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under heavy penalties, that such a deviation, as would be required by a call at a British port, should be made by a Dutch ship which had cleared for Sweden. If, however, the Order in Council is in other respects valid, their Lordships fail to see how the rights of his Majesty under it can be diminished or the authority of an international court can be curtailed by local rules, which forbid particular nationals to comply with the order. If the neutral is inconvenienced by such a conflict of duty, the cause lies in the prescriptions of his own country's law, and does not involve any invalidity in the order.
Further, it is pointed out that, with the exception of France, the other Allied Powers did not find it necessary to resort to a similar act of retaliation, and it is contended that, on a comparison with the Order of 1915 also, the consequences involved in a disregard of the Order of 1917 were of unnecessary severity and were unjustifiable. The first point appears to be covered by the rule that on a question of policy—and the question whether the time and occasion have arisen for resort to a further exercise of the right of retaliation is essentially a question of policy-a court of prize ought to accept as sufficient proof the public declarations of the responsible executive, but in any case the special maritime position of his Majesty in relation to that of his Allies affords abundant ground for refusing to regard a different course pursued by those Allies as a reason for invalidating the Order of 1917. If the second point involves the contention that a belligerent must retaliate on his enemy, so far as neutrals are concerned, only on the terms of compensating them for inconvenience, if any is suffered, and of making it worth their while to comply with an order, which they do not find to be advantageous to their particular interests, it is inconsistent with the whole theory on which the right of retaliation is exercised. The right of retaliation is a right of the belligerent, not a concession by the neutral. It is enjoyed by law and not on sufferance; and doubly so when, as in the present case, the outrageous conduct of the enemy might have been treated as acts of war by all mankind.
Accordingly, the most material question in this case is the degree of risk to which the deviation required would subject a neutral vessel which sought to comply with the order. It is said, and with truth, that the German plan was by mine and by submarine to deny the North Sea to trade; that the danger, prospective and actual, which that plan involved must be deemed to have been real and great, or else the justification of the order itself would fail; and that the deviation which the Leonora must have undertaken would have involved crossing and recrossing the area of peril. Their Lordships recall and apply what was said in the Stigstad (supra), that in estimating the burden of the retaliation account must be taken of the gravity of the original offence which provoked it, and that it is material to consider not only the burden which the neutral is called upon to bear, but the peril from which, at the price of that burden, it may be expected that belligerent retaliation will deliver him. It may be let us pray that it may be so—that an order of this severity may never be needed and, therefore, may never be justified again, for the right of retaliation is one to be sparingly exercised and to be strictly reviewed. Still, the facts must be faced. Can there be a doubt that the original provocation here was as grave as any recorded in history; that it menaced and outraged neutrals as well as belligerents; and that neutrals had no escape from the peril except by the successful and stringent employment of unusual measures or by an inglorious assent to the enslavement of their trade? Their Lordships have none.
On the evidence of attacks on vessels of all kinds and flags, hospital ships not excepted, which this record contains, it is plain that measures of retaliation and repression would be fully justified in the interest of the common good, even at the cost of very considerable risk and inconvenience to neutrals in particular cases. Such a conclusion having been established, their Lordships think that the burden of proof shifts, and that it was for the appellants to show, if they desired, that the risk and inconvenience were in fact excessive, for, the matter being one of degree, it is not reasonable to require that the Crown, having proved so much affirmatively, should further proceed to prove a negative and to show that the risk and inconvenience in any particular class of cases were not excessive. Much is made in the appellants' evidence of the fact that calling at a British port would have taken the Leonora across a German mine-field, but it is very noticeable that throughout the case the very numerous instances of losses by German action are cases of losses by the action of submarines and not by mines. The appellants filed a series of affidavits, stating in identical terms that in proceeding to a British port of call vessels would incur very great risk of attack by submarines, especially if unaccompanied by an armed escort. Of the possibility of obtain
ing an armed escort or other similar protection they say nothing, apparently because they never had any intention of complying with the Order in Council, and therefore were not concerned to ascertain how much danger, or how little, their compliance would really involve. Proof of the amount of danger involved in crossing the minefield in itself is singularly lacking, but the fact is plain that after a voyage of no extraordinary character the Leonora did reach Harwich in safety.
In these circumstances their Lordships see no sufficient reason why, on a question of fact, as this question is, they should differ from the considered conclusion of the President. He was satisfied that the Order in Council did not involve greater hazard or prejudice to the neutral trade than was commensurate with the gravity of the enemy outrages and the common need for their repression, and their Lordships are not minded to disturb his finding. The appeals accordingly fail. Their Lordships will humbly advise his Majesty that they should be dismissed with costs.
Die Internationale Beschränkung der Rüstungen. By Hans Wehberg.
Stuttgart und Berlin: Deutsche Verlags - Anstalt. 1919, pp. xii, 464.
The appearance of an instructive volume on the International Limitation of Armaments by this distinguished representative of German scholarship is a good omen. To be sure, Dr. Wehberg has long been known as one of the few German authorities on international law of liberal or progressive tendencies, and it is to be hoped that under the new régime in Germany, scholars of his ilk will have a greater influence with the German public and in govermental circles than they have had in the past.
The Limitation of Armaments is appropriately dedicated by Dr. Wehberg to his friend Walter Schücking in "memory of ten years mutual pacifist activity.” But though a work of thorough scholarship in the best German sense, this book can hardly be considered as important a contribution to the subject of which it treats or to the science of internationalism in general as certain of his former books, notably Das Beuterecht im Land-und Seekriege, 1909 (Capture in War on Land and Sea, translated by Robertson, London, 1911), Das Problem eines internationalen Staatengerichtshofes (The Problem of an International Court of Justice, Carnegie Endowment, Oxford, 1918, and Das Seekriegsrecht, 1915 (Handbuch des Völkerrechts, Bd. IV.).
In his preface the author sagely remarks that “anyone striving for the progress of law must not be satisfied to recommend for acceptance a series of legal precepts, but must also lay the psychological foundation for the new law. The more we jurists recognize the interrelation of international law with the problem of internationalism, politics, etc., the easier it is for us to evade the danger of setting up dead norms and the more do we contribute toward the enlargement of the rule of the law of nations. Nothing hinders the completion of this field of law extending toward the future as much as this mutual suspicion between states engendered by armaments.”
Dr. Wehberg explains further that his book is not a piece of propaganda, but a “scientific treatment of the problem in respect to its historical development in theory and practice and its valuation from a sociological and international law standpoint.”
Considerably more than one-half of the work is devoted to matters "historical” under the general captions of “Efforts of Private Persons and Associations," "Efforts of Parliaments” and “Efforts of Governments.” This part of the book invites no particular comment, inasmuch as most of the material is contained in English works readily accessible to students of the subject. There is of course a full treatment of the discussions on this subject at the Hague Conferences of 1899 and 1907, including a condemnation of Germany's policy at these conferences. There is a failure, however, to utilize the interesting revelations of Andrew D. White, as contained in his luminous Autobiography.
The most important part of Dr. Wehberg's new book seems to be the part headed “Grundsätzliches” (Matters Fundamental). But even in respect to this portion of the work the reviewer confesses to a certain sense of disappointment. The author apparently treads none but beaten paths and contributes little or nothing to the discussion that might be called new or “striking.” He dwells upon the insecurity of armaments in general, the dependence of national armaments upon one another, the need for an international understanding on the subject, the now almost universally acknowledged insufficiency of mere judicial or arbitral methods, etc. He states and answers methodically the various objections of an ethical, economic, political or technical nature that may be urged against a policy of limitation of armaments. He also discusses the powerful influences exerted by the armament industries and the various plans suggested for a limitation of armaments, as also the means of international guarantee and control, devoting a brief concluding section to the “Limitation of Armaments at the End of the World War.”
Among advocates of a limitation of armaments, Dr. Wehberg may be classed as moderate or liberal rather than radical. He justly emphasizes throughout his work the importance of the international point of view, the need of a world treaty on the subject, and insists