亨利-梅因：国际法Lecture 12

if inquiry were practicable， I should not be surprised to find that， in the opinion of English diplomatists and statesmen in charge of our foreign affairs， our own country is not a Popular litigant in arbitrations. The truth is our country is thought to be very wealthy， and to be able to bear the burden of a money award against it better than any other community. It is believed to be comparatively careless of its foreign policy， and not to show much sensitiveness under a judicial rebuff. Lastly， there is a general impression that it has so contrived its international relations as to escape from its fair share of the anxieties and sufferings which fall upon other states through war， apprehension of war， and preparation for war.

　　Again， it is not， I think， to be denied that the composition of courts （if I may for the moment so style them） of international arbitration is not altogether satisfactory. An indispensable element in it is one or more of the class of lawyers who are commonly called jurists But this word has much changed its meaning. As lately as the last century there was a class of lawyers bearing this title who had made a special study of International Law， and whose collective opinion had serious influence on the development of the system. But in England the Ecclesiastical and Admiralty Courts have been transformed， and the special class of lawyers trained in Roman Civil Law who practiced in those courts has either disappeared or is on the point of disappearing. Nobody can quite say at present what a jurist is. The word is used in a number of new senses； and in point of fact most famous foreign writers on International Law are salaried functionaries of foreign chanceries， nor can any reader of very modern treatises on the subject fail to see that many of then1 are strongly affected by the official connection of the writer with his Government， and by his knowledge of the interest which he supposes that Government to have in the establishment， maintenance， or development of particular features of the international system. This last-ment

ioned drawback on the usefulness of international quasi-courts of arbitration， that in our day they are not always satisfactorily constituted， is closely connected with one general defect which at present characterizes them —— they do not exercise any continuous jurisdiction， they are always formed for the single occasion. It is quite uncertain what weight is to be attached to the award of international arbitrators as a precedent. The mode in which International Law makes progress in default of a regular Legislature is a very important subject， which I have not been able to take up in a manner worthy of it in the present course of lectures， but which I hope to enter upon at some future time. There is， however， no doubt that a quasi-judicial award， given on a serious occasion， and acquiesced in by powerful nations who were parties to the litigation， deeply and permanently affects the law. But quasi-courts of arbitrators， constituted ad hoc， of necessity attend simply to the question in immediate dispute， and do not weigh the opinion they give regarded as a precedent. They cannot look before and after —— to the entire history of the Law of Nations. This result of their defective structure is particularly conspicuous and particularly dangerous in what was perhaps the greatest of all arbitrations， that which settled the difference which had arisen between Great Britain and the United States as to liability for the depredations of Southern Confederate cruisers on Northern American shipping. I have nothing to say against the value of the Geneva arbitration in regard to the particular occasion on which it was resorted to. It put an end to a number of bitterly disputed questions which had accumulated during the War of Secession， and which might have smouldered on for years， to the great danger of the whole civilised world. But the serviceableness of the Geneva award in its effects on International Law is much more questionable. Even at the outset， the disputants are found arguing that the arbitrators should have regard to principles which one of them did not admit to be included in International Law. Great Britain protests against this principle， but nevertheless allows the arbitration to proceed. We may， however， be quite sure that if an analogous dispute should hereafter occur， this principle will be urged by any Power which has an interest in insisting upon it， and under any circumstances a grave uncertainty is introduced into International Law. But the Geneva decision， regarded as an international precedent， is open to much more serious objection than this. As is well known， Great Britain during the Confederate War was a neutral， and she was condemned by the arbitrators to pay very heavy damages as punishment for breaches of her duty as a neutral. She was penally dealt with for a number of acts and omissions， each in itself innocent. She had a standard of due diligence applied to her neglects which was new and extremely severe. And generally she had a rule of neutral duty applied to her which， if it has been really engrafted on the Law of Nations， has changed that law materially for the worse. But if there be one thing more than another which a true court of international justice might be desired to keep in view in its decisions， it is their future effect on the rights of neutrals. Nothing tends to enlarge the area of maritime wars so much as the neglect of these rights. Nothing tends so much to make war intolerably oppressive as any rule which helps， beyond what is absolutely necessary， to invade the principle that neutral states are merely states which have kept out of a calamity which has fallen on others， and which merely desire to follow their own business in their own way. From this point of view， the result of the Geneva arbitration is not happy. It turns back pro tanto the drift of legal opinion on neutral fights， which for many years had been setting in another direction. The Geneva arbitration， I repeat， conferred great

benefit for the moment on Great Britain and the United States. But， looked at as a precedent likely to exercise serious influence on the whole Law of Nations， I fear it was dangerous， as well as reactionary and retrogressive.

　　I have dwelt on this aspect of the Geneva arbitration because it puts in what appears to me a striking light the disadvantages which attend these expedients for settling international disputes， through their being invariably brought into action merely ad hoc. A true court of quasi-justice， like a court of municipal justice， would be sure to consider the effect of a given decision on the whole branch of law which it administers. The defect， however， appears to me to be one for which it would not be altogether impossible to find a remedy. Many， indeed， of the innovations which have been proposed for the cure of palpable infirmities in the application of our International Jurisprudence to facts seem to have but small chance of adoption， at any rate in a society of nations like that in which we live， through the magnitude of the sacrifices which they would impose on particular communities. But no appreciable sacrifice would have to be made by the single or corporate sovereigns of the civilised world if they were to agree to constitute a single permanent court， or board， or assemblage of arbitrators， who should act as referees in any questions which any community or communities should choose to submit to them. Such a court would not be free from the infirmity which afflicts all such additions to the international system. It would have no force at its back. But I think it would be better constituted. I think it would be more free from prejudice， and would soon be recognised as freer， than the present occasional adjudicators. And I think it could be better trusted to adjust its awards to the entire body of international principles， distinctions， and rules. Such a tribunal as I have described， a court， board， or commission of arbitrators， having a certain degree of permanence， might have all the advantages which I have described for it —— it might be better constituted for its purpose than are the bodies which are now trusted to conduct arbitrations， its awards might be better considered with regard to their effect on the entirety of the Law of Nations， and it might be employed more freely as a body of referees on critical questions which are now left to themselves for want of any authority to which their consideration might be committed. But still it would not be a true court of justice. It would share the characteristic， in modern eyes the weakness， of all International Law， that it cannot command the assistance of force. Its rules have no sanction. It cannot punish the breach of its rules or the violation of an international duty. It is true that a defiance of the Law of Nations sometimes draws down upon the offender a very serious sanction， though it is indirect. Few sovereigns or states remain unmoved by the disapprobation which an open breach of international obligation provokes disapprobation now rapidly diffused over the whole civilised world by the telegraph and the press. Nothing could be more satisfactory than the outburst of indignation which occurred in 1870， when the Russian Government took advantage of the difficulties in which Europe was placed by the war between Germany and France， to repudiate the restrictions under which Russia lay in respect of naval action in the Black Sea through the provisions of the Treaty of Paris， restrictions which， it must be confessed， were not wholly reasonable. The Russian Government had to abandon its position； and at a Conference of the representatives of Powers who had been signatories of the Treaty of Paris， it was declared that 'it is an essential principle of the Law of Nations that no Power can lib

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