« AnteriorContinuar »
BOOK REVIEWS 1
L'Avenir De L'Arbitrage International. Par J. M. van Stipriaan
Luïscius, Docteur en Droit, Avocat a La Haye. Published at Brussels and Paris, 1907.
This is a work of 105 pages, the first 46 of which are devoted to advocating a convention to complete the pacific regulation of international conflicts.
The proposed convention is then submitted in 166 articles, mainly very brief and clearly expressed, and, while bold and simple in their provisions, in some respects highly novel.
The work closes with some 19 pages, mainly an earnest and sometimes impassioned appeal for publicity and discussion as to this proposal, in order that its merit may become known, its adoption by the nations of the earth assured, and the great good of substituting arbitration and peaceful negotiation and adjustment for war in international disputes be accomplished.
The author is most hopeful as to these results and as to the merits of his scheme.
The proposition, while leaving the utmost freedom to arbitration, in the first instance, provides for a court of appeal in matters of international arbitration in which each signatory power designates a member.
This court is divided into two chambers, one for questions of public and the other of private international law.
The court is to be permanent and to assemble on days fixed annually in advance.
Its procedure and pleadings are provided for.
The members of the court choose a president and a vice-president annually:
The language used before and by the court shall be French, English or German, and any state using any other must have it translated into one of them and the president and vice-president must speak, understand and write these three languages.
It is curious to compare this requirement with William Penn's scheme for a European Diet. He provided that in the session of his sovereign estates the language spoken must be either Latin or French, saying “ the
1 The JOURNAL assumes no responsibility for the views expressed in signed Book Reviews. – J. B. S.
first would be very well for civilians, but the latter more easy for men of quality.”
The conventions we are considering provide that the court shall sit at The Hague and its members reside there.
Judgments shall be given in all three languages mentioned above.
The court having twice given the same decision can not in twenty years give a different decision in like case.
At the age of 70 the judges shall retire with pensions equal to their salaries, which are 50,000 francs per year and for the vice-president 65,000 and the president 100,000 francs.
The court may act as a court of first instance if parties so agree.
The court and its entire entourage is declared neutral and “Le signe de la neutralité *** est une balance blanche sur un fond bleu.”
The president shall have the title of ambassador, the vice-president of envoy extraordinary and minister plenipotentiary and the members of the court that of minister resident and they may not accept decorations.
They must abstain from all other salaried functions.
The “jurisprudence” of this court is based on international law found in treaties and expounded by the writers.
The judges must at first compose digests or pandects of such law.
The court may function as a court of law, after an international inquiry, to apply the results to the difference according to the law of nations.
It may function as a contriving (projetante) court to devise treaties to end differences.
And still further as a contriving court of appeal, if necessary.
There is some slight suggestion of the Bureaux de Conciliation in the project of the Abbe St. Pierre in this and it recalls Sir Edmund Hornby's proposition by which the Tribunal of Arbitration could arrange a modus vivendi between the disputants pending a decision. The author advocates such powers on the theory that many disputes arise from conflict of interest and not from conflict of rights.
This difficulty was discussed by the writer of this review before the International Law Association of London in 1907 and its solution through expropriation by arbitration was considered. (See Harvard Law Review, Vol. 21, page 23.)
The proposed tribunal may function as a court of complaints to hear complaints of injustice between nations and determine whether or not there has been such and, again, may act as a court of appeal as to such complaints.
It may act as a court of mediation with military advisers.
The convention devotes six of its largest sections to the fundamentals of the law as to states. In these it recognizes the freedom, equality and permanence of states and the freedom of the sea more than two geographic miles from the coast. It provides that matters of extradition may be appealed to the international court. It abolishes retorsion, embargo and peaceful blockade and forbids offensive alliances.
The court may function as a criminal court and may declare a war unjust, the carrying on of such a war being the sole crime it is to try, and may require all nations to compel their subjects to put an end to all relations or intercourse with the offending nation or its people under penalty of being punished as for high treason.
The court may function as a court of neutrals in which neutral nations have a right to oppose a war or treaty as prejudicial to their rights and then a judgment in their favor is enforced as in case of an unjust war.
Nine sections are devoted to the enforcement of judgments. They provide that if, after hearing a decision rendered, a party is not complying with a judgment, after due delay, all signatory powers must cease treaty relations with the offending power, and judgment for damage and costs may be also given.
The last six sections of the convention provide for the intervention of the president of the court in certain cases.
The provisions of the convention are sustained by arguments based on considerations of justice and humanity.
There is substantially no historical argument, although a comparison would be interesting with many earlier projects and especially that of Henry the Fourth, so-called, as elaborated by the Abbe de St. Pierre where the states were to form a union and no one to make war except against him who shall be declared an enemy to the European Society.
The arguments advanced in the publication under review are mainly the horrors of war (which are confessed), the injustice of the triumph of mere force, the desirability of peace with justice, all of which again must be confessed.
The argument is sustained mainly by a series of carefully balanced, antithetical, epigrammatic truisms. A claim for a world-wide hearing is based on the desirability of the result to be attained. The doctrine of altruism is most constantly advanced as that which should control.
The author, an advocate from one of the lesser states, urges them to combine and to check the assumption of superior rights by the great powers.
The author is an advocate at The Hague and he would institute a great international court of appeal which should sit permanently in his own city, whose judges should there reside. He would vest this court with not merely judicial powers but with a controlling supervision over diplomatic negotiations and military operations, over treaties and over wars. He would invest the heads of this tribunal with permanent rank and station and reward them with great salaries. He would require certain linguistic accomplishments of them and he lets us know that he himself possesses these linguistic accomplishments. One can not object to the humanity of his appeal, or the desirability of his objects. His indictment of the state of armed peace where the burdens of war are made permanent instead of temporary, a state toward which this nation, in the opinion of some, is now progressing, is perhaps, the most convincing and vigorous part of his argument. The practicability of his scheme of almost universal dominion at The Hague seems by no means apparent and it is not probable that the nations of the earth will so far surrender autonomy as he suggests.
It ought to be added that the jury du concours Narcisse-Thibault organized by the International Bureau of Peace at Berne, has awarded to this memoire an honorable mention and a medal.
Many voices, many pens, many minds laboring for international justice and international peace aid in achieving those great consummations. Those who labor deserve our gratitude even when we can not wholly accede to their suggestions.
CHARLES NOBLE GREGORY.
La frode alla legge e la questione dei divorzi fra Italiani naturalizzati
all 'estero. G. Ottolenghi. Turin: Unione Tipografico-Editrice Torinese, 1909. L. 5.
We have in this study of Mr. Ottolenghi on “Fraud against the law and the question of divorces between Italians naturalized in a foreigu country," an exceedingly favorable specimen of its class. It is, of course, quite possible to differ with the opinions expressed, and it is conceivable that the arguments adduced might be subjected to destructive criticism by the partisans of other theories, but we are left in no doubt as to what views the author maintains, the presentation is clear and logical, and the point at issue is never lost sight of. This is partly owing, no doubt, to the fact that the question raised is a concrete and practical one, demand
ing a concrete and practical answer, but one may be permitted to think that there is also evidenced a certain admirable and welcome quality of mind.
The circumstances which give rise to this study are as follows: Divorce is forbidden under the laws of Italy. Expatriation and naturalization are freely permitted. It has become more or less common for husband and wife desiring to obtain a divorce, to seek naturalization in a foreign country where divorce is allowed, carry through the necessary proceedings there, and then resume the original domicil, and perhaps the original citizenship in Italy As the object of such a proceeding is ordinarily to make possible a new marriage, serious questions affecting both status and property are likely to present themselves.
There has been a strong inclination to regard these divorces as fraudulent and to refuse them recognition in Italy. It is to be observed, however, that as the question is put, there is no suggestion of fraud as against either of the parties, or even against the courts which grant the divorce; the so-called fraud is purely and simply against the law of Italy; permitted and legal means are used to attain an end which could not be directly reached in a legal manner.
The general conception of fraud against the law is, therefore, first subjected to analysis. It would seem that there is an element of metaphor or personification in the use of the term at all. However, the author concludes that there is in fact no radical distinction between acts in fraud of the law and acts against the law. We can not by any safe or permissible system of construction look beyond the terms of the law itself to discover the evils at which it is aimed or the acts which it forbids. To seek to extend the scope of a legal prohibition beyond what can be drawn from its terms by a rational interpretation, is to trespass on the field of ethics or of legislation, and leads the way to all confusion.
Fraud on the law is, therefore, simply the commission of an act prohibited by law, by methods which are in themselves legal or wear an appearance of legality. The question always is, is the end achieved itself prohibited, or is it merely the act when done in some particular way or by some particular method ?
In cases arising under international law the method employed is, of course, the subjection of the illegal act to another system of law under which it becomes legal.
Cases where the means employed consist in a mere change of domicil have this special feature, that intention is always an essential element in