law. As far as the right of capture is concerned, England, as we have seen, was likewise ready to make concessions at the second Hague Peace Conference, if Germany would be willing to enter into a discussion of the question of armament. With the refusal of Germany to come to an agreement about the problem of armament, this advance was consequently also frustrated at that time. Is there not in this a clear indication as to how the 'freedom of the seas' could actually be achieved? But to what has been said must be added. It is apparent that the 'freedom of the seas' also means that no mines be laid in the high seas outside of territorial waters. As is well known, England demanded this at The Hague, but Germany was opposed to such a prohibition. It was Germany, too, that made a reservation to the provision that in a blockade no mines were to be laid before the coasts and harbours of the enemy the sole purpose of which was to tie up commercial shipping. Also in respect to other questions, e. g. the question of the conversion of merchant vessels on the high seas, the destruction of neutral prizes, &c., the German standpoint at The Hague was by no means the one that would have corresponded to the principle of the freedom of the seas. And, finally, if one turns to the period of the war, it must also be said that clearly the German submarine war can in no wise be made to accord with the German demand of the freedom of the seas.

If one is to draw a conclusion from all these historical facts, it is clear that the German propaganda for the freedom of the seas has not received its impulse from pure considerations of international law-for if nothing further than progress in international law was intended it could have been secured earlier and without a war-but that political motives are in the background. This can perhaps be explained by the fact that Germany sees in English maritime supremacy a hindrance to its own development at seawould not have been able to say that the searching and seizure of neutral trading vessels, which paralysed all commerce, was in compliance with the legal order." The German government declared in 1907 that the importation of wares that by nature aid the enemy in waging war must be absolutely prevented, and that, to this extent, the seizure of contraband is to be maintained. But the war has taught that Germany could not enforce its prohibition of contraband against any of its enemy states. The maintenance of the prohibition [Katz writes] had therefore no practical significance for Germany.

1 Germany has also acted in compliance with this view in this war, by seeking in August 1914 to obstruct the entrance into English harbours by mines. The English closure of the North Sea was the answer to the German mine blockade. The details will be found in my larger work, Deutschland und das Völkerrecht, Part IV.

2

this German belief is incorrect, for Germany has been able to develop its commerce unhindered--and that it aims to limit or tie up the economic war in favour of the military war. These are considerations that certainly do not lie in the field of international law and with which Germany could hardly expect to make headway.1 From the standpoint of international law it will, of course, be necessary to work in behalf of the development of the law of naval war. I have already pointed out wherein such development might be most opportune. This development of the law of naval warfare, earnestly to be striven for, can surely be included under the name of the 'freedom of the seas'. But one must be aware of the fact that, for the above-mentioned reasons, this designation may easily occasion misunderstandings. In so far, however, as anything more far reaching should be striven for under this name than that which lies in the field of international development and which President Wilson has so well characterized, one would be right in approaching the postulate with scepticism.

It were better to substitute, in Germany also, the phrases 'the progress of international law' and 'the enforcement of peace' for that of 'the freedom of the seas'. This is certainly far more important than any progress in the law of naval warfare, of whatever nature it may be! These phrases also answer to the suppression of everything that has proved to be an obstacle in the progress of international law. The progress of the law of naval warfare, like all progress in international law, is dependent upon the suppression of the antipodes of international law-the military system which points to self-help, to war. We have seen that the abolition of the right of capture could have been accomplished as early as 1907 through an agreement on armaments. Whoever seriously desires the 'freedom of the seas' would naturally desire an agreement on armament also, for it is in excessive armament more than in anything else that the military system has found its outward expression.

1 Katz, loc. cit., also observes that it seems natural to assume that, in consequence of the experiences of this war, the enemy states will not comply with the demand of Germany. The question then comes up whether Germany will have the power to enforce the abolition of the right of capture in the peace treaty. Moreover, the right of capture has also proved to be insufficient as a means of combat.

2 [This is desired by America especially, and justly so.]

No less, however, should Germany also endeavour to oppose the inner expression of this system, her military mentality.1 The consciousness of the predominance of right over might must also be planted in the souls of the nations. If after this war a time of lasting peace is actually to dawn, a time in which a regard for international law is not only assured, but if necessary can also be enforced-enforced above all by economic means; if this time is gradually to lead to a period when states will make use of these economic means exclusively, even in such controversial cases as exclude legal solution, so that they shall no longer wage any but commercial wars with each other; and if in this way, perhaps in some distant future there should come an age without war, then one preliminary condition must be absolutely fulfilled and that is : the abolition of the military system 2 and the combating of the military mentality. This must be the watchword of those who believe in international law. Those who refuse to accept this watchword are opponents of international law. There is no middle road.

To the extent to which international law gradually absorbs the law of war and the economic means of enforcement in the hands of the league of nations makes the employment of self-help either impossible or superfluous, and to the extent to which international law is thereby liberated from its antipode, the military system, to that same extent will the way be cleared for the dominance of law in the life of nations. It is to be hoped that this truth may be recognized in all lands to-day, and that all may see clearly what is at stake. Not only the future of international law, but the future of European civilization, the future of Europe depends on this knowledge. May this truth also be recognized in Germany above all, where unfortunately there are forces at work to turn the course of international law backwards to the advantage of the military system! No country that wishes to have a share in the cultural development of Europe and desires to help support the international legal order dares to-day to advocate the military system. We are convinced that in all countries all the really progressive elements will resist such a position.

1 Fried, loc. cit., p. 5, is correct in saying: It is no longer endurable that all the achievements of human thought should be only for the good of artillery.' 2 It is unnecessary to note that this demand has nothing to do with Antimilitarism. See p. 93, supra.

International law, in the form in which I have presented it here as worthy of attainment, has recently been given the name of democratic international law. This designation is not inappropriate. The true international law, which aspires to the dominance of law and nothing else, is in its nature actually democratic. It proceeds from the idea of the equality of states, small as well as large, and has no place for imperialistic aspirations. It places right above might and therefore opposes militarism. Its presuppositions and aims are in the same way outgrowths of the democratic idea. And as it would be for that reason a contradictio in adiecto if one wished to believe in the possibility of an international law in the service of the imperialistic or militaristic idea, one might, on the other hand, rightly say that democracy and international law are two conceptions that must be complementary to each other and to a certain degree also conditioned upon each other; for the international idea can only prosper fully in the soil of democracy.

If one takes a survey of the forces and tendencies which seek to influence human development to-day, one readily sees that on the one hand there are democratic, and on the other hand militaryimperialistic forces which we see at work. After what has been said, there can be no doubt from which of these tendencies international law has more to expect. Its hopes rest upon the victory of the democratic idea, and it is therefore only to be hoped that in all countries this idea will increase in power after this war, for the good of international law. If this be the result of the present war, then it will have brought something great to maturity and it will not have been fought in vain.

The entire cultural world of Europe is to-day interested in the victory of the democratic idea and with it of international law. It is a solidaric interest that unites them and that prompts them also to watch over this interest mutually and protect the European world of states against a further incursion into the channels of imperialism and of militarism. One need only cast a glance into the larger world about him in order to recognize this. A dozen years ago I once pointed out that we, indeed, still live to-day in the period of preponderating European influence, that, it is true, the East would first have to create for itself its political and

1 I wish to note expressly that the above was written before America entered the war and before the revolutionary outbreak in Russia.

economic position, but that we shall have to reckon absolutely with the realization of the event at some early or later date, and that then the question of political and economic preponderance might also perhaps become a question of the hour.1 Through this war we have to-day been brought quite considerably nearer to this problem. Less than ever should we therefore to-day lose sight of these and other viewpoints that remind the nations of their solidarity, and on this account we should seek to bestow upon the new Europe and with it upon the remaining community of states a sounder basis after this war than they had before. But let us at the same time also constantly say that the final victory will some time fall to that system which has morality and law on its side. Upon the progress of law and not of force must the future of Europe and of the world be established.

1 Cf. with this my pamphlet, Ein Blick in das europafreie Japan, 1905.