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war. Officers commanding in the field have nothing whatever to do with courts of justice, except an officer in command of an occupied district. But the rules as to the rights and duties of the army and the non-combatants in occupied territories and the administration of such territories are laid down in Articles 42 to 56 (Articles 43 and 48 in particular); and this would be saying the same thing twice over. No, this article was meant as a blow at the rule of the British law, and this intention could not have been more clearly expressed than it has been in Article 23(h).
Nevertheless, as Dr. Sieveking points out, the prohibition established by Article 23 (h) relates only to land warfare and inasmuch as the great majority of cases likely to come before the British courts originate in maritime transactions the article could have only a very limited application in a war between Great Britain and some other power, even if the German view as to its meaning were admitted.
M. Politis, professor of international law in the University of Paris, in a report made to the Institute of International Law at its session in 1910, likewise expressed the view that the effect of Article 23(h) is to prohibit belligerents from interfering with the execution of contracts made before the outbreak of war and to condemn the old rule in respect to the incapacity of enemy aliens to sue in the courts of the adversary. It forbids, he says, all legislative or other measures tending to invalidate or to prevent the execution of private obligations.25 In an article published in the Revue Générale de Droit International Public in 1911,26 M. Politis reviewed at length the opinions of the text writers, all of whom, with the exception of General Davis of the United States, he says, adopt the view stated above. The only argument of any weight in favor of the view of the English Government is, he adds, that drawn from the position of clause 23(h) in the text of the convention— an argument which is not only contrary to the plain language of the provision itself as well as the declaration of Herr Göppert in the committee, but is contrary to the whole spirit of the Hague convention which was to ameliorate the old usages of which the English rule in respect to the judicial incapacity of alien enemies is one of the most rigorous and indefensi
25 Annuaire de l'Institut de Droit International, T. 23, p. 268. 26 Vol. 18, pp. 249 ff.
ble." It is also true, as M. Politis points out, that the official English interpretation has been condemned by a number of the leading Eng. lish authorities.27
English Interpretation of Article 23(h) During the Recent War.The English Government, however, during the recent war proceeded in accordance with the interpretation adopted by the Foreign Office in 1911 and the English courts followed this interpretation. The question was first presented to a British court in the case of Porter v. Freudenberg in 1915.28 Adverting to the divergence of views among jurists as to the meaning of the clause Lord Reading said the court was clearly of the opinion that the effect was not to abrogate the old English rule.
Our view, he said, is that Article 23(h), read with the governing Article 1 of the Convention, has a very different and a very important effect, and that the paragraph, if so understood, is quite properly placed as it is placed in a group of prohibitions relating to the conduct of an army and its commander in the field. It is to be read, in our judgment, as forbidding any declaration by the military commander of a belligerent force in the occupation of the enemy's territory which will prevent the inhabitants of that territory from using their courts of law in order to assert or to protect their civil rights. For example, if the commander-in-chief of the German forces which are at the present moment in military occupation of part of Belgium were to declare that Belgian subjects should not have the right to sue in the courts of Belgium, he would be acting in contravention of the terms of this paragraph of the article. If such a declaration were made, it would be doing that which this
27 Phillipson, Effect of War on Contracts, p. 46; Higgins, op. cit., p. 263; Lawrence, Principles, p. 358 (who says there can be little doubt that it was intended to have a different and far wider application); and Whittuck, International Documents, p. xxviii. Holland also apparently takes this view, for he remarks that the clause "seems to require the signatories to legislate for the abolition of an enemy's disability, to sustain a persona standi in judicio. Laws of War on Land, p. 5. Some American writers also adopt the Continental interpretation, e.g., Bordwell, Law of War, p. 210; Gregory, Am. Jour. of Int. Law, Vol. II, p. 788; and Hershey, Essentials of Int. Pub, Law, p. 395, note 56.
28 Law Times, Vol. 12, p. 313, 1 K. B. 857. President Monier, of the Tribunal of the Seine, in a decision of May 18, 1916 (Wilmoth v. Daude), without discussing the meaning of the clause declared that it was not binding on the French courts, because "an international convention cannot prevail over the contrary provisions of a municipal statute," and because the clause had been violated by Germany. See text of the decision in 43 Clunet, pp. 1303 ff.
paragraph was intended to make particularly forbidden by the solemn contract of all the States which ratified the Hague Convention of 1907. According to eminent jurists, the occupying military power is forbidden, as a general rule, to vary or suspend laws affecting property and private personal relations.29 This article 23(h) has now enacted that, whatever else the occupying military power may order in the territory of the enemy which it domiciles, it shall not henceforth declare that the right of the subjects of the enemy to institute legal proceedings in the courts of that territory is abolished, suspended, or inadmissible. If this be its true force, the enactment as an international compact is not only of high value, but it has been inserted quite naturally and appositively in the position in the section and chapter of the Annex to the convention which it occupies.
The court then referred to the fact that
On the eve of the outbreak of the war, the German Ambassador in London addressed a communication to the Foreign Office to this effect: “In view of the rule of English law, the German Govern. ment will suspend the enforcement of any British demands against Germans unless the Imperial Government receives within twentyfour hours an undertaking as to the continued enforceability of German demands against Englishmen." No arrangement, said the court, was arrived at. We refer to these two incidents not because either of them can affect our judgment on the question of the interpretation of Article 23(h), but because it is right that it should be made quite clear to everyone that as early as the spring of 1911 the view of the British Government as to its true interpretation was made public to the world, and that the situation was perfectly well understood by the German Government. 30
Right to Sue as Plaintiffs Affirmed. The decision in Porter v. Freudenberg, however, involved only the interpretation of a clause in the Hague convention. It did not affirm that the British courts were in fact closed to enemy aliens under all circumstances. There were at the time three classes of such persons in England: (1) prisoners of war in the strict sense of the term ; (2) prisoners of war in a wider sense including those who were residents or who were temporarily sojourning there at the beginning of the war and who had been imprisoned for one reason or another, and (3) interned
29 Here he quoted Hall, International Law, 6th ed., p. 465.
30 A South African Court adopted the same view of the meaning of the article. Labuschagne v. Maarburger, So. Afr. L. R. (1915), Cape 423.
civilians. The Home Secretary stated in the House of Commons on November 26, 1914, that although all three classes were prisoners of war, the third class were in a different position from those belonging to the other two classes.” They were voluntarily in England by license of the Crown and were entitled to the protection of the law even though they were prisoners of war. They belonged to the category of persons referred to in the case of Wells v. Williams as being under the protection of the Crown and were therefore entitled to bring actions in the courts. On the basis of this distinction the Chancery Division in October, 1914, ruled that a Hungarian princess residing in England during the war and having properly registered in accordance with the aliens restrictions act was, although an enemy subject, entitled to bring an action for an injunction to restrain the defendant from continuing to publish certain libelous matter against her. After adverting to the fact that there appeared to be a general impression that enemy aliens were not entitled to any relief at law in the courts of the country, Mr. Justice Sargent stated that the effect of registration was equivalent to a license to remain in the country; in fact it was a command to remain there. The law, he declared, had been correctly stated by Hall,” who says: When persons are allowed to remain either for a specified time after the commencement of the war or during good behavior they are exonerated from the liabilities of enemies for such time as they, in fact stay as they are placed in the same position as other foreigners, except that they cannot carry on a direct trade in their own country or other enemy vessels with the enemy country. Inasmuch, therefore, as the plaintiff is coming to insist on a right which is individual to herself, she has, in my opinion, by virtue of her registration and by virtue of the permission thereby granted her to reside in this country a clear right to enforce that right in
the courts of this country, notwithstanding the existence of the state of War.” 31 Interned Alien Enemies, Law Quarterly Review, April, 1915, p. 162. 32 International Law, 6th ed., p. 388. 83 Princess Thurn and Taaris v. Moffitt, 1 ch. 58 (1915). The Irish and Scotch Courts adopted this view in several cases. See Trotter, op. cit., pp. 122124. So did the courts of Canada. See especially the case of Viola v. McKenzie, Mann & Co. (1915), 24 Quebec B. R. 31; others are cited by Borchard in Yale Iaw Journal, 27: 107, and by Huberich, op. cit., p. 200.
In the above-mentioned case the plaintiff was not an interned prisoner of war. Her position was therefore somewhat different from that of the plaintiff in the case of Schaffenius v. Goldberg” where the plaintiff was an interned civilian prisoner who had long resided in England and who had duly registered under the Aliens Restriction Act. In the latter case the question was presented to the Chancery Division whether the internment as a prisoner, of an enemy alien, operated to revoke the license to remain in the country—such license being implied by registration under the Aliens Restriction Act—and therefore to deprive him of the protection of the Crown. The court held that internment had no such effect, but on the contrary, rather strengthened the license; consequently the plaintiff was entitled to bring an action to enforce a contract entered into between him and a British subject after the internment of the plaintiff.” After adverting to the recent decision in the case of the Duchess of Sutherland” where it was held that an enemy alien resident in an allied or neutral country could sue in a British court the Court of Appeal said it followed, a fortiori, that such a person, if resident in England, and especially if interned, could equally maintain an action. “In a case like the present,” the Court said, “where the plaintiff is effectually prevented from leaving this country, there is no reason of state or public policy why the principle just alluded to should not be given full effect. The case would be quite different if the plaintiff were to remove to enemy territory. He would then become an enemy in the full sense, no longer able for the duration of the war to enforce his civil rights, or sue, or proceed in the civil courts of the realm.”
The argument advanced by the defendant that internment was equivalent to the revocation of the license to remain, which was implied by the requirement of registration, Mr. Justice Younger held
841 K. B. 184 (1916), and Solicitors Journal and Weekly Reporter, 60:8.
35 Compare the case of Nordman v. Rayner, 33 T. L. R. 87 (1916), which was also a case of “innocent” internment.
36 31 L. T. R. 248.
37 The case would also probably have been different if it had not been a case of “innocent” internment, that is, if the plaintiff had been interned on account of some overt hostile act. Compare McNair, Alien Enemy Litigants, 34 Law Quarterly Review, 135.