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vii

PREFACE

The form of this volume requires explanation. It has already been privately issued, partly in fragments and partly as a confidential memorandum, for the consideration of my colleagues of the Institute of International Law, different government departments at home and abroad, and others. The wide margins and blanks were left for the insertion of new matter and the convenience of the specialist readers whose views on different points I had solicited. As they may also prove serviceable to the readers of a book of this kind generally, and changing the form would have entailed delay and labour out of proportion to the resulting advantage, I hope I may be pardoned for in this respect not adhering strictly to time-honoured traditions of bookproduction.

As regards the subject matter, the purpose of the book is far less pretentious than a cursory glance at the table of contents might lead the reader to suppose.

If I have made suggestions, I have done so in all humility, knowing that imperfections in human character, collective emotions and unforeseen emergencies tend to upset the best calculated international appliances. Yet the spirit of law and order does unquestionably progress, not only in the domestic polity of nations, but also in relations between State and State. And the growth of this spirit of law and order as between State and State has largely been due to direct and conscious effort, as will be seen in every chapter of this book.

My object has, therefore, been to single out these cases of direct and conscious effort, and to endeavour to isolate the ethical principles or reasons of expediency which seem to have underlain their application, and to utilise them for the solution of other kindred problems. In this country it is a truism to say that a

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judicious enlistment of analogies is the safest of all arguments. Yet to many generous-minded friends this seems like mere tinkering where they would remodel.

I have been favoured with many suggestions and observations by the friends and colleagues to whom I sent the original volume and matter privately issued. A few of them will certainiy interest the present readers.

Some friends reproach me with an exaggerated respect for the status quo. One distinguished colleague writes me:

"Your observation that conflicts arise chiefly out of matters of rivalry connected with territorial aggrandisement and expansion' (p. 154), takes no account of all the possessions obtained by violence-by violation-violation by which a people is held in subjugation by another people or by a foreign government, in circumstances which are unendurable. Witness the states of things in Macedonia and Armenia-even Manchuria. ... Would you consecrate such states of things, such bleeding wounds, such disgraces for humanity and civilisation, by an undertaking among the Powers to “respect as between and among them the integrity of their respective dominions, possessions, etc.'?... Such a clause presupposes exclusively legitimate ' possessions. Your proposal would hand over numerous peoples to their oppressors; and this would not be progress, but retrogression.”

Another asks me in reference to the same subject :

“Do you intend Turkey to be a party to it? If she is excluded, that exclusion would be like a call to war. If she is included, Art. I. (p. 154) would guarantee her the continuance of her fiendish misrule.”

There is much truth in these observations. At the same time, the suggestion that the Powers agree to respect the territorial status quô for ten years is not a consecration of misrule in perpetuity, and I think my two distinguished friends have not considered that concerted action for the preservation of peace among the Powers might strengthen their joint influence, possibly facilitate joint action in dealing with the difficulties which are smouldering in the near East, and avert a danger to the peace of Europe.

Several of my correspondents express doubts as to the expediency of adopting any kind of Arbitration Treaty which would include “vital interests” or “national honour,” on the ground that such questions are not of a character which can be decided by judicial methods. Yet several questions involving national

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honour and vital interests in a supreme degree have, in fact, been decided by arbitration. The Alabama case, the Venezuelan boundary question, the Alaskan fur-seal difficulty, the Alaskan boundary question, all involved either one or the other. It is true that these were matters confined to nations of the same racial origin. But is there reason to suppose that as between Great Britain and France any difficulty involving “national honour” or a “vital interest” would not now be solved by amicable methods? And has not the solution of the difficulty between Sweden and Norway shown how Scandinavian democracies view armed struggles even on vital questions? And have not Chile and Argentina at another extremity of the globe shown the same repulsion for armed conflicts on all difficulties without exception? These communities have not excluded “vital interests” or “national honour" from the scope of their treaties of arbitration.

It is possible that the second Hague Conference will confine itself to the adoption of a general obligatory Convention based on the Anglo-French model, or on the form suggested by the Interparliamentary Union (see pp. 13 and 148), which would be a decided improvement. My suggestions, however, are not confined to what is attainable at the second Hague Conference; and what may not seem feasible as a general measure, might be made the subject of a treaty between specific States, e.g. Great Britain and France, who have already been pioneers in giving a limited compulsory jurisdiction to The Hague Court. In particular, a leading authority on the subject writes me :

“I observe that in your project of a treaty to cover cases of “national honour” and “vital interest” you side with the requirement of a stipulated majority for a decision . . . but I have never been disposed to regard it with favour as a permanent plan. I think, however, that your addition of the requirement of an impartial examination of and report upon the opinions of the variant arbitrators is a happy amendment of the plan, and tends to prevent the dead-locking which might otherwise be apprehended."

Another leading authority on the subject writes me:

“I am of opinion that the Great Powers, and especially Germany, would not consent to making arbitration compulsory for all cases. The principal

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objection of Germany in 1899 was that, if she accepted compulsory arbitration, she would lose the advantage she has, or thinks she has, in the more speedy mobilisation of her forces. . . Other Powers possibly have the same idea.

I do not share this view, because these Powers could always utilise the same advantages better than their enemy. The objection would be difficult to overcome, though I am strongly in favour of your proposal (see p. 145), and should like to see it admitted in The Hague Convention as a possible form. The fact that it would not bind the Parties to it absolutely and unconditionally may commend it. To my mind it offers two great advantages :-1. the necessary time for national feeling to cool down; 2. even in case of four voting against two, the decision would have such a great moral effect that no Power would like to disregard it."

A constitutional authority belonging to a neutral State calls my attention to a point of interest in connection with “vital interest” and “national honour.” He observes :

“We know in ... that the literal institutions of a small country are sometimes a matter of distrust to their powerful neighbours :-it must be admitted that the conception of political offences, for instance, that freedom of public meetings, freedom of the press, etc., are vital interests, and that the national honour forbids their being in any way affected.”

This very judicious observation has led me to make an alteration in my draft on the subject (see p. 145).

Most of my correspondents are agreed that in the present state of uncertainty of international practice as regards the definition and scope of contraband, and in view of the difficulty of fixing a criterion by which a voyage can be adjudicated with any precision to be "continuous," these subjects in particular should be submitted to an immediate and thorough examination.

On “continuous voyages” one of my colleagues writes :

Suppose a war pending between France and Germany, and German or French ports blockaded. Vessels carrying cargoes of foodstufts bound for, say, Antwerp or Rotterdam might be captured on the High Sea on the ground that Germany or France was in great need of them, and that they would necessarily be forwarded to these countries where they would fetch a higher price. . . . It ought surely not to be possible that such a presumption should suffice to justify seizure.”

If the doctrine of " continuous voyages” is to be applied at all, the constantly increasing ramifications of transit trade seem to make only attenuations possible, and I am afraid my friend's distinction can only be met by adjustment of the estimated loss

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