedients for settling international disputes, through their being invariably brought into action merely ad hoc. A true court of quasi-justice, like a court of municipal justice, would be sure to consider the effect of a given decision on the whole branch of law which it administers. The defect, however, appears to me to be one for which it would not be altogether impossible to find a remedy. Many, indeed, of the innovations which have been proposed for the cure of palpable infirmities in the application of our International Jurisprudence to facts seem to have but small chance of adoption, at any rate in a society of nations like that in which we live, through the magnitude of the sacrifices which they would impose on particular communities. But no appreciable sacrifice would have to be made by the single or corporate sovereigns of the civilised world if they were to agree to constitute a single permanent court, or board, or assemblage of arbitrators, who should act as referees in any questions which any community or communities should choose to submit to them. Such a court would not be free from the infirmity which afflicts all such additions to the international system. It would have no force at its back. But I think it would be better constituted. I think it would be more free from prejudice, and would soon be recognised as freer, than the present occasional adjudicators. And I think it could be better trusted to adjust its awards to the entire body of international principles, distinctions, and rules. Such a tribunal as I have described, a court, board, or commission of arbitrators, having a certain degree of permanence, might have all the advantages which I have described for it —— it might be better constituted for its purpose than are the bodies which are now trusted to conduct arbitrations, its awards might be better considered with regard to their effect on the entirety of the Law of Nations, and it might be employed more freely as a body of referees on critical questions which are now left to themselves for want of any authority to which their consideration might be committed. But still it would not be a true court of justice. It would share the characteristic, in modern eyes the weakness, of all International Law, that it cannot command the assistance of force. Its rules have no sanction. It cannot punish the breach of its rules or the violation of an international duty. It is true that a defiance of the Law of Nations sometimes draws down upon the offender a very serious sanction, though it is indirect. Few sovereigns or states remain unmoved by the disapprobation which an open breach of international obligation provokes disapprobation now rapidly diffused over the whole civilised world by the telegraph and the press. Nothing could be more satisfactory than the outburst of indignation which occurred in 1870, when the Russian Government took advantage of the difficulties in which Europe was placed by the war between Germany and France, to repudiate the restrictions under which Russia lay in respect of naval action in the Black Sea through the provisions of the Treaty of Paris, restrictions which, it must be confessed, were not wholly reasonable. The Russian Government had to abandon its position; and at a Conference of the representatives of Powers who had been signatories of the Treaty of Paris, it was declared that 'it is an essential principle of the Law of Nations that no Power can liberate itself from the engagement of a treaty, nor modify the stipulations thereof, unless with the consent of the contracting Powers by means of an amicable engagement.' It is true that this assertion of the virtual perpetuity of treaties (to which an exception must be introduced, save by the effect of war) contains a principle which is not without a danger of its own. But the receded principle is that which was laid down at the Conference. The truth is that an offender against the obligations of International Law is at present seriously weakened by the disapprobation he incurs. Nobody knew this better than Napoleon Bonaparte, who, next perhaps to Frederick the Great, was the most perfidious sovereign in modern history, when he persistently endeavoured through his official scribes to fasten on this country the name of 'perfidious Albion.'

  But after all qualifications have been allowed, the denial to International Law of that auxiliary force which is commanded by all municipal law, and by every municipal tribunal, is a most lamentable disadvantage. The system owes to it every sort of infirmity. Its efficiency and its improvement are alike hindered. And in the last resort, when two or more disputant Powers have wrought themselves to such a heat of passion that they are determined to fight, the rest of the civilised world, though persuaded that the contest is unnecessary and persuaded that its contagion will spread, has, in the present state of international relations, no popover of forbidding or punish ing the armed attacks of one state on another. The great majority of those entitled to have an opinion may condemn the threatened war, but there is no officer of the Law of Nations to interfere with the headlong combatants. The amount of force which is at the disposal of what is called the commonwealth of nations collectively is immense and practically irresistible, but it is badly distributed and not well directed, and it is too often impotent, not only for the promotion of good, but for the prevention of acknowledged evil.

  About six months ago, when an Association which has been formed for the codification of the Law of Nations (which I may describe parenthetically as most excellent undertaking) was holding its meetings, the subject attracted considerable, though only momentary, attention. An eminent French economist, M. de Molinari, published a proposal for what he called a League of Neutral Powers. The majority of civilised states are always neutral, though the neutrals are not always the same. If the neutrals combine they are irresistible, partly from their strength and partly from their power to make one of two belligerent Powers irresistible by joining its side. M. de Molinari's suggestion was that it should be one of the duties of neutrality to thwart the spirit of belligerency, to make it a rule that the outbreak of hostility between any two Powers should be a casus belli as regards the rest, and to embody these arrangements in the stipulations of a treaty. It is impossible to deny that if such a combination of neutral Powers could be effected under the suggested conditions it would be a most effectual safeguard against war, and this is in itself an ample justification for starting the proposal. But the objections to it are plain, and were at once advanced. If carried into effect, it might diminish the chances of war; but it takes for granted that the mechanism of war will remain unimpaired. If neutrals are to be equal to their new duties, they must maintain great armies and navies on the modern scale, or they may not be able to cope with the contemplated emergency. Thus, though the risk of war might be lessened, the burden of war would at best remain the same; there would be the same vast unproductive expenditure, the same ruinous displacement of industry One result of the scheme might, in fact, defeat another. It is not altogether true in civil affairs that the strong man armed keeps his house in peace. The fact that he wears full armour is sometimes a source of quarrelsomeness, and a temptation to attack his neighbours.

  The scheme of H. de Molinari failed to command the attention and interest which were essential to its serious consideration, because it was too large and ambitious. It was nevertheless founded, as it appears to me, on a correct principle, that, if war is ever to be arrested, it will be arrested by sacrifices on the part of those states which are neither at war nor desire to go to war. There is a very ancient example of this method of arresting and preventing the spread of war. Just before the dawn of Greek history, eve have a glimpse of the existence of several combinations of Greek tribes (which as yet can scarcely be called states) for the purpose of preventing war among themselves and resisting attacks from outside. Of these 'amphiktiones,' alliances of neighbouring communities clustered round a temple as a sanctuary, one only constituted on a respectable scale survived to historical time, evidently in a state of decay, and liable to become the tool of any aggressive military Power, but still even then greatly venerated. Now let us look around the world of our day, and try to see whether we can find anywhere an example of a successful amphiktiony, a combination of neighbouring Powers formed for the purpose of preventing wars.

  I think we have seen for ten years or thereabouts a curiously similar alliance of the sort, framed for a similar purpose. I refer to the alliance of the three great sovereigns of Eastern Europe which is sometimes called the alliance of the three Emperors, which, however, they themselves do not admit to be in form more than a personal understanding. This alliance or understanding, if we may judge by the newspapers, is not particularly popular in Western Europe. Perhaps we do it the same injustice, and for the same reason, which as historical students we do to such great territorial aggregates as the Medo-Persian Empire under the Great King. Political freedom and the movement which we call progress do not flourish in these vast territorial sovereignties, perhaps through some necessity of human nature; and thus we contrast them unfavourably with the Athenian Republic, the parent of art, science, and political liberty, or else with those modern societies to which we ourselves eminently belong. There is not much constitutionalism, as we understand the word, in Germany and Austro-Hungary, and there is none at all in Russia, and thus eve are led to forget the services they render to mankind by the maintenance of peace and the prevention of bloodshed.

  I suppose that, of the causes of war which we know to exist in our day, there were never so many combined as in Eastern Europe during the last ten years. The antecedents of the three combined Emperors revere such as to threaten an outbreak of hostilities at any moment. Germany had ravaged a successful war against Austria, and also had inflicted bitter humiliation on France, till the other day the most powerful military state in Europe. Russia in 1877-8 had been at war with the Turkish Empire, which, though in the greatest decrepitude, exercised a nominal sovereignty over nearly all of Eastern Europe which was not included in the dominions of the allied sovereigns. Among the small communities which were broken fragments of this Empire, the modern springs of war were in perpetual activity. The spirit of ambition, the spirit of religious antagonism, the spirit of race combination or of nationality (whatever it has to be called), were all loose. Nevertheless, under these menacing conditions, the 'amphiktiony' of the three Empires preserved the peace. We do not know what were the exact terms of the understanding, nor do we quite know when it began. There are signs of something like it having existed before the Treaty of Berlin in 1878; and though it has to contend with many difficulties (at this moment with one most dangerous in Bulgaria), it is still said to exist. We cannot doubt what the main heads of the understanding must be. The three Emperors must have agreed to keep the peace among themselves, to resist the solicitations of external Powers, and to forget many of their own recollections. They must have aimed at keeping the quarrelsome little communities about them to the limits assigned to them by the Berlin Treaty. They have not absolutely succeeded in this; but, considering the difficulties, the success of the alliance has been conspicuous.

  The precedent is one on which anyone who shares the hopes of the founder of this Professorship is forced to set the greatest store. It has been shown that a limited number of states, by isolating a limited group of questions, and agreeing to do their best (if necessary, by force) to prevent these questions from kindling the fire of belligerency, may preserve peace in a part of the world which seemed threatened by imminent war. It is not a very large experiment, but it has demanded sacrifices both of money and sentiment. It points to a method of abating war which in our day is novel, but which, after having had for about ten years the sanction of one precedent, is now in course of obtaining the sanction of another. For the alliance of the three Emperors is about to be succeeded by the combination of the Austro-Hungarian and German Governments with the Government of Italy. If, then, for periods of ten years together, one community or more, eager for war, can be prevented from engaging in it, one long step will have been taken towards the establishment of that permanent universal peace which has been hitherto a dream.

  War is too huge and too ancient an evil for there to be much probability that it will submit to any one or any isolated panacea. I would even say that there is a strong presumption against any system of treatment which promises to put a prompt and complete end to it. But, like those terrible conflagrations to which it has often been compared, it may perhaps be extinguished by local isolation. In one instance at least, when apparently on the point of bursting out in a most inflammable structure, it has hitherto been kept under.

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